Justice on Habeas corpus habeas corpus v. 35(c)
- Most of my legal research over the past several weeks has been toward
understanding the proper substantive and procedural application of
corpus. I have prepared a draft of one, but have not yet filed it.
Colorado has an interesting procedure, Crim. P. Rule 35(c) that gets in
way, even bars, the Habeas remedy procedurally in most cases. I am sure
other states probably have this same criminal procedure.
The case law which has been developed under the application of Rule
mis application of habeas corpus, is quite interesting. It turns out
Rule 35(c) takes the place of Habeas Corpus for most jurisdictional
reasons. In fact, it is difficult to define the line of demarcation
the two remedies.
It appears to me that the refinancing line turns on the jurisdictional
question. Rule 35(c) contains a remedy for jurisdictional problems,
which is why the line is so hard to draw.
It appears that if the institution of criminal proceedings are without
defect, and somewhere along the way the court screws up procedurally
that it loses jurisdiction in the process, such constitutes grounds for
remedy "in the nature of habeas corpus" under Rule 35(c). Included in
scope would be reversible judicial errors such as due process
want of waiver of counsel, failure to properly advise etc.
So, having said that, it appears to me the line between Habeas corpus
Rule 35(c) is drawn at the point where the trial court can in no way
jurisdiction over either the subject matter or the person due to some
in the initiation or institution of the process, such as a faulty,
insufficient, unconstitutional, deficient, complaint.
I would image one example to be where a guy is convicted of something
charged in the charging instrument.
Let your mind wander here. Maybe through conversation we can come to
define that line. It does need to be understood. I would like to see a
copy of your proposed draft.
I am sending a copy of this to Dennis, Malcolm and Barry, and a lawyer
acquaintance of mine named Art, for their consideration and input.
Thanks for your Concern Frank, I appreciate your continued interest.
----- Original Message -----
From: "Frank Taucher" <taucher@...>
Sent: Wednesday, February 26, 2003 11:11 PM
> hi david
> i'm about to try an organic habeas
> my plan is to use it on your behalf, should you deem such desirable,
> i succeed
> such is the reason i have sought your email location
> there is, of course, no assurance that i might succeed