NE Code § 29-2801 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-2801 - Habeas corpus; writ; when allowed.

29-2801.  Habeas corpus; writ; when allowed.If any person, except persons convicted of some crime or offense for which they stand committed, or persons committed for treason or felony, the punishment whereof is capital, plainly and specially expressed in the warrant of commitment, now is or shall be confined in any jail of this state, or shall be unlawfully deprived of his or her liberty, and shall make application, either by him or herself or by any person on his or her behalf, to any one of the judges of the district court, or to any county judge, and does at the same time produce to such judge a copy of the commitment or cause of detention of such person, or if the person so imprisoned or detained is imprisoned or detained without any legal authority, upon making the same appear to such judge, by oath or affirmation, it shall be his duty forthwith to allow a writ of habeas corpus, which writ shall be issued forthwith by the clerk of the district court, or by the county judge, as the case may require, under the seal of the court whereof the person allowing such writ is a judge, directed to the proper officer, person or persons who detains such prisoner.Source   G.S.1873, c. 58, § 353, p. 804;   R.S.1913, § 9247;   C.S.1922, § 10276;   C.S.1929, § 29-2801;   R.S.1943, § 29-2801;  Laws 2015, LB268, § 24;   Referendum 2016, No. 426.   Note: The changes made to section 29-2801 by Laws 2015, LB 268, section 24, have been omitted because of the vote on the referendum at the November 2016 general election. Annotations  1. Jurisdiction 2. Requirement in petition 3. When allowed 4. When denied 5. Miscellaneous 1. Jurisdiction After the court's jurisdiction has been invoked by a petition for habeas corpus seeking the custody of children, the children become wards of the court and their welfare lies in the hands of the court. Maria T. v. Jeremy S., 300 Neb. 563, 915 N.W.2d 441 (2018). The failure to attach a copy of the relevant commitment order to a petition for a writ of habeas corpus, as required by this section, does not prevent a court from exercising jurisdiction over that petition. O'Neal v. State, 290 Neb. 943, 863 N.W.2d 162 (2015). This section discusses the extent of a district or county court's subject matter jurisdiction over writs of habeas corpus; venue in habeas corpus actions is determined by Gillard v. Clark, 105 Neb. 84, 179 N.W. 396 (1920). Anderson v. Houston, 274 Neb. 916, 744 N.W.2d 410 (2008). An application for a writ of habeas corpus to release a prisoner confined under sentence of court must be brought in the county where the prisoner is confined. Where proceedings are instituted in another county, it is the duty of the court, on objection to its jurisdiction, to dismiss the proceedings. Addison v. Parratt, 204 Neb. 656, 284 N.W.2d 574 (1979); Gillard v. Clark, 105 Neb. 84, 179 N.W. 396 (1920). County court does not have jurisdiction in habeas corpus proceedings to release an accused person held for trial in district court. McFarland v. State, 172 Neb. 251, 109 N.W.2d 397 (1961). Rules governing allowance of writ of habeas corpus are restated and clarified. Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946); Hawk v. Olson, 146 Neb. 875, 22 N.W.2d 136 (1946). Original jurisdiction in habeas corpus has been conferred upon the county court in certain cases. Williams v. Olson, 143 Neb. 115, 8 N.W.2d 830 (1943). Where application is made for a writ of habeas corpus to the district court of a county other than the one in which the prisoner is confined, and the officer in whose custody the prisoner is held brings the latter into court and submits to jurisdiction without objection, the prisoner is then under confinement in the county where the action was brought. In such case, the court has the authority to inquire into the legality of his or her restraint. Gillard v. Clark, 105 Neb. 84, 179 N.W. 396 (1920). Application for writ by parent to recover possession of minor child may be brought in district court of county where unlawful detention takes place. State ex rel. Gunnarson v. Nebraska Children's Home Society, 94 Neb. 255, 143 N.W. 203 (1913). County court does not have authority to issue writ of habeas corpus to be served in adjoining county to bring before court a nonresident child. Johnson v. Terry, 85 Neb. 267, 122 N.W. 984 (1909). United States commissioner has no authority to issue writ. State ex rel. Atty. Gen. v. Burr, 19 Neb. 593, 28 N.W. 261 (1886). 