Rule 3.303 Habeas Corpus to Inquire Into Cause of Detention

(A) Jurisdiction and Venue; Persons Detained on Criminal Charges.

(1) An action for habeas corpus to inquire into the cause of detention of a person may be brought in any court of record except the probate court.

(2) The action must be brought in the county in which the prisoner is detained. If it is shown that there is no judge in that county empowered and available to issue the writ or that the judicial circuit for that county has refused to issue the writ, the action may be brought in the Court of Appeals.

(3) A prisoner detained in a county jail for a criminal charge, who has not been sentenced to detention by a court of competent jurisdiction, may be removed from detention by a writ of habeas corpus to inquire into the cause of detention only if the writ is issued by the court in which the prisoner would next appear if the criminal process against the prisoner continued, or by the judicial circuit for the county in which the prisoner is detained. This subrule does not limit the power of the Court of Appeals or Supreme Court to issue the writ.

(B) Who May Bring. An action for habeas corpus may be brought by the prisoner or by another person on the prisoner's behalf.

(C) Complaint. The complaint must state:

(1) that the person on whose behalf the writ is applied for (the prisoner) is restrained of his or her liberty;

(2) the name, if known, or the description of the prisoner;

(3) the name, if known, or the description of the officer or person by whom the prisoner is restrained;

(4) the place of restraint, if known;

(5) that the action for habeas corpus by or on behalf of the prisoner is not prohibited;

(6) the cause or pretense of the restraint, according to the plaintiff's best knowledge and belief; and

(7) why the restraint is illegal.

(D) Issuance of the Writ or Order to Show Cause.

(1) On the filing of the complaint, the court may issue

(a) a writ of habeas corpus directed to the person having custody of the prisoner, or that person's superior, ordering him or her to bring the prisoner before the court forthwith; or

(b) an order to show cause why the writ should not be issued, unless it appears that the prisoner is not entitled to relief.

(2) On the showing required by MCL 600.4337, the court may issue a warrant in lieu of habeas corpus.

(3) Duplicate original writs may be issued.

(E) Certification of Record. When proceedings in another court or agency are pertinent to a determination of the issue raised in a habeas corpus action, the court may order the transcript of the record and proceedings certified to the court within a specified time. The order must identify the records to be certified with sufficient specificity to allow them to be located.

(F) Issuance Without Application or Before Filing.

(1) A judge of a court of record, except the probate court, may issue a writ of habeas corpus or order to show cause if

(a) the judge learns that a person within the judge's jurisdiction is illegally restrained, or

(b) an application is presented to the judge before or after normal court hours.

(2) If the prisoner is being held on criminal charges, the writ or order may only be issued by a judge of a court authorized to issue a writ of habeas corpus under subrule (A)(3).

(3) If a complaint is presented to a judge under the provisions of subrule (F)(1)(b), it need not be filed with the court before the issuance of a writ of habeas corpus. The complaint must subsequently be filed with the court whether or not the writ is granted.

(G) Endorsement of Allowance of Writ. Every writ issued must be endorsed with a certificate of its allowance and the date of the allowance. The endorsement must be signed by the judge issuing the writ, or, if the writ is issued by a panel of more than 1 judge, by a judge of the court.

(H) Form of Writ. A writ of habeas corpus must be substantially in the form approved by the state court administrator.

(I) Service of Writ.

(1) Person to be Served. The writ or order to show cause must be served on the defendant in the manner prescribed in MCR 2.105. If the defendant cannot be found, or if the defendant does not have the prisoner in custody, the writ or order to show cause may be served on anyone having the prisoner in custody or that person's superior, in the manner and with the same effect as if that person had been made a defendant in the action.

(2) Tender of Fees. If the Attorney General or a prosecuting attorney brings the action, or if a judge issues the writ on his or her own initiative, there is no fee. In other actions, to make the service of a writ of habeas corpus effective, the person making service must give the fee provided by law or this rule to the person having custody of the prisoner or to that person's superior.

(a) If the prisoner is in the custody of a sheriff, coroner, constable, or marshal, the fee is that allowed by law to a sheriff for bringing up a prisoner.

(b) If the prisoner is in the custody of another person, the fee is that, if any, allowed by the court issuing the writ, not exceeding the fee allowed by law to a sheriff for similar services.

