Print Version
Previous PageFile uploaded: 4/3/2012

Rule 20. Habeas corpusproceedings.

(a) Application for an originalwrit; when appropriate. If a petition for a writ of habeas corpus is filed inthe appellate court or submitted to a justice or judge thereof, it will bereferred to the appropriate district court unless it is shown on the face ofthe petition to the satisfaction of the appellate court that the district courtis unavailable or other exigent circumstances exist. If a petition is initiallyfiled in a district court or is referred to a district court by the appellatecourt and the district court denies or dismisses the petition, a refiling ofthe petition with the appellate court is inappropriate; the proper procedure insuch an instance is an appeal from the order of the district court.

(b) Procedure on originalpetition.

(b)(1) A habeas corpusproceeding may be commenced by filing a petition with the clerk of theappellate court or, in emergency situations, with a justice or judge of thecourt. For matters pending in the Supreme court, an original petition and sevencopies shall be filed in the Supreme Court. For matters pending in the Court ofAppeals, an original petition and four copies shall be filed in the Court ofAppeals. The petitioner shall serve a copy of the petition on the respondentpursuant to any of the methods provided for service of process in Rule 4 of theUtah Rules of Civil Procedure but, if imprisoned, the petitioner may mail byUnited States mail, postage prepaid, a copy of the petition to the AttorneyGeneral of Utah or the county attorney of the county if imprisoned in a countyjail. Such service is in lieu of service upon the named respondent, and acertificate of mailing under oath that a copy was mailed to the AttorneyGeneral or county attorney must be filed with the clerk of the appellate court.In emergency situations, an order to show cause may be issued by the court, ora single justice or judge if the court is not available, and a stay orinjunction may be issued to preserve the court's jurisdiction until such timeas the court can hear argument on whether a writ should issue.

(b)(2) If the petition is notreferred to the district court, the attorney general or the county attorney, asthe case may be, shall answer the petition or otherwise plead within ten daysafter service of a copy of the petition. When a responsive pleading or motionis filed or an order to show cause is issued, the court shall set the case forhearing and the clerk shall give notice to the parties.

(b)(3) The clerk of theappellate court shall, if the petitioner is imprisoned or is a person otherwisein the custody of the state or any political subdivision thereof, give noticeof the time for the filing of memoranda and for oral argument, to the attorneygeneral, the county attorney, or the city attorney, depending on where thepetitioner is held and whether the petitioner is detained pursuant to state,county or city law. Similar notice shall be given to any other person or anassociation detaining the petitioner not in custody of the state.

(c) Contents of petition andattachments. The petition shall include the following:

(c)(1) A statement of where thepetitioner is detained, by whom the petitioner is detained, and the reason, ifknown, why the respondent has detained the petitioner.

(c)(2) A brief statement of thereasons why the detention is deemed unlawful. The petition shall state in plainand concise language:

(c)(2)(A) the facts giving riseto each claim that the confinement or detention is in violation of a stateorder or judgment or a constitutional right established by the United StatesConstitution or the Constitution of the State of Utah or is otherwise illegal;

(c)(2)(B) whether an appeal wastaken from the judgment or conviction pursuant to which a petitioner isincarcerated; and

(c)(2)(C) whether theallegations of illegality were raised in the appeal and decided by theappellate court.

(c)(3) A statement indicatingwhether any other petition for a writ of habeas corpus based on the same orsimilar grounds has been filed and the reason why relief was denied.

(c)(4) Copies of the courtorder or legal process, court opinions and findings pursuant to which thepetitioner is detained or confined, affidavits, copies of orders, and othersupporting written documents shall be attached to the petition or it shall bestated by petitioner why the same are not attached.

(d) Contents of answer. Theanswer shall concisely set forth specific admissions, denials, or affirmativedefenses to the allegations of the petition and must state plainly andunequivocally whether the respondent has, or at any time has had, the persondesignated in the petition under control and restraint and, if so, the causefor the restraint. The answer shall not contain citations of legal authority orlegal argument.

(e) Other provisions.

(e)(1) If the respondent cannotbe found or if the respondent does not have the person in custody, the writ andany other process issued may be served upon anyone having the petitioner incustody, in the manner and with the same effect as if that person had been maderespondent in the action.

(e)(2) If the respondentrefuses or avoids service, or attempts wrongfully to carry the personimprisoned or restrained out of the county or state after service of the writ,the person serving the writ shall immediately arrest the respondent or otherperson so resisting, for presentation, together with the person designated inthe writ, forthwith before the court.

(e)(3) At the time of theissuance of the writ, the court may, if it appears that the person detainedwill be carried out of the jurisdiction of the court or will suffer someirreparable injury before compliance with the writ can be enforced, cause awarrant to issue, reciting the facts and directing the sheriff to bring thedetained person before the court to be dealt with according to law.

(e)(4) The respondent shallappear at the proper time and place with the person designated or show goodcause for not doing so. If the person designated has been transferred, therespondent must state when and to whom the transfer was made, and the reasonand authority for the transfer. The writ shall not be disobeyed for any defectof form or misdescription of the person restrained or of the respondent, ifenough is stated to show the meaning and intent.

(e)(5) The person restrainedmay waive any rights to be present at the hearing, in which case the writ shallbe modified accordingly. Pending a determination of the matter, the court mayplace such person in the custody of an individual or association as may bedeemed proper.

ADVISORY COMMITTEE NOTE

The amendments make clear thatan original writ for habeas corpus should be filed only in the District Court.An application to an appellate court must demonstrate on the face of thepetition the unavailability of the District Court. Petitions that do not containsuch documentation will be summarily referred to the District Court. Theclarification seeks to halt the practice by some pro se petitioners ofsimultaneously filing the same petition in different courts.

The amendments simplify theprocedures for service of petitions upon the respondent by incarceratedpetitioners. The former rule required service by summons on the respondent. Theamendments allow service on the Attorney General or county attorney by mail.