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For Myra B.: When filing a writ of habeas corpus in a case

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For Myra B.: When filing a writ of habeas corpus in a case where defendant is filing it because county jail is not giving him all of his good behavior credits, is this filed with the local district court where he was convicted or the federal district court? And also where can I get the proper form to do that.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  MyraB replied 1 year ago.

Hello again and thank you for your question.

The petitioner must file a petition for Writ of Habeas Corpus in the state district court of the county where he is being restrained. This may or may not be the court in which he was convicted. See Ekstrand v. State, 791 P.2d 92, 95 (Okla. Crim. App. 1990) "As we held in Mahler v. State, 783 P.2d 973 (Okl.Cr. 1989), the proper procedure for petitioner and similarly situated inmates to follow is to file a petition for Writ of Habeas Corpus in the district court of the county where he or she is being restrained. In re Dykes, 13 Okl. 339, 74 P. 506, 507 (1903). However, before any such writ can be granted, a petitioner must demonstrate that under the statute in effect on the date his or her crime was committed, he or she would have earned enough credits to be entitled to IMMEDIATE release. See In re Salisbury, 363 P.2d 380, 381 (Okl.Cr. 1961)."

If the petitioner does not obtain the requested relief under state habeas corpus review, then he can petition in the federal district court. The petitioner must exhaust his available state remedies before petitioning for relief in Federal Court.

There does not appear to be an available form, but generally the petition would be similar to the one for post-conviction relief in the manner of setting out the issue, facts and law. The petitioner must allege and prove the exhaustion of administrative remedies. Therefore, the failure of the jail administration to timely act on the grievance should be included.

 

The following are the applicable OK statutes which can be found here http://www.oklegislature.gov/osStatuesTitle.aspx Title 12-1331 et seq.

 

§12‑1331. Persons who may prosecute writ.

Every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to enquire into the cause of the restraint, and shall be delivered therefrom when illegal.

 

§12‑1332. Application ‑ How made ‑ Contents.

Application for the writ shall be made by petition, signed and verified either by the plaintiff or by some person in his behalf, and shall specify:

First. By whom the person in whose behalf the writ is applied for is restrained of his liberty, and the place where, naming all the parties, if they are known, or describing them, if they are not known.

Second. The cause or pretense of the restraint, according to the best of the knowledge and belief of the applicant.

Third. If the restraint be alleged to be illegal, in what the illegality consists.

 


Please feel free to ask any follow-up questions.
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Category: Criminal Law
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Customer: replied 1 year ago.

Thank you for such a clear and detailed response.


 


You mentioned there did not appear to be an available form. I was not able to find any for submission to local district court but I did find a couple for the federal court. Could a person use essentially the same form modified for submission to the local district court?


 


Also would this be using the same case number XXXXX going to the same trial judge?


 


You noted the following from Ok. statute:


Application for the writ shall be made by petition, signed and verified either by the plaintiff or by some person in his behalf, and shall specify:


 


Where it says "by some person in his behalf" does that mean a lawyer or just anyone?


 

Expert:  MyraB replied 1 year ago.

Thank you for your response.

You can modify any form you have as long as it contains the required information and conforms to the applicable rules.

The petition is not associated with the underlying case at all, other than the sentence that was imposed. It is based on unlawful detention based on the erroneous calculation of credits so it doesn't need to go before the trial judge or sentencing judge or even the same court. It could end up in the same court and before the same judge, but it is not necessary. Also, the caption is different. Under the rule it must be brought against all parties responsible for the unlawful detention. This would be the State of Oklahoma and the Sheriff of the county where your son is incarcerated as they are responsible for the calculation of credits and the continued detention. That way the judge can order the state and sheriff to release him. You can read more of the governing statutes that come after those I specifically quoted in the previous answer which further explains the procedure and what happens when an order is issued. You will want to reference the underlying case and its docket number, but a petition for habeas corpus is a separate action.