(J) Sufficiency of Writ. The writ or order to show cause may not be disobeyed because of a defect in form. The writ or order to show cause is sufficient if the prisoner is designated by name, if known, or by a description sufficient to permit identification. The writ or order may designate the person to whom it is directed as the person having custody of the prisoner. Anyone served with the writ or order is deemed the person to whom it is directed and is considered a defendant in the action.

(K) Time for Answer and Hearing.

(1) If the writ is to be answered and the hearing held on a specified day and hour, the answer must be made and the prisoner produced at the time and place specified in the writ.

(2) If an order to show cause is issued, it must be answered as provided in subrule (N), and the hearing must be held at the time and place specified in the order.

(L) Notice of Hearing Before Discharge.

(1) When the answer states that the prisoner is in custody on process under which another person has an interest in continuing the custody, an order of discharge may not be issued unless the interested person or that person's attorney has had at least 4 days' notice of the time and place of the hearing.

(2) When the answer states that the prisoner is detained on a criminal charge, the prisoner may not be discharged until sufficient notice of the time and place of the hearing is given to the prosecuting attorney of the county within which the prisoner is detained or, if there is no prosecuting attorney within the county, to the Attorney General.

(M) Habeas Corpus to Obtain Custody of Child.

(1) A complaint seeking a writ of habeas corpus to inquire into a child's custody must be presented to the judicial circuit for the county in which the child resides or is found.

(2) An order to show cause, not a writ of habeas corpus, must be issued initially if the action is brought by a parent, foster parent, or other relative of the child, to obtain custody of a child under the age of 16 years from a parent, foster parent, or other relative of the child. The court may direct the friend of the court to investigate the circumstances of the child's custody.

(N) Answer.

(1) Contents of Answer; Contempt. The defendant or person served must obey the writ or order to show cause or show good cause for not doing so, and must answer the writ or order to show cause within the time allowed. Failure to file an answer is contempt. The answer must state plainly and unequivocally

(a) whether the defendant then has, or at any time has had, the prisoner under his or her control and, if so, the reason; and

(b) if the prisoner has been transferred, to whom, when the transfer was made, and the reason or authority for the transfer.

(2) Exhibits. If the prisoner is detained because of a writ, warrant, or other written authority, a copy must be attached to the answer as an exhibit, and the original must be produced at the hearing. If an order under subrule (E) requires it, the answer must be accompanied by the certified transcript of the record and proceedings.

(3) Verification. The answer must be signed by the person answering, and, except when the person is a sworn public officer and answers in his or her official capacity, it must be verified by oath.

(O) Answer May Be Controverted. In a reply or at a hearing, the plaintiff or the prisoner may controvert the answer under oath, to show either that the restraint is unlawful or that the prisoner is entitled to discharge.

(P) Prisoner; When Bailed. Because a habeas corpus action must be decided promptly with no more than the brief delay provided by subrule (Q)(2), release of a prisoner on bail will not normally be considered until after determination that legal cause exists for the detention. Thereafter, if the prisoner is entitled to bail, the court issuing the writ or order may set bail.

(Q) Hearing and Judgment.

(1) The court shall proceed promptly to hear the matter in a summary manner and enter judgment.

(2) In response to the writ of habeas corpus or order to show cause, the defendant may request adjournment of the hearing. Adjournment may be granted only for the brief delay necessary to permit the defendant

(a) to prepare a written answer (unless waived by the plaintiff); or

(b) to present to the court or judge issuing the writ or order testimonial or documentary evidence to establish the cause of detention at the time for answer.

(3) In the defendant's presence, the court shall inform the prisoner that he or she has the right to an attorney and the right to remain silent.

(4) From the time the prisoner is produced in response to the writ or order until judgment is entered, the judge who issued the writ or order has custody of the prisoner and shall make certain that the prisoner's full constitutional rights are protected.

(5) The hearing on the return to a writ of habeas corpus or an order to show cause must be recorded verbatim, unless a court reporter or recorder is not available. If the hearing is conducted without a verbatim record being made, as soon as possible the judge shall prepare and certify a narrative written report. The original report is part of the official record in the action, and copies must be sent forthwith to the parties or their attorneys.

(6) If the prisoner is restrained because of mental disease, the court shall consider the question of the prisoner's mental condition at the time of the hearing, rather than merely the legality of the original detention.