US (United States) Code. Title 28. Part VI: Particular procedings. Chapter 153: Habeas corpus

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-CITE-

28 USC CHAPTER 153 - HABEAS CORPUS 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

CHAPTER 153 - HABEAS CORPUS

-MISC1-

Sec.

2241. Power to grant writ.

2242. Application.

2243. Issuance of writ; return; hearing; decision.

2244. Finality of determination.

2245. Certificate of trial judge admissible in evidence.

2246. Evidence; depositions; affidavits.

2247. Documentary evidence.

2248. Return or answer; conclusiveness.

2249. Certified copies of indictment, plea and judgment;

duty of respondent.

2250. Indigent petitioner entitled to documents without

cost.

2251. Stay of State court proceedings.

2252. Notice.

2253. Appeal.

2254. State custody; remedies in Federal courts.

2255. Federal custody; remedies on motion attacking

sentence.

[2256. Omitted.]

SENATE REVISION AMENDMENT

Chapter catchline was changed by Senate amendment. See 80th

Congress Senate Report No. 1559.

AMENDMENTS

1978 - Pub. L. 95-598, title II, Sec. 250(b), Nov. 6, 1978, 92

Stat. 2672, directed the addition of item 2256 "Habeas corpus from

bankruptcy courts", which amendment did not become effective

pursuant to section 402(b) of Pub. L. 95-598, as amended, set out

as an Effective Date note preceding section 101 of Title 11,

Bankruptcy.

1966 - Pub. L. 89-711, Sec. 3, Nov. 2, 1966, 80 Stat. 1106,

substituted "Federal courts" for "State Courts" in item 2254.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in section 1657 of this title.

-End-

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28 USC Sec. 2241 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

Sec. 2241. Power to grant writ

-STATUTE-

(a) Writs of habeas corpus may be granted by the Supreme Court,

any justice thereof, the district courts and any circuit judge

within their respective jurisdictions. The order of a circuit judge

shall be entered in the records of the district court of the

district wherein the restraint complained of is had.

(b) The Supreme Court, any justice thereof, and any circuit judge

may decline to entertain an application for a writ of habeas corpus

and may transfer the application for hearing and determination to

the district court having jurisdiction to entertain it.

(c) The writ of habeas corpus shall not extend to a prisoner

unless -

(1) He is in custody under or by color of the authority of the

United States or is committed for trial before some court

thereof; or

(2) He is in custody for an act done or omitted in pursuance of

an Act of Congress, or an order, process, judgment or decree of a

court or judge of the United States; or

(3) He is in custody in violation of the Constitution or laws

or treaties of the United States; or

(4) He, being a citizen of a foreign state and domiciled

therein is in custody for an act done or omitted under any

alleged right, title, authority, privilege, protection, or

exemption claimed under the commission, order or sanction of any

foreign state, or under color thereof, the validity and effect of

which depend upon the law of nations; or

(5) It is necessary to bring him into court to testify or for

trial.

(d) Where an application for a writ of habeas corpus is made by a

person in custody under the judgment and sentence of a State court

of a State which contains two or more Federal judicial districts,

the application may be filed in the district court for the district

wherein such person is in custody or in the district court for the

district within which the State court was held which convicted and

sentenced him and each of such district courts shall have

concurrent jurisdiction to entertain the application. The district

court for the district wherein such an application is filed in the

exercise of its discretion and in furtherance of justice may

transfer the application to the other district court for hearing

and determination.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 964; May 24, 1949, ch. 139, Sec.

112, 63 Stat. 105; Pub. L. 89-590, Sept. 19, 1966, 80 Stat. 811.)

-MISC1-

HISTORICAL AND REVISION NOTES

1948 ACT

Based on title 28, U.S.C., 1940 ed., Secs. 451, 452, 453 (R.S.

Secs. 751, 752, 753; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat.

1167; Feb. 13, 1925, ch. 229, Sec. 6, 43 Stat. 940).

Section consolidates sections 451, 452 and 453 of title 28,

U.S.C., 1940 ed., with changes in phraseology necessary to effect

the consolidation.

Words "for the purpose of an inquiry into the cause of restraint

of liberty" in section 452 of title 28, U.S.C., 1940 ed., were

omitted as merely descriptive of the writ.

Subsection (b) was added to give statutory sanction to orderly

and appropriate procedure. A circuit judge who unnecessarily

entertains applications which should be addressed to the district

court, thereby disqualifies himself to hear such matters on appeal

and to that extent limits his usefulness as a judge of the court of

appeals. The Supreme Court and Supreme Court Justices should not be

burdened with applications for writs cognizable in the district

courts.

1949 ACT

This section inserts commas in certain parts of the text of

subsection (b) of section 2241 of title 28, U.S.C., for the purpose

of proper punctuation.

AMENDMENTS

1966 - Subsec. (d). Pub. L. 89-590 added subsec. (d).

1949 - Subsec. (b). Act May 24, 1949, inserted commas after

"Supreme Court" and "any justice thereof".

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 8 section 1226a; title 18

section 3006A.

-End-

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28 USC Sec. 2242 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

Sec. 2242. Application

-STATUTE-

Application for a writ of habeas corpus shall be in writing

signed and verified by the person for whose relief it is intended

or by someone acting in his behalf.

It shall allege the facts concerning the applicant's commitment

or detention, the name of the person who has custody over him and

by virtue of what claim or authority, if known.

It may be amended or supplemented as provided in the rules of

procedure applicable to civil actions.

If addressed to the Supreme Court, a justice thereof or a circuit

judge it shall state the reasons for not making application to the

district court of the district in which the applicant is held.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 965.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Sec. 454 (R.S. Sec. 754).

Words "or by someone acting in his behalf" were added. This

follows the actual practice of the courts, as set forth in United

States ex rel. Funaro v. Watchorn, C.C. 1908, 164 F. 152; Collins

v. Traeger, C.C.A. 1928, 27 F.2d 842, and cases cited.

The third paragraph is new. It was added to conform to existing

practice as approved by judicial decisions. See Dorsey v. Gill

(App.D.C.) 148 F.2d 857, 865, 866. See also Holiday v. Johnston, 61

S.Ct. 1015, 313 U.S. 342, 85 L.Ed. 1392.

Changes were made in phraseology.

-End-

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28 USC Sec. 2243 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

Sec. 2243. Issuance of writ; return; hearing; decision

-STATUTE-

A court, justice or judge entertaining an application for a writ

of habeas corpus shall forthwith award the writ or issue an order

directing the respondent to show cause why the writ should not be

granted, unless it appears from the application that the applicant

or person detained is not entitled thereto.

The writ, or order to show cause shall be directed to the person

having custody of the person detained. It shall be returned within

three days unless for good cause additional time, not exceeding

twenty days, is allowed.

The person to whom the writ or order is directed shall make a

return certifying the true cause of the detention.

When the writ or order is returned a day shall be set for

hearing, not more than five days after the return unless for good

cause additional time is allowed.

Unless the application for the writ and the return present only

issues of law the person to whom the writ is directed shall be

required to produce at the hearing the body of the person detained.

The applicant or the person detained may, under oath, deny any of

the facts set forth in the return or allege any other material

facts.

The return and all suggestions made against it may be amended, by

leave of court, before or after being filed.

The court shall summarily hear and determine the facts, and

dispose of the matter as law and justice require.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 965.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Secs. 455, 456, 457, 458,

459, 460, and 461 (R.S. Secs. 755-761).

Section consolidates sections 455-461 of title 28, U.S.C., 1940

ed.

The requirement for return within 3 days "unless for good cause

additional time, not exceeding 20 days is allowed" in the second

paragraph, was substituted for the provision of such section 455

which allowed 3 days for return if within 20 miles, 10 days if more

than 20 but not more than 100 miles, and 20 days if more than 100

miles distant.

Words "unless for good cause additional time is allowed" in the

fourth paragraph, were substituted for words "unless the party

petitioning requests a longer time" in section 459 of title 28,

U.S.C., 1940 ed.

The fifth paragraph providing for production of the body of the

detained person at the hearing is in conformity with Walker v.

Johnston, 1941, 61 S.Ct. 574, 312 U.S. 275, 85 L.Ed. 830.

Changes were made in phraseology.

-End-

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28 USC Sec. 2244 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

Sec. 2244. Finality of determination

-STATUTE-

(a) No circuit or district judge shall be required to entertain

an application for a writ of habeas corpus to inquire into the

detention of a person pursuant to a judgment of a court of the

United States if it appears that the legality of such detention has

been determined by a judge or court of the United States on a prior

application for a writ of habeas corpus, except as provided in

section 2255.

(b)(1) A claim presented in a second or successive habeas corpus

application under section 2254 that was presented in a prior

application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus

application under section 2254 that was not presented in a prior

application shall be dismissed unless -

(A) the applicant shows that the claim relies on a new rule of

constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been

discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in

light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that, but for

constitutional error, no reasonable factfinder would have found

the applicant guilty of the underlying offense.

(3)(A) Before a second or successive application permitted by

this section is filed in the district court, the applicant shall

move in the appropriate court of appeals for an order authorizing

the district court to consider the application.

(B) A motion in the court of appeals for an order authorizing the

district court to consider a second or successive application shall

be determined by a three-judge panel of the court of appeals.

(C) The court of appeals may authorize the filing of a second or

successive application only if it determines that the application

makes a prima facie showing that the application satisfies the

requirements of this subsection.

(D) The court of appeals shall grant or deny the authorization to

file a second or successive application not later than 30 days

after the filing of the motion.

(E) The grant or denial of an authorization by a court of appeals

to file a second or successive application shall not be appealable

and shall not be the subject of a petition for rehearing or for a

writ of certiorari.

(4) A district court shall dismiss any claim presented in a

second or successive application that the court of appeals has

authorized to be filed unless the applicant shows that the claim

satisfies the requirements of this section.

(c) In a habeas corpus proceeding brought in behalf of a person

in custody pursuant to the judgment of a State court, a prior

judgment of the Supreme Court of the United States on an appeal or

review by a writ of certiorari at the instance of the prisoner of

the decision of such State court, shall be conclusive as to all

issues of fact or law with respect to an asserted denial of a

Federal right which constitutes ground for discharge in a habeas

corpus proceeding, actually adjudicated by the Supreme Court

therein, unless the applicant for the writ of habeas corpus shall

plead and the court shall find the existence of a material and

controlling fact which did not appear in the record of the

proceeding in the Supreme Court and the court shall further find

that the applicant for the writ of habeas corpus could not have

caused such fact to appear in such record by the exercise of

reasonable diligence.

(d)(1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court. The limitation period

shall run from the latest of -

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws

of the United States is removed, if the applicant was prevented

from filing by such State action;

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has been

newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or

claims presented could have been discovered through the exercise

of due diligence.

(2) The time during which a properly filed application for State

post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted toward

any period of limitation under this subsection.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 965; Pub. L. 89-711, Sec. 1, Nov.

2, 1966, 80 Stat. 1104; Pub. L. 104-132, title I, Secs. 101, 106,

Apr. 24, 1996, 110 Stat. 1217, 1220.)

-MISC1-

HISTORICAL AND REVISION NOTES

This section makes no material change in existing practice.

Notwithstanding the opportunity open to litigants to abuse the

writ, the courts have consistently refused to entertain successive

"nuisance" applications for habeas corpus. It is derived from H.R.

4232 introduced in the first session of the Seventy-ninth Congress

by Chairman Hatton Sumners of the Committee on the Judiciary and

referred to that Committee.

The practice of suing out successive, repetitious, and unfounded

writs of habeas corpus imposes an unnecessary burden on the courts.

See Dorsey v. Gill, 1945, 148 F.2d 857, 862, in which Miller, J.,

notes that "petitions for the writ are used not only as they should

be to protect unfortunate persons against miscarriages of justice,

but also as a device for harassing court, custodial, and

enforcement officers with a multiplicity of repetitious, meritless

requests for relief. The most extreme example is that of a person

who, between July 1, 1939, and April 1944 presented in the District

Court 50 petitions for writs of habeas corpus; another person has

presented 27 petitions; a third, 24; a fourth, 22; a fifth, 20. One

hundred nineteen persons have presented 597 petitions - an average

of 5."

SENATE REVISION AMENDMENTS

Section amended to modify original language which denied Federal

judges power to entertain application for writ where legality of

detention had been determined on prior application and later

application presented no new grounds, and to omit reference to

rehearing in section catch line and original provision authorizing

hearing judge to grant rehearing. 80th Congress, Senate Report No.

1559, Amendment No. 45.

AMENDMENTS

1996 - Subsec. (a). Pub. L. 104-132, Sec. 106(a), substituted ",

except as provided in section 2255." for "and the petition presents

no new ground not heretofore presented and determined, and the

judge or court is satisfied that the ends of justice will not be

served by such inquiry."

Subsec. (b). Pub. L. 104-132, Sec. 106(b), amended subsec. (b)

generally. Prior to amendment, subsec. (b) read as follows: "When

after an evidentiary hearing on the merits of a material factual

issue, or after a hearing on the merits of an issue of law, a

person in custody pursuant to the judgment of a State court has

been denied by a court of the United States or a justice or judge

of the United States release from custody or other remedy on an

application for a writ of habeas corpus, a subsequent application

for a writ of habeas corpus in behalf of such person need not be

entertained by a court of the United States or a justice or judge

of the United States unless the application alleges and is

predicated on a factual or other ground not adjudicated on the

hearing of the earlier application for the writ, and unless the

court, justice, or judge is satisfied that the applicant has not on

the earlier application deliberately withheld the newly asserted

ground or otherwise abused the writ."

Subsec. (d). Pub. L. 104-132, Sec. 101, added subsec. (d).

1966 - Pub. L. 89-711 designated existing provisions as subsec.

(a), struck out provision making the subsection's terms applicable

to applications seeking inquiry into detention of persons detained

pursuant to judgments of State courts, and added subsecs. (b) and

(c).

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 2255, 2262, 2266 of this

title.

-End-

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28 USC Sec. 2245 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

Sec. 2245. Certificate of trial judge admissible in evidence

-STATUTE-

On the hearing of an application for a writ of habeas corpus to

inquire into the legality of the detention of a person pursuant to

a judgment the certificate of the judge who presided at the trial

resulting in the judgment, setting forth the facts occurring at the

trial, shall be admissible in evidence. Copies of the certificate

shall be filed with the court in which the application is pending

and in the court in which the trial took place.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 966.)

-MISC1-

HISTORICAL AND REVISION NOTES

This section makes no substantive change in existing law. It is

derived from H.R. 4232 introduced in the first session of the

Seventy-ninth Congress by Chairman Sumners of the House Committee

on the Judiciary. It clarifies existing law and promotes uniform

procedure.

-End-

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28 USC Sec. 2246 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

Sec. 2246. Evidence; depositions; affidavits

-STATUTE-

On application for a writ of habeas corpus, evidence may be taken

orally or by deposition, or, in the discretion of the judge, by

affidavit. If affidavits are admitted any party shall have the

right to propound written interrogatories to the affiants, or to

file answering affidavits.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 966.)

-MISC1-

HISTORICAL AND REVISION NOTES

This section is derived from H.R. 4232 introduced in the first

session of the Seventy-ninth Congress by Chairman Sumners of the

House Committee on the Judiciary. It clarifies existing practice

without substantial change.

-End-

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28 USC Sec. 2247 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

Sec. 2247. Documentary evidence

-STATUTE-

On application for a writ of habeas corpus documentary evidence,

transcripts of proceedings upon arraignment, plea and sentence and

a transcript of the oral testimony introduced on any previous

similar application by or in behalf of the same petitioner, shall

be admissible in evidence.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 966.)

