The petition shall state in substance:

1. A. that the person in whose behalf the writ is applied for is imprisoned or restrained of his liberty, the officer or person by whom he is so confined or restrained and the place where, naming both parties, if their names are known, or describing them if they are not;
2. B. that such person is not committed or detained by virtue of any process, judgment, decree or execution, specified in Section 44-1-2 NMSA 1978;
3. C. the cause or pretense of such confinement or restraint, according to the knowledge or belief of the party verifying the petition;
4. D. if the confinement or restraint is by virtue of any warrant, or order, or process, a copy thereof shall be annexed, or it shall be averred that by reason of such prisoner being removed or concealed before application, a demand of such copy could not be made, or that such demand was made, and the legal fees therefor tendered to the officer or person having such prisoner in his custody, and that such copy was refused;
5. E. if the imprisonment is alleged to be illegal, the petition shall state in what the illegality consists.

History: Laws 1884, ch. 1, § 5; C.L. 1884, § 2016; C.L. 1897, § 2785; Code 1915, § 2593; C.S. 1929, § 63-105; 1941 Comp., § 25-1105; 1953 Comp., § 22-11-5.

ANNOTATIONS

Cross references. — For signature and verification of petition, see 44-1-3 NMSA 1978.

Post-conviction proceedings must be invoked before habeas corpus may be sought. In re Martinez, 1982-NMSC-115, 99 N.M. 198, 656 P.2d 861.

Juvenile court justice is not proper party in habeas corpus proceeding; only persons having physical custody of petitioner and able to produce him in court may properly be named as respondent in such proceeding. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716.

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 §§ 121 to 125.

Propriety of federal court's considering state prisoner's petition under 28 USCS § 2254 where prisoner has exhausted state remedies as to some, but not all, claims in petition, 43 A.L.R. Fed. 631.

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 §§ 168, 169.