4.3Habeas Corpus to Inquire Into Cause of Detention
“MCR 3.303 governs the procedure to be followed in an action for habeas corpus to inquire into the cause of detention.” Phillips v Warden, State Prison of Southern Mich, 153 Mich App 557, 561 (1986).
A.Jurisdiction/Power to Issue Writ
“An action for habeas corpus to inquire into the cause of detention of a person may be brought in any court of record except the probate court.” MCR 3.303(A)(1).
“The writ of habeas corpus to inquire into the cause of detention, or an order to show cause why the writ should not issue, may be issued by the following:
(1) The [S]upreme [C]ourt, or a justice thereof.
(2) The [C]ourt of [A]ppeals, or a judge thereof.
(3) The circuit courts, or a judge thereof.
(4) The municipal courts of record, including but not limited to the recorder’s court of the city of Detroit, common pleas court, or a judge thereof.
(5) The district courts, or a judge thereof.” MCL 600.4304.
See, e.g., Walls v Dir of Institutional Servs Maxie Boy’s Training Sch, 84 Mich App 355, 360 (1978) (Court of Appeals ordered a writ of habeas corpus directing the release of a juvenile under its authority found in MCL 600.4304(2)).
“The action must be brought in the county in which the prisoner is detained.” MCR 3.303(A)(2). “If it is shown that there is no judge in that county empowered and available to issue the writ or that the judicial circuit for that county has refused to issue the writ, the action may be brought in the Court of Appeals.” MCR 3.303(A)(2). See Moses, 274 Mich App at 484 (Court of Appeals has “jurisdiction to entertain an action for habeas corpus to inquire into the cause of detention where[] . . . the judge in the county where the prisoner was detained refuses to issue the writ”).
C.Persons Detained on Criminal Charges
“A prisoner detained in a county jail for a criminal charge, who has not been sentenced to detention by a court of competent jurisdiction, may be removed from detention by a writ of habeas corpus to inquire into the cause of detention only if the writ is issued by the court in which the prisoner would next appear if the criminal process against the prisoner continued, or by the judicial circuit for the county in which the prisoner is detained.” MCR 3.303(A)(3).1
“An action for habeas corpus may be brought by the prisoner or by another person on the prisoner’s behalf.” MCR 3.303(B).
“An action for habeas corpus to inquire into the cause of detention may be brought by or on the behalf of any person restrained of his [or her] liberty within this state under any pretense whatsoever, except as specified in [MCL 600.43102].” MCL 600.4307.
“As a general rule, every person committed, detained, confined or restrained of his [or her] liberty for any criminal or supposed criminal matter may seek a writ of habeas corpus to inquire into the cause of the restraint.” Triplett v Deputy Warden, 142 Mich App 774, 780 (1985), citing MCL 600.4307. “However, the writ of habeas corpus deals only with radical defects rendering a judgment or proceeding absolutely void.” Triplett, 142 Mich App at 780. “A judgment which is merely erroneous, rather than void, is subject to review and may not be collaterally attacked in a habeas corpus proceeding.” Id. at 780-781.
E.Persons Not Entitled to Writ
“An action for habeas corpus to inquire into the cause of detention may not be brought by or on behalf of the following persons:
(1) Persons detained by virtue of any process issued by any court of the United States, or any judge thereof, in cases where such courts or judges have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of suits in such courts;
(2) Persons committed for treason or felony, or for suspicion thereof, or as accessories before the fact to a felony, where the cause is plainly and specially expressed in the warrant of commitment;
(3) Persons convicted, or in execution, upon legal process, civil or criminal;
(4) Persons committed on original process in any civil action on which they were liable to be arrested and imprisoned, unless excessive and unreasonable bail is required.” MCL 600.4310.
“In general, MCL 600.4310(3) prohibits habeas corpus relief to ‘[p]ersons convicted, or in execution, upon legal process, civil or criminal.’” Moses, 274 Mich App at 485-486 (alteration in original). “But relief ‘is open to a convicted person in one narrow instance, . . . where the convicting court was without jurisdiction to try the defendant for the crime in question.’” Id. at 486, quoting People v Price, 23 Mich App 663, 669-670 (1970) (ellipsis in original). “Moreover, to qualify for habeas corpus relief, the jurisdictional defect must be radical, rendering the conviction absolutely void.” Moses, 274 Mich App at 486. “‘A radical defect in jurisdiction contemplates . . . an act or omission by state authorities that clearly contravenes an express legal requirement in existence at the time of the act or omission.’” Id., quoting Price, 23 Mich App at 671 (ellipses in original). “Nevertheless, habeas relief may be denied in the exercise of a court’s discretion where full relief may be obtained in other more appropriate proceedings.” Moses, 274 Mich App at 486. “Thus, while [a] plaintiff may not use a habeas proceeding as a substitute for an appeal or to review the merits of his [or her] criminal conviction, [a] plaintiff may assert a radical defect in the jurisdiction of the court in which his [or her] conviction was obtained.” Id. (“habeas relief requiring the [Department of Corrections] to release plaintiff might be appropriate because plaintiff raise[d] a jurisdictional challenge to the authority of the state to prosecute him in any state court”).