-MISC1-

HISTORICAL AND REVISION NOTES

Derived from H.R. 4232, Seventy-ninth Congress, first session. It

is declaratory of existing law and practice.

-End-

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28 USC Sec. 2248 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

Sec. 2248. Return or answer; conclusiveness

-STATUTE-

The allegations of a return to the writ of habeas corpus or of an

answer to an order to show cause in a habeas corpus proceeding, if

not traversed, shall be accepted as true except to the extent that

the judge finds from the evidence that they are not true.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 966.)

-MISC1-

HISTORICAL AND REVISION NOTES

Derived from H.R. 4232, Seventy-ninth Congress, first session. At

common law the return was conclusive and could not be controverted

but it is now almost universally held that the return is not

conclusive of the facts alleged therein. 39 C.J.S. pp. 664-666,

Secs. 98, 99.

-End-

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28 USC Sec. 2249 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

Sec. 2249. Certified copies of indictment, plea and judgment; duty

of respondent

-STATUTE-

On application for a writ of habeas corpus to inquire into the

detention of any person pursuant to a judgment of a court of the

United States, the respondent shall promptly file with the court

certified copies of the indictment, plea of petitioner and the

judgment, or such of them as may be material to the questions

raised, if the petitioner fails to attach them to his petition, and

same shall be attached to the return to the writ, or to the answer

to the order to show cause.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 966.)

-MISC1-

HISTORICAL AND REVISION NOTES

Derived from H.R. 4232, Seventy-ninth Congress, first session. It

conforms to the prevailing practice in habeas corpus proceedings.

-End-

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28 USC Sec. 2250 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

Sec. 2250. Indigent petitioner entitled to documents without cost

-STATUTE-

If on any application for a writ of habeas corpus an order has

been made permitting the petitioner to prosecute the application in

forma pauperis, the clerk of any court of the United States shall

furnish to the petitioner without cost certified copies of such

documents or parts of the record on file in his office as may be

required by order of the judge before whom the application is

pending.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 966.)

-MISC1-

HISTORICAL AND REVISION NOTES

Derived from H.R. 4232, Seventy-ninth Congress, first session. It

conforms to the prevailing practice.

-End-

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28 USC Sec. 2251 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

Sec. 2251. Stay of State court proceedings

-STATUTE-

A justice or judge of the United States before whom a habeas

corpus proceeding is pending, may, before final judgment or after

final judgment of discharge, or pending appeal, stay any proceeding

against the person detained in any State court or by or under the

authority of any State for any matter involved in the habeas corpus

proceeding.

After the granting of such a stay, any such proceeding in any

State court or by or under the authority of any State shall be

void. If no stay is granted, any such proceeding shall be as valid

as if no habeas corpus proceedings or appeal were pending.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 966.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Sec. 465 (R.S. Sec. 766;

Mar. 3, 1893, ch. 226, 27 Stat. 751; Feb. 13, 1925, ch. 229, Sec.

8(c), 43 Stat. 940; June 19, 1934, ch. 673, 48 Stat. 1177).

Provisions relating to proceedings pending in 1934 were deleted

as obsolete.

A provision requiring an appeal to be taken within 3 months was

omitted as covered by sections 2101 and 2107 of this title.

Changes were made in phraseology.

-End-

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28 USC Sec. 2252 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

Sec. 2252. Notice

-STATUTE-

Prior to the hearing of a habeas corpus proceeding in behalf of a

person in custody of State officers or by virtue of State laws

notice shall be served on the attorney general or other appropriate

officer of such State as the justice or judge at the time of

issuing the writ shall direct.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 967.)

-MISC1-

HISTORICAL AND REVISION NOTES

Based on title 28, U.S.C., 1940 ed., Sec. 462 (R.S. Sec. 762).

Section 462 of title 28, U.S.C., 1940 ed., was limited to alien

prisoners described in section 453 of title 28, U.S.C., 1940 ed.

The revised section extends to all cases of all prisoners under

State custody or authority, leaving it to the justice or judge to

prescribe the notice to State officers, to specify the officer

served, and to satisfy himself that such notice has been given.

Provision for making due proof of such service was omitted as

unnecessary. The sheriff's or marshal's return is sufficient.

Changes were made in phraseology.

-End-

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28 USC Sec. 2253 01/06/03

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

Sec. 2253. Appeal

-STATUTE-

(a) In a habeas corpus proceeding or a proceeding under section

2255 before a district judge, the final order shall be subject to

review, on appeal, by the court of appeals for the circuit in which

the proceeding is held.

(b) There shall be no right of appeal from a final order in a

proceeding to test the validity of a warrant to remove to another

district or place for commitment or trial a person charged with a

criminal offense against the United States, or to test the validity

of such person's detention pending removal proceedings.

(c)(1) Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals

from -

(A) the final order in a habeas corpus proceeding in which the

detention complained of arises out of process issued by a State

court; or

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1)

only if the applicant has made a substantial showing of the denial

of a constitutional right.

(3) The certificate of appealability under paragraph (1) shall

indicate which specific issue or issues satisfy the showing

required by paragraph (2).

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139, Sec.

113, 63 Stat. 105; Oct. 31, 1951, ch. 655, Sec. 52, 65 Stat. 727;

Pub. L. 104-132, title I, Sec. 102, Apr. 24, 1996, 110 Stat. 1217.)

-MISC1-

HISTORICAL AND REVISION NOTES

1948 ACT

Based on title 28, U.S.C., 1940 ed., Secs. 463(a) and 466 (Mar.

10, 1908, ch. 76, 36 Stat. 40; Feb. 13, 1925, ch. 229, Secs. 6, 13,

43 Stat. 940, 942; June 29, 1938, ch. 806, 52 Stat. 1232).

This section consolidates paragraph (a) of section 463, and

section 466 of title 28, U.S.C., 1940 ed.

The last two sentences of section 463(a) of title 28, U.S.C.,

1940 ed., were omitted. They were repeated in section 452 of title

28, U.S.C., 1940 ed. (See reviser's note under section 2241 of this

title.)

Changes were made in phraseology.

1949 ACT

This section corrects a typographical error in the second

paragraph of section 2253 of title 28.

AMENDMENTS

1996 - Pub. L. 104-132 reenacted section catchline without change

and amended text generally. Prior to amendment, text read as

follows:

"In a habeas corpus proceeding before a circuit or district

judge, the final order shall be subject to review, on appeal, by

the court of appeals for the circuit where the proceeding is had.

"There shall be no right of appeal from such an order in a

proceeding to test the validity of a warrant to remove, to another

district or place for commitment or trial, a person charged with a

criminal offense against the United States, or to test the validity

of his detention pending removal proceedings.

"An appeal may not be taken to the court of appeals from the

final order in a habeas corpus proceeding where the detention

complained of arises out of process issued by a State court, unless

the justice or judge who rendered the order or a circuit justice or

judge issues a certificate of probable cause."

1951 - Act Oct. 31, 1951, substituted "to remove, to another

district or place for commitment or trial, a person charged with a

criminal offense against the United States, or to test the validity

of his" for "of removal issued pursuant to section 3042 of Title 18

or the" in second par.

1949 - Act May 24, 1949, substituted "3042" for "3041" in second

par.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 8 section 1226a.

-End-

-CITE-

28 USC Sec. 2254 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

Sec. 2254. State custody; remedies in Federal courts

-STATUTE-

(a) The Supreme Court, a Justice thereof, a circuit judge, or a

district court shall entertain an application for a writ of habeas

corpus in behalf of a person in custody pursuant to the judgment of

a State court only on the ground that he is in custody in violation

of the Constitution or laws or treaties of the United States.

(b)(1) An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall

not be granted unless it appears that -

(A) the applicant has exhausted the remedies available in the

courts of the State; or

(B)(i) there is an absence of available State corrective

process; or

(ii) circumstances exist that render such process ineffective

to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on

the merits, notwithstanding the failure of the applicant to exhaust

the remedies available in the courts of the State.

(3) A State shall not be deemed to have waived the exhaustion

requirement or be estopped from reliance upon the requirement

unless the State, through counsel, expressly waives the

requirement.

(c) An applicant shall not be deemed to have exhausted the

remedies available in the courts of the State, within the meaning

of this section, if he has the right under the law of the State to

raise, by any available procedure, the question presented.

(d) An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall

not be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim -

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.

(e)(1) In a proceeding instituted by an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a

State court, a determination of a factual issue made by a State

court shall be presumed to be correct. The applicant shall have the

burden of rebutting the presumption of correctness by clear and

convincing evidence.

(2) If the applicant has failed to develop the factual basis of a

claim in State court proceedings, the court shall not hold an

evidentiary hearing on the claim unless the applicant shows that -

(A) the claim relies on -

(i) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was

previously unavailable; or

(ii) a factual predicate that could not have been previously

discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for

constitutional error, no reasonable factfinder would have found

the applicant guilty of the underlying offense.

(f) If the applicant challenges the sufficiency of the evidence

adduced in such State court proceeding to support the State court's

determination of a factual issue made therein, the applicant, if

able, shall produce that part of the record pertinent to a

determination of the sufficiency of the evidence to support such

determination. If the applicant, because of indigency or other

reason is unable to produce such part of the record, then the State

shall produce such part of the record and the Federal court shall

direct the State to do so by order directed to an appropriate State

official. If the State cannot provide such pertinent part of the

record, then the court shall determine under the existing facts and

circumstances what weight shall be given to the State court's

factual determination.

(g) A copy of the official records of the State court, duly

certified by the clerk of such court to be a true and correct copy

of a finding, judicial opinion, or other reliable written indicia

showing such a factual determination by the State court shall be

admissible in the Federal court proceeding.

(h) Except as provided in section 408 of the Controlled

Substances Act, in all proceedings brought under this section, and

any subsequent proceedings on review, the court may appoint counsel

for an applicant who is or becomes financially unable to afford

counsel, except as provided by a rule promulgated by the Supreme

Court pursuant to statutory authority. Appointment of counsel under

this section shall be governed by section 3006A of title 18.

(i) The ineffectiveness or incompetence of counsel during Federal

or State collateral post-conviction proceedings shall not be a

ground for relief in a proceeding arising under section 2254.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 967; Pub. L. 89-711, Sec. 2, Nov.

2, 1966, 80 Stat. 1105; Pub. L. 104-132, title I, Sec. 104, Apr.

24, 1996, 110 Stat. 1218.)

-MISC1-

HISTORICAL AND REVISION NOTES

This new section is declaratory of existing law as affirmed by

the Supreme Court. (See Ex parte Hawk, 1944, 64 S. Ct. 448, 321,

U.S. 114, 88L. Ed. 572.)

SENATE REVISION AMENDMENTS

Senate amendment to this section, Senate Report No. 1559,

amendment No. 47, has three declared purposes, set forth as

follows:

"The first is to eliminate from the prohibition of the section

applications in behalf of prisoners in custody under authority of a

State officer but whose custody has not been directed by the

judgment of a State court. If the section were applied to

applications by persons detained solely under authority of a State

officer it would unduly hamper Federal courts in the protection of

Federal officers prosecuted for acts committed in the course of

official duty.

"The second purpose is to eliminate, as a ground of Federal

jurisdiction to review by habeas corpus judgments of State courts,

the proposition that the State court has denied a prisoner a 'fair

adjudication of the legality of his detention under the

Constitution and laws of the United States.' The Judicial

Conference believes that this would be an undesirable ground for

Federal jurisdiction in addition to exhaustion of State remedies or

lack of adequate remedy in the State courts because it would permit

proceedings in the Federal court on this ground before the

petitioner had exhausted his State remedies. This ground would, of

course, always be open to a petitioner to assert in the Federal

court after he had exhausted his State remedies or if he had no

adequate State remedy.

"The third purpose is to substitute detailed and specific

language for the phrase 'no adequate remedy available.' That phrase

is not sufficiently specific and precise, and its meaning should,

therefore, be spelled out in more detail in the section as is done

by the amendment."

-REFTEXT-

REFERENCES IN TEXT

Section 408 of the Controlled Substances Act, referred to in

subsec. (h), is classified to section 848 of Title 21, Food and

Drugs.

-MISC2-

AMENDMENTS

1996 - Subsec. (b). Pub. L. 104-132, Sec. 104(1), amended subsec.

(b) generally. Prior to amendment, subsec. (b) read as follows: "An

application for a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court shall not be

granted unless it appears that the applicant has exhausted the

remedies available in the courts of the State, or that there is

either an absence of available State corrective process or the

existence of circumstances rendering such process ineffective to

protect the rights of the prisoner."

Subsec. (d). Pub. L. 104-132, Sec. 104(3), added subsec. (d).

Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 104-132, Sec. 104(4), amended subsec. (e)

generally, substituting present provisions for provisions which

stated that presumption of correctness existed unless applicant

were to establish or it otherwise appeared or respondent were to

admit that any of several enumerated factors applied to invalidate

State determination or else that factual determination by State

court was clearly erroneous.

Pub. L. 104-132, Sec. 104(2), redesignated subsec. (d) as (e).

Former subsec. (e) redesignated (f).

Subsecs. (f), (g). Pub. L. 104-132, Sec. 104(2), redesignated

subsecs. (e) and (f) as (f) and (g), respectively.

Subsecs. (h), (i). Pub. L. 104-132, Sec. 104(5), added subsecs.

(h) and (i).

1966 - Pub. L. 89-711 substituted "Federal courts" for "State

Courts" in section catchline, added subsec. (a), designated

existing paragraphs as subsecs. (b) and (c), and added subsecs. (d)

to (f).

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 2244, 2261, 2262, 2263,

2264, 2266 of this title; title 18 section 3006A; title 21 section

848.

-MISC3-

APPROVAL AND EFFECTIVE DATE OF RULES GOVERNING SECTION 2254 CASES

AND SECTION 2255 PROCEEDINGS FOR UNITED STATES DISTRICT COURTS

Pub. L. 94-426, Sec. 1, Sept. 28, 1976, 90 Stat. 1334, provided:

"That the rules governing section 2254 cases in the United States

district courts and the rules governing section 2255 proceedings

for the United States district courts, as proposed by the United

States Supreme Court, which were delayed by the Act entitled 'An

Act to delay the effective date of certain proposed amendments to

the Federal Rules of Criminal Procedure and certain other rules

promulgated by the United States Supreme Court' (Public Law

94-349), are approved with the amendments set forth in section 2 of

this Act and shall take effect as so amended, with respect to

petitions under section 2254 and motions under section 2255 of

title 28 of the United States Code filed on or after February 1,

1977."

POSTPONEMENT OF EFFECTIVE DATE OF PROPOSED RULES GOVERNING

PROCEEDINGS UNDER SECTIONS 2254 AND 2255 OF THIS TITLE

Rules and forms governing proceedings under sections 2254 and

2255 of this title proposed by Supreme Court order of Apr. 26,

1976, effective 30 days after adjournment sine die of 94th

Congress, or until and to the extent approved by Act of Congress,

whichever is earlier, see section 2 of Pub. L. 94-349, set out as a

note under section 2074 of this title.

RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT

COURTS

(EFFECTIVE FEBRUARY 1, 1977, AS AMENDED TO JANUARY 22, 2002)

Rule

1. Scope of rules.

2. Petition.

3. Filing petition.

4. Preliminary consideration by judge.

5. Answer; contents.

6. Discovery.

7. Expansion of record.

8. Evidentiary hearing.

9. Delayed or successive petitions.

10. Powers of magistrates.

11. Federal Rules of Civil Procedure; extent of

applicability.

