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Old 09-10-2002, 01:46 AM
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Default Habeus Corpus Explained

STONE V POWELL 428 U.S. 465 (1976)
Were federal courts obligated to consider claims of illegal searches and seizures after such claims had been decided by state courts? (Contains a history of this historical writ)


HABEAS CORPUS, remedies A writ of habeas corpus is an order in writing, signed by the judge who grants the same, and sealed with the seal of the court of he is a judge, issued in the name of the sovereign power where it is granted, by such a court or a judge thereof, having lawful authority to issue the same, directed to any one having a person in his custody or under his restraint, commanding him to produce, such person at a certain time and place, and to state the reasons why he is held in custody, or under restraint.


2. This writ was it common law considered as a remedy to remove the illegal restraint on a freeman. But anterior to the 31 Charles II. its benefit was, in a great degree, eluded by time-serving judges, who awarded it only in term time, and who assumed a discretionary power of awarding or refusing it. 3 Bulstr. 23. Three or four years before that statute was passed there had been two very great cases much agitated in Westminster Hall, upon writs of habeas corpus for private custody, viz: the cases of Lord Lei-ah: 2 Lev; 128; and Sir Robert Viner, Lord Mayor.of London. 3 Keble, 434, 447, 470, 504; 2 Lev. 128; Freem. 389. But the court has wisely drew the line of distinction between civil constitutional liberty, as opposed to the power of the crown, and liberty as opposed to the violence and power of private persons. Wilmot's Opinions, 85, 86.


3. To secure the full benefit of it to the subject the statute 81 Car. II. c. 2, commonly calfed the habeas corpus act, was passed. This gave to the. writ the vigor, life, and efficacy requisite for the due protection of the liberty of the subject. In England this. is considered as a high prerogative writ, issuing out of the court of king's bench, in term time or vacation, and running into every part of the king's dominions. It is also grantable as a matter of right, ex debito justitae, upon the application of any person.


4. The interdict De homine libero exhibendo of the Roman law, was a remedy very similar to the writ of habeas corpus. When a freeman was restrained by another, contrary to good faith, the praetor ordered that such person should be brought before him that he might be liberated. Dig. 43, 29, 1.


5. The habeas corpus act has been substantially incorporated into the jurisprudance of every state in the Union, and the right to the writ has been secured by most of the constitutions of the states, and of the United States. The statute of 31 Car. II. c. 2, provides that the person imprisoned, if he be not a prisoner convict, or in execution of legal process, or committed for treason or felony, plainly expressed in the warrant, or has not neglected wilfully, by the space of two whole terms after his imprisonment, to pray a habeas corpus for his enlargement, may apply by any one in his behalf, in vacation time, to a judicial officer for the writ of habeas corpus, and the officer, upon view of the copy of the warrant of commitment, or upon proof of denial of it after due demand, must allow the writ to be directed to the person in whose custody the party is detained, and made returnable immediately before him. And, in term time, any of the said prisoners may obtain his writ of habeas corpus, by applying to the proper court.


6. By the habeas corpus law of Pennsylvania, (the Act of February 18, 1785,) the benefit of the writ of habeas corpus is given in "all cases where any person, not being committed or detained for any criminal, or supposed criminal matter," Who "shall be confined or restrained of his or her liberty, under any color or pretence whatsoever." A similar provision is contained in the habeas corpus act of New York. Act of April 21, 1818, sect. 41, ch. 277.


7. The Constitution of the United State art. 1, s. 9, n. 2, provides, that " 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 and the same principle is contained in many of the state constitutions. In order still more to secure the citizen the benefit of this great writ, a heavy penalty is inflicted upon the judges who are bound to grant it, in case of refusal.


8. It is proper to consider, 1. When it is to be granted. 2. How it is to be served. 3. What return is to be made to it. 4. The bearing. 5. The effect of the judgment upon it.


9. - 1. The writ is to be granted whenever a person is in actual confinement, committed or detained as aforesaid, either for a criminal charge, or, as in Pennsylvania and New York, in all cases where he is confined or restrained of his liberty, under any color or pretence whatsoever. But persons discharged on bail will not be considered as restrained of their liberty so as to be entitled to, a writ of habeas corpus, directed to their bail. 3 Yeates, R. 263; 1 Serg & Rawle, 356.


