Crime & Traffic
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A writ of habeas corpus is used to bring a convicted party into court. Writs of habeas corpus are used to review the legality of an arrest, imprisonment, or detention. If you feel that you were convicted or sentenced in violation of your rights, you can file a writ of habeas corpus after you have tried to appeal your conviction or sentence.
A writ of habeas corpus allows you to make arguments that you can’t make in an appeal. For example, you were convicted of manslaughter, and the judge sentenced you to a prison term that is more than is allowed by law. Or, you were sentenced to 5 years in prison, and you are still being held after serving your 5 years. You can also file a writ to testify if you are a party in a lawsuit.
If the court denies your petition , you may appeal.
In your petition , clearly explain why you are being held illegally. State the facts in your petition that prove why it is against the law for you to be in prison.
You must state:
- That you are imprisoned
- Where you are imprisoned
- The reason or alleged reason why you are in prison
- That your incarceration is illegal
- A copy of the commitment papers or warrant
- A copy of all good time and disciplinary records
You have a right to see all the paperwork about your incarceration. If you asked for your prison records and were denied copies of them, explain this to the court in your petition. 735 ILCS 5/10-105.
List the names of the parties who are illegally holding you. Sign the petition, get it notarized, and attach it to the affidavit .
Send the original petition and 2 copies to one of the following:
- The circuit court of the county where your case took place
- The circuit court of the county where you are in prison
- The Illinois Supreme Court
If the court decides your petition meets all of the requirements, it will send a copy to the party who you say is illegally holding you. The other party can send a reply to the court either explaining or denying your allegations. This is called a return. The court will send you a copy of the return. You may file a reply to the return and deny any of the alleged facts, and you can allege any other facts that may be material in the case. 735 ILCS 5/10-120.
The other party may file a Motion to Dismiss your petition. This motion says that, even though the facts of your petition are true, the law does not apply in your case. The court will assume that your incarceration is legal, so you must present a very strong case.
A habeas corpus proceeding is not a trial , and the court does not have to give you a hearing . The court will issue a decision after it reads your petition , the return, and your reply. It must issue this without delay. 735 ILCS 5/10-119.
The court may hold a hearing if you petition for a writ of habeas corpus based on jurisdiction . You do not have a right to be at the hearing unless the court feels it is necessary. The court will not consider whether the trial court made the right decision. It will only decide if the trial court had the power to convict you.
You cannot file another petition if you were denied unless you filed too early the first time. A good rule is to file one petition with everything in it instead of filing multiple petitions.
