The following persons are not entitled to prosecute such writ: persons committed or detained by virtue of the final judgment, conviction or decree of any competent tribunal or by virtue of an execution issued upon such judgment or decree; but no order of commitment for any alleged contempt, or upon proceedings as for contempt, to enforce the rights or remedies of any party shall be deemed a judgment, conviction or decree within the meaning of this section; nor shall any attachment or other process issued upon any such order be deemed an execution within the meaning of this section.

History: Laws 1884, ch. 1, § 2; C.L. 1884, § 2013; C.L. 1897, § 2782; Code 1915, § 2590; C.S. 1929, § 63-102; 1941 Comp., § 25-1102; 1953 Comp., § 22-11-2.

Cross references. — For when petitioner will be remanded to custody, see 44-1-16 NMSA 1978.

Decision not by "competent" court when constitutional guarantees denied. — For a court to be competent, jurisdiction must be present, and that jurisdiction clearly may be lost. When certain constitutional guarantees are denied, overlooked or omitted, the conviction or sentence is not by a "competent" court. Orosco v. Cox, 1965-NMSC-098, 75 N.M. 431, 405 P.2d 668.

In habeas corpus proceeding supreme court may receive evidence outside record to establish the absence or loss of jurisdiction through denial of any of the rights guaranteed to a prisoner at the bar by either the United States or New Mexico constitutions. Orosco v. Cox, 1965-NMSC-098, 75 N.M. 431, 405 P.2d 668.

Prison disciplinary hearings. — Disciplinary hearings within the corrections department qualify as "tribunals" within the scope of this section and the habeas corpus statutes. Lopez v. LeMaster, 2003-NMSC-003, 133 N.M. 59, 61 P.3d 185.

Law reviews. — For note, "Post-Conviction Relief After Release From Custody: A Federal Message and a New Mexico Remedy," see 9 Nat. Resources J. 85 (1969).

For article, "Prisoners Are People," see 10 Nat. Resources J. 869 (1970).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Habeas Corpus §§ 64 to 73, 94 to 98.

Power to grant writ of habeas corpus pending appeal from conviction, 52 A.L.R. 876.

Illegal or erroneous sentence as ground for habeas corpus, 76 A.L.R. 468.

Change of judicial decision as ground for habeas corpus for release of one held upon previous adjudication of contempt, 136 A.L.R. 1032.

Habeas corpus to review commitment for contempt for failure to obey court order or decree either beyond power or jurisdiction of court or merely erroneous, 12 A.L.R.2d 1059.

39 C.J.S. Habeas Corpus §§ 81, 113.