10. - 2. The writ may be served by any free person, by leaving it with the person to whom it is directed, or left at the gaol or prison with any of the under officers, under keepers, or deputy of the said officers or keepers. In Louisiana, it is provided, that if the person to whom it is addressed shall refuse to receive the writ, he who is charged to serve it, shall inform him of its contents; if he to whom the writ is addressed conceal himself, or refuse admittance to the person charged to serve it on him, the latlat shall affix the order on the exterior of the place where the person resides, or in which the petitioner is so confined. Lo. Code of Pract. art. 803. The service is proved by the oath of the party making it.


11. - 3. The person to whom the writ is addressed or directed, is required to make a return to it, within the time prescribed; he either complies, or he does not. If, he complies, he must positively answer, 1. Whether he has or has not in his power or custody the person to be set at liberty, or whether that person is confined by him; if he return that he has not and has not had him in his power or custody, and the return is true, it is evident that a mistake was made in issuing the writ; if the return is false, he is liable to a penalty, and other punishment, for making such a, false return. If he return that he has such person in his custody, then he must show by his return, further, by what authority, and for what cause, he arrested or detained him. If he does not comply, he is to be considered in contempt of the court under whose seal the writ has been issued, and liable to a severe penalty, to be recovered by the party aggrieved.


12. - 4. When the prisoner is brought, before the judge, his judicial discretion commences, and he acts under no other responsibility than that which belongs to the exercise of ordinary judicial power. The judge or court before whom the prisoner is brought on a habeas corpus, examines the return and Papers, if any, referred to in it, and if no legal cause be shown for the imprisonment or restraint; or if it appear, although legally committed, he has not been prosecuted or tried within the periods required by law, or that, for any other cause, the imprisonment cannot be legally continued, the prisoner is discharged from custody. In the case of wives, children, and wards, all the court does, is to see that they ire under no illegal restraint. 1 Strange, 445; 2. Strange, 982; Wilmot's Opinions, 120.


13. For those offences which are bailable, when the prisoner offers sufficient bail, he is to be bailed.


14. He is to be remanded in the following cases: 1. When it appears he, is detained upon legal process, out of some court having jurisdiction of criminal matters, 2. When he is detained by warrant, under the hand and seal of a magistrate, for some offence for which, by law, the prisoner is not bailable. 3. When he is a convict in execution, or detained in execution by legal civil process. 4. When he is detained fora contempt, specially and plainly charged in the commitment, by some existing court, having authority to commit for contempt. 5. When he refuses or neglects to give the requisite bail in a case bailable of right. The judge is not confined to the return, but he is to examine into the causes of the imprisonment, and then he is to discharge, bail, or remand, as justice shall require. 2 Kent, Com. 26; Lo. Code of Prac. art. 819.


15. - 5. It is provided by the habeas corpus act, that a person set at liberty by the writ, shall not again be imprisoned for the same offence, by any person whomsoever, other than by the legal order and process of such court wherein he shall be bound by recognizance to appear, or other court having jurisdiction of the cause. 4 Johns. R. 318; 1 Binn. 374; 5 John. R. 282.


16. The habeas corpus can be suspended only by authority of the legislature. The constitution of the United States provides, that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of invasion and rebellion, the public safety may require it. Whether this writ ought to be suspended depends on political considerations, of which the legislature, is to decide. 4 Cranch, 101. The proclamation of a military chief, declaring martial law, cannot, therefore, suspend the operation of the law. 1 Harr. Cond. Rep. Lo. 157, 159 3 Mart. Lo. R. 531.


17. There are various kinds of this writ; the principal of which are explained below.


18. Habeas corpus ad deliberandum et recipiendum, is a writ which lies to remove a prisoner to take his trial in the county where the offence was committed. Bac. Ab. Habeas Corpus, A.


19. Habeas corpus ad faciendum et recipiendum, is a writ which issues out of a court of competent jurisdiction, when a person is sued in an inferior court, commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer, (whence this writ is frequently denominated habeas corpus cum causa) to do and receive whatever the court or the judge issuing the writ shall consider in that behalf. This writ may also be issued by the bail of a prisoner, who has been taken upon a criminal accusation, in order to surrender him in his own discharge; upon. the return of this writ, the court will cause an exoneretur to be entered on the bail piece, and remand the prisoner to his former custody. Tidd's Pr. 405; 1 Chit. Cr. Law, 182.


