If you are serving a prison sentence or the government has deprived you of your liberty in some other way, you may have heard that a “writ of habeas corpus” can help you. For hundreds of years, the writ of habeas corpus has helped the unjustly imprisoned regain their freedom.

In modern times, the writ of habeas corpus remains an important safeguard against unlawful imprisonment but a more streamlined procedure has replaced the traditional writ for challenges that an appeals lawyer can make to a conviction or sentence.

History of This Order

A writ is a court order, while habeas corpus literally means “produce the body.” Known as “the Great Writ” because of its historical importance, the writ of habeas corpus is a court order directed to a custodian of a prisoner (a prison warden, for instance) to produce a named person in court. As a post-conviction remedy, it is used to review the legality of a prisoner’s detention.

The custodian (or, in modern times, a lawyer for the government) appears with the prisoner and explains the custodian’s legal justification for detaining the defendant. The court then decides whether the detention is legal.

The writ of habeas corpus gives the judicial branch of government a way to assure that law enforcement agencies and prisons in the executive branch of government are obeying the law. It is based on the principle that no person is above the law — not even the president — and that government officials who hold people prisoner must be accountable to the courts for their actions.

The United States Constitution provides that the writ of habeas corpus can only be suspended in time of war, while the constitutions of most states (including Texas) secure the right to use a writ of habeas corpus to review claims of unlawful confinement.

2255 Proceeding

A 2255 proceeding provides the same right to judicial review of federal detentions that the writ of habeas corpus would provide. Congress enacted section 2255 to streamline the process of judicial review. Instead of petitioning the court to issue a writ, section 2255 begins the process of judicial review with a motion. While a traditional writ directs a custodian to produce a prisoner in court, section 2255 allows the defendant’s claims to be reviewed in court without necessarily requiring the defendant to travel to court.

In most other respects, a 2255 proceeding is the same as a habeas corpus proceeding. The prisoner challenges the legality of his or her detention and the government is required to demonstrate that the prisoner is lawfully imprisoned.

If the court finds that the detention is unlawful (usually because the defendant’s constitutional rights were violated during the trial or because an illegal sentence was imposed), it may order the prisoner’s immediate release, or it may order a release if the unlawful imprisonment is not remedied (usually by giving the prisoner a new trial or sentencing hearing).

The traditional writ of habeas corpus remains available to challenge certain conditions of confinement and other issues that a 2255 motion cannot reach. For most defendants serving a federal sentence, however, a 2255 motion is their best chance to win their freedom after a direct appeal has ended.