What is a Writ of Habeas Corpus?

Under federal criminal law, there are two types of writs of habeas corpus: one to review the constitutionality of state convictions, and one to review federal convictions. In both cases, a defendant must file the motion within one year of when the conviction becomes final, or within one year of discovering the constitutional violation after exercising due diligence.

For state convictions, the defendant must have exhausted all remedies in state court. Additionally, the defendant must be in custody—whether in jail, on parole, under supervised release, or probation. If a state defendant has not yet exhausted their state litigation but is being released from all forms of custody, the defendant may still file a federal writ of habeas corpus and request that it be held in abeyance (paused) until the state litigation is resolved. The defendant must have filed the writ while in custody, but does not have to resolve the writ while still in custody.

New York State Writ of Habeas Corpus

Under New York State law, a writ of habeas corpus serves a different purpose. It is not used to contest the validity of a criminal conviction. Instead, it is used to challenge whether a defendant is being held illegally in jail. For example, a writ of habeas corpus may be filed if a defendant’s sentence has ended, but the correctional facility refuses to release him, or if the defendant was denied bail or unjustly denied release on a criminal case.

In New York, habeas petitions may also be used to challenge the legality of parole violations.

A writ of habeas corpus challenges unlawful detention, either by questioning the constitutionality of state or federal convictions or addressing illegal imprisonment. It’s advisable to file a writ with an experienced lawyer. At Cohen Forman Barone, we specialize in providing personalized, accurate representation for habeas corpus petitions and other post-conviction matters.