Habeas Corpus Anglosajon

In law, a writ is a formal written order issued by a government entity in the name of the sovereign power. In most cases, this government entity is a court. Two kinds of writs are warrants and prerogative writs, but there are many others.

Habeas corpus is a writ that is used to bring a party who has been criminally convicted in state court into federal court. Usually, writs of habeas corpus are used to review the legality of the party’s arrest, imprisonment, or detention. The federal court’s review of a habeas corpus petition is considered to be collateral relief of a state court decision rather than direct review. Habeas corpus originated in English common law as a means to protect individuals from illegal detention. An individual who had been held in custody could file a petition seeking a writ which would require the custodian to provide adequate legal justification for the detention. If the custodian failed to do so, the court could order the petitioner’s release.

Today, habeas corpus is mainly used as a post-conviction remedy for state or federal prisoners who challenge the legality of the application of federal laws that were used in the judicial proceedings that resulted in their detention. Other uses of habeas corpus include immigration or deportation cases and matters concerning military detentions, court proceedings before military commissions, and convictions in military court. Finally, habeas corpus is used to determine preliminary matters in criminal cases, such as: (i) an adequate basis for detention; (ii) removal to another federal district court; (iii) the denial of bail or parole; (iv) a claim of double jeopardy; (v) the failure to provide for a speedy trial or hearing; or (vi) the legality of extradition to a foreign country.

The sources of habeas corpus can be found in the Constitution, statutory law, and case law. The Suspension Clause of the Constitution (Article I, Section 9, Clause 2), states: “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion of Invasion the public Safety may require it.” Although the Constitution does not specifically create the right to habeas corpus relief, federal statutes provide federal courts with the authority to grant habeas relief to state prisoners. Only Congress has the power to suspend the writ of habeas corpus, either by its own affirmative actions or through an express delegation to the Executive. The Executive does not have the independent authority to suspend the writ.

In the First Judiciary Act of 1789, Congress explicitly authorized the federal courts to grant habeas relief to federal prisoners. Congress expanded the writ following the Civil War, allowing for habeas relief to state prisoners if they were held in custody in violation of federal law. Federal courts granted habeas relief to state prisoners by finding that the state court lacked the proper jurisdiction. Post-World War II reforms further expanded the writ: through the incorporation process by which the Bill of Rights was applied to the states, habeas corpus became a tool by which criminal defendants sought to uphold their civil rights against illegal state action. The Warren Court further paved the way for broader habeas corpus rights.

In 1996, Congress narrowed the writ of habeas corpus through the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA). AEDPA has three important aspects: first, it imposes a one-year statute of limitations on habeas petitions. Second, unless a United States Court of Appeals gave its approval, a petitioner may not file successive habeas corpus petitions. Third, habeas relief is only available when the state court’s determination was “contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.”

The Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA) further narrowed the scope of habeas relief, providing that prisoners held in Guantanamo Bay may not access the federal courts through habeas corpus; instead, they must go through the military commissions and then seek appeal in the D.C. Circuit Court. However, the Supreme Court in Boumediene v. Bush (2008) expanded the territorial reach of habeas corpus, ruling that the Suspension Clause affirmatively guaranteed the right to habeas review. Thus, alien detainees designated as enemy combatants who were held outside the United States had the constitutional right to habeas corpus.

Federal statutes (28 U.S.C. §§ 2241–2256) outline the procedural aspects of federal habeas proceedings. There are two prerequisites for habeas review: the petitioner must be in custody when the petition is filed, and a prisoner who is held in state government custody must have exhausted all state remedies, including state appellate review. Any federal court may grant a writ of habeas corpus to a petitioner who is within its jurisdiction. The habeas petition must be in writing and signed and verified either by the petitioner seeking relief or by someone acting on his or her behalf. The petition must name the custodian as the respondent and state the facts concerning the applicant’s custody and include the legal basis for the request. Federal courts are not required to hear the petition if a previous petition presented the same issues and no new grounds were brought up. Finally, a federal judge may dismiss the petition for the writ of habeas corpus if it is clear from the face of the petition that there are no possible grounds for relief.

Rubin “Hurricane” Carter

Federal courts grant writs of habeas corpus only when grave constitutional violations have occurred. The granting of Rubin "Hurricane" Carter's habeas petition in 1985 freed him from almost 20 years of imprisonment for a crime he maintains he did not commit.

Carter was a top-ranked middleweight boxer when he and John Artis were arrested in 1966 and charged with murdering three people in Paterson, New Jersey. Carter and Artis were African American; the victims were white. Carter and Artis claimed they were the victims of racism and a police frame-up, but they were convicted of murder and sentenced to life imprisonment.

Carter fought his conviction in state court, but the verdict was upheld. In 1974 he published The Sixteenth Round: From Number 1 Contender to Number 45472. The book became a national best-seller and drew attention to his case. In 1975 Bob Dylan wrote and recorded the song "Hurricane," which recounted Carter's arrest and trial and characterized Carter as an innocent man. This publicity, along with an investigation by the New Jersey public defenders' office, led to a motion for a new trial. The motion was granted, but Carter and Artis were convicted again in 1976. Carter remained imprisoned; Artis was paroled in 1981.

After all state appeals were exhausted; the only remaining avenue for relief was to file for a writ of habeas corpus in federal court. In November 1985 Judge H. Lee Sarokin ruled that the second murder trial convictions were unconstitutional because the prosecution had been allowed to imply that guilt could be inferred by the defendants' race and because the prosecution withheld Polygraph evidence that could have been used to impeach the credibility of their "star witness" (Carter v. Rafferty, 621 F. Supp. 533 [D.N.J. 1985]). Judge Sarokin therefore granted habeas corpus, overturned the convictions, and ordered "Immediate release from custody with prejudice."

The State of New Jersey appealed to the Third Circuit Court of Appeals, asking to reverse Sarokin's ruling and requesting that Carter remain incarcerated until a final ruling. The Third Circuit rejected both appeals. New Jersey appealed to the U.S. Supreme Court, which also refused to overturn. The state chose not to attempt a third prosecution of Carter and Artis. Carter moved to Canada where he headed the Association for the Defense of the Wrongly Convicted.

Examine the similarities and differences between the “Writ Habeas Corpus” and “Acción de Habeas Corpus” in Ecuador.

UNITED STATES ECUADOR

The objective of this writ is to safeguard citizens against unjustified imprisonment.

Have the objective to recover the freedom of who is deprived of it illegal, arbitrary or illegitimately

It is addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. Nowadays this writ is presented in the court where the arrested happened. Before, this writ was presented to the Mayor of the city.

The only reference to the writ of habeas corpus in the U.S. Constitution is contained in Article I, Section 9, Clause 2. This clause provides, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The new constitution of our country takes this action in Article 89. And the ley de Garantías Jurisdiccionales y control social dedicates to the writ an entire chapter.

BIBLIOGRAPHY

Asamble Permanente de Derechos Humanos del Ecuador. (s.f.). Recuperado el 3 de Diciembre de 2013, de http://www.apdh.ec/index.php?option=com_content&view=article&id=113:ique-es-el-habeas-corpus&catid=46:consultas&Itemid=65

Cornell University Law School. (s.f.). Recuperado el 3 de Diciembre de 2013, de http://www.law.cornell.edu/wex/habeas_corpus

Law school. (s.f.). Recuperado el 3 de Diciembre de 2013, de http://www.constitution.org/writ/writ_def.htm

The lectric law school. (s.f.). Recuperado el 3 de diciembre de 2013

Word Reference. (s.f.). Recuperado el 3 de Diciemmbre de 2013, de http://www.wordreference.com/sinonimos/comparacion

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