(a) Except as provided in subdivision (b) of this Rule 91.02, when a person who is held in custody on a charge of crime seeks the benefit of this Rule 91, the petition in the first instance shall be to a circuit or associate circuit judge for the county in which the person is held in custody if at the time of the petition such judge is in the county, unless good cause is shown for filing the petition in a higher court. The petitioner shall give reasonable notice of the time and place of filing the petition to the prosecuting attorney for the county in which the petition is to be filed, if at the time thereof the attorney is in the county. Upon such notice, the attorney shall attend the hearing of the petition on behalf of the state.
Rule 91.02.Petition to What Court First Made.
Part III · Rule 91: Habeas Corpus · Last amended July 1, 1991 · Last verified July 22, 2026
In one sentenceRule 91.02 directs where a habeas corpus petition must first be filed when the petitioner is held on a criminal charge, generally the local circuit or associate circuit court, with a special first-instance path to the Supreme Court for death-sentence cases the Court has already affirmed.
Full Text of Rule 91.02
(b) If a person is held in custody pursuant to a conviction for a capital crime and a sentence of death and this Court has affirmed the conviction and sentence, any petition seeking the benefit of this Rule 91 may be filed in this Court in the first instance. The petitioner shall give reasonable notice of the time and place of filing the petition to the attorney general of this state, who shall represent the state in the matter. Any such petition filed in a state court other than this Court shall be deemed to have been filed in this Court. Any clerk filing such a petition shall give notice for the filing of the petition to the clerk of this Court by telephone or by other expeditious means and shall forward the petition to this Court immediately.
Amendment History
Adopted June 24, 1982, eff. Jan. 1, 1983; Amended Nov. 20, 1990, eff. July 1, 1991.
Official Comment
The source is prior Rule 91.59.
Plain-English Summary
Rule 91.02 answers a practical question: which court hears a habeas corpus petition first? For a person held in custody on a criminal charge, the petition ordinarily goes to a circuit or associate circuit judge in the county where the person is held, so long as that judge is in the county at the time. A petitioner can go to a higher court instead, but only by showing good cause for skipping the local judge.
The rule also requires the petitioner to give the local prosecuting attorney reasonable notice of when and where the petition will be filed, provided the prosecutor is in the county at that time. Once notified, the prosecuting attorney attends the hearing to represent the state’s position.
A separate path exists for the most serious cases. When a person is held in custody following a conviction and death sentence for a capital crime, and the Supreme Court has already affirmed that conviction and sentence, the petitioner may file the habeas petition directly in the Supreme Court. Notice in that circumstance goes to the attorney general, who represents the state. If such a petition is instead filed in some other state court, the rule treats it as if it had been filed in the Supreme Court, and the clerk who received it must alert the Supreme Court’s clerk promptly and forward the petition without delay.
Frequently Asked Questions
Which court hears a habeas petition first for someone held on a criminal charge?
Ordinarily a circuit or associate circuit judge for the county where the person is held, if that judge is in the county when the petition is filed.
Can a petitioner skip the local court and file somewhere higher up?
Only by showing good cause for filing in a higher court instead of the local circuit or associate circuit judge.
Who must be notified before the petition is filed?
The prosecuting attorney for the county where the petition will be filed, if that attorney is in the county at the time, so the state can attend the hearing.
When can a petition go directly to the Supreme Court?
When the person is in custody under a conviction and death sentence for a capital crime and the Supreme Court has already affirmed that conviction and sentence.
Who represents the state when a capital case petition goes to the Supreme Court?
The attorney general of Missouri, who must receive reasonable notice of the time and place of filing.
What happens if a capital case petition is filed in a state court other than the Supreme Court?
It is deemed filed in the Supreme Court, and the receiving clerk must notify the Supreme Court’s clerk quickly and forward the petition immediately.
Source & verification. Rule text and amendment history are
reproduced verbatim from the Missouri State & Federal Court Rules, adopted by the
Supreme Court of Missouri. Last verified July 22, 2026. ·
Official source
Also known as: where to file habeas petition Missourihabeas corpus jurisdictioncircuit court habeasdeath sentence habeas Supreme Courtprosecuting attorney notice habeascapital case habeas filing