APPENDIX OF FORMS

Model form for use in applications for habeas corpus under 28

U.S.C. Sec. 2254.

Model form for use in 28 U.S.C. Sec. 2254 cases involving a Rule

9 issue.

EFFECTIVE DATE OF RULES; EFFECTIVE DATE OF 1975 AMENDMENT

Rules governing Section 2254 cases, and the amendments thereto by

Pub. L. 94-426, Sept. 28, 1976, 90 Stat. 1334, effective with

respect to petitions under section 2254 of this title and motions

under section 2255 of this title filed on or after Feb. 1, 1977,

see section 1 of Pub. L. 94-426, set out as a note above.

RULE 1. SCOPE OF RULES

(a) Applicable to cases involving custody pursuant to a judgment

of a state court. These rules govern the procedure in the United

States district courts on applications under 28 U.S.C. Sec. 2254:

(1) by a person in custody pursuant to a judgment of a state

court, for a determination that such custody is in violation of

the Constitution, laws, or treaties of the United States; and

(2) by a person in custody pursuant to a judgment of either a

state or a federal court, who makes application for a

determination that custody to which he may be subject in the

future under a judgment of a state court will be in violation of

the Constitution, laws, or treaties of the United States.

(b) Other situations. In applications for habeas corpus in cases

not covered by subdivision (a), these rules may be applied at the

discretion of the United States district court.

ADVISORY COMMITTEE NOTE

Rule 1 provides that the habeas corpus rules are applicable to

petitions by persons in custody pursuant to a judgment of a state

court. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Whether

the rules ought to apply to other situations (e.g., person in

active military service, Glazier v. Hackel, 440 F.2d 592 (9th Cir.

1971); or a reservist called to active duty but not reported,

Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968)) is left to the

discretion of the court.

The basic scope of habeas corpus is prescribed by statute. 28

U.S.C. Sec. 2241(c) provides that the "writ of habeas corpus shall

not extend to a prisoner unless * * * (h)e is in custody in

violation of the Constitution." 28 U.S.C. Sec. 2254 deals

specifically with state custody, providing that habeas corpus shall

apply only "in behalf of a person in custody pursuant to a judgment

of a state court * * *."

In Preiser v. Rodriguez, supra, the court said: "It is clear . .

. that the essence of habeas corpus is an attack by a person in

custody upon the legality of that custody, and that the traditional

function of the writ is to secure release from illegal custody."

411 U.S. at 484.

Initially the Supreme Court held that habeas corpus was

appropriate only in those situations in which petitioner's claim

would, if upheld, result in an immediate release from a present

custody. McNally v. Hill, 293 U.S. 131 (1934). This was changed in

Peyton v. Rowe, 391 U.S. 54 (1968), in which the court held that

habeas corpus was a proper way to attack a consecutive sentence to

be served in the future, expressing the view that consecutive

sentences resulted in present custody under both judgments, not

merely the one imposing the first sentence. This view was expanded

in Carafas v. LaVallee, 391 U.S. 234 (1968), to recognize the

propriety of habeas corpus in a case in which petitioner was in

custody when the petition had been originally filed but had since

been unconditionally released from custody.

See also Preiser v. Rodriguez, 411 U.S. at 486 et seq.

Since Carafas, custody has been construed more liberally by the

courts so as to make a Sec. 2255 motion or habeas corpus petition

proper in more situations. "In custody" now includes a person who

is: on parole, Jones v. Cunningham, 371 U.S. 236 (1963); at large

on his own recognizance but subject to several conditions pending

execution of his sentence, Hensley v. Municipal Court, 411 U.S. 345

(1973); or released on bail after conviction pending final

disposition of his case, Lefkowitz v. Newsome, 95 S.Ct. 886 (1975).

See also United States v. Re, 372 F.2d 641 (2d Cir.), cert. denied,

388 U.S. 912 (1967) (on probation); Walker v. North Carolina, 262

F.Supp. 102 (W.D.N.C. 1966), aff'd per curiam, 372 F.2d 129 (4th

Cir.), cert. denied, 388 U.S. 917 (1967) (recipient of a

conditionally suspended sentence); Burris v. Ryan, 397 F.2d 553

(7th Cir. 1968); Marden v. Purdy, 409 F.2d 784 (5th Cir. 1969)

(free on bail); United States ex rel. Smith v. Dibella, 314 F.Supp.

446 (D.Conn. 1970) (release on own recognizance); Choung v.

California, 320 F.Supp. 625 (E.D.Cal. 1970) (federal stay of state

court sentence); United States ex rel. Meadows v. New York, 426

F.2d 1176 (2d Cir. 1970), cert. denied, 401 U.S. 941 (1971)

(subject to parole detainer warrant); Capler v. City of Greenville,

422 F.2d 299 (5th Cir. 1970) (released on appeal bond); Glover v.

North Carolina, 301 F.Supp. 364 (E.D.N.C. 1969) (sentence served,

but as convicted felon disqualified from engaging in several

activities).

The courts are not unanimous in dealing with the above

situations, and the boundaries of custody remain somewhat unclear.

In Morgan v. Thomas, 321 F.Supp. 565 (S.D.Miss. 1970), the court

noted:

It is axiomatic that actual physical custody or restraint is

not required to confer habeas jurisdiction. Rather, the term is

synonymous with restraint of liberty. The real question is how

much restraint of one's liberty is necessary before the right to

apply for the writ comes into play. * * *

It is clear however, that something more than moral restraint

is necessary to make a case for habeas corpus.

321 F.SUPP. AT 573

Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968), reviewed prior

"custody" doctrine and reaffirmed a generalized flexible approach

to the issue. In speaking about 28 U.S.C. Sec. 2241, the first

section in the habeas corpus statutes, the court said:

While the language of the Act indicates that a writ of habeas

corpus is appropriate only when a petitioner is "in custody," * *

* the Act "does not attempt to mark the boundaries of 'custody'

nor in any way other than by use of that word attempt to limit

the situations in which the writ can be used." * * * And, recent

Supreme Court decisions have made clear that "[i]t [habeas

corpus] is not now and never has been a static, narrow,

formalistic remedy; its scope has grown to achieve its grand

purpose - the protection of individuals against erosion of their

right to be free from wrongful restraints upon their liberty." *

* * "[B]esides physical imprisonment, there are other restraints

on a man's liberty, restraints not shared by the public

generally, which have been thought sufficient in the

English-speaking world to support the issuance of habeas corpus."

398 F.2D AT 710-711

There is, as of now, no final list of the situations which are

appropriate for habeas corpus relief. It is not the intent of these

rules or notes to define or limit "custody."

It is, however, the view of the Advisory Committee that claims of

improper conditions of custody or confinement (not related to the

propriety of the custody itself), can better be handled by other

means such as 42 U.S.C. Sec. 1983 and other related statutes. In

Wilwording v. Swanson, 404 U.S. 249 (1971), the court treated a

habeas corpus petition by a state prisoner challenging the

conditions of confinement as a claim for relief under 42 U.S.C.

Sec. 1983, the Civil Rights Act. Compare Johnson v. Avery, 393 U.S.

483 (1969).

The distinction between duration of confinement and conditions of

confinement may be difficult to draw. Compare Preiser v. Rodriguez,

411 U.S. 475 (1973), with Clutchette v. Procunier, 497 F.2d 809

(9th Cir. 1974), modified, 510 F.2d 613 (1975).

RULE 2. PETITION

(a) Applicants in present custody. If the applicant is presently

in custody pursuant to the state judgment in question, the

application shall be in the form of a petition for a writ of habeas

corpus in which the state officer having custody of the applicant

shall be named as respondent.

(b) Applicants subject to future custody. If the applicant is not

presently in custody pursuant to the state judgment against which

he seeks relief but may be subject to such custody in the future,

the application shall be in the form of a petition for a writ of

habeas corpus with an added prayer for appropriate relief against

the judgment which he seeks to attack. In such a case the officer

having present custody of the applicant and the attorney general of

the state in which the judgment which he seeks to attack was

entered shall each be named as respondents.

(c) Form of petition. The petition shall be in substantially the

form annexed to these rules, except that any district court may by

local rule require that petitions filed with it shall be in a form

prescribed by the local rule. Blank petitions in the prescribed

form shall be made available without charge by the clerk of the

district court to applicants upon their request. It shall specify

all the grounds for relief which are available to the petitioner

and of which he has or by the exercise of reasonable diligence

should have knowledge and shall set forth in summary form the facts

supporting each of the grounds thus specified. It shall also state

the relief requested. The petition shall be typewritten or legibly

handwritten and shall be signed under penalty of perjury by the

petitioner.

(d) Petition to be directed to judgments of one court only. A

petition shall be limited to the assertion of a claim for relief

against the judgment or judgments of a single state court (sitting

in a county or other appropriate political subdivision). If a

petitioner desires to attack the validity of the judgments of two

or more state courts under which he is in custody or may be subject

to future custody, as the case may be, he shall do so by separate

petitions.

(e) Return of insufficient petition. If a petition received by

the clerk of a district court does not substantially comply with

the requirements of rule 2 or rule 3, it may be returned to the

petitioner, if a judge of the court so directs, together with a

statement of the reason for its return. The clerk shall retain a

copy of the petition.

(As amended Pub. L. 94-426, Sec. 2(1), (2), Sept. 28, 1976, 90

Stat. 1334; Apr. 28, 1982, eff. Aug. 1, 1982.)

ADVISORY COMMITTEE NOTE

Rule 2 describes the requirements of the actual petition,

including matters relating to its form, contents, scope, and

sufficiency. The rule provides more specific guidance for a

petitioner and the court than 28 U.S.C. Sec. 2242, after which it

is patterned.

Subdivision (a) provides that an applicant challenging a state

judgment, pursuant to which he is presently in custody, must make

his application in the form of a petition for a writ of habeas

corpus. It also requires that the state officer having custody of

the applicant be named as respondent. This is consistent with 28

U.S.C. Sec. 2242, which says in part, "[Application for a writ of

habeas corpus] shall allege * * * the name of the person who has

custody over [the applicant] * * *." The proper person to be served

in the usual case is either the warden of the institution in which

the petitioner is incarcerated (Sanders v. Bennett, 148 F.2d 19

(D.C.Cir. 1945)) or the chief officer in charge of state penal

institutions.

Subdivision (b) prescribes the procedure to be used for a

petition challenging a judgment under which the petitioner will be

subject to custody in the future. In this event the relief sought

will usually not be released from present custody, but rather for a

declaration that the judgment being attacked is invalid.

Subdivision (b) thus provides for a prayer for "appropriate

relief." It is also provided that the attorney general of the state

of the judgment as well as the state officer having actual custody

of the petitioner shall be named as respondents. This is

appropriate because no one will have custody of the petitioner in

the state of the judgment being attacked, and the habeas corpus

action will usually be defended by the attorney general. The

attorney general is in the best position to inform the court as to

who the proper party respondent is. If it is not the attorney

general, he can move for a substitution of party.

Since the concept of "custody" requisite to the consideration of

a petition for habeas corpus has been enlarged significantly in

recent years, it may be worthwhile to spell out the various

situations which might arise and who should be named as

respondent(s) for each situation.

(1) The applicant is in jail, prison, or other actual physical

restraint due to the state action he is attacking. The named

respondent shall be the state officer who has official custody of

the petitioner (for example, the warden of the prison).

(2) The applicant is on probation or parole due to the state

judgment he is attacking. The named respondents shall be the

particular probation or parole officer responsible for supervising

the applicant, and the official in charge of the parole or

probation agency, or the state correctional agency, as appropriate.

(3) The applicant is in custody in any other manner differing

from (1) and (2) above due to the effects of the state action he

seeks relief from. The named respondent should be the attorney

general of the state wherein such action was taken.

(4) The applicant is in jail, prison, or other actual physical

restraint but is attacking a state action which will cause him to

be kept in custody in the future rather than the government action

under which he is presently confined. The named respondents shall

be the state or federal officer who has official custody of him at

the time the petition is filed and the attorney general of the

state whose action subjects the petitioner to future custody.

(5) The applicant is in custody, although not physically

restrained, and is attacking a state action which will result in

his future custody rather than the government action out of which

his present custody arises. The named respondent(s) shall be the

attorney general of the state whose action subjects the petitioner

to future custody, as well as the government officer who has

present official custody of the petitioner if there is such an

officer and his identity is ascertainable.

In any of the above situations the judge may require or allow the

petitioner to join an additional or different party as a respondent

if to do so would serve the ends of justice.

As seen in rule 1 and paragraphs (4) and (5) above, these rules

contemplate that a petitioner currently in federal custody will be

permitted to apply for habeas relief from a state restraint which

is to go into effect in the future. There has been disagreement in

the courts as to whether they have jurisdiction of the habeas

application under these circumstances (compare Piper v. United

States, 306 F.Supp. 1259 (D.Conn. 1969), with United States ex rel.

Meadows v. New York, 426 F.2d 1176 (2d Cir. 1970), cert. denied,

401 U.S. 941 (1971)). This rule seeks to make clear that they do

have such jurisdiction.

Subdivision (c) provides that unless a district court requires

otherwise by local rule, the petition must be in the form annexed

to these rules. Having a standard prescribed form has several

advantages. In the past, petitions have frequently contained mere

conclusions of law, unsupported by any facts. Since it is the

relationship of the facts to the claim asserted that is important,

these petitions were obviously deficient. In addition, lengthy and

often illegible petitions, arranged in no logical order, were

submitted to judges who have had to spend hours deciphering them.

For example, in Passic v. Michigan, 98 F.Supp. 1015, 1016

(E.D.Mich. 1951), the court dismissed a petition for habeas corpus,

describing it as "two thousand pages of irrational, prolix and

redundant pleadings * * *."

Administrative convenience, of benefit to both the court and the

petitioner, results from the use of a prescribed form. Judge Hubert

L. Will briefly described the experience with the use of a standard

form in the Northern District of Illinois:

Our own experience, though somewhat limited, has been quite

satisfactory. * * *

In addition, [petitions] almost always contain the necessary

basic information * * *. Very rarely do we get the kind of hybrid

federal-state habeas corpus petition with civil rights

allegations thrown in which were not uncommon in the past. * * *

[W]hen a real constitutional issue is raised it is quickly

apparent * * *.

33 F.R.D. 363, 384

Approximately 65 to 70% of all districts have adopted forms or

local rules which require answers to essentially the same questions

as contained in the standard form annexed to these rules. All

courts using forms have indicated the petitions are time-saving and

more legible. The form is particularly helpful in getting

information about whether there has been an exhaustion of state

remedies or, at least, where that information can be obtained.

The requirement of a standard form benefits the petitioner as

well. His assertions are more readily apparent, and a meritorious

claim is more likely to be properly raised and supported. The

inclusion in the form of the ten most frequently raised grounds in

habeas corpus petitions is intended to encourage the applicant to

raise all his asserted grounds in one petition. It may better

enable him to recognize if an issue he seeks to raise is cognizable

under habeas corpus and hopefully inform him of those issues as to

which he must first exhaust his state remedies.

Some commentators have suggested that the use of forms is of

little help because the questions usually are too general,

amounting to little more than a restatement of the statute. They

contend the blanks permit a prisoner to fill in the same ambiguous

answers he would have offered without the aid of a form. See

Comment, Developments in the Law - Federal Habeas Corpus, 83

Harv.L.Rev. 1038, 1177-1178 (1970). Certainly, as long as the

statute requires factual pleading, the adequacy of a petition will

continue to be affected largely by the petitioner's intelligence

and the legal advice available to him. On balance, however, the use

of forms has contributed enough to warrant mandating their use.