Some other person on his behalf is generally reserved for those occasions where the wrongfully held person cannot bring the petition on his own or through an attorney. For example, if a person was being wrongfully detained and also prevented from filing a petition someone with personal knowledge could do so on the person's behalf. It's probably best that a person file his own petition if he can or file through an attorney.

MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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Customer: replied 1 year ago.

I want to give you an update of what is going on. The reason I have been asking about writ of habeas corpus is the defendant filed a grievance Sep 17 about credit for good behavior not being reflected in his Nov 15 release date. and jail administrator has not responded yet. Defendant quoted the pertinent laws and referenced attorney general opinion and the sheriffs handbook to prove his point. According to the guidelines given to the inmates in their rules and regs booklet, jail administration has 10 days to respond to a grievance. Defendant filed another grievance yesterday with noted that he had not received a response from the first grievance and then gave a summary of what the original grievance was about.


 


Based on our calculations with the credits for good behavior Oct 9 should be his release date. What we are doing now is just keeping a low profile waiting for a response. Plan to wait until Oct 9 because on that day he will have earned all his credits to be released. If he is not released that day and he also has not received any response, I plan to call the jail administrator to see why they have not responded and depending on what she says I plan to bring up the point that the defendant has acquired enough credits to be released today. May ask her first if he has had any problems with following rules or with his assigned work and if necessary may even talk to the Sheriff.


 


I should also mention that the original jail administrator was fired mid Sep just a few days before defendant filed his grievance. I had a good relationship with the one that was fired. I understand she had been there in that position close to 10 years. No one is saying what happened. Also doing this same time, actually the same date defendant filed grievance was deadline for jail to resolve the overcrowding situation. I understand just recently, less than a week, they have a new jail administrator.So the place has been in a little bit of a turmoil.


 


I don't know who the new administrator is but my plan is to try diplomacy first instead of threatening them with filing writ of habeas corpus. I am thinking if a brought an attorney in too quickly or the defendant files a writ to quickly they will immediately start to think of the defendant as an enemy and things could be more difficult for him. What do you think about this idea?

Expert:  MyraB replied 1 year ago.

Hello again and thank you for the update.

Trying diplomacy first is fine, but you may want to approach the administration before the October 9 date, stating that according to your calculations he should be released that date and ask about the procedures for release. You might also mention that if they release your son on the date he should be released given all the credits to which he is entitled, then this would be one less person in the overcrowded jail. Releasing people when they should be released under the regulations may be one way to reduce the population.

Basically, what you would be doing is lobbying to get your son released under the applicable rules. This may take more than one phone call based on the non response to the grievance. It's a week away. You may want to start now. One thing that may be in your favor is that the old administrator may have been fired partly because of the overcrowding issue and the new administrator will likely want to do things by the book, and the book calculates both credits. The new administrator is probably also hoping that things run smoothly. Being named in a petition for habeas corpus isn't what a new administrator wants in the first few weeks on the job, and he or she may be willing to be reasonable in the face of the Attorney General opinion and handbook. A week would give the new administrator time to look into it and the opportunity to avoid the court action based on the credits. Whatever the administration will do if they are intent on retaliation they will do a week from now, but they may appreciate the extra time to figure it out. I would plan on filing the petition on October 9th whatever the outcome of the negotiations. He will already have to do a few extra days while the petition gets heard.

Also, if the sheriff or administrator tries to take away credits or doesn't award credits based on any purported misconduct between now and next week, when they know he will file a petition, your son could argue that the grounds were fabricated and that it was retaliation because they knew he would file. In that sense telling them now may act as a kind of insurance that they won't take action against him or make trouble. They may not like the idea of a habeas corpus petition, but it's part of the system that makes sure they do their job.

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Category: Criminal Law
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Customer: replied 1 year ago.


The following is a rough draft of the writ petition we plan to submit on or around Oct 9 unless things change and defendant is out of jail by then.

 

This is the same format the courthouse accepts all paperwork for filing in criminal cases. Do you think this format is acceptable for a writ?

