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Legal-Guru
Legal-Guru, Criminal Justice Lawyer
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Experience:  Experienced Criminal Trial Attorney since 1998.
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If a person is unlawfully imprisoned (still being held in county

Resolved Question:

If a person is unlawfully imprisoned (still being held in county jail after his time has been served counting credits for work and good behavior) and he files a writ of habeas corpus, how long does it normally take before he is brought before a judge? Are we talking about days or weeks?

 

This question is for a criminal lawyer not a mercedes mechanic.

Submitted: 9 months ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 9 months ago.
Hello,

My name is XXXXX XXXXX X am a criminal lawyer.

A writ of habeas corpus generally gets heard quickly. Exactly how long may vary from state to state. The defendant would get brought before the judge generally in a matter of days and a date for a hearing on the writ would be set at that time.
Customer: replied 9 months ago.


When the defendant is brought before the judge I guess he would just say why he is there or would that info be on the writ already? And the date for the hearing on the writ, can you give a general idea of how long that would be, days or weeks and what happens there?


 


In this case the defendant is being given work credits which is 2 days for 1 on a 1 year sentence but release date does not reflect his credits for good behavior which is 5 days for 4. This could make a difference of one month and one week on his release date.( Release date is now Nov 15, 2013 with the good behavior credits it would be Oct 9.)


Jail administrator has not responded on a grievance that was turned in two weeks ago on this issue explaining this complaint.

Expert:  Zoey_ JD replied 9 months ago.
Hi,

Why he needed the relief would be on the writ, though he could elaborate on that when brought before the judge. Again, all that's going to happen when he appears is that a date will be set for a hearing on the issue. The state will have to show why they are still holding him beyond his release date, or they will have to let him go.

When I've brought my clients in on a writ, the court hears the issue the next day, and the hearing is usually a week or two later. But each case is different and what the state would have to produce at the hearing and how long they may need to prepare for it differs too. In general, however, these matters are handled as quickly as they reasonably can be because they involve wrongful detention in the first place.
Customer: replied 9 months ago.


Thanks. This is very helpful. Since this is a problem with the sheriff not following the state laws regarding credits, are you saying the DA would have to represent the sheriff in court and would have to argue that the defendant does not deserve the credits? I ask that because the defendant has already given the sheriff or jail administrator the attorney general's opinion that a person in county jail should get both of these credits. I don't see how it would be possible for DA to argue against AG opinion. It is possible the reason the jail administrator has not gotten back to defendant on the grievance is because they know they have no argument. He will submit another grievance next week asking why they did not respond to the first grievance.


 


My question again is would the DA have to represent the sheriff in court and would he have to argue that the defendant does not deserve the credits?

Expert:  Zoey_ JD replied 9 months ago.
Hello,

The DA doesn't represent the sheriff. He represents all of the people of his county. When a writ is brought it's his job to show good cause why this person is still in jail or, if he cannot, the defendant must be released. It's the Department of Corrections and not the sheriff who keeps the official count. A representative from Corrections, probably along with their lawyer, will likely be at any hearing.

In its most general terms, corrections would have to show why its count is accurate. The defense would be able to testify to why it's not. The judge will rule as befits the evidence.
Customer: replied 9 months ago.

You said:
"It's the Department of Corrections and not the sheriff who keeps the official count. A representative from Corrections, probably along with their lawyer, will likely be at any hearing."

 

But in this state the guidelines for credits for department of corrections is completely different from the laws specificly given to the county sheriffs of the State of Oklahoma concerning credits. But I understand some official will have explain why their numbers are right.

 

Will the defendant come before the same judge that sentenced him? And is there anyway the judge or prosecutor can take away defendants credits if they have been ligitimately earned?

 

Also will it even be possible to file a writ until the sheriff responds to the grievance? The jail administrator has not yet given any response and it been 2 weeks.

Expert:  Zoey_ JD replied 9 months ago.

Hello,

I think that at this point I have gone about as far as I can comfortably go with this question. I think from here you'd best be served by an Oklahoma lawyer and I am going to opt out.

I wish you luck.

Customer: replied 9 months ago.


Ok. You helped a lot. Thanks.

Expert:  Legal-Guru replied 9 months ago.
You are correct that on a writ of habeas corpus the DA represents the sheriff. That does not necessarily mean though that their argument is going to be contrary to the AG's opinion.

You asked if the DA can argue contrary to the AG's opinion. While it might be rare to do so, yes, the DA can argue that the AG's opinion is wrong. An official AG's opinion is binding upon state officials unless a court rules otherwise. So the DA could argue that the AG's opinion is wrong and it would be up to the judge to decide that issue.

However, the DA may instead agree with the AG's opinion and confess that is the correct interpretation of the law. In that case, the inmate would receive both credits if they are entitled to them.
Legal-Guru, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1347
Experience: Experienced Criminal Trial Attorney since 1998.
Legal-Guru and 6 other Criminal Law Specialists are ready to help you
Customer: replied 9 months ago.

By looking at the writ of habeus corpus form it shows the form would have to be filed in federal district court and defendant would have to appear there which is a 100 miles from where defendant is jailed. The court where he was sentenced is in the same city/county where he is jailed. Is this the correct understanding? Would the local DA have to travel to that court also to represent the sheriff?

Expert:  Legal-Guru replied 9 months ago.
I don't know what form you are looking at, but probably one designed to be used in federal court. You should file one in state court where he was sentenced. If that is denied, you can file one with the Oklahoma Court of Criminal Appeals (OCCA). OCCA has specific rules on how that must be done. See section 10 of their rules in the link below.

http://www.oscn.net/applications/oscn/Index.asp?ftdb=STOKRUCR&level=1


Customer: replied 9 months ago.

I found a writ of habeus corpus form online It says at the top:


 


PETITION UNDER 28 USC § 2254 FOR WRIT OF

 


HABEAS CORPUS BY A PERSON IN STATE CUSTODY




The part that is confusing is this:

 




When the petition is fully completed, the original and at least two copies must be mailed to the Clerk of the United StatesDistrict Court whose address is...


So are you saying there is some different form that is filed in the local district court and if so where can I find one? I found the one I mentioned on line and also another one that was also for federal court.

Expert:  Legal-Guru replied 9 months ago.
The document you pasted is for federal court. The problem with trying to file a petition for habeas in federal court is that you probably do not have a federal question meaning that you do not have a violation of the federal constitution or federal law. Your argument is that the sheriff is not giving credits the inmate is entitled to under state, not federal, law.

To my knowledge there is not an online form for a state petition for writ of habeas corpus. Perhaps you can find an example on the internet, but it would be better to hire an attorney and have him/her draft a petition for writ of habeas corpus that applies in your particular case. Many non-lawyers think that the practice of law is simply filling out forms, but, good or bad, that is just not the case.
Legal-Guru, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1347
Experience: Experienced Criminal Trial Attorney since 1998.
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