Giving the petitioner a list of often-raised grounds may, it is

said, encourage perjury. See Comment, Developments in the Law -

Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1178 (1970). Most

inmates are aware of, or have access to, some common constitutional

grounds for relief. Thus, the risk of perjury is not likely to be

substantially increased and the benefit of the list for some

inmates seems sufficient to outweigh any slight risk that perjury

will increase. There is a penalty for perjury, and this would seem

the most appropriate way to try to discourage it.

Legal assistance is increasingly available to inmates either

through paraprofessional programs involving law students or special

programs staffed by members of the bar. See Jacob and Sharma,

Justice After Trial: Prisoners' Need for Legal Services in the

Criminal-Correctional Process, 18 Kan.L.Rev. 493 (1970). In these

situations, the prescribed form can be filled out more competently,

and it does serve to ensure a degree of uniformity in the manner in

which habeas corpus claims are presented.

Subdivision (c) directs the clerk of the district court to make

available to applicants upon request, without charge, blank

petitions in the prescribed form.

Subdivision (c) also requires that all available grounds for

relief be presented in the petition, including those grounds of

which, by the exercise of reasonable diligence, the petitioner

should be aware. This is reinforced by rule 9(b), which allows

dismissal of a second petition which fails to allege new grounds

or, if new grounds are alleged, the judge finds an inexcusable

failure to assert the ground in the prior petition.

Both subdivision (c) and the annexed form require a legibly

handwritten or typewritten petition. As required by 28 U.S.C. Sec.

2242, the petition must be signed and sworn to by the petitioner

(or someone acting in his behalf).

Subdivision (d) provides that a single petition may assert a

claim only against the judgment or judgments of a single state

court (i.e., a court of the same county or judicial district or

circuit). This permits, but does not require, an attack in a single

petition on judgments based upon separate indictments or on

separate counts even though sentences were imposed on separate days

by the same court. A claim against a judgment of a court of a

different political subdivision must be raised by means of a

separate petition.

Subdivision (e) allows the clerk to return an insufficient

petition to the petitioner, and it must be returned if the clerk is

so directed by a judge of the court. Any failure to comply with the

requirements of rule 2 or 3 is grounds for insufficiency. In

situations where there may be arguable noncompliance with another

rule, such as rule 9, the judge, not the clerk, must make the

decision. If the petition is returned it must be accompanied by a

statement of the reason for its return. No petitioner should be

left to speculate as to why or in what manner his petition failed

to conform to these rules.

Subdivision (e) also provides that the clerk shall retain one

copy of the insufficient petition. If the prisoner files another

petition, the clerk will be in a better position to determine the

sufficiency of the new petition. If the new petition is

insufficient, comparison with the prior petition may indicate

whether the prisoner has failed to understand the clerk's prior

explanation for its insufficiency, so that the clerk can make

another, hopefully successful, attempt at transmitting this

information to the petitioner. If the petitioner insists that the

original petition was in compliance with the rules, a copy of the

original petition is available for the consideration of the judge.

It is probably better practice to make a photocopy of a petition

which can be corrected by the petitioner, thus saving the

petitioner the task of completing an additional copy.

1982 AMENDMENT

Subdivision (c). The amendment takes into account 28 U.S.C. Sec.

1746, enacted after adoption of the Sec. 2254 rules. Section 1746

provides that in lieu of an affidavit an unsworn statement may be

given under penalty of perjury in substantially the following form

if executed within the United States, its territories, possessions

or commonwealths: "I declare (or certify, verify, or state) under

penalty of perjury that the foregoing is true and correct. Executed

on (date). (Signature)." The statute is "intended to encompass

prisoner litigation," and the statutory alternative is especially

appropriate in such cases because a notary might not be readily

available. Carter v. Clark, 616 F.2d 228 (5th Cir. 1980). The Sec.

2254 forms have been revised accordingly.

AMENDMENTS

1976 - Subd. (c). Pub. L. 94-426, Sec. 2(1), inserted

"substantially" after "The petition shall be in", and struck out

requirement that the petition follow the prescribed form.

Subd. (e). Pub. L. 94-426, Sec. 2(2), inserted "substantially"

after "district court does not", and struck out provision which

permitted the clerk to return a petition for noncompliance without

a judge so directing.

RULE 3. FILING PETITION

(a) Place of filing; copies; filing fee. A petition shall be

filed in the office of the clerk of the district court. It shall be

accompanied by two conformed copies thereof. It shall also be

accompanied by the filing fee prescribed by law unless the

petitioner applies for and is given leave to prosecute the petition

in forma pauperis. If the petitioner desires to prosecute the

petition in forma pauperis, he shall file the affidavit required by

28 U.S.C. Sec. 1915. In all such cases the petition shall also be

accompanied by a certificate of the warden or other appropriate

officer of the institution in which the petitioner is confined as

to the amount of money or securities on deposit to the petitioner's

credit in any account in the institution, which certificate may be

considered by the court in acting upon his application for leave to

proceed in forma pauperis.

(b) Filing and service. Upon receipt of the petition and the

filing fee, or an order granting leave to the petitioner to proceed

in forma pauperis, and having ascertained that the petition appears

on its face to comply with rules 2 and 3, the clerk of the district

court shall file the petition and enter it on the docket in his

office. The filing of the petition shall not require the respondent

to answer the petition or otherwise move with respect to it unless

so ordered by the court.

ADVISORY COMMITTEE NOTE

Rule 3 sets out the procedures to be followed by the petitioner

and the court in filing the petition. Some of its provisions are

currently dealt with by local rule or practice, while others are

innovations. Subdivision (a) specifies the petitioner's

responsibilities. It requires that the petition, which must be

accompanied by two conformed copies thereof, be filed in the office

of the clerk of the district court. The petition must be

accompanied by the filing fee prescribed by law (presently $5; see

28 U.S.C. Sec. 1914(a)), unless leave to prosecute the petition in

forma pauperis is applied for and granted. In the event the

petitioner desires to prosecute the petition in forma pauperis, he

must file the affidavit required by 28 U.S.C. Sec. 1915, together

with a certificate showing the amount of funds in his institutional

account.

Requiring that the petition be filed in the office of the clerk

of the district court provides an efficient and uniform system of

filing habeas corpus petitions.

Subdivision (b) requires the clerk to file the petition. If the

filing fee accompanies the petition, it may be filed immediately,

and, if not, it is contemplated that prompt attention will be given

to the request to proceed in forma pauperis. The court may delegate

the issuance of the order to the clerk in those cases in which it

is clear from the petition that there is full compliance with the

requirements to proceed in forma pauperis.

Requiring the copies of the petition to be filed with the clerk

will have an impact not only upon administrative matters, but upon

more basic problems as well. In districts with more than one judge,

a petitioner under present circumstances may send a petition to

more than one judge. If no central filing system exists for each

district, two judges may independently take different action on the

same petition. Even if the action taken is consistent, there may be

needless duplication of effort.

The requirement of an additional two copies of the form of the

petition is a current practice in many courts. An efficient filing

system requires one copy for use by the court (central file), one

for the respondent (under 3(b), the respondent receives a copy of

the petition whether an answer is required or not), and one for

petitioner's counsel, if appointed. Since rule 2 provides that

blank copies of the petition in the prescribed form are to be

furnished to the applicant free of charge, there should be no undue

burden created by this requirement.

Attached to copies of the petition supplied in accordance with

rule 2 is an affidavit form for the use of petitioners desiring to

proceed in forma pauperis. The form requires information concerning

the petitioner's financial resources.

In forma pauperis cases, the petition must also be accompanied by

a certificate indicating the amount of funds in the petitioner's

institution account. Usually the certificate will be from the

warden. If the petitioner is on probation or parole, the court

might want to require a certificate from the supervising officer.

Petitions by persons on probation or parole are not numerous

enough, however, to justify making special provision for this

situation in the text of the rule.

The certificate will verify the amount of funds credited to the

petitioner in an institution account. The district court may by

local rule require that any amount credited to the petitioner, in

excess of a stated maximum, must be used for the payment of the

filing fee. Since prosecuting an action in forma pauperis is a

privilege (see Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)),

it is not to be granted when the petitioner has sufficient

resources.

Subdivision (b) details the clerk's duties with regard to filing

the petition. If the petition does not appear on its face to comply

with the requirements of rules 2 and 3, it may be returned in

accordance with rule 2(e). If it appears to comply, it must be

filed and entered on the docket in the clerk's office. However,

under this subdivision the respondent is not required to answer or

otherwise move with respect to the petition unless so ordered by

the court.

RULE 4. PRELIMINARY CONSIDERATION BY JUDGE

The original petition shall be presented promptly to a judge of

the district court in accordance with the procedure of the court

for the assignment of its business. The petition shall be examined

promptly by the judge to whom it is assigned. If it plainly appears

from the face of the petition and any exhibits annexed to it that

the petitioner is not entitled to relief in the district court, the

judge shall make an order for its summary dismissal and cause the

petitioner to be notified. Otherwise the judge shall order the

respondent to file an answer or other pleading within the period of

time fixed by the court or to take such other action as the judge

deems appropriate. In every case a copy of the petition and any

order shall be served by certified mail on the respondent and the

attorney general of the state involved.

ADVISORY COMMITTEE NOTE

Rule 4 outlines the options available to the court after the

petition is properly filed. The petition must be promptly presented

to and examined by the judge to whom it is assigned. If it plainly

appears from the face of the petition and any exhibits attached

thereto that the petitioner is not entitled to relief in the

district court, the judge must enter an order summarily dismissing

the petition and cause the petitioner to be notified. If summary

dismissal is not ordered, the judge must order the respondent to

file an answer or to otherwise plead to the petition within a time

period to be fixed in the order.

28 U.S.C. Sec. 2243 requires that the writ shall be awarded, or

an order to show cause issued, "unless it appears from the

application that the applicant or person detained is not entitled

thereto." Such consideration may properly encompass any exhibits

attached to the petition, including, but not limited to,

transcripts, sentencing records, and copies of state court

opinions. The judge may order any of these items for his

consideration if they are not yet included with the petition. See

28 U.S.C. Sec. 753(f) which authorizes payment for transcripts in

habeas corpus cases.

It has been suggested that an answer should be required in every

habeas proceeding, taking into account the usual petitioner's lack

of legal expertise and the important functions served by the

return. See Developments in the Law - Federal Habeas Corpus, 83

Harv.L.Rev. 1038, 1178 (1970). However, under Sec. 2243 it is the

duty of the court to screen out frivolous applications and

eliminate the burden that would be placed on the respondent by

ordering an unnecessary answer. Allen v. Perini, 424 F.2d 134, 141

(6th Cir. 1970). In addition, "notice" pleading is not sufficient,

for the petition is expected to state facts that point to a "real

possibility of constitutional error." See Aubut v. State of Maine,

431 F.2d 688, 689 (1st Cir. 1970).

In the event an answer is ordered under rule 4, the court is

accorded greater flexibility than under Sec. 2243 in determining

within what time period an answer must be made. Under Sec. 2243,

the respondent must make a return within three days after being so

ordered, with additional time of up to forty days allowed under the

Federal Rules of Civil Procedure, Rule 81(a)(2), for good cause. In

view of the widespread state of work overload in prosecutors'

offices (see, e.g., Allen, 424 F.2d at 141), additional time is

granted in some jurisdictions as a matter of course. Rule 4, which

contains no fixed time requirement, gives the court the discretion

to take into account various factors such as the respondent's

workload and the availability of transcripts before determining a

time within which an answer must be made.

Rule 4 authorizes the judge to "take such other action as the

judge deems appropriate." This is designed to afford the judge

flexibility in a case where either dismissal or an order to answer

may be inappropriate. For example, the judge may want to authorize

the respondent to make a motion to dismiss based upon information

furnished by respondent, which may show that petitioner's claims

have already been decided on the merits in a federal court; that

petitioner has failed to exhaust state remedies; that the

petitioner is not in custody within the meaning of 28 U.S.C. Sec.

2254; or that a decision in the matter is pending in state court.

In these situations, a dismissal may be called for on procedural

grounds, which may avoid burdening the respondent with the

necessity of filing an answer on the substantive merits of the

petition. In other situations, the judge may want to consider a

motion from respondent to make the petition more certain. Or the

judge may want to dismiss some allegations in the petition,

requiring the respondent to answer only those claims which appear

to have some arguable merit.

Rule 4 requires that a copy of the petition and any order be

served by certified mail on the respondent and the attorney general

of the state involved. See 28 U.S.C. Sec. 2252. Presently, the

respondent often does not receive a copy of the petition unless the

court directs an answer under 28 U.S.C. Sec. 2243. Although the

attorney general is served, he is not required to answer if it is

more appropriate for some other agency to do so. Although the rule

does not specifically so provide, it is assumed that copies of the

court orders to respondent will be mailed to petitioner by the

court.

RULE 5. ANSWER; CONTENTS

The answer shall respond to the allegations of the petition. In

addition it shall state whether the petitioner has exhausted his

state remedies including any post-conviction remedies available to

him under the statutes or procedural rules of the state and

including also his right of appeal both from the judgment of

conviction and from any adverse judgment or order in the

post-conviction proceeding. The answer shall indicate what

transcripts (of pretrial, trial, sentencing, and post-conviction

proceedings) are available, when they can be furnished, and also

what proceedings have been recorded and not transcribed. There

shall be attached to the answer such portions of the transcripts as

the answering party deems relevant. The court on its own motion or

upon request of the petitioner may order that further portions of

the existing transcripts be furnished or that certain portions of

the non-transcribed proceedings be transcribed and furnished. If a

transcript is neither available nor procurable, a narrative summary

of the evidence may be submitted. If the petitioner appealed from

the judgment of conviction or from an adverse judgment or order in

a post-conviction proceeding, a copy of the petitioner's brief on

appeal and of the opinion of the appellate court, if any, shall

also be filed by the respondent with the answer.

ADVISORY COMMITTEE NOTE

Rule 5 details the contents of the "answer". (This is a change in

terminology from "return," which is still used below when referring

to prior practice.) The answer plays an obviously important rule in

a habeas proceeding:

The return serves several important functions: it permits the

court and the parties to uncover quickly the disputed issues; it

may reveal to the petitioner's attorney grounds for release that

the petitioner did not know; and it may demonstrate that the

petitioner's claim is wholly without merit.

Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev.

1083, 1178 (1970).

The answer must respond to the allegations of the petition. While

some districts require this by local rule (see, e.g., E.D.N.C.R.

17(B)), under 28 U.S.C. Sec. 2243 little specificity is demanded.

As a result, courts occasionally receive answers which contain only

a statement certifying the true cause of detention, or a series of

delaying motions such as motions to dismiss. The requirement of the

proposed rule that the "answer shall respond to the allegations of

the petition" is intended to ensure that a responsive pleading will

be filed and thus the functions of the answer fully served.

The answer must also state whether the petitioner has exhausted

his state remedies. This is a prerequisite to eligibility for the

writ under 28 U.S.C. Sec. 2254(b) and applies to every ground the

petitioner raises. Most form petitions now in use contain questions

requiring information relevant to whether the petitioner has

exhausted his remedies. However, the exhaustion requirement is

often not understood by the unrepresented petitioner. The attorney

general has both the legal expertise and access to the record and

thus is in a much better position to inform the court on the matter

of exhaustion of state remedies. An alleged failure to exhaust

state remedies as to any ground in the petition may be raised by a

motion by the attorney general, thus avoiding the necessity of a

formal answer as to that ground.

