How to Write a Writ of Habeus Corpus

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LindaJM
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How to Write a Writ of Habeus Corpus

Postby LindaJM » Tue Apr 06, 2010 7:15 pm

I don't know if anyone has ever used a Writ of Habeus Corpus successfully in a child welfare case. Usually they are used by prisoners. Habeus Corpus means "you have the body" so for a long time now, CPS victims have talked about using this writ to ask the court to free a child from state custody.

It is unlikely that a lawyer would use a Writ of Habeus Corpus in a child welfare case, so if you decide to try this, you're probably on your own. On the other hand, it is also said that they are hard to write and that you need an attorney. However if you develop your own legal writing skills, anything is possible. One good thing about not having an attorney is that you can try any kind of legal proceeding you want in the path of achieving your goal.

I will add more to this as I research it. My intent is to come up with a draft of a sample Writ of Habeus Corpus. Until then I'll be using this thread to collect links and information.

http://www.patrickchydepc.com/Grant.shtml

http://www.prisonlaw.com/pdfs/STATEHABEAS2008.pdf

...habeas corpus is limited to constitutional issues. Those include the right to confrontation, the right to a fair trial, the right to effective assistance of counsel, and the right to due process.

Typical claims presented in habeas petitions include the following: suppression or failure to disclose evidence; denial of right to counsel; conviction based on perjured testimony; ineffective assistance of counsel; legal sufficiency of the evidence; use of an involuntary or coerced confession; jury misconduct or bias; failure to knowingly enter a guilty plea; violation of double jeopardy; improper identification; imposition of an illegal sentence.

-- from Texas Habeus Corpus
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Please keep in mind that none of us are lawyers and we can't give legal advice. We are simply telling you what we would do in a similar situation. It is to your advantage to get a lawyer.

"Evil flourishes when good men do nothing." - Edmund Burke ... so try to do something to change the system ...

Marina
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Re: How to Write a Writ of Habeus Corpus

Postby Marina » Wed Apr 07, 2010 4:15 pm

.
Google habeas corpus FLDS

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lisalea
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Re: How to Write a Writ of Habeus Corpus

Postby lisalea » Thu Sep 30, 2010 12:59 pm

I just filed a Habeas Corpus for child custody, the Court of appeals reviewed for 6 weeks and denied, on the basis "THEREFORE, THE PETITION WOULD BE UNTIMELY AND TOO VAGUE To MERIT RELIEF. (in re Twighla T.(1992) 4 Cal.App 799, 802-808.) I just finished doing a petition of review and I am also doing a petition of rehearing, I just finished that. The case law they are using is too lame, I am using this is part of my argument for a rehearing.

ISSUE PRESENTED

The factual basis for this claim [the false, fabricate and forged document by minors counsel, opposing counsel and respondent] [EXHIBIT B] was unknown to the petitioner and the petitioner had no reason to believe that the claim and or document might be made, and where the petitioner was unable to present my claim on February 27th, 2007. A successive petition presenting additional claims that could have been presented in an earlier attack on the judgment is, of necessity, a delayed petition.

Petitioner challenges the local court rule on the grounds that they
are inconsistent with the guarantee of due process of law, and that they
conflict with various provisions of the Evidence Code and the Code
of Civil Procedure.

A large amount of filed, court-certified documents are missing from
this case in the Riverside County Superior Court, Petitioner discovered
a document that was criminally falsified, and unlawfully used as a delay tactic by the opposing counsel and court appointed minor’s counsel. Aforesaid document caused an additional two (3) more years of daughter and mother being kept apart from each other.

As a general rule, absent justification for the failure to present all known claims in a single, timely petition for writ of habeas corpus, successive and/or untimely petitions will be summarily denied.



The only exception to this general rule concerns petitions that allege facts that provide a prima facie case which, if proven, would establish a fundamental miscarriage of justice. (In re Clark (1993) 5 Cal.4th 750, 797.)

The petition does have merit (Code Civ. Proc., 391.7, subd (b)), the petitioner is challenging in this petition, petitioner challenges the validity of the judgment on February 27th, 2007 the grounds that in the proceedings leading to a miscarriage of justice and “fraud upon the court” by minor’s counsel and opposing counsel which petitioner was denied over and over due process, a fair trial, effective assistance of counsel, and protection against cruel and unusual punishment. These claims, as characterized by petitioner, are set forth in this petition for a rehearing for petitioners petition for Habeas Corpus.

WHAT HAPPENS WHEN OFFICERS UNDER THE COLOR OF LAW INTENTIONALLY SUPPRESS EXCULPATORY AND FACTUAL EVIDENCE?

As quoted by the Court of appeals on a unpublished decision on a denied petition [E051497], this is not and it does not appear that petitioner is making a general complaint about the orders filed in the family law court over an approximately four year period. The petitioner allege facts provide a prima facie case that there has is a “miscarriage of justice” and “Fraud upon the court.” Petitioner attempted to file 3 appeals for February 4th, march 4th and march 29th 2010, which was reinstated and then dismissed because the appeals division falsely denied my fee waiver and did not give petitioner a hearing (FW-006), and petitioner did submit a FW-006. My appeal for child support and to show a miscarriage of justice has now become untimely to appeal. [Appeal E050255]

Secondly, [Appeal NO E047910] was the start to appeal child support orders, custody orders, with Judge Bermudez and because he was removed off our case, petitioner was deprived [AGAIN] of my due process.

JUDGE BERMUDEZ: [03/2008] “it can be subject reallocation in the event that the court is convinced that was not necessary and, in essence, what the result of FALSE AND PERJURIES information that the Court received by the opposing party”.

