Habeas

29 December A.D. 2008

Regarding the habeas, it would be good to update the page to include
this information:

The typical "in re [defendant / applicant]" and the "ex parte [defendant
/ applicant]" case styles hide the real party / parties in interest.  In
this application, I have included the judge as a respondent. 
Information from the most respected of authorities suggests that the
hidden party(ies) to the habeas is not a judicial officer but rather an
executive officer.  Non-custodial "restraint," then, most likely means
that the state Attorney General is the proper party respondent, and a
case style of "Applicant v. State" is an appropriate case style for the
habeas application.  Thus, Notice to STATE in the normal process of
providing Notice to STATE should be adequate to satisfy the Notice
element for the habeas application.


For those studying habeas for custodial restraint (i.e., the applicant
is in jail), there will be, of course, a nominal custodian for the
inmates in that particular system.  In Texas, that party is the 
Director of the Texas Department of Criminal Justice.  There will likely
be a similar position / office in each state.  Why does this matter? 
"Notice."  There may or may not be rules for service of process for a
habeas application.  But, there must always be Notice.  Thus, whether
service of process is overtly required procedurally isn't the issue, for
Notice is always required as a matter of Due Process.  This is all the
more relevant where the application for habeas includes a statutory
challenge (remember also to serve the US Attorney General and the US
Attorney in that federal district for statutory challenge cases). 
There's another subtlety, too.  IF the correctional facility is
purportedly a non-profit enterprise, then the state's Attorney General
is a necessary party, as is the case for all litigation that involves
eleemosynary entities.


Harmon L. Taylor
Legal Reality
Dallas, Texas
 

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