Key Concepts

  • A writ of habeas corpus is a limited remedy whereby a person may attempt to challenge the legal basis for continuing to hold him or her in custody.
  • If the application for a writ is not summarily denied for failing to state a valid basis for relief, then the judge will order a hearing to decide the matter.
  • Writs of habeas corpus may also be used by the state to secure the presence of defendants or witnesses needed for trial who are held in custody outside the prosecutor’s district.

What Habeas Corpus Is – and Is Not.

A writ of habeas corpus (filed by or for a person held in custody) is a very limited remedy in North Carolina. The statutes in G.S. 17-1 through 17-38 codify and implement the state constitutional habeas corpus provision (Art. I, § 21 of the North Carolina Constitution), and provide a method for challenging a court’s jurisdiction to imprison or restrain an individual. See also North Carolina General Rules of Practice for the Superior and District Courts, Rule 25 (regarding writs of habeas corpus in capital cases). In other words, a habeas corpus petition is used to argue that a person is being unlawfully held in custody, and should be released.
Habeas corpus is not an appeal, and it is not a motion for appropriate relief. It is only a collateral attack on the person’s custody, not a direct review of the criminal case itself. See In re Palmer, 265 N.C. 485 (1965); In re Burton, 257 N.C. 534 (1962). A habeas corpus proceeding is limited to reviewing the legality of the court’s jurisdiction or authority to hold a person in custody, and it may not be used to review general errors in the case. See, e.g., State v. Barrier, 348 S.E.2d 345 (N.C. 1986); State v. Edwards, 192 N.C. 321 (1926); State v. Burnette, 173 N.C. 734 (1917); In re Taylor, 229 N.C. 297 (1948). Additionally, a habeas corpus petition must be sought before final judgment is entered in a case – if the defendant has already been sentenced, the writ should be summarily denied. See G.S. 17-4(2).

Application and Grounds

A petition for a writ of habeas corpus may be sought by anyone held in custody in a criminal matter, or by someone else on the detained person’s behalf. G.S. 17-3; G.S. 17-5. An application for writ of habeas corpus must be verified in writing, and state sufficient information to identify the person for whom the writ is sought. G.S. 17-7. It must also state where and why the person is being held, and the alleged reason why his or her detention is unlawful. G.S. 17-6; 17-7.
Only an appellate or superior court judge may issue a writ of habeas corpus; district court judges do not have this authority. G.S. 17-6. An appellate or superior court judge may also issue a writ on his or her own motion. G.S. 17-8. Upon application, the judge must grant the writ “without delay” unless the writ is clearly prohibited (see more on this below). See G.S. 17-9. Failure to grant a writ which should have been granted subjects the judge to a $2,500 penalty. See G.S. 17-10.
Pursuant to G.S. 17-4 and 17-9, the court must deny an application for a writ of habeas corpus in the following circumstances:

  1. The applicant is held in federal custody;
  2. The applicant is in state custody under a final order or judgment (i.e., already serving a prison sentence);
  3. The applicant willfully delayed seeking the writ until after two or more sessions of superior court had passed;
  4. The applicant has failed to show probable grounds for relief in the application; or
  5. If it appears from the writ and supporting documents that the person applying for the writ, or the person for whose benefit the writ is sought, is prohibited from prosecuting the writ.

If none of those prohibitions apply, then the judge must grant the application for a writ and have it served on the person or officer who is holding the petitioner in custody, ordering that person to produce the petitioner at a specified place and time. See G.S. 17-12 (Service of writ); G.S. 17-14 (Contents of return; verification); G.S. 17-15 (Production of body if required). The person or officer served with the writ must make a return in writing and “plainly state” whether he or she has the petitioner in custody, and if so, what the basis is for holding the petitioner (or if not, then who does have custody). See G.S. 17-14.

Practice Pointer

There are substantial fines and penalties for ignoring a writ, disobeying the instructions, failing to produce the person as ordered, or making a false return that the petitioner is not in custody. See Article 5, “Enforcement of Writ,” G.S. 17-16 through 17-28. Writs of habeas corpus don’t come up very often in routine criminal proceedings, so whenever a prosecutor receives one it is always a good idea to check with the detention staff and make sure that they are also aware of the writ, understand their obligations, and have taken the appropriate steps to comply.

Hearing and Order

The petitioner and the district attorney must be given notice of the time and place designated for a hearing on the writ. See G.S. 17-29, 17-30. The petitioner has a right to be present, and he or she also has a right to counsel at the hearing. See G.S. 7A-451(a)(2). Once the petitioner is brought before the court, the judge shall proceed “in a summary way” to hear the allegations and proofs on both sides, and do “what justice requires” in either bailing or remanding the petitioner. See G.S. 17-32. The parties may subpoena witnesses to testify at the hearing. See G.S. 17-31. Relevant facts in dispute “may be established by evidence like any other disputed fact.” See State v. Leach, 227 N.C. App. 399 (2013). The sole question to be determined at the hearing “is whether petitioner is then being unlawfully restrained of his liberty.” State v. Chapman, 228 N.C. App. 449 (2013); quoting In re Burton, 257 N.C. 534 (1962).
At the conclusion of the hearing, the judge must do one of the following: discharge the petitioner (G.S. 17-33); deny the motion and remand the defendant back into custody (G.S. 17-34, 17-36); or modify the custody to correct any irregularities (G.S. 17-35).