The rule requires the answer to indicate what transcripts are

available, when they can be furnished, and also what proceedings

have been recorded and not transcribed. This will serve to inform

the court and petitioner as to what factual allegations can be

checked against the actual transcripts. The transcripts include

pretrial transcripts relating, for example, to pretrial motions to

suppress; transcripts of the trial or guilty plea proceeding; and

transcripts of any post-conviction proceedings which may have taken

place. The respondent is required to furnish those portions of the

transcripts which he believes relevant. The court may order the

furnishing of additional portions of the transcripts upon the

request of petitioner or upon the court's own motion.

Where transcripts are unavailable, the rule provides that a

narrative summary of the evidence may be submitted.

Rule 5 (and the general procedure set up by this entire set of

rules) does not contemplate a traverse to the answer, except under

special circumstances. See advisory committee note to rule 9.

Therefore, the old common law assumption of verity of the

allegations of a return until impeached, as codified in 28 U.S.C.

Sec. 2248, is no longer applicable. The meaning of the section,

with its exception to the assumption "to the extent that the judge

finds from the evidence that they (the allegations) are not true,"

has given attorneys and courts a great deal of difficulty. It seems

that when the petition and return pose an issue of fact, no

traverse is required; Stewart v. Overholser, 186 F.2d 339 (D.C.

Cir. 1950).

We read Sec. 2248 of the Judicial Code as not requiring a

traverse when a factual issue has been clearly framed by the

petition and the return or answer. This section provides that the

allegations of a return or answer to an order to show cause shall

be accepted as true if not traversed, except to the extent the

judge finds from the evidence that they are not true. This

contemplates that where the petition and return or answer do

present an issue of fact material to the legality of detention,

evidence is required to resolve that issue despite the absence of

a traverse. This reference to evidence assumes a hearing on

issues raised by the allegations of the petition and the return

or answer to the order to show cause.

186 F.2D AT 342, N. 5

In actual practice, the traverse tends to be a mere pro forma

refutation of the return, serving little if any expository

function. In the interests of a more streamlined and manageable

habeas corpus procedure, it is not required except in those

instances where it will serve a truly useful purpose. Also, under

rule 11 the court is given the discretion to incorporate Federal

Rules of Civil Procedure when appropriate, so civil rule 15(a) may

be used to allow the petitioner to amend his petition when the

court feels this is called for by the contents of the answer.

Rule 5 does not indicate who the answer is to be served upon, but

it necessarily implies that it will be mailed to the petitioner (or

to his attorney if he has one). The number of copies of the answer

required is left to the court's discretion. Although the rule

requires only a copy of petitioner's brief on appeal, respondent is

free also to file a copy of respondent's brief. In practice, courts

have found it helpful to have a copy of respondent's brief.

RULE 6. DISCOVERY

(a) Leave of court required. A party shall be entitled to invoke

the processes of discovery available under the Federal Rules of

Civil Procedure if, and to the extent that, the judge in the

exercise of his discretion and for good cause shown grants leave to

do so, but not otherwise. If necessary for effective utilization of

discovery procedures, counsel shall be appointed by the judge for a

petitioner who qualifies for the appointment of counsel under 18

U.S.C. Sec. 3006A(g).

(b) Requests for discovery. Requests for discovery shall be

accompanied by a statement of the interrogatories or requests for

admission and a list of the documents, if any, sought to be

produced.

(c) Expenses. If the respondent is granted leave to take the

deposition of the petitioner or any other person the judge may as a

condition of taking it direct that the respondent pay the expenses

of travel and subsistence and fees of counsel for the petitioner to

attend the taking of the deposition.

ADVISORY COMMITTEE NOTE

This rule prescribes the procedures governing discovery in habeas

corpus cases. Subdivision (a) provides that any party may utilize

the processes of discovery available under the Federal Rules of

Civil Procedure (rules 26-37) if, and to the extent that, the judge

allows. It also provides for the appointment of counsel for a

petitioner who qualifies for this when counsel is necessary for

effective utilization of discovery procedures permitted by the

judge.

Subdivision (a) is consistent with Harris v. Nelson, 394 U.S. 286

(1969). In that case the court noted,

[I]t is clear that there was no intention to extend to habeas

corpus, as a matter of right, the broad discovery provisions * *

* of the new [Federal Rules of Civil Procedure].

394 U.S. AT 295

However, citing the lack of methods for securing information in

habeas proceedings, the court pointed to an alternative.

Clearly, in these circumstances * * * the courts may fashion

appropriate modes of procedure, by analogy to existing rules or

otherwise in conformity with judicial usage. * * * Their

authority is expressly confirmed in the All Writs Act, 28 U.S.C.

Sec. 1651.

394 U.S. AT 299

The court concluded that the issue of discovery in habeas corpus

cases could best be dealt with as part of an effort to provide

general rules of practice for habeas corpus cases:

In fact, it is our view that the rulemaking machinery should be

invoked to formulate rules of practice with respect to federal

habeas corpus and Sec. 2255 proceedings, on a comprehensive basis

and not merely one confined to discovery. The problems presented

by these proceedings are materially different from those dealt

with in the Federal Rules of Civil Procedure and the Federal

Rules of Criminal Procedure, and reliance upon usage and the

opaque language of Civil Rule 81(a)(2) is transparently

inadequate. In our view the results of a meticulous formulation

and adoption of special rules for federal habeas corpus and Sec.

2255 proceedings would promise much benefit.

394 U.S. AT 301 N. 7

Discovery may, in appropriate cases, aid in developing facts

necessary to decide whether to order an evidentiary hearing or to

grant the writ following an evidentiary hearing:

We are aware that confinement sometimes induces fantasy which has

its basis in the paranoia of prison rather than in fact. But

where specific allegations before the court show reason to

believe that the petitioner may, if the facts are fully

developed, be able to demonstrate that he is confined illegally

and is therefore entitled to relief, it is the duty of the court

to provide the necessary facilities and procedures for an

adequate inquiry. Obviously, in exercising this power, the court

may utilize familiar procedures, as appropriate, whether these

are found in the civil or criminal rules or elsewhere in the

"usages and principles."

Granting discovery is left to the discretion of the court,

discretion to be exercised where there is a showing of good cause

why discovery should be allowed. Several commentators have

suggested that at least some discovery should be permitted without

leave of court. It is argued that the courts will be burdened with

weighing the propriety of requests to which the discovered party

has no objection. Additionally, the availability of protective

orders under Fed.R.Civ.R., Rules 30(b) and 31(d) will provide the

necessary safeguards. See Developments in the Law - Federal Habeas

Corpus, 83 Harv.L.Rev. 1038, 1186-87 (1970); Civil Discovery in

Habeas Corpus, 67 Colum.L.Rev. 1296, 1310 (1967).

Nonetheless, it is felt the requirement of prior court approval

of all discovery is necessary to prevent abuse, so this requirement

is specifically mandated in the rule.

While requests for discovery in habeas proceedings normally

follow the granting of an evidentiary hearing, there may be

instances in which discovery would be appropriate beforehand. Such

an approach was advocated in Wagner v. United States, 418 F.2d 618,

621 (9th Cir. 1969), where the opinion stated the trial court could

permit interrogatories, provide for deposing witnesses, "and take

such other prehearing steps as may be appropriate." While this was

an action under Sec. 2255, the reasoning would apply equally well

to petitions by state prisoners. Such pre-hearing discovery may

show an evidentiary hearing to be unnecessary, as when there are

"no disputed issues of law or fact." 83 Harv. L.Rev. 1038, 1181

(1970). The court in Harris alluded to such a possibility when it

said "the court may * * * authorize such proceedings with respect

to development, before or in conjunction with the hearing of the

facts * * *." [emphasis added] 394 U.S. at 300. Such pre-hearing

discovery, like all discovery under rule 6, requires leave of

court. In addition, the provisions in rule 7 for the use of an

expanded record may eliminate much of the need for this type of

discovery. While probably not as frequently sought or granted as

discovery in conjunction with a hearing, it may nonetheless serve a

valuable function.

In order to make pre-hearing discovery meaningful, subdivision

(a) provides that the judge should appoint counsel for a petitioner

who is without counsel and qualifies for appointment when this is

necessary for the proper utilization of discovery procedures. Rule

8 provides for the appointment of counsel at the evidentiary

hearing stage (see rule 8(b) and advisory committee note), but this

would not assist the petitioner who seeks to utilize discovery to

stave off dismissal of his petition (see rule 9 and advisory

committee note) or to demonstrate that an evidentiary hearing is

necessary. Thus, if the judge grants a petitioner's request for

discovery prior to making a decision as to the necessity for an

evidentiary hearing, he should determine whether counsel is

necessary for the effective utilization of such discovery and, if

so, appoint counsel for the petitioner if the petitioner qualifies

for such appointment.

This rule contains very little specificity as to what types and

methods of discovery should be made available to the parties in a

habeas proceeding, or how, once made available, these discovery

procedures should be administered. The purpose of this rule is to

get some experience in how discovery would work in actual practice

by letting district court judges fashion their own rules in the

context of individual cases. When the results of such experience

are available it would be desirable to consider whether further,

more specific codification should take place.

Subdivision (b) provides for judicial consideration of all

matters subject to discovery. A statement of the interrogatories,

or requests for admission sought to be answered, and a list of any

documents sought to be produced, must accompany a request for

discovery. This is to advise the judge of the necessity for

discovery and enable him to make certain that the inquiry is

relevant and appropriately narrow.

Subdivision (c) refers to the situation where the respondent is

granted leave to take the deposition of the petitioner or any other

person. In such a case the judge may direct the respondent to pay

the expenses and fees of counsel for the petitioner to attend the

taking of the deposition, as a condition granting the respondent

such leave. While the judge is not required to impose this

condition subdivision (c) will give the court the means to do so.

Such a provision affords some protection to the indigent petitioner

who may be prejudiced by his inability to have counsel, often

court-appointed, present at the taking of a deposition. It is

recognized that under 18 U.S.C. Sec. 3006A(g), court-appointed

counsel in a Sec. 2254 proceeding is entitled to receive up to $250

and reimbursement for expenses reasonably incurred. (Compare Fed.R.

Crim.P. 15(c).) Typically, however, this does not adequately

reimburse counsel if he must attend the taking of depositions or be

involved in other pre-hearing proceedings. Subdivision (c) is

intended to provide additional funds, if necessary, to be paid by

the state government (respondent) to petitioner's counsel.

Although the rule does not specifically so provide, it is assumed

that a petitioner who qualifies for the appointment of counsel

under 18 U.S.C. Sec. 3006A(g) and is granted leave to take a

deposition will be allowed witness costs. This will include

recording and transcription of the witness's statement. Such costs

are payable pursuant to 28 U.S.C. Sec. 1825. See Opinion of

Comptroller General, February 28, 1974.

Subdivision (c) specifically recognizes the right of the

respondent to take the deposition of the petitioner. Although the

petitioner could not be called to testify against his will in a

criminal trial, it is felt the nature of the habeas proceeding,

along with the safeguards accorded by the Fifth Amendment and the

presence of counsel, justify this provision. See 83 Harv.L.Rev.

1038, 1183-84 (1970).

RULE 7. EXPANSION OF RECORD

(a) Direction for expansion. If the petition is not dismissed

summarily the judge may direct that the record be expanded by the

parties by the inclusion of additional materials relevant to the

determination of the merits of the petition.

(b) Materials to be added. The expanded record may include,

without limitation, letters predating the filing of the petition in

the district court, documents, exhibits, and answers under oath, if

so directed, to written interrogatories propounded by the judge.

Affidavits may be submitted and considered as a part of the record.

(c) Submission to opposing party. In any case in which an

expanded record is directed, copies of the letters, documents,

exhibits, and affidavits proposed to be included shall be submitted

to the party against whom they are to be offered, and he shall be

afforded an opportunity to admit or deny their correctness.

(d) Authentication. The court may require the authentication of

any material under subdivision (b) or (c).

ADVISORY COMMITTEE NOTE

This rule provides that the judge may direct that the record be

expanded. The purpose is to enable the judge to dispose of some

habeas petitions not dismissed on the pleadings, without the time

and expense required for an evidentiary hearing. An expanded record

may also be helpful when an evidentiary hearing is ordered.

The record may be expanded to include additional material

relevant to the merits of the petition. While most petitions are

dismissed either summarily or after a response has been made, of

those that remain, by far the majority require an evidentiary

hearing. In the fiscal year ending June 30, 1970, for example, of

8,423 Sec. 2254 cases terminated, 8,231 required court action. Of

these, 7,812 were dismissed before a prehearing conference and 469

merited further court action (e.g., expansion of the record,

prehearing conference, or an evidentiary hearing). Of the remaining

469 cases, 403 required an evidentiary hearing, often

time-consuming, costly, and, at least occasionally, unnecessary.

See Director of the Administrative Office of the United States

Courts, Annual Report, 245a-245c (table C4) (1970). In some

instances these hearings were necessitated by slight omissions in

the state record which might have been cured by the use of an

expanded record.

Authorizing expansion of the record will, hopefully, eliminate

some unnecessary hearings. The value of this approach was

articulated in Raines v. United States, 423 F.2d 526, 529-530 (4th

Cir. 1970):

Unless it is clear from the pleadings and the files and records

that the prisoner is entitled to no relief, the statute makes a

hearing mandatory. We think there is a permissible intermediate

step that may avoid the necessity for an expensive and time

consuming evidentiary hearing in every Section 2255 case. It may

instead be perfectly appropriate, depending upon the nature of

the allegations, for the district court to proceed by requiring

that the record be expanded to include letters, documentary

evidence, and, in an appropriate case, even affidavits. United

States v. Carlino, 400 F.2d 56 (2nd Cir. 1968); Mirra v. United

States, 379 F.2d 782 (2nd Cir. 1967); Accardi v. United States,

379 F.2d 312 (2nd Cir. 1967). When the issue is one of

credibility, resolution on the basis of affidavits can rarely be

conclusive, but that is not to say they may not be helpful.

In Harris v. Nelson, 394 U.S. 286, 300 (1969), the court said:

At any time in the proceedings * * * either on [the court's]

own motion or upon cause shown by the petitioner, it may issue

such writs and take or authorize such proceedings * * * before or

in conjunction with the hearing of the facts * * * [emphasis

added]

Subdivision (b) specifies the materials which may be added to the

record. These include, without limitation, letters predating the

filing of the petition in the district court, documents, exhibits,

and answers under oath directed to written interrogatories

propounded by the judge. Under this subdivision affidavits may be

submitted and considered part of the record. Subdivision (b) is

consistent with 28 U.S.C. Secs. 2246 and 2247 and the decision in

Raines with regard to types of material that may be considered upon

application for a writ of habeas corpus. See United States v.

Carlino, 400 F.2d 56, 58 (2d Cir. 1968), and Machibroda v. United

States, 368 U.S. 487 (1962).

Under subdivision (c) all materials proposed to be included in

the record must be submitted to the party against whom they are to

be offered.

Under subdivision (d) the judge can require authentication if he

believes it desirable to do so.

RULE 8. EVIDENTIARY HEARING

(a) Determination by court. If the petition is not dismissed at a

previous stage in the proceeding, the judge, after the answer and

the transcript and record of state court proceedings are filed,

shall, upon a review of those proceedings and of the expanded

record, if any, determine whether an evidentiary hearing is

required. If it appears that an evidentiary hearing is not

required, the judge shall make such disposition of the petition as

justice shall require.

