NACDL

After the direct appeal process has been completed, a criminal defendant may file a “collateral” challenge to his conviction and sentence.¹ Such collateral review — most commonly referred to as “habeas corpus” — is a separate quasi-civil proceeding, typically filed with the original trial court, and is not a continuation of the “direct” review process.² Such post-conviction habeas corpus review should be distinguished from pre-convictionhabeas corpus actions, which may be filed in federal court under 28 U.S.C. § 2241 when a defendant wishes to challenge a state’s right to proceed on criminal charges as a violation of the Double Jeopardy Clause.³ Certain jurisdictions also permit pre-conviction habeas corpus actions to challenge “excessive” bail amounts or outright denials of bail.⁴ In the vast majority of jurisdictions, in order to file any type of habeas corpus action, a criminal defendant must be in “custody” at the time that the habeas corpus petition is filed, altho