782.01 Habeas corpus, who to have; definitions.

(1) Every person restrained of personal liberty may prosecute a writ of habeas corpus to obtain relief from such restraint subject to ss. 782.02 and 974.06.

(2) Any person confined in any hospital or institution as mentally ill or committed for treatment of alcoholism or drug dependence under s. 51.45 (13) may prosecute such writ, and the question of mental illness or need for treatment shall be determined by the court or judge issuing the same. If such court or judge decides that the person is mentally ill or in need of treatment such decision shall not bar the prosecution of such writ a 2nd time if it is claimed that such person has been restored to reason or is no longer in need of treatment.

(3) In this chapter, unless the context requires otherwise, judge includes the supreme court, the court of appeals and circuit courts and each justice and judge thereof and circuit and supplemental court commissioners; and prisoner includes every person restrained of personal liberty; and imprisoned includes every such restraint, and respondent means the person on whom the writ is to be served.

History: 1971 c. 57; 1973 c. 198; 1977 c. 187, 449; 1979 c. 32 ss. 59, 92 (11); 1979 c. 176; Stats. 1979 s. 782.01; 2001 a. 61; 2017 a. 34.

Habeas corpus is a proper remedy with which to challenge the personal jurisdiction of a trial court over a criminal defendant and to challenge a ruling on a motion to suppress evidence when constitutional issues are involved. State ex rel. Warrender v. Kenosha County Ct. 67 Wis. 2d 333, 227 N.W.2d 450 (1975).

A prevailing plaintiff in a habeas corpus proceeding may not be awarded costs. State ex rel. Korne v. Wolke, 79 Wis. 2d 22, 255 N.W.2d 446 (1977).

A defendant released after making a deposit was not “restrained" under sub. (1). State ex rel. Kelley v. Posner, 91 Wis. 2d 301, 282 N.W.2d 633 (Ct. App. 1979).

Habeas corpus is available to persons released on personal recognizance bonds. State ex rel. Wohlfahrt v. Bodette, 95 Wis. 2d 130, 289 N.W.2d 366 (Ct. App. 1980).

A court had no jurisdiction under s. 974.06, relating to post-conviction procedure, to hear a challenge of the computation of a prisoner's good time. Habeas corpus is the proper avenue of relief. State v. Johnson, 101 Wis. 2d 698, 305 N.W.2d 188 (Ct. App. 1981).

The procedure for a writ of habeas corpus is discussed. State ex rel. LeFebre v. Abrahamson, 103 Wis. 2d 197, 307 N.W.2d 186 (1981).

Comity between circuit courts was not a sufficient reason to refuse to issue a writ but, under the facts of the case, the penalty for refusing to issue the writ under s. 782.09 was inappropriate. J.V. v. Barron, 112 Wis. 2d 256, 332 N.W.2d 796 (1983).

Habeas corpus is available to a petitioner to challenge a criminal complaint and to test the sufficiency of evidence for bindover. State ex rel. McCaffrey v. Shanks, 124 Wis. 2d 216, 369 N.W.2d 743 (Ct. App. 1985). See also State ex rel. Cornellier v. Black, 144 Wis. 2d 745, 425 N.W.2d 21 (Ct. App. 1988).

A defendant's prejudicial deprivation of appellate counsel, be it the fault of the attorney or the appellate court, is properly remedied by a petition for habeas corpus in the supreme court. State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999), 98-1534.

A question of statutory interpretation may be considered on a writ of habeas corpus only if noncompliance with the statute at issue resulted in the restraint of the petitioner's liberty in violation of the constitution or the court's jurisdiction. State ex rel. Hager v. Marten, 226 Wis. 2d 687, 594 N.W.2d 791 (1999), 97-3841.

Because it is an extraordinary writ, habeas corpus relief is available only when the petitioner demonstrates: 1) restraint of his or her liberty, 2) the restraint was imposed contrary to constitutional protections or by a body lacking jurisdiction, and 3) no other adequate remedy available at law. A petition for a writ of habeas corpus will not be granted if the petitioner asserts a claim that could have been raised during a prior appeal if the petitioner offers no valid reason to excuse the failure. State v. Pozo, 2002 WI App 279, 258 Wis. 2d 796, 654 N.W.2d 12, 02-0127.

A claim for ineffective assistance of postconviction counsel must be filed with the circuit court either as a s. 974.06 motion or as a petition for a writ of habeas corpus. A defendant arguing ineffective assistance of appellate counsel, conversely, may not seek relief under s. 974.06 and must instead petition the court of appeals for a writ of habeas corpus. State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, 10-0425.