parent nodes: collateral attack on state conviction | extraterritorial habeas jurisdiction | federal habeas corpus | federal jurisdiction | Felker v Turpin | INS v St Cyr | military commission | Padilla v Rumsfeld | Rasul v Bush

federal habeas jurisdiction

federal habeas corpus

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
Article III, § 2

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.
Article I, § 9
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.
(b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain an application for a writ of habeas corpus and may transfer the application for hearing and determination to the district court having jurisdiction to entertain it.
(c) The writ of habeas corpus shall not extend to a prisoner unless--
(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
(5) It is necessary to bring him into court to testify or for trial.
(d) Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.
(e)
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
28 USC § 2241
Because "courts created by statute" cannot "transcend" the jurisdiction given by statute, the writ is not available outside the limits created by written law. [Ex parte Bollman]. The scope of the writ, however, may be defined by reference to the common law. [Ex parte Bollman].

Habeas jurisdiction is appellate jurisdiction. [Ex parte Bollman]. Otherwise, the habeas statute that granted original habeas jurisdiction to the Supreme Court would be unconstitutional in light of Marbury v Madison. Marshall argued that habeas jurisdiction must be appellate because a habeas court reviews a person's detention, in which a court must have some part participated. [Ex parte Bollman].

The Constitution, "at a minimum," protects the writ as it existed in 1789. INS v St Cyr. This "core" writ protects against federal executive detention, and covers both citizens and nonenemy aliens. INS v St Cyr. Note however, that this provision, originally § 14 of the Judiciary Act, does not extend to state prisoners. [Ex parte Dorr].

The Supreme Court further has "appellate jurisdiction" over habeas appeals, either through the All Writs Act, interlocutory appeals, or the review of lower courts through the "original writ" procedure. Felker v Turpin (Souter concurring). There may be an Exceptions Clause violation if the Court was denied some way to exercise appellate jurisdiction over habeas petitions through one of these three statutory avenues. Felker v Turpin (Souter concurring) (arguing like Hart that Congress may not strip the Court of its "essential functions" of Article III judicial power).
Generally, Congress has discretion over the scope of the writ. INS v St Cyr; Felker v Turpin. However, since the Clause requires at a minimum the 1789 writ, the Suspension Clause would be implicated if habeas was limited beyond the 1789 protections.INS v St Cyr (reading AEDPA not to suspend protections to nonenemy aliens). Congress must make a "clear statement" in order to suspend the writ. INS v St Cyr; Felker v Turpin (holding that Congress had not clearly stripped the Court of jurisdiction over original habeas petitions).

But the Court has at least "assum(ed)" that the Clause protects the writ as it is "today," and not 1789. Felker v Turpin (arguing that AEDPA did not suspend the writ, since it fit within the Court's abuse of the writ doctrine). But see INS v St Cyr (Scalia dissenting) (arguing that the writ cannot be "suspended" every time its scope is changed, and that otherwise the writ would be a "one-way ratchet").

The best explanation might be that the Suspension Clause is violated only if there is no review anywhere, either state or federal, habeas petitions. (Note also that then Article III would require some Court review somehow of such petitions. See Felker v Turpin (Souter concurring).)

Academics disagree over the proper scope of the writ. Some argue that the Suspension Clause merely recognizes, and prohibits Congressional interference with, state courts' pre-existing authority to grant the writ. Therefore, they argue, the Suspension Clause has nothing to do with federal jurisdiction over habeas petitions. Others argue, however, that the Suspension Clause is a self-executing source of federal judicial power to issue the writ. Compare INS v St Cyr (Stevens) (arguing that the Constitution "requires" a certain scope of the writ) with INS v St Cyr (Scalia) (arguing that Congress must have power to determine the scope of the writ, and that the writ is only "suspended" if abolished entirely). Note, of course, that Article III does not require Congress to establish any particular inferior courts. Sheldon v Sill.
The Court had earlier interpreted § 2241 and § 2242's language about "jurisdiction" to mean only that a habeas petitioner could bring suit where his warden was amenable to process. [Braden v 30th Judicial Circuit Court of KY]. In this way, Braden equated habeas jurisdiction with personal jurisdiction.