(b) Function of the magistrate.

(1) When designated to do so in accordance with 28 U.S.C. Sec.

636(b), a magistrate may conduct hearings, including evidentiary

hearings, on the petition, and submit to a judge of the court

proposed findings of fact and recommendations for disposition.

(2) The magistrate shall file proposed findings and

recommendations with the court and a copy shall forthwith be

mailed to all parties.

(3) Within ten days after being served with a copy, any party

may serve and file written objections to such proposed findings

and recommendations as provided by rules of court.

(4) A judge of the court shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made. A judge of the court

may accept, reject, or modify in whole or in part any findings or

recommendations made by the magistrate.

(c) Appointment of counsel; time for hearing. If an evidentiary

hearing is required the judge shall appoint counsel for a

petitioner who qualifies for the appointment of counsel under 18

U.S.C. Sec. 3006A(g) and the hearing shall be conducted as promptly

as practicable, having regard for the need of counsel for both

parties for adequate time for investigation and preparation. These

rules do not limit the appointment of counsel under 18 U.S.C. Sec.

3006A at any stage of the case if the interest of justice so

requires.

(As amended Pub. L. 94-426, Sec. 2(5), Sept. 28, 1976, 90 Stat.

1334; Pub. L. 94-577, Sec. 2(a)(1), (b)(1), Oct. 21, 1976, 90 Stat.

2730, 2731.)

ADVISORY COMMITTEE NOTE

This rule outlines the procedure to be followed by the court

immediately prior to and after the determination of whether to hold

an evidentiary hearing.

The provisions are applicable if the petition has not been

dismissed at a previous stage in the proceeding [including a

summary dismissal under rule 4; a dismissal pursuant to a motion by

the respondent; a dismissal after the answer and petition are

considered; or a dismissal after consideration of the pleadings and

an expanded record].

If dismissal has not been ordered, the court must determine

whether an evidentiary hearing is required. This determination is

to be made upon a review of the answer, the transcript and record

of state court proceedings, and if there is one, the expanded

record. As the United States Supreme Court noted in Townsend v.

Sam, 372 U.S. 293, 319 (1963):

Ordinarily [the complete state-court] record - including the

transcript of testimony (or if unavailable some adequate

substitute, such as a narrative record), the pleadings, court

opinions, and other pertinent documents - is indispensable to

determining whether the habeas applicant received a full and fair

state-court evidentiary hearing resulting in reliable findings.

Subdivision (a) contemplates that all of these materials, if

available, will be taken into account. This is especially important

in view of the standard set down in Townsend for determining when a

hearing in the federal habeas proceeding is mandatory.

The appropriate standard * * * is this: Where the facts are in

dispute, the federal court in habeas corpus must hold an

evidentiary hearing if the habeas applicant did not receive a

full and fair evidentiary hearing in a state court, either at the

time of the trial or in a collateral proceeding.

372 U.S. AT 312

The circumstances under which a federal hearing is mandatory are

now specified in 28 U.S.C. Sec. 2254(d). The 1966 amendment clearly

places the burden on the petitioner, when there has already been a

state hearing, to show that it was not a fair or adequate hearing

for one or more of the specifically enumerated reasons, in order to

force a federal evidentiary hearing. Since the function of an

evidentiary hearing is to try issues of fact (372 U.S. at 309),

such a hearing is unnecessary when only issues of law are raised.

See, e.g., Yeaman v. United States, 326 F.2d 293 (9th Cir. 1963).

In situations in which an evidentiary hearing is not mandatory,

the judge may nonetheless decide that an evidentiary hearing is

desirable:

The purpose of the test is to indicate the situations in which

the holding of an evidentiary hearing is mandatory. In all other

cases where the material facts are in dispute, the holding of

such a hearing is in the discretion of the district judge.

372 U.S. AT 318

If the judge decides that an evidentiary hearing is neither

required nor desirable, he shall make such a disposition of the

petition "as justice shall require." Most habeas petitions are

dismissed before the prehearing conference stage (see Director of

the Administrative Office of the United States Courts, Annual

Report 245a-245c (table C4) (1970)) and of those not dismissed, the

majority raise factual issues that necessitate an evidentiary

hearing. If no hearing is required, most petitions are dismissed,

but in unusual cases the court may grant the relief sought without

a hearing. This includes immediate release from custody or

nullification of a judgment under which the sentence is to be

served in the future.

Subdivision (b) provides that a magistrate, when so empowered by

rule of the district court, may recommend to the district judge

that an evidentiary hearing be held or that the petition be

dismissed, provided he gives the district judge a sufficiently

detailed description of the facts so that the judge may decide

whether or not to hold an evidentiary hearing. This provision is

not inconsistent with the holding in Wingo v. Wedding, 418 U.S. 461

(1974), that the Federal Magistrates Act did not change the

requirement of the habeas corpus statute that federal judges

personally conduct habeas evidentiary hearings, and that

consequently a local district court rule was invalid insofar as it

authorized a magistrate to hold such hearings. 28 U.S.C. Sec.

636(b) provides that a district court may by rule authorize any

magistrate to perform certain additional duties, including

preliminary review of applications for posttrial relief made by

individuals convicted of criminal offenses, and submission of a

report and recommendations to facilitate the decision of the

district judge having jurisdiction over the case as to whether

there should be a hearing.

As noted in Wingo, review "by Magistrates of applications for

post-trial relief is thus limited to review for the purpose of

proposing, not holding, evidentiary hearings."

Utilization of the magistrate as specified in subdivision (b)

will aid in the expeditious and fair handling of habeas petitions.

A qualified, experienced magistrate will, it is hoped, acquire

an expertise in examining these [postconviction review]

applications and summarizing their important contents for the

district judge, thereby facilitating his decisions. Law clerks

are presently charged with this responsibility by many judges,

but judges have noted that the normal 1-year clerkship does not

afford law clerks the time or experience necessary to attain real

efficiency in handling such applications.

S. REP. NO. 371, 90TH CONG., 1ST SESS., 26 (1967)

Under subdivision (c) there are two provisions that differ from

the procedure set forth in 28 U.S.C. Sec. 2243. These are the

appointment of counsel and standard for determining how soon the

hearing will be held.

If an evidentiary hearing is required the judge must appoint

counsel for a petitioner who qualified for appointment under the

Criminal Justice Act. Currently, the appointment of counsel is not

recognized as a right at any stage of a habeas proceeding. See,

e.g., United States ex rel. Marshall v. Wilkins, 338 F.2d 404 (2d

Cir. 1964). Some district courts have, however, by local rule,

required that counsel must be provided for indigent petitioners in

cases requiring a hearing. See, e.g., D.N.M.R. 21(f), E.D. N.Y.R.

26(d). Appointment of counsel at this stage is mandatory under

subdivision (c). This requirement will not limit the authority of

the court to provide counsel at an earlier stage if it is thought

desirable to do so as is done in some courts under current

practice. At the evidentiary hearing stage, however, an indigent

petitioner's access to counsel should not depend on local practice

and, for this reason, the furnishing of counsel is made mandatory.

Counsel can perform a valuable function benefiting both the court

and the petitioner. The issues raised can be more clearly

identified if both sides have the benefit of trained legal

personnel. The presence of counsel at the prehearing conference may

help to expedite the evidentiary hearing or make it unnecessary,

and counsel will be able to make better use of available prehearing

discovery procedures. Compare ABA Project on Standards for Criminal

Justice, Standards Relating to Post-Conviction Remedies Sec. 4.4,

p. 66 (Approved Draft 1968). At a hearing, the petitioner's claims

are more likely to be effectively and properly presented by

counsel.

Under 18 U.S.C. Sec. 3006A(g), payment is allowed counsel up to

$250, plus reimbursement for expenses reasonably incurred. The

standards of indigency under this section are less strict than

those regarding eligibility to prosecute a petition in forma

pauperis, and thus many who cannot qualify to proceed under 28

U.S.C. Sec. 1915 will be entitled to the benefits of counsel under

18 U.S.C. Sec. 3006A(g). Under rule 6(c), the court may order the

respondent to reimburse counsel from state funds for fees and

expenses incurred as the result of the utilization of discovery

procedures by the respondent.

Subdivision (c) provides that the hearing shall be conducted as

promptly as possible, taking into account "the need of counsel for

both parties for adequate time for investigation and preparation."

This differs from the language of 28 U.S.C. Sec. 2243, which

requires that the day for the hearing be set "not more than five

days after the return unless for good cause additional time is

allowed." This time limit fails to take into account the function

that may be served by a prehearing conference and the time required

to prepare adequately for an evidentiary hearing. Although

"additional time" is often allowed under Sec. 2243, subdivision (c)

provides more flexibility to take account of the complexity of the

case, the availability of important materials, the workload of the

attorney general, and the time required by appointed counsel to

prepare.

While the rule does not make specific provision for a prehearing

conference, the omission is not intended to cast doubt upon the

value of such a conference:

The conference may limit the questions to be resolved, identify

areas of agreement and dispute, and explore evidentiary problems

that may be expected to arise. * * * [S]uch conferences may also

disclose that a hearing is unnecessary * * *.

ABA Project on Standards for Criminal Justice, Standards Relating

to Post-Conviction Remedies Sec. 4.6, commentary pp. 74-75.

(Approved Draft, 1968.)

See also Developments in the Law - Federal Habeas Corpus, 83

Harv.L.Rev. 1038, 1188 (1970).

The rule does not contain a specific provision on the subpoenaing

of witnesses. It is left to local practice to determine the method

for doing this. The implementation of 28 U.S.C. Sec. 1825 on the

payment of witness fees is dealt with in an opinion of the

Comptroller General, February 28, 1974.

AMENDMENTS

1976 - Subd. (b). Pub. L. 94-577, Sec. 2(a)(1), substituted

provisions which authorized magistrates, when designated to do so

in accordance with section 636(b) of this title, to conduct

hearings, including evidentiary hearings, on the petition and to

submit to a judge of the court proposed findings of fact and

recommendations for disposition, which directed the magistrate to

file proposed findings and recommendations with the court with

copies furnished to all parties, which allowed parties thus served

10 days to file written objections thereto, and which directed a

judge of the court to make de novo determinations of the

objected-to portions and to accept, reject, or modify the findings

or recommendations for provisions under which the magistrate had

been empowered only to recommend to the district judge that an

evidentiary hearing be held or that the petition be dismissed.

Subd. (c). Pub. L. 94-577, Sec. 2(b)(1), substituted "and the

hearing shall be conducted" for "and shall conduct the hearing".

Pub. L. 94-426 provided that these rules not limit the

appointment of counsel under section 3006A of title 18, if the

interest of justice so require.

EFFECTIVE DATE OF 1976 AMENDMENT

Section 2(c) of Pub. L. 94-577 provided that: "The amendments

made by this section [amending subdivs. (b) and (c) of this rule

and Rule 8(b), (c) of the Rules Governing Proceedings Under Section

2255 of this title] shall take effect with respect to petitions

under section 2254 and motions under section 2255 of title 28 of

the United States Code filed on or after February 1, 1977."

RULE 9. DELAYED OR SUCCESSIVE PETITIONS

(a) Delayed petitions. A petition may be dismissed if it appears

that the state of which the respondent is an officer has been

prejudiced in its ability to respond to the petition by delay in

its filing unless the petitioner shows that it is based on grounds

of which he could not have had knowledge by the exercise of

reasonable diligence before the circumstances prejudicial to the

state occurred.

(b) Successive petitions. A second or successive petition may be

dismissed if the judge finds that it fails to allege new or

different grounds for relief and the prior determination was on the

merits or, if new and different grounds are alleged, the judge

finds that the failure of the petitioner to assert those grounds in

a prior petition constituted an abuse of the writ.

(As amended Pub. L. 94-426, Sec. 2(7), (8), Sept. 28, 1976, 90

Stat. 1335.)

ADVISORY COMMITTEE NOTE

This rule is intended to minimize abuse of the writ of habeas

corpus by limiting the right to assert stale claims and to file

multiple petitions. Subdivision (a) deals with the delayed

petition. Subdivision (b) deals with the second or successive

petition.

Subdivision (a) provides that a petition attacking the judgment

of a state court may be dismissed on the grounds of delay if the

petitioner knew or should have known of the existence of the

grounds he is presently asserting in the petition and the delay has

resulted in the state being prejudiced in its ability to respond to

the petition. If the delay is more than five years after the

judgment of conviction, prejudice is presumed, although this

presumption is rebuttable by the petitioner. Otherwise, the state

has the burden of showing such prejudice.

The assertion of stale claims is a problem which is not likely to

decrease in frequency. Following the decisions in Jones v.

Cunningham, 371 U.S. 236 (1963), and Benson v. California, 328 F.2d

159 (9th Cir. 1964), the concept of custody expanded greatly,

lengthening the time period during which a habeas corpus petition

may be filed. The petitioner who is not unconditionally discharged

may be on parole or probation for many years. He may at some date,

perhaps ten or fifteen years after conviction, decide to challenge

the state court judgment. The grounds most often troublesome to the

courts are ineffective counsel, denial of right of appeal, plea of

guilty unlawfully induced, use of a coerced confession, and

illegally constituted jury. The latter four grounds are often

interlocked with the allegation of ineffective counsel. When they

are asserted after the passage of many years, both the attorney for

the defendant and the state have difficulty in ascertaining what

the facts are. It often develops that the defense attorney has

little or no recollection as to what took place and that many of

the participants in the trial are dead or their whereabouts

unknown. The court reporter's notes may have been lost or

destroyed, thus eliminating any exact record of what transpired. If

the case was decided on a guilty plea, even if the record is

intact, it may not satisfactorily reveal the extent of the defense

attorney's efforts in behalf of the petitioner. As a consequence,

there is obvious difficulty in investigating petitioner's

allegations.

The interest of both the petitioner and the government can best

be served if claims are raised while the evidence is still fresh.

The American Bar Association has recognized the interest of the

state in protecting itself against stale claims by limiting the

right to raise such claims after completion of service of a

sentence imposed pursuant to a challenged judgment. See ABA

Standards Relating to Post-Conviction Remedies Sec. 2.4 (c), p. 45

(Approved Draft, 1968). Subdivision (a) is not limited to those who

have completed their sentence. Its reach is broader, extending to

all instances where delay by the petitioner has prejudiced the

state, subject to the qualifications and conditions contained in

the subdivision.

In McMann v. Richardson, 397 U.S. 759 (1970), the court made

reference to the issue of the stale claim:

What is at stake in this phase of the case is not the integrity

of the state convictions obtained on guilty pleas, but whether,

years later, defendants must be permitted to withdraw their

pleas, which were perfectly valid when made, and be given another

choice between admitting their guilt and putting the State to its

proof. [Emphasis added.]

397 U.S. AT 773

The court refused to allow this, intimating its dislike of

collateral attacks on sentences long since imposed which disrupt

the state's interest in finality of convictions which were

constitutionally valid when obtained.

Subdivision (a) is not a statute of limitations. Rather, the

limitation is based on the equitable doctrine of laches. "Laches is

such delay in enforcing one's rights as works disadvantage to

another." 30A C.J.S. Equity Sec. 112, p. 19. Also, the language of

the subdivision, "a petition may be dismissed" [emphasis added], is

permissive rather than mandatory. This clearly allows the court

which is considering the petition to use discretion in assessing

the equities of the particular situation.

