Colorado § 13-45-103 - Hearing - pleadings - discharge.

§ 13-45-103. Hearing - pleadings - discharge.

(1) Upon the return of the writ of habeas corpus, a day shall be set for the hearing of the cause of imprisonment or detainer not exceeding five days thereafter, unless the prisoner requests a longer time. The prisoner may deny any of the material facts set forth in the return or may allege any fact to show either that the imprisonment or detention is unlawful or that he is then entitled to his discharge, which allegations or denials shall be made on oath. The return may be amended by leave of the court, before or after the same is filed as also may all suggestions made against it, that thereby all material facts may be ascertained. The court shall proceed in a summary way to settle the facts by hearing the testimony and arguments of all parties interested civilly, if there are any, as well as of the prisoner and the person who holds him in custody and shall dispose of the prisoner as the case may require.

(2) If it appears that the prisoner is in custody by virtue of process from any court legally constituted, he can be discharged only for some of the following causes:

(a) Where the court has exceeded the limit of its jurisdiction, either as to the matter, place, sum, or person;

(b) Where, though the original imprisonment was lawful, yet by some act, omission, or event which has subsequently taken place, the party has become entitled to his discharge;

(c) Where the process is defective in some substantial form required by law;

(d) Where the process, though in proper form, has been issued in a case or under circumstances where the law does not allow process or orders for imprisonment or arrest to issue;

(e) Where, although in proper form, the process has been issued or executed by a person either unauthorized to issue or execute the same or where the person having the custody of the prisoner under such process is not the person empowered by law to detain him;

(f) Where the process appears to have been obtained by false pretense or bribery;

(g) Where there is no general law, nor any judgment, order, or decree of a court to authorize the process, if in a civil suit, nor any conviction if in a criminal proceeding.

(3) No court on the return of a habeas corpus shall inquire into the legality or justice of a judgment or decree of a court legally constituted, in any other manner. In all cases where the imprisonment is for a criminal or supposed criminal matter, if it appears to the court that there is sufficient legal cause for the commitment of the prisoner although such commitment may have been informally made, or without due authority, or the process may have been executed by a person not authorized, the court shall make a new commitment, in proper form and directed to the proper officer, or admit the party to bail if the case is bailable.

Source: R.S. p. 353, § 3. G.L. § 1325. G.S. § 1611. R.S. 08: § 2919. C.L. § 6488. CSA: C. 77, § 3. CRS 53: § 65-1-3. C.R.S. 1963: § 65-1-3.

ANNOTATION

Law reviews. For article, "Post-Convention Remedies in Colorado Criminal Cases", see 31 Rocky Mt. L. Rev. 249 (1951). For note, "Habeas Corpus in Colorado for the Convicted Criminal", see 30 Rocky Mt. L. Rev. 145 (1958).

To warrant a habeas corpus hearing the court must have jurisdiction of the respondent and the person allegedly suffering restraint. To satisfy this requirement it usually is necessary that the alleged restraint shall be exercised upon such person within the state. Nevertheless, if it appears that respondent is able to produce such person, it is generally considered that the writ may issue, notwithstanding he is not within the state. Ex parte Emerson, 107 Colo. 83, 108 P.2d 866 (1940).

In a habeas corpus proceeding by a person convicted of a crime, the sole question for consideration is whether the petitioner was convicted in a court having jurisdiction over his person of the charge in the information and whether judgment and sentence were within the statutory limitations. In re Garvey, 7 Colo. 384, 3 P. 903 (1884); Petition of Phillips, 93 Colo. 203, 24 P.2d 755 (1933); People ex rel. Metzger v. District Court, 121 Colo. 141, 215 P.2d 327 (1949); Farrell v. District Court, 135 Colo. 329, 311 P.2d 410 (1957); Stilley v. Tinsley, 153 Colo. 66, 385 P.2d 677 (1963); Ruark v. Tinsley, 158 Colo. 565, 408 P.2d 969 (1965); Henry v. Tinsley, 344 F.2d 109 (10th Cir. 1965); People ex rel. Patterson v. District Court, 157 Colo. 69, 401 P.2d 88 (1965); Breckenridge v. Patterson, 374 F.2d 857 (10th Cir. 1967); De Baca v. Trujillo, 167 Colo. 311, 447 P.2d 533 (1968).

In habeas corpus proceedings, judicial inquiry generally is limited to an investigation of the validity of the petitioner's confinement at the time of the hearing. Where petitioner alleged only that his place of confinement should be altered, rather than that the particular circumstances of his place of confinement deprived him of constitutionally protected rights, the petitioner's request for habeas corpus relief was properly dismissed. White v. Ricketts, 684 P.2d 239 (Colo. 1984).