2. Requirement in petition Failing to present the statutorily required copy of the commitment and detention order prevents a district court from proceeding to the relief sought by a defendant's habeas corpus action. Gallion v. Zinn, 236 Neb. 98, 459 N.W.2d 214 (1990). Habeas corpus is not demandable of right but legal cause must be shown to entitle petitioner to its benefit. Swanson v. Jones, 151 Neb. 767, 39 N.W.2d 557 (1949). Habeas corpus is a writ of right, but not a writ of course. Probable cause for issuance thereof must be shown. In re Application of Tail, Tail v. Olson, 145 Neb. 268, 16 N.W.2d 161 (1944). Failure to set out copy of process in application is excused when facts alleged indicate nonexistence of warrant. Urban v. Brailey, 85 Neb. 796, 124 N.W. 467 (1910). Petition based upon alleged want of probable cause should set out testimony; evidence may justify commitment though insufficient to convict. Rhea v. State, 61 Neb. 15, 84 N.W. 414 (1900). Petition for writ must state facts which constitute illegal restraint. State ex rel. Distin v. Ensign, 13 Neb. 250, 13 N.W. 216 (1882). 3. When allowed A parolee may seek relief through Nebraska's habeas corpus statute. Caton v. State, 291 Neb. 939, 869 N.W.2d 911 (2015). Under Nebraska law, the availability of habeas corpus is restricted to situations where the sentence imposed is absolutely void. Piercy v. Parratt, 202 Neb. 102, 273 N.W.2d 689 (1979). Habeas corpus proceeding is a proper remedy to determine the right to the custody of a child. In re Application of Schwartzkopf, 149 Neb. 460, 31 N.W.2d 294 (1948). Habeas corpus is a special civil proceeding providing summary remedy open to persons illegally detained. In re Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840 (1944). To obtain release by habeas corpus, judgment must be absolutely void. In re James Carbino, 117 Neb. 107, 219 N.W. 846 (1928); Hulbert v. Fenton, 115 Neb. 818, 215 N.W. 104 (1927); Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007 (1904); Keller v. Davis, 69 Neb. 494, 95 N.W. 1028 (1903). Writ of habeas corpus is proper remedy where one is deprived of his liberty by reason of void judgment. In re Resler, 115 Neb. 335, 212 N.W. 765 (1927). Writ lies where defendant has been arrested under void city ordinance. In re Application of McMonies, 75 Neb. 702, 106 N.W. 456 (1906). Where detention is had under void sentence in contempt proceedings, habeas corpus is proper remedy. In re Havlik, 45 Neb. 747, 64 N.W. 234 (1895). 4. When denied Habeas corpus is not a proper remedy to challenge a petitioner's detention pursuant to a final conviction and sentence on the basis that the statute underlying the conviction is unconstitutional. Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016). To release a person from a sentence of imprisonment by habeas corpus, it must appear that the sentence was absolutely void. Habeas corpus will not lie to discharge a person from a sentence of penal servitude where the court imposing the sentence had jurisdiction of the offense and had jurisdiction of the person of the defendant, and the sentence was within the power of the court to impose. Anderson v. Gunter, 235 Neb. 560, 456 N.W.2d 286 (1990). Habeas corpus is not the proper action to challenge the validity of a detainer based upon an untried complaint, where the state filing the detainer has not requested transfer of the prisoner. Wickline v. Gunter, 233 Neb. 878, 448 N.W.2d 584 (1989). Writ of habeas corpus is not available to persons lawfully convicted or merely to challenge conditions of incarceration. Pruitt