 

Case # XXXXX XXXXX in an area to the right of where the names of Petitioner and Respondent. (I can't do it on this email) I believe you mentioned there should be no case # XXXXX but should anything go there. seem like I have seen on civil case paperwork "ss" in that position whatever that means.

 

I talked to my son today and he said he would rather wait until the day he should be released before I talk to admin. He says he does not mind having to stay in jail a few more days. He is as distrustful as I am of what the sheriff might do if he knows in advance about the writ.

 

Let me know what you think. Thanks in advance.

 

 

IN THE DISTRICT COURT OF BLANK COUNTY

STATE OF OKLAHOMA

 

(Name of Petitioner),

Petitioner,

 

VS.

 

THE STATE OF OKLAHOMA,

(Blank )County Sheriff, (Sheriff’s name),

Detention Facility Administrator,

(Administrator’s name ),

 

Respondents.

 

__________________________________

 

 

WRIT OF HABEAS CORPUS

Comes Now, the Petitioner, (name), and respectfully XXXXX XXXXX following:

 

The Petitioner, name, believes he is currently unlawfully imprisoned in the Blank County Detention Facility, address, city, State zip code. The County Sheriff, (name), and the Detention Facility Administrator, (name), are the controllers of that Facility.

 

Original Cause of Imprisonment

On or about February 12, 2010, Petitioner was charged in this case, (case #), with Negligent Homicide, a misdemeanor. On or about November 9, 2011, a jury trial was conducted by the court. At the conclusion thereof the jury returned a verdict of guilty as charged and recommended sentence. On or about November 14 , 2011 after hearing, the court sentenced Petitioner to serve one (1) year in the Blank County Jail and to pay a $1000.00 fine, all as recommended by the jury.

Petitioner thereafter perfected a direct appeal of this case to the Oklahoma Court of Criminal Appeals. The appellate court affirmed the trial court proceedings on or about May 16, 2013. On or about Jun 26, 2013, Petitioner filed an Application for Post-Conviction Relief which is currently ongoing.

 

Why Petitioner Now Alleges Imprisonment Unlawful

The Petitioner was given position of trustee and given a job assignment on the first day of incarceration, May 17, 2013. Title 57, Section 58.3 states in part: "..Prisoners employed as provided herein shall be given a credit of two (2) days on a jail sentence for each day worked..." Title 57, section 65 gives another credit, stating in part: "Any person in this state convicted of a crime, who is serving time as a prisoner in the county jail of any county in the State of Oklahoma as a result of said conviction of crime, shall be entitled to receive five (5) days' credit for every four (4) days' time in said county jail provided said prisoner shall have obeyed the rules and regulations promulgated by the sheriff in charge of said county jail in a satisfactory manner..."

 

The Petitioner was informed in September, 2013 by jail administration that his projected release from jail date was November 15, 2013. This reflects 2 days credit for every day imprisoned (in this case 6 months of credit) for doing work in the jail in accordance with Title 57, section 58.3 .However the projected release date of November 15, 2013 does not reflect any credits for good behavior in accordance with Title 57, Section 65 which is 5 days credits for every 4 days served for following rules and regulations of the jail. The Petitioner calculated this would be an additional 1.2 months or 36 days credit. Subtracting this good behavior credit from the Nov 15, 2013 release date given by jail administration changes the release date to Oct 9, 2013.

 

The Petitioner submitted a grievance to the jail administrator/sheriff September 17, 2013 expressing his appreciation for being given a job assignment within the jail which allowed him to earn 2 days credit for each day served. He went on to explain that the Nov 15 release date did not reflect any credits for good behavior. He explained that there is an Attorney General official opinion dated Nov 14, 1980 that confirmed that an inmate should get both credits if he is in fact working in the jail and satisfactorily following the rules and regulations. (Attorney General Official Opinion can be found at the following website: http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=182822)

 

The Petitioner further explained that the same confirmation is found in the "Handbook for County Sheriffs of Oklahoma 2012", section eleven , pages 11 and 12. He explained that if the credits for good behavior were subtracted from the Nov 15 release date, the corrected release date would be around Oct 9, 2013. The Petitioner near the end of the grievance asked when he would be getting his 5 days for 4 credits for good behavior.