  1. Grounds to Grant the Motion and Release the Defendant (G.S. 17-33)
    The court must order the petitioner released if it finds that:
    1. The jurisdiction of such court or officer was exceeded, either as to matter, place, sum, or person;
    2. The original imprisonment was lawful, but some subsequent act, omission, or event has caused the applicant to become entitled to be discharged;
    3. The process was defective, causing it to be void;
    4. The process, although in proper form, was issued in a case not allowed by law;
    5. The person having custody of the applicant under such process is not the person empowered by law to detain him or her; or
    6. The process was not authorized by any judgment, order, or decree of any court, nor by any provision of law.
  2. Grounds to Deny the Motion and Continue Custody (G.S. 17-34, 17-36)
    It is the duty of the court to remand the party (that is, continue custody) if he is being detained:
    1. By virtue of process issued by any federal court or judge, in a case where such court or judge has exclusive jurisdiction;
    2. By virtue of the final judgment or decree of any competent court, or of any execution issued upon such judgment or decree;
    3. For any contempt specially and plainly charged in the commitment by some court, officer, or body having authority to commit for the contempt; or
    4. That the time during which the party may be legally detained has not expired.

There is no statutory right to appeal from a trial court’s judgment on a writ of habeas corpus, but a party (state or defendant) may request appellate review through a writ of certiorari. See State v. Niccum, 293 N.C. 276 (1977); State v. Chapman, 228 N.C. App. 449 (2013) (on remand from Supreme Court, after initially denying state’s appeal for lack of jurisdiction).

Writ of Habeas Corpus Ad Testificandum / Ad Prosequendum

A writ of habeas corpus may also be used by the state when a defendant or another necessary witness in the trial is in custody of the North Carolina Division of Adult Correction, or being held in another jail outside a prosecutor’s judicial district.  If the prosecutor needs to have that person brought to court to testify or stand trial, the prosecutor may request a district or superior court judge to issue the appropriate process, as summarized below.

  1. Defendant for Trial
    A writ of habeas corpus ad prosequendum can be used to obtain a defendant’s presence for trial. See AOC-CR-223 (Application and Writ of Habeas Corpus Ad Prosequendum) (this is a common law writ, so there is no other statutory reference). Alternatively, rather than using a writ of habeas corpus ad prosequendum, a prosecutor may simply request the temporary custody of a defendant for trial under G.S. 15A-711(a). See AOC-CR-900 (Prosecutor’s Request for Temporary Custody of Defendant for Trial). For more information on these two processes and the differences between them, see the related entry on Securing Attendance of Witnesses – Defendants and Witness in Custody.
Practice Pointer

Prosecutors must remember that if the state uses a writ of habeas corpus to obtain custody of an out-of-state prisoner for trial (for more information, see the related entry on Extradition – Interstate Agreement on Detainers), the prisoner may not be returned to his or her original place of imprisonment without having been tried. If the state violates this requirement, which is known as the “anti-shuttling” provision, the case must be dismissed with prejudice. See G.S. 15A-761 (Article III(d), Article IV(e)); Alabama v. Bozeman, 533 U.S. 146 (2001) (charges were properly dismissed where the defendant, who was serving time in a Florida federal prison, was taken to Alabama for one day to address pre-trial matters on his pending state charges and then returned to Florida without having been tried by Alabama); see also United States v. Peterson, 945 F.3d 144 (4th Cir. 2019) ("Ordinarily, a violation of the anti-shuttling provision visits strict consequences—a dismissal of the indictment with prejudice").

  1. Witness for Trial
    A witness’s presence for trial can be secured through a writ of habeas corpus ad testificandum. See G.S. 17-41 through 17-46 (“Habeas Corpus Ad Testificandum”); see also AOC-G-112 (Application and Writ of Habeas Corpus Ad Testificandum). For more information, see the related entry on Securing Attendance of Witnesses – Defendants and Witness in Custody.
    Alternatively, G.S. 15A-805 provides that on motion of the state or the defendant, a judge of the court in which a criminal proceeding is pending must, for good cause shown, enter an order requiring that any person confined in an institution in North Carolina be produced and compelled to attend as a witness in the proceeding. However, there is no pre-printed AOC form based on this statute, so the prosecutor would need to draft an order for the judge to sign.
Portions of this entry were excerpted from 2012 North Carolina Defender Manual, Volume II, Chapter 35.4; and “Habeas Corpus,” N.C. Superior Court Judges’ Benchbook (2014) by Jessica Smith.