Miss. R. Cir. & Cnty. Ct. 2.07

As amended through March 21, 2024

Rule 2.07 - Habeas Corpus in Preconviction and Extradition Matters

A. Habeas Corpus in Cases Other Than Post-Conviction and Extradition

1. The writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his/her liberty, or by which rightful custody of the person is withheld from the person entitled thereto.

2. If the person for which habeas relief is sought is charged with a crime in this state for which the accused may be imprisoned or confined to jail, and the accused is indigent and makes an affidavit of indigence, then the court shall appoint an attorney, if one has not already been appointed. The court may appoint an attorney for an indigent seeking relief hereunder even though the indigent has not been formally charged with a crime in this state.

3. The proceedings and judgments shall in all cases be entered on record.

4. The motion for the writ of habeas corpus shall be in writing, sworn to and signed by the person for whose relief it is intended, or by someone on his/her behalf, and shall contain the following matters:

a. A description of where and by whom the movant is deprived of his/her liberty;

b. The facts and circumstances of the restraint;

c. The form of the relief sought;

d. The grounds upon which relief is sought; and

e. If desired, a request for a copy of transcripts of any prior proceeding if the movant qualifies as an indigent under 99-15-15 of the Mississippi Code of 1972, specifying what portions are necessary to decide the issues, and why they are necessary.

5. The motion for writ of habeas corpus shall be filed with the clerk of any court of competent jurisdiction of the county where the movant is detained. The proper respondent and, in cases where the person for whom habeas relief is sought is charged with a crime, the prosecuting attorney must receive three (3) days written notice, with a copy of the motion attached, prior to any hearing or consideration by the court. Such three (3) day notice may be waived for grounds sufficiently urgent and necessary to due process and the grounds therefore shall be found by the court and made a part of the record. If no court has entertained any proceeding on the movant's matter, excepting bond, the motion for habeas corpus shall be filed with the clerk of the circuit court in the county in which the movant is detained.

6. The court shall give preliminary consideration of the motion for the writ of habeas corpus as follows:

a. The motion shall be examined promptly by the judge of the court in which the motion is filed.

b. If the motion, upon examination, does not substantially comply with the requirements of this rule, it need not be entertained on its merits and the clerk shall so notify the movant.

c. If, from the showing made by the motion, it is manifest that the person on whose behalf it is presented is not entitled to any relief, the court can refuse to grant the writ and enter an appropriate order.

d. Upon granting the writ, the court shall order the respondent to file an answer within a reasonable time and in an appropriate court.

e. Upon granting the writ, the court shall also order the respondent to bring or cause to bring the person for whom habeas relief is sought before the court at the time and place of the hearing on the writ.

f. If the movant requests transcripts of any prior proceeding and the movant qualifies as an indigent as under 99-15-15 of the Mississippi Code of 1972, the judge shall order the portions of the transcripts the court deems necessary to the issues to be made available to the movant within a reasonable time before the date of the hearing on the writ.

7. The respondent upon whom the writ of habeas corpus is served shall file a response in writing. The response shall be filed by the date and in the court designated in the writ of habeas corpus and a copy served as provided in these rules. The response must respond to all the allegations of the motion including the following matters:

a. Whether the respondent has or has not the person in custody or power or restraint.

b. If the respondent does have the movant in custody or power or restraint, the respondent shall state the authority and cause of the restraint.

c. If the movant is restrained by virtue of any writ, warrant, or other written authority a copy of such shall be attached to the answer.

d. If the respondent has had the movant in restraint at any time prior to or subsequent to the date on the writ of habeas corpus, but such person has escaped or been transferred to the custody of another, a description of the escape or if transfer, the time, place, for what cause, and by what authority such transfer took place.

8. A party shall be entitled to invoke the processes of discovery available under the Mississippi Rules of Civil Procedure, if and to the extent that the court, in the exercise of its discretion and for good cause shown, grants leave to do so, but not otherwise.

9. Upon a hearing of the matter:

a. The court shall either discharge, or commit, or admit to bail, or remand the movant or award custody to the party entitled thereto as the law and the evidence shall require. The court may make any temporary order in the cause during the progress of the proceeding that justice may require.

b. The order rendered by the court shall be conclusive until reversed and shall be a bar to another writ of habeas corpus in the same cause, except by appeal or civil action for false imprisonment.

B. Habeas Corpus in Extradition Matters

1. The motion for the writ of habeas corpus in extradition matters shall be in writing, sworn to and signed by the person for whose relief it is intended, or by someone in his/her behalf, and shall contain the following matters:

a. A description of where and by whom the movant is deprived of liberty;

b. The facts and circumstances of the restraint;

c. The form of the relief sought; and

d. The grounds upon which relief is sought, which is limited to those areas specified in subsection six (6) below.

2. Upon issuance of the rendition warrant by the proper authorities of the State of Mississippi, the person detained thereunder shall not be entitled to bond.

3. If no court has entertained any proceeding on the movant's matter, excepting bond or the denial of bond, the motion for habeas corpus shall be filed with the clerk of the circuit court in the county in which the movant is detained.

4. The court shall give preliminary consideration of the motion for the writ of habeas corpus as follows:

a. The motion shall be examined promptly by the judge of the court in which the motion is filed.

b. If the motion, upon examination, does not substantially comply with the requirements of this rule, it need not be entertained on its merits and the clerk shall so notify the movant.

c. If, from the showing made by the motion, it is manifest that the person whom, or on whose behalf, it is presented is not entitled to any relief, the court can refuse to grant the writ and enter an appropriate order.

d. Upon granting the writ the court shall order the respondent to file an answer within a reasonable time and in an appropriate court.

e. Upon granting the writ the court shall also order the respondent to bring or cause to bring the movant before the court at the time and place of the hearing on the writ.

f. The Attorney General of Mississippi must receive three days written notice, with a copy of the motion for habeas corpus attached, prior to any hearing or consideration by the court.

5. The respondent upon whom the writ of habeas corpus is served shall file a response in writing. The response shall be filed by the date and in the court designated in the writ of habeas corpus and a copy served as provided in these rules. The response must respond to all the allegations of the motion including the following matters:

a. Whether the respondent has or has not the movant in custody or power or restraint.

b. If the respondent does have the movant in custody or power or restraint, the respondent shall state the authority and cause of the restraint.

c. If the movant is restrained by virtue of any writ, warrant, or other written authority a copy of such shall be attached to the answer.

6. The hearing before the court shall be a limited hearing and the court may inquire only into:

a. Whether the extradition documents on their face are in order;

b. Whether the movant for habeas relief has been charged with a crime in the demanding state;

c. Whether the movant is the person named in the request for extradition; and

d. Whether the movant for habeas relief is a fugitive.

The introduction into evidence of the rendition warrant issued by the proper official of the State of Mississippi creates a presumption that all the requirements for extradition have been met and constitutes a prima facie case for the state.

7. Extradition is a civil matter and does not entitle the subject of extradition to a court appointed attorney if the subject is indigent.

Miss. R. Cir. & Cnty. Ct. 2.07