20. Habeas corpus ad prosequendum, is a writ which issues for the purpose of removing a prisoner in order to prosecute. 3 Bl. Com. 130.


21. Habeas corpus ad respondendum, is a writ which issues at the instance of a creditor, or one who has a cause of action against a person who is confined by the process of some inferior court, in order to remove the prisoner and charge him with this new action in the court above. 2 Mod. 198; 3 Bl. Com. 107.


22. Habeas corpus ad satisfaciendum, is a writ issued at the instance of a plaintiff for the purpose of bringing up a prisoner, against whom a judgment has been rendered, in a superior court to charge him with the process of execution. 2 Lill. Pr. Reg. 4; 3 Bl. Com. 129, 130.


23. Habeas corpus ad subjiciendum, by way of eminence called the writ of habeas corpus, (q. v.) is a writ directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, submit to, and receive, whatsoever the judge or court awarding such writ shall consider in that behalf. 3 Bl. Com. 131; 3 Story, Const. 1333.


24. Habeas corpus ad testificandum, a writ issued for the purpose of bringing a prisoner, in order that he may testify, before the court. 3 Bl. Com. 130.


25. Habeas corpus cum causa, is a writ which may be issued by the bail of a prisoner, who has been taken upon a criminal accusation, in order to render him in their own discharge. Tidd's Pr. 405. Upon the return of this writ the court will cause an exoneretur to be entered on the bail piece, and remand the defendant to his former custody. Id. ibid.; 1 Chit. Cr. Law 132. Vide, generally, Bac. Ab. h. t.; Vin. Ab. h. t.; Com. Dig. h. t.; Nels. Ab. h. t.; the various American Digests, h. t.; Lo. Code of Prac. art. 791 to 827; Dane's Ab. Index, h. t.; Bouv. Inst. Index, h. t.



- Bouvier's Law Dictionary (1856)
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  #2  
Old 09-11-2002, 06:44 AM
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Great info, thanks David
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Old 09-11-2002, 10:28 AM
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David,

If it wouldn't make people thing bad thoughts, I'd give you a big hug and kiss over this one.... Lets just leave it at the "thought" for now.

As always, you are very very much appreciated beyond what words are possible to express.