 

The Petitioner waited two weeks for a response (The inmate handbook states that he should receive a response from a grievance in 10 days) but received none. He submitted another grievance Oct 1, 2013 and still has not received a response.

 

Wherefore, the Petitioner respectfully XXXXX XXXXX Court release the Petitioner from the Detention Facility since with credits authorized by the State of Oklahoma and confirmed by an Official Attorney General Opinion. his one year sentence has been completely served.

Expert:  MyraB replied 1 year ago.

The Petition won't have a number until it is filed. But you may want to put a place for the number in the upper right.

 

I've gone through and marked changes in blue. (Sorry, all the blue disappeared except in one place when I posted, but all the changes are still there). Most are just edits for typos and clarity. It is straightforward and well organized. I added the citation to the statute under which relief is sought and suggested that you add copies of the AG opinion and Sheriff's Handbook because you always want to make it as easy as possible for the judge to review everything he or she needs to, and have everything he needs in front of him or her.

 

Other than that it seems fine.

 

PETITION FOR WRIT OF HABEAS CORPUS AND IMMEDIATE RELEASE FROM UNLAWFUL DETENTION


Comes Now, the Petitioner, (name), pursuant to OK Stat. § 12-1331 et seq. and respectfully XXXXX XXXXX following:

 

The Petitioner, name, believes he is currently unlawfully imprisoned in the Blank County Detention Facility, address, city, State zip code and requests that the court order his immediate release. The County Sheriff, (name), and the Detention Facility Administrator, (name), are the controllers of that Facility.

Original Cause of Imprisonment

On or about February 12, 2010, Petitioner was charged in the case of State v. name, Court name (case #), with Negligent Homicide, a misdemeanor. On or about November 9, 2011, a jury trial was conducted by the court. Following a jury trial and verdict of guilty, on November 14, 2011, the court sentenced the Petitioner to one (1) year in the Blank County Jail and to pay a $1000.00 fine, all as recommended by the jury.

Petitioner thereafter perfected a direct appeal of this case to the Oklahoma Court of Criminal Appeals. The appellate court affirmed the trial court proceedings on or about May 16, 2013. On or about Jun 26, 2013, Petitioner filed an Application for Post-Conviction Relief which is currently pending. The Petitioner began serving his sentence on May 17, 2013.

 

Why Petitioner Now Alleges Unlawful Imprisonment

On the first day of incarceration, May 17, 2013, the Petitioner was given position of trustee and assigned a job which he immediately began to perform and which he continues to perform. OK Stat. § 57-58.3 states in part: "..Prisoners employed as provided herein shall be given a credit of two (2) days on a jail sentence for each day worked..." OK Stat. § 57-65 provides another credit, stating in part: "Any person in this state convicted of a crime, who is serving time as a prisoner in the county jail of any county in the State of Oklahoma as a result of said conviction of crime, shall be entitled to receive five (5) days' credit for every four (4) days' time in said county jail provided said prisoner shall have obeyed the rules and regulations promulgated by the sheriff in charge of said county jail in a satisfactory manner..."

 

The Petitioner was informed in September, 2013 by jail administration that his projected release from jail date was November 15, 2013. This release date reflects the 2 days credit for every day imprisoned (in this case 6 months of credit) for doing work in the jail in accordance with OK Stat. § 57-58.3. However the projected release date of November 15, 2013 does not reflect any credits for good behavior in accordance with OK Stat. § 57-65 which provides for an additional 5 days credits for every 4 days served for following rules and regulations of the jail. The Petitioner calculated this would be an additional 1.2 months or 36 days credit. Subtracting this good behavior credit from the Nov 15, 2013 release date given by jail administration changes the release date to Oct 9, 2013.

