Ark. Code Ann. § 16-112-102 (2020)
Officers permitted to issue
-
- The writ of habeas corpus shall be issued upon proper application by a Justice of the Supreme Court or a judge of the circuit court. The power of the Supreme Court and circuit court to issue writs of habeas corpus shall be coextensive with the state.
-
- The county judge shall have power coextensive with his or her county in the absence of the circuit judge therefrom to issue, hear, and determine writs of habeas corpus on proper application of parties entitled thereto, in all cases and with like powers, in which the circuit judge may issue and determine a writ of habeas corpus.
- However, no county judge shall have power to issue or hear any writ of habeas corpus in any case in which an indictment has been found by a grand jury.
- If any officer enumerated in subsection (a) of this section shall, when legally applied to, refuse to issue the writ of habeas corpus to the petitioner, he or she shall forfeit and pay to the petitioner five hundred dollars ($500).
History. Crim. Code, § 388; Acts 1871, No. 49, § 1 [388], p. 255; 1875, No. 100, § 1, p. 219; 1877, No. 2, § 1, p. 1; 1883, No. 93, § 1, p. 170; C. & M. Dig., §§ 5084, 5093; Pope's Dig., §§ 6347, 6356; A.S.A. 1947, §§ 34-1702, 34-1707; Acts 2003, No. 1185, § 232.
Amendments. The 2003 amendment, in (a)(1), deleted “or a judge of any chancery court during the sitting of their respective courts or in vacation” from the end of the first sentence and substituted “Supreme Court and circuit court” for “Supreme Court, circuit, or chancery courts” in the second sentence.
Case Notes
Coextensive Power.
Under this section a court's power to issue writs of habeas corpus is coextensive with the state and is not limited by former § 16-60-103 (see now § 16-60-104) concerning the venue of actions against state officers. State Dep't of Pub. Welfare v. Lipe, 257 Ark. 1015, 521 S.W.2d 526 (1975).
Federal Habeas Relief.
Although the filing of state habeas corpus petitions pursuant to subdivision (a)(1) of this section qualified for statutory tolling under 28 U.S.C. § 2244(d)(2), such petitions still had to be properly filed. Inmate's first two state habeas petitions did not have the effect of statutorily tolling the one-year statute of limitations set out in 28 U.S.C. § 2244(d)(1)(A) because they were not “properly filed,” as they were filed in the wrong state circuit court, but his third habeas petition did statutorily toll the limitations period while the habeas proceedings were pending because that third habeas petition was properly and timely filed in the correct state court. Ben-Yah v. Norris, 570 F. Supp. 2d 1086 (E.D. Ark. 2008).
Jurisdiction.
The scope of inquiry for a writ of habeas corpus when a petitioner is in custody under process regular on its face is limited to the jurisdiction of the court from where the process came. Mitchell v. State, 233 Ark. 578, 346 S.W.2d 201 (1961).
—Circuit Judges.
The jurisdiction of a circuit judge is coextensive with the state. State ex rel. Att'y Gen. v. Stevenson, 89 Ark. 31, 116 S.W. 202 (1909).
—County Judges.
Supreme Court will not review action of county judge who, in absence of circuit judge, denies the writ. Ex parte Dame, 162 Ark. 382, 259 S.W. 754 (1923).
—Supreme Court.
Where there is no subordinate court competent to issue the writ, the Supreme Court will award it. Ex parte Robins, 15 Ark. 402 (1855); Ex parte Good, 19 Ark. 410 (1858); Ex parte Kittrel, 20 Ark. 499 (1859); State ex rel. Att'y Gen. v. Williams, 97 Ark. 243, 133 S.W. 1017 (1911).
Parties.
Upon habeas corpus to procure a petitioner's release from imprisonment for contempt of court, the only parties entitled to be heard are the applicant for the writ and the officer having him in custody, unless it be the state. Ex parte Boles, 88 Ark. 388, 114 S.W. 918 (1909).
Review.
The Supreme Court has jurisdiction to review the proceedings of inferior courts and of judges and chancellors at chambers, upon applications for writs of habeas corpus, and the proceedings thereon. Ex parte Jackson, 45 Ark. 158 (1885); State ex rel. Ark. Indus. Co. v. Neel, 48 Ark. 283, 3 S.W. 631 (1886); State ex rel. Att'y Gen. v. Williams, 97 Ark. 243, 133 S.W. 1017 (1911).
One who was not a party to a habeas corpus proceeding before a chancellor is not entitled to apply for a writ of certiorari to review the chancellor's finding. Ex parte Boles, 88 Ark. 388, 114 S.W. 918 (1909).
The proper method of bringing up proceedings on habeas corpus for review is by means of a writ of certiorari. Taylor v. Moore, 99 Ark. 412, 138 S.W. 634 (1911).
The proper method of bringing up for review the actions of inferior courts or judges in proceeding for habeas corpus is by certiorari and not by appeal; yet where the Attorney General representing the state concedes that the record is correct and has agreed that a case on appeal may be heard as if a petition for certiorari has been duly presented and the record brought up for review in obedience to the writ issued thereon, the cause will be so considered. Ex parte Holdaway, 105 Ark. 1, 150 S.W. 123 (1912).
Where a juvenile was not provided with defense counsel at the hearing finding him in criminal contempt and in violation of his Division of Youth Services aftercare plan, the juvenile's due process rights were violated, the trial court's order commitment order was invalid, and the juvenile's petition for a writ of habeas corpus was granted. Ark. Dep't of Human Servs. v. Mainard, 358 Ark. 204, 188 S.W.3d 901 (2004).
Circuit court erred by denying appellant juvenile's petition for writ of habeas corpus; because he was only fourteen years old when he committed capital-murder and aggravated-robbery, his mandatory sentence of life imprisonment without parole violated the Eighth Amendment, U.S. Const. amend. VIII. On review, the Supreme Court of Arkansas issued the writ pursuant to subdivision (a)(1) of this section. Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906 (2013).
Cited: Simpson v. Sheriff of Dallas County, 333 Ark. 277, 968 S.W.2d 614 (1998).