A writ of habeas corpus will not issue to enable the supreme court to review a judgment that is merely irregular or erroneous. It is only where there has been no conviction, or, what is the same thing, a conviction that is wholly void, and not where there has been an erroneous conviction before a competent tribunal, that the prisoner may be released on habeas corpus under this section. Ex parte Farnham, 3 Colo. 545 (1877).

There is a distinction between a void and erroneous judgment, and where the court has jurisdiction of the subject matter and of the person, its judgment will not be void; at most, it is erroneous, in which case it can be corrected by the court which pronounced it or by the supreme court. In a collateral habeas corpus proceeding the validity of the judgment cannot be questioned. Hart v. Best, 119 Colo. 569, 205 P.2d 787 (1949).

Hearing is required. Ordinarily, there can be no doubt that under this section where the person allegedly restrained has challenged the truth of the officer's return on its face, the court must settle the facts by hearing the testimony and arguments and then dispose of the prisoner as the case may require. Ex parte Emerson, 107 Colo. 83, 108 P.2d 866 (1940).

Final determination is based on hearing. Final determination of a habeas corpus proceeding is not to be had on the petition. It can only be had upon the answer and return to the writ. Minor v. Tinsley, 154 Colo. 249, 389 P.2d 850 (1964).

Continuance not in interest of petitioner improperly granted. The trial court improperly continued the hearing on the habeas corpus petition beyond the five-day statutory time limit. A child could not be said to have requested the continuance by filing a custody petition through his mother where the legal custodian of the child by habeas corpus seeks expeditious enforcement of the custody order, while the mother by a custody proceeding seeks a determination concerning the child's permanent custody. A continuance in the habeas corpus proceeding entirely defeats the purpose for which the custodian and the child pursued that course of action — immediate restoration of the child to his legal custodian. Nelson v. District Court, 186 Colo. 381, 527 P.2d 811 (1974).

In habeas corpus proceeding, burden rested upon petitioner to allege facts entitling him to relief. Pigg v. Tinsley, 158 Colo. 160, 405 P.2d 687 (1965).

Petitioner may have right to habeas corpus due to some happening after commitment. This section provides that a prisoner can be discharged where though the original imprisonment was lawful, yet by some act, omission or event, which has subsequently taken place, the party has become entitled to his discharge. Kostal v. Tinsley, 152 Colo. 196, 381 P.2d 43 (1963).

Such as prison board forfeiting "good time" credit. Subsection (2) is an authorization to test the legality of the prison board proceedings in the state courts whereby good time credits were forfeited by the prison board following the return of the appellant to prison after an escape. Henry v. Patterson, 363 F.2d 443 (10th Cir. 1966).

Formal defects in information will not entitle prisoner to discharge. The omission from a criminal information, otherwise above exception, of the concluding phrase "and against the peace and dignity of the same", goes to matter of form, and in no degree impairs the jurisdiction of the court and one convicted upon such information will not be discharged on habeas corpus. Chemgas v. Tynan, 51 Colo. 35, 116 P. 1045 (1911).

Satisfaction of judgment entitles petitioner to release. A petition to have the trial court determine that he had in fact satisfied a valid judgment of the court and was therefore entitled to release from the penitentiary comes within the provisions of writ of habeas corpus. Saiz v. People, 156 Colo. 43, 396 P.2d 963 (1964).

Writ improperly discharged. Although the district court properly proceeded in a summary way to settle the petitioner's request for release from the custody of the department of corrections on the basis that the petitioner fully served his sentences, the court improperly discharged the writ. The district court incorrectly decided that petitioner had not established a prima facie case where the petitioner presented a notice of parole board action granting parole and no evidence was presented that parole had been rescinded or suspended, as required by parole board regulations. The motion to dismiss should have been denied. Cardiel v. Brittian, 833 P.2d 748 (Colo. 1992).

Writ of habeas corpus properly denied as prisoners do not have any constitutional right to a particular classification level within a correctional system, and the department of corrections' classification of petitioner did not impermissibly invade any retained liberty interest. Andretti v. Johnson, 779 P.2d 382 (Colo. 1989).

Writ of habeas corpus properly denied as inmate's right to payment of postage fees by the state for mailing costs associated with litigation is not fundamental constitutional right protected by habeas corpus proceeding. Reece v. Johnson, 793 P.2d 1152 (Colo. 1990).

In using the telephone as the transmission mechanism for hearing the parties' legal theories, the court did not abuse its discretion as to the manner of a hearing under this section. Spoto v. Colo. State Dept. of Corr., 883 P.2d 11 (Colo. 1994).

Applied in Beverly v. Davis, 648 P.2d 621 (Colo. 1982); Schumm v. Nelson, 659 P.2d 1389 (Colo. 1983).