[The remedy] Judge Bermudez removed minor’s counsel [09/2009] for misconduct, and minors counsel and opposing counsel giving false and perjuries information to the court and from February 27th, 2007 after 13 months of having no contact with our daughter. Judge Bermudez stated he was going to undo some of Judge Warren’s orders [02/27/07] and put us on case management to correct what was wrongfully done to petitioner and child, now that remedy has been deprived by another judge’s ruling [02/0410, 03/04/10 and 03/29/10] and not knowing anything about our case and instantly labeled petitioner vexatious. Judge Bermudez was removed off our case as soon as he made proper and truthful findings about our case.

Once again, for the past four years this case has been judged and orders have been made by the recommendation of the minors counsel and opposing counsel, all the professionals were completely ignored. If the courts would have followed proper procedure and petitioner had proper legal representation, petitioner would not have lost my parental rights.

The remedy of an appeal is not efficient [anymore] because, child and petitioner have lost over 3 ½ years of parenting time and it is extremely cruel and still causing harm to minor children. The cruel and unusual punishment clause in the California Constitution requires the judiciary to assess popular opinion when determining whether a punishment is “cruel” or “unusual”.

Therefore, a capricious order allowing a Riverside County Superior Court to substantially deprive a primary care-giving parent of custody based on mere fabricated, fraudulent and fabricated bad faith hearsay allegations that lacked foundation is not inherently congruent with our constitutional structure. Equal protection and due process rights exist to protect constituents against the whims, prejudices and judicial malfeasance of the judiciary and of parents who make bad faith allegations to obtain custody.

In Sanotsky v. Kramer, 455, U.S. 745, 102 U.S. Ct., 1288 71 L. Ed (1982), the Supreme Court employed a basic procedural due process analysis to determine the constitutionally required burden of proof in termination of parental rights, 455 U.S. At 746, citing Mathews V. Elrdige, 424 U.S. 319, 335, 96 S. ct., 893, 47 L. Ed. 2d. 18 (1976). In Santosky, the court found:

At the fact finding the State cannot presume that a child and his parents are adversaries. Until the state proves parental unfitness, the child and his parents show a vital interest in preventing erroneous termination
of their natural relationship. Thus at the fact finding the best interest of the child and his natural parents coincide to favor use of error reducing procedures “455 U.S. At 760-761.
There was no evidence that met the legally acceptable burden of proof to justify the removal of the minor child from their primary caregiver's care and the Riverside County Superior and to separate two loving siblings and the Court acted in an arbitrary and capricious manner against any legally acceptable fact finding standard in a clear abuse of discretion and miscarriage of justice. The Court instead placed the minor child in the Custody of the person who sexually abused and molested the minor child and who also has a history of drug arrest and drug use against the recommendation of a Court appointed Evaluator.

The recommendations and orders of the Court constitute an enormous miscarriage of Justice against the mother and child.

Documented evidence of false, intentionally malicious statements, evidence tampering, fabricated documents, false documents, and forged documents [by minors counsel and opposing counsel, which has caused “Fraud upon the court”] are crucial to my Writ of Habeas Corpus proceeding and my hearings with the Superior Court. The deliberate, intentional, and knowingly known false statements made by the minor’s counsel, and the opposing counsel, have caused the unlawful misleading and illegal manipulation of Judge Ellsworth, Judge Warren, Judge Bermudez and Judge Dugan.

The lower court has completely ignored all the findings of doctor reports 3-730’s, 5-mediators, a child’s therapist any and all professionals and has refused to have a child support hearing. [THE IS ENOUGH EVIDENCE TO SHOW THE COURTS “FRAUD UPON THE COURT” and “MISCARRIAGE OF JUSTICE CAUSED BY MINORS COUNSEL AND OPPOSING COUNSEL] OR this constitutes a defected court system which has resulted in a “Procedural Default” and “Fraud upon the Court”, that under the color of law, the child has been kidnapped “UNDER THE COLOR OF LAW.”

The clear and convincing evidence on which the court relies is contained in reports by psychologist Janelle Novell (Novell & Novell Counseling), Dr. Rath (limited scope evaluation of petitioner), Dr. Kania (730 evaluation), Dr. Connerly’s testimony (the “fatally flawed” 730) which was so deemed by Judge Ellsworth, trial testimony by( Dr. Eppler), and trial testimony by minor child’s therapist, Heather Parenti, and the “NO CONTACT” filed by the respondent. [EXHIBIT C]

The petitioner bears the initial burden of alleging facts to explain and justify delay and/or a successive petition. (Id. at p. 798, fn. 35; see also In re Robbins (1998) 18 Cal.4th 770, 780-781, 787, 805.) The petitioner also in good cause, Under rule 8.50 (b) of the California Rules of Court, shows good cause for the need to show this "miscarriage of justice".

If you are interested in reading my Habeas Corpus on child custody
[email protected]

Lisa Hunt

InnocentMomProtects
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Re: How to Write a Writ of Habeus Corpus

Postby InnocentMomProtects » Fri Mar 20, 2015 12:31 am

I tried not accepting my court appointed lawyer and tried representing myself and they said it's mandated that I have a lawyer to "follow the courts rules"....

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LindaJM
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Re: How to Write a Writ of Habeus Corpus

Postby LindaJM » Mon Mar 23, 2015 7:15 am

They told me the same thing, years ago, InnocentMom... so, did you ask for a more effective lawyer? Did they do anything regarding your ineffective counsel?
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Please keep in mind that none of us are lawyers and we can't give legal advice. We are simply telling you what we would do in a similar situation. It is to your advantage to get a lawyer.

"Evil flourishes when good men do nothing." - Edmund Burke ... so try to do something to change the system ...


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