F.Refusal to Consider Habeas Corpus Constitutes Malfeasance
“Any judge who wilfully or corruptly refuses or neglects to consider an application, action, or motion for habeas corpus, is guilty of malfeasance in office.” MCL 600.4313. See Stowers v Wolodzko, 386 Mich 119, 136 (1971) (Michigan Supreme Court has “recognized that interference with attempts of persons incarcerated to obtain their freedom may constitute false imprisonment” and recognized that the state has “protected the individual’s rights” through MCL 600.4313).
“The complaint must state:
(1) that the person on whose behalf the writ is applied for (the prisoner) is restrained of his or her liberty;
(2) the name, if known, or the description of the prisoner;
(3) the name, if known, or the description of the officer or person by whom the prisoner is restrained;
(4) the place of restraint, if known;
(5) that the action for habeas corpus by or on behalf of the prisoner is not prohibited;
(6) the cause or pretense of the restraint, according to the plaintiff’s best knowledge and belief; and
(7) why the restraint is illegal.” MCR 3.303(C).
H.Issuance of the Writ or Order to Show Cause
“On the filing of the complaint, the court may issue
(a) a writ of habeas corpus directed to the person having custody of the prisoner, or that person’s superior, ordering him or her to bring the prisoner before the court forthwith; or
(b) an order to show cause why the writ should not be issued, unless it appears that the prisoner is not entitled to relief.” MCR 3.303(D)(1).3
See also MCL 600.4316, which states that “[a]ny court or judge empowered to grant the writ of habeas corpus shall, upon proper application, grant the preliminary writ (or an order to show cause) without delay, unless the party applying therefor is not entitled to the writ[;]” Phillips, 153 Mich App at 561, citing MCR 3.301(D)(1).
“When proceedings in another court or agency are pertinent to a determination of the issue raised in a habeas corpus action, the court may order the transcript of the record and proceedings certified to the court within a specified time.” MCR 3.303(E). “The order must identify the records to be certified with sufficient specificity to allow them to be located.” Id.
J.Issuance Without Application or Before Filing
“A judge of a court of record, except the probate court, may issue a writ of habeas corpus or order to show cause if
(a) the judge learns that a person within the judge’s jurisdiction is illegally restrained, or
(b) an application is presented to the judge before or after normal court hours.” MCR 3.303(F)(1).
“If the prisoner is being held on criminal charges, the writ or order may only be issued by a judge of a court authorized to issue a writ of habeas corpus under [MCR 3.303(A)(3)].” MCR 3.303(F)(2).
“If a complaint is presented to a judge under [MCR 3.303(F)(1)(b)], it need not be filed with the court before the issuance of a writ of habeas corpus.” MCR 3.303(F)(3). “The complaint must subsequently be filed with the court whether or not the writ is granted.” Id.
K.Endorsement of Allowance of Writ
“Every writ issued must be endorsed with a certificate of its allowance and the date of the allowance.” MCR 3.303(G). “The endorsement must be signed by the judge issuing the writ, or, if the writ is issued by a panel of more than 1 judge, by a judge of the court.” Id.
“A writ of habeas corpus must be substantially in the form approved by the state court administrator.” MCR 3.303(H). See SCAO Form MC 203, Writ of Habeas Corpus.
1.Person to Be Served
“The writ or order to show cause must be served on the defendant in the manner prescribed in MCR 2.105.” MCR 3.303(I)(1). “If the defendant cannot be found, or if the defendant does not have the prisoner in custody, the writ or order to show cause may be served on anyone having the prisoner in custody or that person’s superior, in the manner and with the same effect as if that person had been made a defendant in the action.” Id.
2.Tender of Fees
“If the Attorney General or a prosecuting attorney brings the action, or if a judge issues the writ on his or her own initiative, there is no fee.” MCR 3.303(I)(2). “In other actions, to make the service of a writ of habeas corpus effective, the person making service must give the fee provided by law or [MCR 3.303] to the person having custody of the prisoner or to that person’s superior.” MCR 3.303(I)(2).