A habeas petitioner generally must name his immediate custodian. Padilla v Rumsfeld. Further, under § 2241(a) and § 2241(b), a petitioner must file in the district where he is confined. Padilla v Rumsfeld. See also [Hamdi v Rumsfeld] (holding that a petitioner seized in Afghanistan,then moved to a brig in VA, could seek habeas relief in EDVA); [Hamdi v Rumsfeld] (Scalia dissenting) (arguing that the Government's only options towards Hamdi were to suspend the writ or to charge him with a crime).

Padilla limited Braden as a "general rule" to cases where the petitioner is not in present physical custody within the United States. There may, however, be exceptions, if the petitioner is being kept outside of the United States, Rasul v Bush (Gitmo), not in immediate confinement, [Strait v Laird] (servicemember could file where he was, not in IN where his commander resided), if the petitioner is held in an unknown location by an unknown respondent, [Demjajuk v Moore]; dicta in Padilla v Rumsfeld, or if the petitioner is challenging future rather than present confinement. [Braden v 30th Judicial Circuit of KY]. Furthermore, a court may retain jurisdiction over a properly filed application if the petitioner is moved after filing, Ex parte Endo, or perhaps if the petitioner is repeatedly moved by the government to avoid habeas relief. [Hamdi v Rumsfeld] (Kennedy concurring). Note that Rasul v Bush has been overruled by the DTA (§ 2241(e) above).

The battlefield presents a particularly difficult exception. In [Hamdan v Rumsfeld], O'Connor held that the President may detain enemies captured on the battlefield, but they require some sort of notice and hearing—possibly through a military trial—if their detention continues away from the battlefield. If no such process was available, O'Connor said in dicta that the writ of habeas corpus might lie.


Cases finding habeas jurisdiction
Rasul v Bush (petitioners in Gitmo could get habeas)
[Ex parte Bollman]
INS v St Cyr (appellate review of deportee's claim not foreclosed by AEDPA)
Felker v Turpin (original writ not foreclosed by AEDPA)
[Braden v 30th Circuit Judicial Court] (AL prisoner could challenge his future confinement in KY by suing in KY, where his future warden was amenable to process)
[Hamdi v Rumsfeld] (petitioner seized in Afghanistan, then moved to VA)
[Burns v Wilson] (allowing a court-martialed prisoner in Guam to file for habeas in DDC)
Ex parte Endo (court had jurisdiction over properly filed petition after petitioner moved to different state)

Cases finding no habeas jurisdiction
Padilla v Rumsfeld (petitioner in judicial custody in NY moved to SC before filing could not then file for habeas relief in NY, but must file in SC)
[Eisentrager v Johnson] (POW's captured in China and given a military trial could not get habeas)



(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 USC § 2255
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 USC § 2254(a)

See generally collateral attack on state convictions.




Procedure

Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.
It shall allege the facts concerning the applicant's commitment or detention, the name of the person who has custody over him and by virtue of what claim or authority, if known.
It may be amended or supplemented as provided in the rules of procedure applicable to civil actions.
If addressed to the Supreme Court, a justice thereof or a circuit judge it shall state the reasons for not making application to the district court of the district in which the applicant is held.
28 USC § 2242

A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.

The writ, or order to show cause shall be directed to the person having custody of the person detained. It shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed.

The person to whom the writ or order is directed shall make a return certifying the true cause of the detention.

When the writ or order is returned a day shall be set for hearing, not more than five days after the return unless for good cause additional time is allowed.

Unless the application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.

The applicant or the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts.

The return and all suggestions made against it may be amended, by leave of court, before or after being filed.

The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.
28 USC § 2243




Note also the prohibition on second or successive habeas petitions.