Habeas Corpus, Not in confinement: how to

Habeas Corpus–not in confinement and how to do it. Our military defense lawyer team can help you litigate a petition for a writ of habeas corpus. So, if you are out of confinement and under what we call a “qualifying restraint,” we can help. That is because we have a lot of experience as civilian military defense lawyers litigating military cases. We can do an in depth analysis of your case and the likely result.

Until recently, a habeas corpus petition would be filed in the federal district court where you live. This map and general information about the federal courts can be found at this Wikipedia link.

However, recently, the Government is pushing to have such cases filed in the federal district court where the parole board is located. So that means filing in either the District of Columbia, Maryland, or the Eastern District of Virginia. We have civilian military lawyers admitted to practice in the these courts.

Who might be eligible

A convicted servicemember not in physical confinement but under military jurisdiction may seek post-conviction relief by filing a habeas corpus petition under 28 U.S.C. § 2241. If are you under control of the Clemency & Parole Board you are eligible. Federal courts recognize parole, supervised release (MSRP), and similar forms of restraint satisfy the “custody” requirement for jurisdiction under § 2241.

SORNA regististered offender

Some have proposed that placement on a S.O.R.N.A. registry might independently satisfy the custody requirement for habeas relief under § 2241. But no statute or binding precedent currently supports that position. However, if litigants and advocates raise the issue often and persuasively, courts may consider S.O.R.N.A. registration a qualifying restraint on liberty.

The U.S. Supreme Court’s statutory interpretation

In Jones v. Cunningham, 371 U.S. 236 (1963), the Supreme Court held that a prisoner on parole remains “in custody” for purposes of habeas corpus. This is because parole imposes substantial restraints on liberty. The principle is no different to the military, where the Clemency and Parole Board enforces continuing supervision through parole conditions or the minimum supervised release program.

Exhaustion of remedies in military courts

But before filing a habeas corpus petition, you must exhaust all available military appellate court remedies. We have extensive experience in military courts of criminal appeal and the U.S. Court of Appeals for the Armed Forces (CAAF). After exhausting these remedies, the servicemember may petition a federal district court for habeas relief.

Constitutional rights affected

The habeas petition must argue a basis for relief, such as violations of constitutional rights—including ineffective assistance of counsel, unlawful command influence, due process violations, or jurisdictional errors. The petitioner must also demonstrate how continued military supervision through parole conditions imposes a restraint sufficient to invoke federal habeas jurisdiction. Federal courts will examine whether the military courts gave full and fair consideration to the claims. If they find the military review sufficient, they may deny relief without addressing the merits. Lips v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1993), is a case that outlines how tough it can be to get a petition granted.

A difficult standard of review

The difficulty of getting a petition granted comes from Burns v. Wilson, 346 U.S. 137 (1953). The Supreme Court limits habeas review of court-martial convictions to instances in which military courts haven’t fully and fairly adjudicated constitutional errors. The U.S. District Court for the District of Kansas and the Tenth Circuit Court of Appeals, which oversee the U.S. Disciplinary Barracks at Fort Leavenworth, continue to apply this standard.

Where to file

The petitioner must file the writ in the federal district where they are “in custody.” So, this usually means the district where they live or the parole supervision office. That is because the petitioner must name as respondent the official who exercises legal custody. Based on the new DoJ practice, it would seem the service Secretary or the Clemency and Parole Board must be served. The Department of Justice has increasingly argued that the appropriate venue for such petitions is the district where the Clemency and Parole Board operates.

Deference to the military

But filing is not enough. Keep in mind that the federal courts often defer to military courtshttps://www.court-martial.com/prior-cases/. That means winning has to be based on a persuasive petition on the legal error. And just as importantly, why that error prejudiced the case. Therefore, the primary focus must be on addressing a constitutional violation.

Contact us for a review of your case

Contact the civilian military defense lawyers at Cave & Freeburg, LLP, for a case evaluation.