The petition shall state in substance:
A. that the person in whose behalf the writ is applied for is imprisoned or restrained of his liberty, the officer or person by whom he is so confined or restrained and the place where, naming both parties, if their names are known, or describing them if they are not;
B. that such person is not committed or detained by virtue of any process, judgment, decree or execution, specified in Section 44-1-2 NMSA 1978;
C. the cause or pretense of such confinement or restraint, according to the knowledge or belief of the party verifying the petition;
D. if the confinement or restraint is by virtue of any warrant, or order, or process, a copy thereof shall be annexed, or it shall be averred that by reason of such prisoner being removed or concealed before application, a demand of such copy could not be made, or that such demand was made, and the legal fees therefor tendered to the officer or person having such prisoner in his custody, and that such copy was refused;
E. if the imprisonment is alleged to be illegal, the petition shall state in what the illegality consists.
History: Laws 1884, ch. 1, § 5; C.L. 1884, § 2016; C.L. 1897, § 2785; Code 1915, § 2593; C.S. 1929, § 63-105; 1941 Comp., § 25-1105; 1953 Comp., § 22-11-5.
Cross references. — For signature and verification of petition, see 44-1-3 NMSA 1978.
Post-conviction proceedings must be invoked before habeas corpus may be sought. In re Martinez, 1982-NMSC-115, 99 N.M. 198, 656 P.2d 861.
Juvenile court justice is not proper party in habeas corpus proceeding; only persons having physical custody of petitioner and able to produce him in court may properly be named as respondent in such proceeding. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716.
Law reviews. — For article, "Habeas Corpus in New Mexico," see 11 N.M.L. Rev. 291 (1981).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 39 Am. Jur. 2d Habeas Corpus §§ 121 to 125.
Propriety of federal court's considering state prisoner's petition under 28 USCS § 2254 where prisoner has exhausted state remedies as to some, but not all, claims in petition, 43 A.L.R. Fed. 631.
Abuse of writ as basis for dismissal of state prisoner's second or successive petition for federal habeas corpus, 60 A.L.R. Fed. 481.
39A C.J.S. Habeas Corpus §§ 168, 169.
Copyright ©2024 LegalFix. All rights reserved. LegalFix is not a law firm, is not licensed to practice law, and does not provide legal advice, services, or representation. The information on this website is an overview of the legal plans you can purchase—or that may be provided by your employer as an employee benefit or by your credit union or other membership group as a membership benefit.
LegalFix provides its members with easy access to affordable legal services through a network of independent law firms. LegalFix, its corporate entity, and its officers, directors, employees, agents, and contractors do not provide legal advice, services, or representation—directly or indirectly.
The articles and information on the site are not legal advice and should not be relied upon—they are for information purposes only. You should become a LegalFix member to get legal services from one of our network law firms.
You should not disclose confidential or potentially incriminating information to LegalFix—you should only communicate such information to your network law firm.
The benefits and legal services described in the LegalFix legal plans are not always available in all states or with all plans. See the legal plan Benefit Overview and the more comprehensive legal plan contract during checkout for coverage details in your state.
Use of this website, the purchase of legal plans, and access to the LegalFix networks of law firms are subject to the LegalFix Terms of Service and Privacy Policy.