 

The Petitioner submitted a grievance to the jail administrator/sheriff on September 17, 2013 expressing his appreciation for being given a job assignment within the jail which allowed him to earn 2 days credit for each day served. He went on to explain that the Nov 15 release date did not reflect any credits for good behavior. He explained that there is an Attorney General official opinion dated Nov 14, 1980 that confirmed that an inmate should get both credits if he is in fact working in the jail and satisfactorily following the rules and regulations. See attached [cite Attorney General opinion and attach a copy] The Attorney General Official Opinion can also be found at the following website: http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=182822

 

The Petitioner further explained in the grievance that the same directive to award both credits is contained in the "Handbook for County Sheriffs of Oklahoma 2012", section eleven , pages 11 and 12. See attached copy [attach a copy of the title page and pages 11 and 12] He explained that if the credits for good behavior were subtracted from the Nov 15 release date, the corrected release date would be on or about Oct 9, 2013. The Petitioner near the end of the grievance asked when he would be getting his 5 days for 4 credits for good behavior.

 

The Petitioner waited two weeks for a response. The inmate handbook states that he should receive a response from a grievance in 10 days. However, the Petitioner did not receive a response to the grievance. He renewed the grievance on Oct 1, 2013 and to date, he still has not received a response.

 

At this time, under the applicable law and based on time served and the calculation of credits provided by statute and confirmed by the Attorney General Opinion and Sheriff Handbook, the Petitioner has completely served his sentence, is currently being unlawfully detained and is entitled to immediate release.

 

Wherefore, the Petitioner respectfully XXXXX XXXXX the Court order that the Petitioner be immediately released from the Detention Facility.

MyraB, Lawyer
Category: Criminal Law
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Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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Expert:  MyraB replied 1 year ago.
Hello. I am just following-up to find out how it went with the Habeas Corpus petition and if your son has finally been released.

Let me know if you need any further information. Thank you.
Customer: replied 1 year ago.

Thanks for the followup.

 

My son is still imprisoned. We decided not to go with the habeas corpus petition because there is so little time left before his normal release date.

 

To back up a little, We decided I would contact the interim jail administrator on Oct 4. She told me she had not receive either of the grievances submitted on Sept 17 and Oct 1. She said if he could do it over she would have someone come to his cell and pick it up. He wrote a 3rd one and it was picked up Monday, Oct 7. Yesterday, Oct 10, I called again to see if she had received the grievance. I got a lot of run around. the first call the person who answered the phone asked who I was and then told the jail administrator my name and that I wanted to talk to her. Then instead of coming back to the phone, someone connected me to the old administrator's voice mail. I called back and a man answered ask me who I was and what I wanted to talk to the administrator about. He put me on hold and came back in about 2 minutes saying she was not there nor was the other asst administrator there. About 2 hrs later I called and talked to someone who happened to be a deputy sheriff. She asked who I was and said immediately,"oh, you are calling about your son.." I said yes I was calling about the grievance. She said she had talked to the two people handling the fired administrator's job and they did not know how to respond so they asked her to look into it. She said she looked up the laws and also did not know how to respond so she called the sheriff and talked to him directly. She said the sheriff told her my son could only get the two for one credits. I said ok my son needs to have something in writing. She said it has already been written per sheriff instructions and signed off and one copy has been put in a book and my son should get the original back that night.

 

Today I talked to my son and he did get the grievance back and the only thing written in the response was " Per sheriff, you are only getting the two for one." This was signed by one of the interim administrators (first name only) but not the deputy who told me she talked to the sheriff directly. (the deputy has same last name as sheriff and said she was related to sheriff via marriage)

 

So we decided to let it go and possibly file a lawsuit after he gets out. An attorney has told me my son could get as much as $300 to $900 per day plus lawyer fees since this would be in the category of willfull and gross negligence on the part of the sheriff since they continued to keep my son imprisoned even after the grievance showed all the appropriate laws and gave them the attorney general opinion on the subject and even where it could be found.

