State Habeas

Summary: A habeas corpus is a claim that a person is being illegally confined.  The illegal confinement can be based on the conditions of confinement or can be based on a wrongful conviction.  This web page discusses habeas corpus petitions concerning wrongful convictions.  Such petitions generally ask the court to modify or overturn a conviction or sentence based on errors made in the Superior Court.  Like an appeal, the defendant (more properly called a petitioner) can rely on the Superior Court records, but the defendant may also rely on information that is not found anywhere in the record.  Such new evidence may be presented in the form of declarations or other attachments to the petition.

Attorney: It is highly advisable to have an attorney for all aspects of a Habeas Corpus Petition.  The petition is often the last realistic chance a defendant will have to overturn his conviction.

Danger: A reversal could result in a new trial, and there is the chance of a greater sentence or additional charges.  Also, failure to properly alleged federal constitutional errors could bar the defendant from seeking review of the errors in federal court.

Lead Statute:  Penal Code §1473

Form: Yes.  It is not mandatory, but the use of Judicial Council form mc275 is recommended.

Where to File: File a habeas challenging the validity of a conviction in the Superior Court that sentenced the defendant. If that petition is denied, a second petition can be filed, in the Court of Appeals.

Who to Serve: Technically speaking, a state habeas petition does not have to be served; however, before the court can grant the petition, the opposing party must be served.  If the petition is filed in the Superior Court, the district attorney should be served.  For petitions file in the Court of Appeals, serve the district attorney and serve:

Office of the Attorney General
1300 “I” Street
Sacramento, CA 95814-2919

File the proofs of service with the court.

Appearance Required: No.  If the case is set for argument, an appearance may be required.

Time Limit:

There is no fixed time limit, but the defendant must show that he is still in some sort of custody and that he has been diligent in bringing his petition.  Delay of more than a year may bar a defendant from seeking federal review of a state conviction.

Custody includes being in jail, being in prison, being on probation, or being on parole.  Courts are generally quick to find that a defendant still suffers from some sort of custody, so a defendant required to register as a gang, drug, or sex offender is arguably in custody for purposes of a habeas corpus petition.

Effect if Granted: The entire case may be overturned or the sentence may be modified to terminate the sex offender registration requirement.


A habeas corpus petition is a method used to inform the court that something is wrong with the conviction, sentence, or conditions of confinement.  It is a request that the court review the conviction, sentence and/or conditions of confinement.  The petition can ask that the entire conviction be overturned, it can ask that the sentence be modified, or it can otherwise challenge the conviction.

A habeas corpus petition is not limited to the records created in the Superior Court or even the records created in the Court of Appeals or the Supreme Court.  All of these records can be used to show error in the conviction or sentence, and the records can be supplemented with new declarations or other new evidence not previously considered by any court.

A habeas corpus petition is initiated by filing a form designed by the court, which is included above.

If a defendant is unable to afford an attorney, he should at a minimum seek help from a qualified paralegal.  A defendant can also ask the court to appoint an attorney for him, but an attorney will generally not be appointed until after the petition has been filed and the court has found that the petition has some merit.