Jim
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Old 09-11-2002, 10:56 AM
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that is gonna take me awhile to process... but thanks for the great info David!!
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Old 09-21-2002, 10:36 AM
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Hiya, this question is for David (or anyone else that can help!), who seems to know so much about HABEAS CORPUS...I was under the impression that a drug offender (habitual or not?? not sure) has the option to go into a rehab for a period of time or serve his/her prison term. My other half did have a drug charge, served a year and 60 days, then violated probation a year later and got one more drug charge (all just possession, small amounts--not trafficking). At his hearing he asked the judge to please run the terms concurrent, that obviously he has a drug problem. I don't believe he was ever offered to go to drug rehab though. He is definentely doing better now, amazing, as much as I hate to say this, prison really saved him in one way, though, I would love to have him home ASAP. So, I was wondering if he could file for this, if it would fit his situation or not, even though he's been back in for a year now (I don't think that there is a time limit to go back and look into the sentence ??) Thanks!
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Old 09-21-2002, 11:18 AM
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Sweetpea, To get re-sentenced you would have to appeal. You could try & write the judge, but this will almost never work. The time to bring up the rehab issue is before sentencing, & during the plea bargain process. The attitude of most judges out here in Calif would be "If you think you can benifit from rehab you can check into it when you get out." The best thing to do would be to talk to a lawyer as laws are different state to state.--------Ken
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Old 09-21-2002, 11:31 AM
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We're in Florida, where i was under the impression that it was an option, but thankk, I guess talking to a lawyer would be my best bet.
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Old 09-24-2002, 11:45 PM
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Where and how can I get all the info. in regards to Habeus Corpus, regarding Time Restraints.Because isn't there time lines as to when an inmate can file appeals? I'm trying to get all this info for my husband because he's having a hard time getting to law library up in the Bay. Can't I get all this info online? Please let me know,asap. Thanks Susie
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Old 09-25-2002, 12:06 AM
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Susie, I too have been looking for the time lines regarding appeals, but haven't found anything. If you find out anything could you please post it as I'm sure many will find it helpful, & if I find it out I'll do the same--------Ken
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Old 09-25-2002, 12:58 AM
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Sweetpea,
It's my understanding that what Kconnor mentioned about re-sentencing is true in most places. I found out they sentenced me incorrectly (it was clear as day) after I got into prison but I would have to have appealed it to get anything changed, and I would have run out of time on my sentence before I got any relief. The only other option that 'may' be available is a sentence modification, where you are not fighting the guilt part, but asking the judge to re-sentence you.. I didn't have time for this route either and didn't persue it. This may also be something indigenous to the federal system.
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Old 10-18-2002, 04:58 PM
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With regards to the term "habeas corbus," the courts no longer use the "Original Writ of Habeas Corpus." Today it is called " Collateral Attack," which is done on a State level entering federal court with a 28 USC 2254 and with regards to a federal inmate is ir a 28 USC 2255, a/k/a "2255."
The cites/case laws and legal authorities above are with the original writ because they are dated back into the 1800's, all prior to 1933. Filing an original writ today will be conveyed as a "collateral attack."
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Old 12-29-2005, 02:25 PM
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Dear David, I am loveformyson and am a registered member, I really appreciate your whole work and information you have provided, I am on my way to file such a writ, thank you, loveformyson.
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Old 12-30-2005, 02:44 AM
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I'm going to stick this thread...thanks for the info David!
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Old 01-05-2006, 08:31 PM
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David, can you tell me how to look up information on certain cases, I would like to do some research on a recent Supreme Court of Virginia and there decision on Jackson V. Washington, Warden. There are some others I would like to look up as well. Do you know of any good resourse sites I can go to?

"habeas corbus,"
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Old 02-16-2006, 08:20 PM
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Look up in google for the system called Pacer, where you can have access to finding certain cases. It costs a few pennies to do so. Otherwise, if you can't find that certain court online which has cases online, you need to get on the phone and start calling, looking for where the case is at. Then you can get copies (buy) from the court by mail, or in person. The people at the legislative libraries are usually pretty nice about looking things up. Good luck. Not everything is archived online. Someone would have to scan every, single case, and they just aren't there.
P.S. I forgot to mention the Court Clerks. They are the ones who can look up the cases. Getting through by phone is often difficult. But keep trying.

Last edited by Kalypso; 02-16-2006 at 08:21 PM..
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Old 04-18-2006, 01:02 PM
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Default in plain folks language, what is Habeus Corpus?

This is something my little brother had wanted to file. I still don't know what it is or what it's used for. Is there a way to say it in EZSpeak? Thanks for your time, I know legalese is a whole nuther language to interpret and to decipher...............blessings, Dukks
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Old 05-12-2006, 11:17 PM
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Writ of Habeus Corpus a technical legal document which can be filed by anyone being illegally confined, subjected to cruel and unusual punishment, or being subjected to criminal injustice.
The writ does not have to actually be submitted in any formal hearing it can be submitted directly to a court which has jurisdiction over the petitioner.
A writ of habeus corpus can be submitted directly to the supreme court, however the supreme court and courts in general rarely honor the merits of Pro Se habeus corpus.

Pro Se means filed in person without a formal lawyer.

Last edited by counciller; 05-12-2006 at 11:18 PM..
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Old 05-22-2006, 05:31 PM
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I am going to start gethering information to start writing a WRIT. I am very nervous (well, not really) I am KNOW that all depends on this.

SUSIE! & GYPHON - We have spoken before. Thanks so much for all of your insight and knowledge.

Thanks everyone I am sure I will be posting progress. I KNOW this can be done. I also know it is going to be long and dreadful.