 

What is your opinion on all of this?

Expert:  MyraB replied 1 year ago.

I'm sorry to hear that the grievance was denied.

The next step would be to file the petition for habeas corpus relief. If your son fails to file the petition for relief while he is still incarcerated and has the opportunity to do so, then it may prevent him from later pursuing a claim for damages based on the unlawful confinement.

In addition, under the OK Tort Claims Act there are exceptions that may bar his ability to bring a claim against the Sheriff including where the loss or claim results from execution or enforcement of a lawful order, where there was a failure to enforce a law, rule, regulation or written policy and/or based on the failure to perform an act or service. The statute specifically provides under exemptions from liability: "The state or a political subdivision shall not be liable if a loss or claim results from: . . .
4. Adoption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy." The statute is 51 OK Statute 152 which can be found here http://www.oklegislature.gov/osstatuestitle.html
The exceptions are listed at 51-155v.1

Also, a civil rights or false imprisonment claim for damages would likely be an extensive battle whereas the habeas corpus relief is fairly straightforward.

The decision whether to wait and file a later claim for damages is up to your son, but the above are issues that may arise if your son decides to wait.

Customer: replied 1 year ago.

Thanks for your response. You have clearly shown the problems with attempting to file a false imprisonment claim.

 

A few questions come to mind.

 

1. I have read in Oklahoma law concerning grievances that if a person does not complete the grievances process ie getting response from jail administrator and sheriff, this would disqualify him from filing a civl lawsuit. but I did not see anything about not filing writ habeas corpus causing the same problem.

 

Also what if the defendant files a writ of habeas corpus and a biased judge determines that he is not unlawfully imprisoned even with all the evidence presented? Wouldn't this definitely prevent him from filing a civil lawsuit?

 

Also would the fact that he has no money for an attorney be good enough reason for not filing the writ of habeas corpus?

 

The defendant's fear is he won't be released on the writ and their could be negative reaction from the sheriff and mess up his scheduled release date. As you have probably noted, these are not the most honest people in the world that we are dealing with.

 

2. Under the exceptions mentioned above would they also affect his ability to file a civil suit against the state if it is determined that he did not get a fair trial and the case is dismissed due to ineffective counsel?

 

If he could file that suit for wrongful imprisonment for not getting a fair trial, what state entity would he file the suit against?

Expert:  MyraB replied 1 year ago.
Thank you for your response.

1. If his petition for habeas corpus relief is denied, it would not necessarily prevent him from filing a civil lawsuit. It may depend on why the petition was denied. There might be some claim preclusion issues. He could also appeal the denial of habeas corpus relief. Not having money for an attorney would not be a good reason as petitions for habeas corpus relief are routinely filed by prisoners pro se.

He could still wait and file a civil suit after he is released, but a claim for damages will be harder to support and win. There will be quite a few obstacles to obtaining relief, more so than in filing the petition for habeas corpus. As far as the fear of reprisals were he to file, that's something he will have to decide and weigh. Obviously there should be no retaliation for filing the petition.

2. It is unlikely he will be able to make a claim for false imprisonment based on the original trial even if the conviction gets reversed and he gets a new trial. It is all considered part of due process - the appeal, post-conviction relief. In addition, and this seems most unfair in your son's case, Oklahoma does not recognize a civil action in tort for perjury. See Cooper v. Parker Hughey, M.D., 894 P.2d 1096 (1995) available here http://scholar.google.com/scholar_case?case=14595844674196171397&q=707+P.2d+560&hl=en&as_sdt=4,37
He may be able to bring a claim for legal malpractice against his attorney. He would need to show that the attorney was the proximate cause of his conviction.
Any claim for wrongful imprisonment based on not giving him the credits would be against the Sheriff as the Sheriff is charged with determining and awarding the credits.
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    RobertJDFL

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