The use of a flexible rule analogous to laches to bar the

assertion of stale claims is suggested in ABA Standards Relating to

Post-Conviction Remedies Sec. 2.4, commentary at 48 (Approved

Draft, 1968). Additionally, in Fay v. Noia, 372 U.S. 391 (1963),

the Supreme Court noted:

Furthermore, habeas corpus has traditionally been regarded as

governed by equitable principles. United States ex rel. Smith v.

Baldi, 344 U.S. 561, 573 (dissenting opinion). Among them is the

principle that a suitor's conduct in relation to the matter at

hand may disentitle him to the relief he seeks.

372 U.S. AT 438

Finally, the doctrine of laches has been applied with reference

to another postconviction remedy, the writ of coram nobis. See 24

C.J.S. Criminal Law Sec. 1606(25), p. 779.

The standard used for determining if the petitioner shall be

barred from asserting his claim is consistent with that used in

laches provisions generally. The petitioner is held to a standard

of reasonable diligence. Any inference or presumption arising by

reason of the failure to attack collaterally a conviction may be

disregarded where (1) there has been a change of law or fact (new

evidence) or (2) where the court, in the interest of justice, feels

that the collateral attack should be entertained and the prisoner

makes a proper showing as to why he has not asserted a particular

ground for relief.

Subdivision (a) establishes the presumption that the passage of

more than five years from the time of the judgment of conviction to

the time of filing a habeas petition is prejudicial to the state.

"Presumption" has the meaning given it by Fed.R.Evid. 301. The

prisoner has "the burden of going forward with evidence to rebut or

meet the presumption" that the state has not been prejudiced by the

passage of a substantial period of time. This does not impose too

heavy a burden on the petitioner. He usually knows what persons are

important to the issue of whether the state has been prejudiced.

Rule 6 can be used by the court to allow petitioner liberal

discovery to learn whether witnesses have died or whether other

circumstances prejudicial to the state have occurred. Even if the

petitioner should fail to overcome the presumption of prejudice to

the state, he is not automatically barred from asserting his claim.

As discussed previously, he may proceed if he neither knew nor, by

the exercise of reasonable diligence, could have known of the

grounds for relief.

The presumption of prejudice does not come into play if the time

lag is not more than five years.

The time limitation should have a positive effect in encouraging

petitioners who have knowledge of it to assert all their claims as

soon after conviction as possible. The implementation of this rule

can be substantially furthered by the development of greater legal

resources for prisoners. See ABA Standards Relating to

Post-Conviction Remedies Sec. 3.1, pp. 49-50 (Approved Draft,

1968).

Subdivision (a) does not constitute an abridgement or

modification of a substantive right under 28 U.S.C. Sec. 2072.

There are safeguards for the hardship case. The rule provides a

flexible standard for determining when a petition will be barred.

Subdivision (b) deals with the problem of successive habeas

petitions. It provides that the judge may dismiss a second or

successive petition (1) if it fails to allege new or different

grounds for relief or (2) if new or different grounds for relief

are alleged and the judge finds the failure of the petitioner to

assert those grounds in a prior petition is inexcusable.

In Sanders v. United States, 373 U.S. 1 (1963), the court, in

dealing with the problem of successive applications, stated:

Controlling weight may be given to denial of a prior

application for federal habeas corpus or Sec. 2255 relief only if

(1) the same ground presented in the subsequent application was

determined adversely to the applicant on the prior application,

(2) the prior determination was on the merits, and (3) the ends

of justice would not be served by reaching the merits of the

subsequent application. [Emphasis added.]

373 U.S. AT 15

The requirement is that the prior determination of the same

ground has been on the merits. This requirement is in 28 U.S.C.

Sec. 2244(b) and has been reiterated in many cases since Sanders.

See Gains v. Allgood, 391 F.2d 692 (5th Cir. 1968); Hutchinson v.

Craven, 415 F.2d 278 (9th Cir. 1969); Brown v. Peyton, 435 F.2d

1352 (4th Cir. 1970).

With reference to a successive application asserting a new ground

or one not previously decided on the merits, the court in Sanders

noted:

In either case, full consideration of the merits of the new

application can be avoided only if there has been an abuse of the

writ * * * and this the Government has the burden of pleading. *

* *

Thus, for example, if a prisoner deliberately withholds one of

two grounds for federal collateral relief at the time of filing

his first application, * * * he may be deemed to have waived his

right to a hearing on a second application presenting the

withheld ground.

373 U.S. AT 17-18

Subdivision (b) has incorporated this principle and requires that

the judge find petitioner's failure to have asserted the new

grounds in the prior petition to be inexcusable.

Sanders, 18 U.S.C. Sec. 2244, and subdivision (b) make it clear

that the court has discretion to entertain a successive

application.

The burden is on the government to plead abuse of the writ. See

Sanders v. United States, 373 U.S. 1, 10 (1963); Dixon v. Jacobs,

427 F.2d 589, 596 (D.C.Cir. 1970); cf. Johnson v. Copinger, 420

F.2d 395 (4th Cir. 1969). Once the government has done this, the

petitioner has the burden of proving that he has not abused the

writ. In Price v. Johnston, 334 U.S. 266, 292 (1948), the court

said:

[I]f the Government chooses * * * to claim that the prisoner has

abused the writ of habeas corpus, it rests with the Government to

make that claim with clarity and particularity in its return to

the order to show cause. That is not an intolerable burden. The

Government is usually well acquainted with the facts that are

necessary to make such a claim. Once a particular abuse has been

alleged, the prisoner has the burden of answering that allegation

and of proving that he has not abused the writ.

Subdivision (b) is consistent with the important and well

established purpose of habeas corpus. It does not eliminate a

remedy to which the petitioner is rightfully entitled. However, in

Sanders, the court pointed out:

Nothing in the traditions of habeas corpus requires the federal

courts to tolerate needless piecemeal litigation, or to entertain

collateral proceedings whose only purpose is to vex, harass, or

delay.

373 U.S. AT 18

There are instances in which petitioner's failure to assert a

ground in a prior petition is excusable. A retroactive change in

the law and newly discovered evidence are examples. In rare

instances, the court may feel a need to entertain a petition

alleging grounds that have already been decided on the merits.

Sanders, 373 U.S. at 1, 16. However, abusive use of the writ should

be discouraged, and instances of abuse are frequent enough to

require a means of dealing with them. For example, a successive

application, already decided on the merits, may be submitted in the

hope of getting before a different judge in multijudge courts. A

known ground may be deliberately withheld in the hope of getting

two or more hearings or in the hope that delay will result in

witnesses and records being lost. There are instances in which a

petitioner will have three or four petitions pending at the same

time in the same court. There are many hundreds of cases where the

application is at least the second one by the petitioner. This

subdivision is aimed at screening out the abusive petitions from

this large volume, so that the more meritorious petitions can get

quicker and fuller consideration.

The form petition, supplied in accordance with rule 2(c),

encourages the petitioner to raise all of his available grounds in

one petition. It sets out the most common grounds asserted so that

these may be brought to his attention.

Some commentators contend that the problem of abuse of the writ

of habeas corpus is greatly overstated:

Most prisoners, of course, are interested in being released as

soon as possible; only rarely will one inexcusably neglect to

raise all available issues in his first federal application. The

purpose of the "abuse" bar is apparently to deter repetitious

applications from those few bored or vindictive prisoners * * *.

83 HARV.L.REV. AT 1153-1154

See also ABA Standards Relating to Post-Conviction Remedies Sec.

6.2, commentary at 92 (Approved Draft, 1968), which states: "The

occasional, highly litigious prisoner stands out as the rarest

exception." While no recent systematic study of repetitious

applications exists, there is no reason to believe that the problem

has decreased in significance in relation to the total number of

Sec. 2254 petitions filed. That number has increased from 584 in

1949 to 12,088 in 1971. See Director of the Administrative Office

of the United States Courts, Annual Report, table 16 (1971). It is

appropriate that action be taken by rule to allow the courts to

deal with this problem, whatever its specific magnitude. The bar

set up by subdivision (b) is not one of rigid application, but

rather is within the discretion of the courts on a case-by-case

basis.

If it appears to the court after examining the petition and

answer (where appropriate) that there is a high probability that

the petition will be barred under either subdivision of rule 9, the

court ought to afford petitioner an opportunity to explain his

apparent abuse. One way of doing this is by the use of the form

annexed hereto. The use of a form will ensure a full airing of the

issue so that the court is in a better position to decide whether

the petition should be barred. This conforms with Johnson v.

Copinger, 420 F.2d 395 (4th Cir. 1969), where the court stated:

[T]he petitioner is obligated to present facts demonstrating that

his earlier failure to raise his claims is excusable and does not

amount to an abuse of the writ. However, it is inherent in this

obligation placed upon the petitioner that he must be given an

opportunity to make his explanation, if he has one. If he is not

afforded such an opportunity, the requirement that he satisfy the

court that he has not abused the writ is meaningless. Nor do we

think that a procedure which allows the imposition of a

forfeiture for abuse of the writ, without allowing the petitioner

an opportunity to be heard on the issue, comports with the

minimum requirements of fairness.

420 F.2D AT 399

Use of the recommended form will contribute to an orderly handling

of habeas petitions and will contribute to the ability of the court

to distinguish the excusable from the inexcusable delay or failure

to assert a ground for relief in a prior petition.

AMENDMENTS

1976 - Subd. (a). Pub. L. 94-426, Sec. 2(7), struck out provision

which established a rebuttable presumption of prejudice to the

state if the petition was filed more than five years after

conviction and started the running of the five year period, where a

petition challenged the validity of an action after conviction,

from the time of the order of such action.

Subd. (b). Pub. L. 94-426, Sec. 2(8), substituted "constituted an

abuse of the writ" for "is not excusable".

RULE 10. POWERS OF MAGISTRATES

The duties imposed upon the judge of the district court by these

rules may be performed by a United States magistrate pursuant to 28

U.S.C. Sec. 636.

(As amended Pub. L. 94-426, Sec. 2(11), Sept. 28, 1976, 90 Stat.

1335; Apr. 30, 1979, eff. Aug. 1, 1979.)

ADVISORY COMMITTEE NOTE

Under this rule the duties imposed upon the judge of the district

court by rules 2, 3, 4, 6, and 7 may be performed by a magistrate

if and to the extent he is empowered to do so by a rule of the

district court. However, when such duties involve the making of an

order under rule 4 disposing of the petition, that order must be

made by the court. The magistrate in such instances must submit to

the court his report as to the facts and his recommendation with

respect to the order.

The Federal Magistrates Act allows magistrates, when empowered by

local rule, to perform certain functions in proceedings for

post-trial relief. See 28 U.S.C. Sec. 636(b)(3). The performance of

such functions, when authorized, is intended to "afford some degree

of relief to district judges and their law clerks, who are

presently burdened with burgeoning numbers of habeas corpus

petitions and applications under 28 U.S.C. Sec. 2255." Committee on

the Judiciary, The Federal Magistrates Act, S.Rep. No. 371, 90th

Cong., 1st sess., 26 (1967).

Under 28 U.S.C. Sec. 636(b), any district court,

by the concurrence of a majority of all the judges of such

district court, may establish rules pursuant to which any

full-time United States magistrate * * * may be assigned within

the territorial jurisdiction of such court such additional duties

as are not inconsistent with the Constitution and laws of the

United States.

The proposed rule recognizes the limitations imposed by 28 U.S.C.

Sec. 636(b) upon the powers of magistrates to act in federal

postconviction proceedings. These limitations are: (1) that the

magistrate may act only pursuant to a rule passed by the majority

of the judges in the district court in which the magistrate serves,

and (2) that the duties performed by the magistrate pursuant to

such rule be consistent with the Constitution and laws of the

United States.

It has been suggested that magistrates be empowered by law to

hold hearings and make final decisions in habeas proceedings. See

Proposed Reformation of Federal Habeas Corpus Procedure: Use of

Federal Magistrates, 54 Iowa L.Rev. 1147, 1158 (1969). However, the

Federal Magistrates Act does not authorize such use of magistrates.

Wingo v. Wedding, 418 U.S. 461 (1974). See advisory committee note

to rule 8. While the use of magistrates can help alleviate the

strain imposed on the district courts by the large number of

unmeritorious habeas petitions, neither 28 U.S.C. Sec. 636(b) nor

this rule contemplate the abdication by the court of its

decision-making responsibility. See also Developments in the Law -

Federal Habeas Corpus, 83 Harv. L.Rev. 1038, 1188 (1970)

Where a full-time magistrate is not available, the duties

contemplated by this rule may be assigned to a part-time

magistrate.

1979 AMENDMENT

This amendment conforms the rule to subsequently enacted

legislation clarifying and further defining the duties which may be

assigned to a magistrate, 18 U.S.C. Sec. 636, as amended in 1976 by

Pub. L. 94-577. To the extent that rule 10 is more restrictive than

Sec. 636, the limitations are of no effect, for the statute

expressly governs "[n]otwithstanding any provision of law to the

contrary."

The reference to particular rules is stricken, as under Sec.

636(b)(1)(A) a judge may designate a magistrate to perform duties

under other rules as well (e.g., order that further transcripts be

furnished under rule 5; appoint counsel under rule 8). The

reference to "established standards and criteria" is stricken, as

Sec. 636(4) requires each district court to "establish rules

pursuant to which the magistrates shall discharge their duties."

The exception with respect to a rule 4 order dismissing a petition

is stricken, as that limitation appears in Sec. 636(b)(1)(B) and is

thereby applicable to certain other actions under these rules as

well (e.g., determination of a need for an evidentiary hearing

under rule 8; dismissal of a delayed or successive petition under

rule 9).

AMENDMENTS

1976 - Pub. L. 94-426 inserted ", and to the extent the district

court has established standards and criteria for the performance of

such duties" after "rule of the district court".

CHANGE OF NAME

Reference to United States magistrate or to magistrate deemed to

refer to United States magistrate judge pursuant to section 321 of

Pub. L. 101-650, set out as a note under section 631 of this title.

RULE 11. FEDERAL RULES OF CIVIL PROCEDURE; EXTENT OF APPLICABILITY

The Federal Rules of Civil Procedure, to the extent that they are

not inconsistent with these rules, may be applied, when

appropriate, to petitions filed under these rules.

ADVISORY COMMITTEE NOTE

Habeas corpus proceedings are characterized as civil in nature.

See e.g., Fisher v. Baker, 203 U.S. 174, 181 (1906). However, under

Fed.R.Civ.P. 81(a)(2), the applicability of the civil rules to

habeas corpus actions has been limited, although the various courts

which have considered this problem have had difficulty in setting

out the boundaries of this limitation. See Harris v. Nelson, 394

U.S. 286 (1969) at 289, footnote 1. Rule 11 is intended to conform

with the Supreme Court's approach in the Harris case. There the

court was dealing with the petitioner's contention that Civil Rule

33 granting the right to discovery via written interrogatories is

wholly applicable to habeas corpus proceedings. The court held:

We agree with the Ninth Circuit that Rule 33 of the Federal Rules

of Civil Procedure is not applicable to habeas corpus proceedings

and that 28 U.S.C. Sec. 2246 does not authorize interrogatories

except in limited circumstances not applicable to this case; but

we conclude that, in appropriate circumstances, a district court,

confronted by a petition for habeas corpus which establishes a

prima facie case for relief, may use or authorize the use of

suitable discovery procedures, including interrogatories,

reasonably fashioned to elicit facts necessary to help the court

to "dispose of the matter as law and justice require" 28 U.S.C.

Sec. 2243.