Jas
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Old 06-13-2006, 01:42 AM
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My son needs legal help inside San Quentin. He was sixth in line when someone got stabbed. He was not pointed out by the tower guards but taken with 5 others "guilt by association" while in line going to eat breakfast. He is facing 25 to life now and had nothing to do with this. He was given form 114D. Anyone know anyway I can help him? He is in solitary confinment now and scared to death. He has only been there for less than a month a level one offender in a level 4 lock down and young with no knowledge of how the system works. We need help can anyone help us? Please I know he didn't do this even others know but he is charged anyway by being 6 person away from victim. Please help us if you can. His name is mark for any prayers someone may want to give for him.
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Old 06-13-2006, 02:47 AM
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He needs to not talk about teh facts of his case; and you need to not press him. His sttatements to you are not confidential, and you could be made to be a witness against him depending on how teh case goes.
He really needs a lawyer for a few reasons. He may very well have to go to trial; and if convicted he needs to argue a Romero motion regarding his strikes.
If there is indeed simply no evidence against him, he has teh comfort of knowing he has a right to a Preliminary Examination. That's a hearing on a felony case to determine whether there's a reasonable suspicion that a crime occured (and that he did it). However, certain kinds of officer relayed hearsay is admissable at that hearing.
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My son needs legal help inside San Quentin. He was sixth in line when someone got stabbed. He was not pointed out by the tower guards but taken with 5 others "guilt by association" while in line going to eat breakfast. He is facing 25 to life now and had nothing to do with this. He was given form 114D. Anyone know anyway I can help him? He is in solitary confinment now and scared to death. He has only been there for less than a month a level one offender in a level 4 lock down and young with no knowledge of how the system works. We need help can anyone help us? Please I know he didn't do this even others know but he is charged anyway by being 6 person away from victim. Please help us if you can. His name is mark for any prayers someone may want to give for him.
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Old 07-27-2006, 07:56 PM
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FEDX.......when going back to court asking the judge for a sentence reduction.....are'nt you going back before the same judge that sentenced you in the first place? or can you take your case for sentence reduction to another court, or another county? thanks
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Old 08-16-2006, 03:33 PM
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Quote:
Originally Posted by Earls Mom
David, can you tell me how to look up information on certain cases, I would like to do some research on a recent Supreme Court of Virginia and there decision on Jackson V. Washington, Warden. There are some others I would like to look up as well. Do you know of any good resourse sites I can go to?

"habeas corbus,"
PM me and I will assist you in your research I have several good sites that I will give you. I have to go pull them up on disk (I will find the disk lol) Also in your PM list some of your other cases I may already have them on disk or I can get them like ASAP
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Old 08-16-2006, 03:50 PM
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Quote:
Originally Posted by Earls Mom
David, can you tell me how to look up information on certain cases, I would like to do some research on a recent Supreme Court of Virginia and there decision on Jackson V. Washington, Warden. There are some others I would like to look up as well. Do you know of any good resourse sites I can go to?

"habeas corbus,"



I pulled up 4 cases from the Virginia Supreme Court with this title I have the case # for all of them let me know if you want them took me about 5 minutes to find the case #s I will forward them to you if you want them or if you have a rough date on the decession you want I will send the ones in that date range
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Old 08-17-2006, 05:37 PM
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My husband is incacerated in CTF Soledad, California, he got a 16 years sentence for possession of cocaine with intent to sell under the Caifornia Three Strikes Law. THis will be his second strike. He feels his sentence was very severe and filed a Writ of Habeaus to get his setence reduced and has gotten no answer for nearly 4 years. He had to file in the City where the arrest happened, which was Fresno California. Could I possibly go and find out the status or go and try to move things along for him, is there anything I can do to help him besides hiring a lawyer cause I am so broke. But, Maybe I can do something myself. Does anyone know if I can go request status of his Appeal? Thanks

Anita Loves Juan
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Old 08-18-2006, 12:15 PM
kittenn0816 kittenn0816 is offline
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I am in the process of gathering information from my mans writ. I have run into a snag. The court is saying the evidence (which is MOST important is sealed CONFIDENTIAL!) Can someone tell me how to go about submitting a motion to go before the court to request the "sealed/confidential" DNA, police report, front passenger seat of the car, psych eval, etc? I have durable power af attorney.

We are also thinking about persuing senate bill1342 signed by Gray Davis in 2001, allowning felony a post conviction DNA. But I need to see the 1st DNA test. The test has NEVER been submitted. His attorney (who was relieved by the judge for incompetence) told him the results showed NOTHING of the victim...NO DNA. When the said crime location took place.

Any advice?
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