(b) Except as provided in K.S.A. 60-1507, and amendments thereto, an inmate in the custody of the secretary of corrections shall file a petition for writ pursuant to subsection (a) within 30 days from the date the action was final, but such time is extended during the pendency of the inmate's timely attempts to exhaust such inmate's administrative remedies.
History: L. 1963, ch. 303, 60-1501; L. 1976, ch. 251, § 23; L. 1994, ch. 227, § 3; L. 1996, ch. 148, § 3; July 1.
History: L. 1963, ch. 303, 60-1502; L. 1996, ch. 148, § 4; July 1.
(b) Form. The writ shall be directed to the party having the person under restraint and shall command such person to have the restrained person before the judge at the time and place specified in the writ.
(c) Service. The writ shall be served without delay. If directed to the sheriff it shall be served by the clerk. If directed to any other person it shall be served by the sheriff or some other person designated by the judge. If the person to whom it is directed cannot be found or shall refuse admittance, the writ may be served by leaving it at such person's residence or affixing it at some conspicuous place where the party is confined or restrained.
(d) Sundays and holidays. The writ may be issued and served at any time, including Sundays and holidays.
History: L. 1963, ch. 303, 60-1503; L. 1994, ch. 227, § 4; July 1.
(b) Time; exceptions. If the petition for writ challenges a denial of parole or a prison disciplinary action, the person to whom the writ is directed shall file an answer thereto within 30 days after the writ is served or at such other time as specified in the writ.
(c) Contents. The answer must be verified by the person making it and shall contain: (1) a statement of the authority or reasons for the restraint, (2) a copy of the written authority for the restraint, if any, (3) if the custody of the party has been transferred, a statement as to whom, the time, place, and reason for the transfer, and (4) if it is claimed that the party cannot be produced for any reason, a statement as to the reasons why the party cannot be produced.
(d) Truth of contents. The contents of the answer, if not controverted by the plaintiff, shall be accepted as true except as to the extent that the judge finds from the evidence that the contents are not true.
History: L. 1963, ch. 303, 60-1504; L. 1994, ch. 227, § 5; July 1.
(b) Infectious diseases. When any person is restrained because of an alleged infectious or communicable disease, the judge shall appoint a board of not less than two competent physicians to make an examination of such person and report their findings to the judge.
(c) Temporary orders. The judge may make an order for the temporary custody of the party and any other temporary orders during the pendency of the proceeding that justice may require.
(d) Judgment. If the court determines that the restraint is not wrongful, the writ shall be dissolved at the cost of the plaintiff. If the restraint is found to be wrongful, the judgment shall be either that the person shall be released, or that custody shall be transferred to some other person rightfully entitled thereto, and the court may make such other orders as justice and equity or the welfare of a minor physically present in the state may require. In cases in which the person restrained is a minor, or other incompetent or incapacitated, at the time of rendering judgment at the request of any person adversely affected thereby, the judge shall stay the enforcement of the judgment for a period of not to exceed 48 hours to permit the filing of an appeal, and the judge may provide for the temporary custody of the person during such stay in such manner as the judge sees fit. Enforcement of the judgment after the taking of any appeal may be stayed on such terms and conditions, including such provisions for custody during pendency of the appeal, as the judge shall prescribe. If the state, in open court, announces its intention to appeal from an order discharging a prisoner, the judge shall stay the enforcement of the judgment for a period not more than 24 hours to permit the filing of an appeal.
(e) (1) The Record. In habeas corpus proceedings involving extradition to another state, when written notice of appeal from a judgment or an order is filed, the transcript shall be prepared within 20 days after the notice of appeal is filed and sent to the appellate court for review. The appellate court may shorten or extend the time for filing the record if there is a reasonable explanation for the need for such action. When the record is received by the appellate court, the court shall set the time for filing of briefs, if briefs are desired, and shall set the appeal for submission.
(2) Hearing. Such cases, taken to the court of appeals by appeal, shall be heard at the earliest practicable time. The appellant need not be personally present, and such appeal shall be heard and determined upon the law and the facts arising upon record. No incidental question which may have arisen on the hearing of the application before the court shall be reviewed.
(3) Orders on Appeal. In such cases, the appellate court shall render such judgment and make such orders as the law and the nature of the case may require, and may make such orders relative to the costs in the case as may seem right, allowing costs and fixing the amount, or allowing no cost at all.
History: L. 1963, ch. 303, 60-1505; L. 1990, ch. 205, § 1; L. 1994, ch. 227, § 6; July 1.
(b) Person causing restraint. The judge may also insert in the warrant a command for the apprehension of the person charged with causing the illegal restraint.
(c) Procedure. The officer shall execute the writ by bringing the person therein named before the judge, and the answer and proceedings shall be the same as in cases of writs of habeas corpus.
History: L. 1963, ch. 303, 60-1506; Jan. 1, 1964.
(b) Hearing and judgment. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the county attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. The court may entertain and determine such motion without requiring the production of the prisoner at the hearing. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence said prisoner or grant a new trial or correct the sentence as may appear appropriate.
(c) Successive motions. The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.
(d) Appeal. An appeal may be taken to the appellate court as provided by law from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.
(e) Exclusiveness of remedy. An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced said applicant, or that such court has denied said applicant relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of said applicant's detention.
(f) Time limitations. (1) Any action under this section must be brought within one year of: (i) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (ii) the denial of a petition for writ of certiorari to the United States supreme court or issuance of such court's final order following granting such petition.
(2) The time limitation herein may be extended by the court only to prevent a manifest injustice.
History: L. 1963, ch. 303, 60-1507; L. 1976, ch. 251, § 24; L. 2003, ch. 65, § 1; July 1.