Application for such writ shall be made by petition to any judge of the supreme court, signed and verified either by the party for whose relief it is intended, or by some person in his behalf, as follows: to the supreme or district court or to any judge thereof, being within the district where the prisoner is detained; or if there is no such officer within such district, or if he be absent or from any cause is incapable of acting, or has refused to grant such writ, then to some officer having such authority residing in any other district.

History: Laws 1884, ch. 1, § 3; C.L. 1884, § 2014; Laws 1889, ch. 17, § 2; C.L. 1897, § 2783; Code 1915, § 2591; C.S. 1929, § 63-103; 1941 Comp., § 25-1103; 1953 Comp., § 22-11-3.

Cross references. — For the jurisdiction of the supreme court, see N.M. Const., art. VI, § 3.

For the jurisdiction of the district courts, see N.M. Const., art. VI, § 13.

For the contents of the petition, see 44-1-5 NMSA 1978.

For extraordinary writs from the supreme court, see Rule 12-504 NMRA.

Court may grant writ releasing any prisoner within district. — One district court of this state may grant a writ of habeas corpus for the release from the state penitentiary of a prisoner held therein under a commitment from another district court. As the prisoner was being detained within the first judicial district, there can be no question that the court in that district had jurisdiction to consider intervenor's petition for habeas corpus. State ex rel. Hanagan v. Dist. Court, 1965-NMSC-089, 75 N.M. 390, 405 P.2d 232.

Therefore remedy of prohibition not available to state. — Where intervenor-defendant was ordered discharged from the custody of the warden of the penitentiary and the order was not appealed, it is accordingly final, and as intervenor was being detained within the first judicial district, there can be no question that respondent-district court judge had jurisdiction to consider intervenor's petition for habeas corpus and the remedy of prohibition is thus not available to the state. Rodriguez v. Dist. Court, 1971-NMSC-101, 83 N.M. 200, 490 P.2d 458.

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 §§ 117, 120, 121.

Denial of relief to prisoner on habeas corpus as bar to second application, 161 A.L.R. 1331.

Jurisdiction of habeas corpus proceedings for custody of child having legal domicil in other states, 4 A.L.R.2d 7.

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 §§ 161, 163, 165, 167.