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(a) Scope of Civil Rules. The procedure in an action for habeas corpus shall be governed by the rules governing the procedure in civil actions in the superior court to the extent that such rules are applicable.
(b) Complaint. The complaint shall be verified by the prisoner or by someone on the prisoner's behalf who shall be known as the plaintiff and shall state in substance as follows:
(1) That the person in whose behalf the writ is applied for (the prisoner) is restrained of liberty.
(2) The name of the prisoner, if known, or the prisoner's description.
(3) The name of the officer or person by whom the prisoner is so restrained, if known, or the officer's or person's description.
(4) The place of restraint, if known.
(5) That the action for habeas corpus by or on behalf of the prisoner is not prohibited by law.
(6) The cause or pretense of such restraint, according to the best of the knowledge and belief of the plaintiff.
(7) The reasons why the restraint is illegal.
(8) If the restraint is by virtue of any warrant, judgment, order or process, a copy thereof shall be attached as an exhibit, or an explanation of its absence shall be made in the complaint.
(9) That the legality of the restraint has not been already adjudged upon a prior writ of habeas corpus to the knowledge or belief of the plaintiff.
(c) Writ - Order to Show Cause - Warrant.
(1) Issuance Upon Application. Upon the presentation or filing of a complaint, the court (or judge) shall, unless it appears that the plaintiff is not entitled to that relief:
[a] Issue a writ of habeas corpus directed to the person having custody of the prisoner, or the person's superior, ordering the person or superior to answer the writ stating the authority for restraining the prisoner and to bring the person alleged to be restrained before the court (or judge) forthwith, or at a designated time and place; or
[b] Issue an order to show cause why the writ should not be issued, returnable as in [a] above; or
[c] Issue a warrant in lieu of habeas corpus.
(2) Issuance Without Application. Any judicial officer may issue a writ of habeas corpus, or an order to show cause, sua sponte whenever it appears that any person is illegally restrained. A writ issued by a district court judge or magistrate is returnable before a judge of the superior court.
(3) Duplicate Original Writs. Duplicate original writs or orders to show cause may be issued in any number required.
(d) Sufficiency of Writ. The writ or order to show cause shall not be disobeyed for any defect of form. It is sufficient (1) if the person having custody of the prisoner is designated simply as the person having custody of the prisoner, and (2) if the person restrained, or who is directed to be produced, is designated by name; or if that person's name is uncertain or unknown, if that person is described in any other way, so as to designate the person intended. Anyone served with the writ is deemed the person to whom it is directed.
(e) Service of Writ.
(1) Person to Be Served. The writ or order to show cause shall be served on the person having custody of the prisoner, who shall be known and designated as the defendant, in the manner prescribed in Rule 4. If the defendant cannot be found, or if the defendant does not have the prisoner in custody, the writ or order to show cause may be served upon anyone having the prisoner in custody, or that person's superior, in the manner and with the same effect as if that person or the superior had been made defendant in the action.
(2) Tender of Fees. To make the service of a writ of habeas corpus effective as to the production of the prisoner, the person making service shall tender to the person having custody of the prisoner, or that person's superior, the fees as follows:
[a] No fees need be tendered if the action is brought by the Attorney General or a prosecuting attorney, nor if the writ is issued by the judge on the judge's own motion.
[b] If the prisoner is in the custody of a public officer, the fees tendered shall be in a sum adequate to cover the cost of producing the prisoner and of returning the prisoner if remanded, said sum to be established by the judge upon the issuance of the writ and endorsed thereon by the judge.
[c] If the prisoner is in the custody of any other person, and if the judge allowing the writ so orders, the fees tendered shall be those established by the judge and endorsed on the writ, not to exceed the cost of producing and returning the prisoner.
[d] If the prisoner is not returned, the amount of the fee tendered to cover the cost of return shall be refunded to the owner.
(f) Return. Every person who serves or attempts to serve a writ or order to show cause shall make a return in accordance with the provisions of Rule 4(f). The execution or service and return of a warrant shall be governed by the provisions of Criminal Rule 4(c).
(g) Answer.
(1) Contents. The answer shall state plainly and unequivocally:
[a] Whether the defendant or person served then has, or at any time has had, the prisoner in custody, and if so, the authority and cause therefor; and
[b] If the prisoner has been transferred, to whom, when the transfer was made, and the reason and authority therefor.
[c] If the prisoner has been admitted to bail, the time of such admission to bail and the amount thereof.
[d] That the prisoner has not been produced as ordered for the reason that the tender of fees was not made or the amount tendered was inadequate, if such be the case.
(2) Exhibits. If the prisoner is detained by virtue of any judgment, order, warrant, or other written authority, a copy thereof shall be attached to the answer as an exhibit, and the original shall be produced and exhibited at the hearing.
(3) Verification. The answer shall be signed by the person answering and, except when the person is a sworn public officer and answers in the person's official capacity, it shall be verified by oath.
(h) Contempt. Neglect to produce the prisoner or to answer the writ or order to show cause in compliance with its terms shall constitute contempt.
(i) Controverting Answer. The plaintiff or the prisoner may, in a reply or at the hearing, controvert the answer under oath, to show either that the restraint of the prisoner was unlawful, or that the prisoner is entitled to discharge or other appropriate remedy.
(j) Hearing and Judgment. The court shall proceed in a summary manner to hear the matter and render judgment accordingly.
(k) Notice of Hearing Before Discharge. When the answer indicates that the prisoner is in custody on any process under which any other person has an interest in continuing the prisoner's restraint, no order may be made for the prisoner's discharge unless the person so interested, or that person's attorney, has had reasonable notice of the time and place of the hearing. When the answer indicates that the prisoner is detained upon a criminal accusation, the prisoner shall not be discharged until reasonable notice of the time and place of the hearing is given to the prosecuting attorney of the district within which the prisoner is detained or, if there is no prosecuting attorney within the district, to the Attorney General.
(l) Custody of Child. An order to show cause, and not a writ of habeas corpus, shall be issued initially if the action is brought by a parent, foster parent, or other relative of the child, to obtain custody of the child under the age of sixteen years from a parent, foster parent, or other relative of the child, the Commissioner of Health and Social Services, or any other person.
(m) Superseded By Post-Conviction Relief Procedure Under Criminal Rule 35.1. This rule does not apply to any post-conviction proceeding that could be brought under Criminal Rule 35.1. The court shall treat such a complaint as an application for post-conviction relief under Criminal Rule 35.1 and, if necessary, transfer the application to the court of appropriate jurisdiction for proceedings under that rule.
(n) Not a Substitute for Remedies in Trial Court or Direct Review. This remedy is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or direct review of a sentence or conviction.
(Amended by SCO 49 effective January 1, 1963; by SCO 107 effective July 1, 1970; by SCO 457 effective March 15, 1981; by SCO 880 effective July 15, 1988; by SCO 1153 effective July 15, 1994; and by SCO 1186 effective July 15, 1995)
Cross References
(b) CROSS REFERENCES: AS 12.75.010; AS 12.75.020; AS 12.75.030
(c) (1) CROSS REFERENCES: AS 12.75.180; AS 12.75.190; AS 12.75.200
(e) (1) CROSS REFERENCES: AS 12.75.040
(g) (1) CROSS REFERENCES: AS 12.75.110
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Copyright 1995-1999 by Touch N' Go Systems, Inc. All rights reserved. No copyright claim is made to the text of the rules.
Last Modified 7/14/1999