“If the prisoner is in the custody of a sheriff, coroner, constable, or marshal, the fee is that allowed by law to a sheriff for bringing up a prisoner.” MCR 3.303(I)(2).
“If the prisoner is in the custody of another person, the fee is that, if any, allowed by the court issuing the writ, not exceeding the fee allowed by law to a sheriff for similar services.” MCR 3.303(I)(2).
“The writ or order to show cause may not be disobeyed because of a defect in form.” MCR 3.303(J). “The writ or order to show cause is sufficient if the prisoner is designated by name, if known, or by a description sufficient to permit identification.” Id. “The writ or order may designate the person to whom it is directed as the person having custody of the prisoner.” Id. “Anyone served with the writ or order is deemed the person to whom it is directed and is considered a defendant in the action.” Id.
“If the writ is to be answered and the hearing held on a specified day and hour, the answer must be made and the prisoner produced at the time and place specified in the writ.” MCR 3.303(K)(1).
“If an order to show cause is issued, it must be answered as provided in [MCR 3.303(N)], and the hearing must be held at the time and place specified in the order.” MCR 3.303(K)(2).
P.Notice of Hearing Before Discharge
“When the answer states that the prisoner is in custody on process under which another person has an interest in continuing the custody, an order of discharge may not be issued unless the interested person or that person’s attorney has had at least 4 days’ notice of the time and place of the hearing.” MCR 3.303(L)(1).
“When the answer states that the prisoner is detained on a criminal charge, the prisoner may not be discharged until sufficient notice of the time and place of the hearing is given to the prosecuting attorney of the county within which the prisoner is detained or, if there is no prosecuting attorney within the county, to the Attorney General.” MCR 3.303(L)(2).
“A complaint seeking a writ of habeas corpus to inquire into a child’s custody must be presented to the judicial circuit for the county in which the child resides or is found.” MCR 3.303(M)(1).
“If the action for habeas corpus is brought by a parent, foster-parent, or other relative of the child, to obtain custody of a child under the age of 16 years from a parent, foster-parent, or other relative of the child, issuance of the writ of habeas corpus is not mandatory.” MCL 600.4319. Rather, “[a]n order to show cause, not a writ of habeas corpus, must be issued initially if the action is brought by a parent, foster parent, or other relative of the child, to obtain custody of a child under the age of 16 years from a parent, foster parent, or other relative of the child.” MCR 3.303(M)(2). “The court may direct the [F]riend of the [C]ourt to investigate the circumstances of the child’s custody.” Id.
“The answer must state the reason why the prisoner is detained and a copy of the written authority for such detention, if any, must be attached.” Phillips, 153 Mich App at 561-562, citing MCR 3.303(N)(1)(a) and MCR 3.303(N)(2).
1.Contents of Answer
“The defendant or person served must obey the writ or order to show cause or show good cause for not doing so, and must answer the writ or order to show cause within the time allowed.” MCR 3.303(N)(1). “Failure to file an answer is contempt.”4 Id. “The answer must state plainly and unequivocally
(a) whether the defendant then has, or at any time has had, the prisoner under his or her control and, if so, the reason; and
(b) if the prisoner has been transferred, to whom, when the transfer was made, and the reason or authority for the transfer.” MCR 3.303(N)(1).
2.Attachments
“If the prisoner is detained because of a writ, warrant, or other written authority, a copy must be attached to the answer, and the original must be produced at the hearing.” MCR 3.303(N)(2). “If an order under [MCR 3.303(E)] requires it, the answer must be accompanied by the certified transcript of the record and proceedings.” MCR 3.303(N)(2).
3.Verification
“The answer must be signed by the person answering, and, except when the person is a sworn public officer and answers in his or her official capacity, it must be verified by oath.” MCR 3.303(N)(3).
“In a reply or at a hearing, the plaintiff or the prisoner may controvert the answer under oath, to show either that the restraint is unlawful or that the prisoner is entitled to discharge.” MCR 3.303(O).
1 “[MCR 3.303(A)(3)] does not limit the power of the Court of Appeals or Supreme Court to issue the writ.” MCR 3.303(A)(3).
2 See Section 4.3(E) for information on persons prohibited from bringing an action.
3 “Duplicate original writs may be issued.” MCR 3.303(D)(3).
4 For information on contempt, see the Michigan Judicial Institute’s Contempt of Court Benchbook and quick reference materials (i.e. checklists, flowcharts, and tables).