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Justice on Habeas corpus habeas corpus v. 35(c)

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  • legalbear
    Most of my legal research over the past several weeks has been toward understanding the proper substantive and procedural application of habeas corpus. I have
    Message 1 of 1 , Mar 2, 2003
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      Most of my legal research over the past several weeks has been toward
      understanding the proper substantive and procedural application of
      habeas
      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
      the
      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
      35(c) or
      mis application of habeas corpus, is quite interesting. It turns out
      that
      Rule 35(c) takes the place of Habeas Corpus for most jurisdictional
      reasons. In fact, it is difficult to define the line of demarcation
      between
      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,
      though,
      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
      such
      that it loses jurisdiction in the process, such constitutes grounds for
      remedy "in the nature of habeas corpus" under Rule 35(c). Included in
      this
      scope would be reversible judicial errors such as due process
      violations,
      want of waiver of counsel, failure to properly advise etc.

      So, having said that, it appears to me the line between Habeas corpus
      and
      Rule 35(c) is drawn at the point where the trial court can in no way
      acquire
      jurisdiction over either the subject matter or the person due to some
      defect
      in the initiation or institution of the process, such as a faulty,
      possibly
      insufficient, unconstitutional, deficient, complaint.

      I would image one example to be where a guy is convicted of something
      not
      charged in the charging instrument.

      Let your mind wander here. Maybe through conversation we can come to
      better
      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.

      David

      ----- Original Message -----
      From: "Frank Taucher" <taucher@...>
      To: <david@...>
      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,
      should
      > i succeed
      >
      > such is the reason i have sought your email location
      >
      > there is, of course, no assurance that i might succeed
      >
      > regards
      > ft
      >
      >
      >
      >
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