v. Parratt, 197 Neb. 854, 251 N.W.2d 179 (1977). Habeas corpus is not available to discharge a prisoner from a sentence of penal servitude if the court imposing it has jurisdiction of the offense and of the person charged with the crime, and if the sentence was within the power of the court. Case v. State, 177 Neb. 404, 129 N.W.2d 107 (1964). After conviction, release pending hearing is not demandable of course. Sedlacek v. Hann, 156 Neb. 340, 56 N.W.2d 138 (1952). Courts may not by habeas corpus deprive parents of the custody of their children unless parents are shown to be unfit. Boucher v. Dittmer, 151 Neb. 580, 38 N.W.2d 401 (1949). Habeas corpus is never allowed as substitute for appeal or proceedings in error. Hulbert v. Fenton, 115 Neb. 818, 215 N.W. 104 (1927); Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007 (1904); In re Langston, 55 Neb. 310, 75 N.W. 828 (1898). Upon habeas corpus to discharge person held under warrant of extradition, if return to writ shows facts sufficient to justify detention of accused, it is sufficient. In re Willard, 93 Neb. 298, 140 N.W. 170 (1913). Irregularities in commitment for contempt by justice of peace are not reviewable on habeas corpus. In re Hammond, 83 Neb. 636, 120 N.W. 203 (1909). Insufficiency of complaint to state crime cannot ordinarily be raised by habeas corpus. Rhyn v. McDonald, 82 Neb. 552, 118 N.W. 136 (1908). There is no provision for motion for new trial in county court on application for writ. Writ may not be allowed though complaint is subject to successful attack by demurrer. State ex rel. Gardiner v. Shrader, 73 Neb. 618, 103 N.W. 276 (1905). Decision of Governor that party held under extradition warrant is a fugitive from justice cannot be reviewed on habeas corpus. Dennison v. Christian, 72 Neb. 703, 101 N.W. 1045 (1904). Sentence in excess of statutory period is not ground for writ. In re Fanton, 55 Neb. 703, 76 N.W. 447 (1898). On arrest on extradition warrant, evidence on preliminary hearing in other state will not be examined. In re Van Sciever, 42 Neb. 772, 60 N.W. 1037 (1894). Irregularities before grand jury cannot be considered on habeas corpus. In re Betts, 36 Neb. 282, 54 N.W. 524 (1893). Defendant out on bail is not entitled to writ, but should surrender himself. Spring v. Dahlman, 34 Neb. 692, 52 N.W. 567 (1892). Commitment to reform school is not reviewable on habeas corpus. Buchanan v. Mallalieu, 25 Neb. 201, 41 N.W. 152 (1888). Where defendant is committed to jail in default of fine, writ will not issue until fine is paid. Ex parte Johnson, 15 Neb. 512, 19 N.W. 594 (1884). Supreme Court will not weigh evidence if testimony shows commission of offense. In re Balcom, 12 Neb. 316, 11 N.W. 312 (1882). 5. Miscellaneous Courts are cautioned in habeas proceedings to follow the traditional procedure illustrated by the habeas corpus statutes rather than make up their own procedure. Maria T. v. Jeremy S., 300 Neb. 563, 915 N.W.2d 441 (2018). The State cannot collaterally attack in a habeas action a prior sentence that the court erroneously failed to enhance under the habitual criminal statutes. Meyer v. Frakes, 294 Neb. 668, 884 N.W.2d 131 (2016). Issue of writ by district judge to county outside district is discretionary. State ex rel. Thompson v. Porter, 78 Neb. 811, 112 N.W. 286 (1907). Habeas corpus involving custody of child is a proceeding in rem. Terry v. State, 77 Neb. 612, 110 N.W. 733 (1906). Procedure for review is same as in civil actions. State v. Decker, 77 Neb. 33, 108 N.W. 157 (1906). The law-of-the-case doctrine applies to issues raised in a petition for a writ of habeas corpus if that same issue was raised in the appellate court on direct appeal. Gray v. Kenney, 22 Neb. App. 739, 860 N.W.2d 214 (2015). Under Nebraska law, scope of remedy of writ of habeas corpus is limited. Shupe v. Sigler, 230 F.Supp. 601 (D. Neb. 1964). Writ of habeas corpus is not available in federal court until relief has been sought in state court by writ of error coram nobis without avail. Schwein v. Olson, 56 F.Supp. 993 (D. Neb. 1944).