394 U.S. AT 290

The court then went on to consider the contention that the

"conformity" provision of Rule 81(a)(2) should be rigidly applied

so that the civil rules would be applicable only to the extent that

habeas corpus practice had conformed to the practice in civil

actions at the time of the adoption of the Federal Rules of Civil

Procedure on September 16, 1938. The court said:

Although there is little direct evidence, relevant to the present

problem, of the purpose of the "conformity" provision of Rule

81(a)(2), the concern of the draftsmen, as a general matter,

seems to have been to provide for the continuing applicability of

the "civil" rules in their new form to those areas of practice in

habeas corpus and other enumerated proceedings in which the

"specified" proceedings had theretofore utilized the modes of

civil practice. Otherwise, those proceedings were to be

considered outside of the scope of the rules without prejudice,

of course, to the use of particular rules by analogy or

otherwise, where appropriate.

394 U.S. AT 294

The court then reiterated its commitment to judicial discretion in

formulating rules and procedures for habeas corpus proceedings by

stating:

[T]he habeas corpus jurisdiction and the duty to exercise it

being present, the courts may fashion appropriate modes of

procedure, by analogy to existing rules or otherwise in

conformity with judicial usage.

Where their duties require it, this is the inescapable obligation

of the courts. Their authority is expressly confirmed in the All

Writs Act, 28 U.S.C. Sec. 1651.

394 U.S. AT 299

Rule 6 of these proposed rules deals specifically with the issue

of discovery in habeas actions in a manner consistent with Harris.

Rule 11 extends this approach to allow the court considering the

petition to use any of the rules of civil procedure (unless

inconsistent with these rules of habeas corpus) when in its

discretion the court decides they are appropriate under the

circumstances of the particular case. The court does not have to

rigidly apply rules which would be inconsistent or inequitable in

the overall framework of habeas corpus. Rule 11 merely recognizes

and affirms their discretionary power to use their judgment in

promoting the ends of justice.

Rule 11 permits application of the civil rules only when it would

be appropriate to do so. Illustrative of an inappropriate

application is that rejected by the Supreme Court in Pitchess v.

Davis, 95 S.Ct. 1748 (1975), holding that Fed.R.Civ.P. 60(b) should

not be applied in a habeas case when it would have the effect of

altering the statutory exhaustion requirement of 28 U.S.C. Sec.

2254.

APPENDIX OF FORMS

MODEL FORM FOR USE IN APPLICATIONS FOR HABEAS CORPUS UNDER 28

U.S.C. SEC. 2254

Name __________________________

Prison number _____________________

_________________________

Place of confinement _________________

United States District Court _____ District of _____

Case No. ________________________

(To be supplied by Clerk of U.S. District Court)

___________________, PETITIONER

(Full name)

V.

__________________, RESPONDENT

(Name of Warden, Superintendent, Jailor, or authorized person

having custody of petitioner)

AND

THE ATTORNEY GENERAL OF THE STATE OF ___________, ADDITIONAL

RESPONDENT.

(If petitioner is attacking a judgment which imposed a sentence

to be served in the future, petitioner must fill in the name of the

state where the judgment was entered. If petitioner has a sentence

to be served in the future under a federal judgment which he wishes

to attack, he should file a motion under 28 U.S.C. Sec. 2255, in

the federal court which entered the judgment.)

PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

INSTRUCTIONS - READ CAREFULLY

(1) This petition must be legibly handwritten or typewritten, and

signed by the petitioner under penalty of perjury. Any false

statement of a material fact may serve as the basis for

prosecution and conviction for perjury. All questions must be

answered concisely in the proper space on the form.

(2) Additional pages are not permitted except with respect to the

facts which you rely upon to support your grounds for relief. No

citation of authorities need be furnished. If briefs or arguments

are submitted, they should be submitted in the form of a separate

memorandum.

(3) Upon receipt of a fee of $5 your petition will be filed if it

is in proper order.

(4) If you do not have the necessary filing fee, you may request

permission to proceed in forma pauperis, in which event you must

execute the declaration on the last page, setting forth

information establishing your inability to prepay the fees and

costs or give security therefor. If you wish to proceed in forma

pauperis, you must have an authorized officer at the penal

institution complete the certificate as to the amount of money

and securities on deposit to your credit in any account in the

institution. If your prison account exceeds $___, you must pay

the filing fee as required by the rule of the district court.

(5) Only judgments entered by one court may be challenged in a

single petition. If you seek to challenge judgments entered by

different courts either in the same state or in different states,

you must file separate petitions as to each court.

(6) Your attention is directed to the fact that you must include

all grounds for relief and all facts supporting such grounds for

relief in the petition you file seeking relief from any judgment

of conviction.

(7) When the petition is fully completed, the original and two

copies must be mailed to the Clerk of the United States District

Court whose address is __

___________________________

(8) Petitions which do not conform to these instructions will be

returned with a notation as to the deficiency.

PETITION

1. Name and location of court which entered the judgment of

conviction under attack__________

___________________________

2. Date of judgment of conviction ___________

3. Length of sentence _________________

4. Nature of offense involved (all counts) _______

___________________________

___________________________

___________________________

5. What was your plea? (Check one)

(a) Not guilty []

(b) Guilty []

(c) Nolo contendere []

If you entered a guilty plea to one count or indictment, and a

not guilty plea to another count or indictment, give details:

___________________________

___________________________

___________________________

6. Kind of trial: (Check one)

(a) Jury []

(b) Judge only []

7. Did you testify at the trial?

Yes [] No []

8. Did you appeal from the judgment of conviction?

Yes [] No []

9. If you did appeal, answer the following:

(a) Name of court ________________

(b) Result ____________________

(c) Date of result _________________

10. Other than a direct appeal from the judgment of conviction and

sentence, have you previously filed any petitions, applications,

or motions with respect to this judgment in any court, state or

federal?

Yes [] No []

11. If your answer to 10 was "yes," give the following information:

(a) (1) Name of court ______________

(2) Nature of proceeding __________

______________________

(3) Grounds raised ______________

______________________

______________________

______________________

______________________

(4) Did you receive an evidentiary hearing on your

petition, application or motion?

Yes [] No []

(5) Result___________________

(6) Date of result_______________

(b) As to any second petition, application or motion give

the same information:

(1) Name of court ______________

(2) Nature of proceeding __________

______________________

(3) Grounds raised ______________

______________________

______________________

______________________

______________________

(4) Did you receive an evidentiary hearing on

your petition, application or motion?

Yes [] No []

(5) Result___________________

(6) Date of result_______________

(c) As to any third petition, application or motion, give

the same information:

(1) Name of court ______________

(2) Nature of proceeding __________

______________________

(3) Grounds raised ______________

______________________

______________________

______________________

______________________

(4) Did you receive an evidentiary hearing on your

petition, application or motion?

Yes [] No []

(5) Result___________________

(6) Date of result_______________

(d) Did you appeal to the highest state court having

jurisdiction the result of action taken on any

petition, application or motion?

(1) First petition, etc. Yes [] No []

(2) Second petition, etc. Yes [] No []

(3) Third petition, etc. Yes [] No []

(e) If you did not appeal from the adverse action on any

petition, application or motion, explain briefly why

you did not:

__________________________

__________________________

__________________________

12. State concisely every ground on which you claim that you are

being held unlawfully. Summarize briefly the facts supporting

each ground. If necessary, you may attach pages stating

additional grounds and facts supporting same.

Caution: In order to proceed in the federal court, you must

ordinarily first exhaust your state court remedies as to each

ground on which you request action by the federal court. If

you fail to set forth all grounds in this petition, you may be

barred from presenting additional grounds at a later date.

For your information, the following is a list of the most

frequently raised grounds for relief in habeas corpus

proceedings. Each statement preceded by a letter constitutes a

separate ground for possible relief. You may raise any grounds

which you may have other than those listed if you have

exhausted your state court remedies with respect to them.

However, you should raise in this petition all available

grounds (relating to this conviction) on which you base your

allegations that you are being held in custody unlawfully.

Do not check any of these listed grounds. If you select one

or more of these grounds for relief, you must allege facts. The

petition will be returned to you if you merely check (a)

through (j) or any one of these grounds.

(a) Conviction obtained by plea of guilty which was unlawfully

induced or not made voluntarily with understanding of the

nature of the charge and the consequences of the plea.

(b) Conviction obtained by use of coerced confession.

(c) Conviction obtained by use of evidence gained pursuant to an

unconstitutional search and seizure.

(d) Conviction obtained by use of evidence obtained pursuant to an

unlawful arrest.

(e) Conviction obtained by a violation of the privilege against

self-incrimination.

(f) Conviction obtained by the unconstitutional failure of the

prosecution to disclose to the defendant evidence favorable

to the defendant.

(g) Conviction obtained by a violation of the protection against

double jeopardy.

(h) Conviction obtained by action of a grand or petit jury which

was unconstitutionally selected and impaneled.

(i) Denial of effective assistance of counsel.

(j) Denial of right of appeal.

A. Ground one: ___________________

__________________________

Supporting FACTS (tell your story briefly without citing cases

or law): _____________

__________________________

__________________________

__________________________

__________________________

__________________________

__________________________

B. Ground two: __________________

__________________________

Supporting FACTS (tell your story briefly without citing cases

or law): _____________

__________________________

__________________________

__________________________

__________________________

__________________________

__________________________

C. Ground three: __________________

__________________________

Supporting FACTS (tell your story briefly without citing cases

or law): _____________

__________________________

__________________________

__________________________

__________________________

__________________________

__________________________

D. Ground four: __________________

__________________________

Supporting FACTS (tell your story briefly without citing cases

or law): _____________

__________________________

__________________________

__________________________

__________________________

__________________________

__________________________

13. If any of the grounds listed in 12A, B, C, and D were not

previously presented in any other court, state or federal, state

briefly what grounds were not so presented, and give your reasons

for not presenting them:

___________________________

___________________________

___________________________

14. Do you have any petition or appeal now pending in any court,

either state or federal, as to the judgment under attack?

Yes [] No []

15. Give the name and address, if known, of each attorney who

represented you in the following stages of the judgment attacked

herein:

(a) At preliminary hearing __________

________________________

(b) At arraignment and plea _________

________________________

(c) At trial ___________________

________________________

(d) At sentencing _______________

________________________

(e) On appeal __________________

________________________

(f) In any post-conviction proceeding ____

________________________

________________________

(g) On appeal from any adverse ruling in a postconviction

proceeding _________

________________________

________________________

16. Were you sentenced on more than one count of an indictment, or

on more than one indictment, in the same court and at the same

time?

Yes [] No []

17. Do you have any future sentence to serve after you complete the

sentence imposed by the judgment under attack?

Yes [] No []

(a) If so, give name and location of court which imposed

sentence to be served in the future:

________________________

________________________

(b) And give date and length of sentence to be served in

the future:

________________________

________________________

(c) Have you filed, or do you contemplate filing, any

petition attacking the judgment which imposed the

sentence to be served in the future?

Yes [] No []

Wherefore, petitioner prays that the Court grant petitioner

relief to which he may be entitled in this proceeding.

_________________

Signature of Attorney (if any)

I declare (or certify, verify, or state) under penalty of perjury

that the foregoing is true and correct. Executed on _____.

(date)

______________

Signature of Petitioner

IN FORMA PAUPERIS DECLARATION

_________________________

[Insert appropriate court]

______________

DECLARATION IN

(Petitioner)

SUPPORT

OF REQUEST

v.

TO PROCEED

______________

IN FORMA

(Respondent(s))

PAUPERIS

I, ______________, declare that I am the petitioner in the above

entitled case; that in support of my motion to proceed without

being required to prepay fees, costs or give security therefor, I

state that because of my poverty I am unable to pay the costs of

said proceeding or to give security therefor; that I believe I am

entitled to relief.

1. Are you presently employed? Yes [] No []

a. If the answer is "yes," state the amount of your salary or

wages per month, and give the name and address of your

employer.

_________________________

_________________________

b. If the answer is "no," state the date of last employment and

the amount of the salary and wages per month which you

received.

_________________________

_________________________

2. Have you received within the past twelve months any money from

any of the following sources?

a. Business, profession or form of self-employment? Yes [] No []

b. Rent payments, interest or dividends? Yes [] No []

c. Pensions, annuities or life insurance payments? Yes [] No []

d. Gifts or inheritances? Yes [] No []

e. Any other sources? Yes [] No []

If the answer to any of the above is "yes," describe each

source of money and state the amount received from each during

the past twelve months.

___________________________

___________________________

___________________________

___________________________

3. Do you own cash, or do you have money in a checking or savings

account?

Yes [] No [] (Include any funds in prison accounts.)

If the answer is "yes," state the total value of the items

owned.

___________________________

___________________________

___________________________

4. Do you own any real estate, stocks, bonds, notes, automobiles,

or other valuable property (excluding ordinary household

furnishings and clothing)?

Yes [] No []

If the answer is "yes," describe the property and state

its approximate value.

___________________________

___________________________

___________________________

5. List the persons who are dependent upon you for support, state

your relationship to those persons, and indicate how much you

contribute toward their support.

___________________________

___________________________

___________________________

I declare (or certify, verify, or state) under penalty of perjury

that the foregoing is true and correct. Executed on _____.

(date)

______________

Signature of Petitioner

CERTIFICATE

I hereby certify that the petitioner herein has the sum of $____

on account to his credit at the ____ institution where he is

confined. I further certify that petitioner likewise has the

following securities to his credit according to the records of said

____ institution:

_________________________

_________________________

_________________________

_________________________

______________

Authorized Officer of

Institution

(As amended Apr. 28, 1982, eff. Aug. 1, 1982.)

MODEL FORM FOR USE IN 28 U.S.C. SEC. 2254 CASES INVOLVING A RULE 9

ISSUE

FORM NO. 9

UNITED STATES DISTRICT COURT,

__________ DISTRICT OF __________

CASE NO. - - - -

__________, PETITIONER

V.

__________, RESPONDENT

AND

______, ADDITIONAL RESPONDENT

PETITIONER'S RESPONSE AS TO WHY HIS PETITION SHOULD NOT BE BARRED

UNDER RULE 9

EXPLANATION AND INSTRUCTIONS - READ CAREFULLY

(I) Rule 9. Delayed or successive petitions.

(a) Delayed petitions. A petition may be dismissed if it appears

that the state of which the respondent is an officer has been

prejudiced in its ability to respond to the petition by delay in

its filing unless the petitioner shows that it is based on grounds

of which he could not have had knowledge by the exercise of

reasonable diligence before the circumstances prejudicial to the

state occurred.

(b) Successive petitions. A second or successive petition may be

dismissed if the judge finds that it fails to allege new or

different grounds for relief and the prior determination was on the

merits or, if new and different grounds are alleged, the judge

finds that the failure of the petitioner to assert those grounds in

a prior petition constituted an abuse of the writ.

(II) Your petition for habeas corpus has been found to be subject

to dismissal under rule 9( ) for the following reason(s):

___________________________

___________________________

___________________________

___________________________

(III) This form has been sent so that you may explain why your

petition contains the defect(s) noted in (II) above. It is

required that you fill out this form and send it back to the

court within ____ days. Failure to do so will result in the

automatic dismissal of your petition.

(IV) When you have fully completed this form, the original and two

copies must be mailed to the Clerk of the United States

District Court whose address is ________________

___________________________

(V) This response must be legibly handwritten or typewritten, and

signed by the petitioner, under penalty of perjury. Any false

statement of a material fact may serve as the basis for

prosecution and conviction for perjury. All questions must be

answered concisely in the proper space on the form.

(VI) Additional pages are not permitted except with respect to the

facts which you rely upon in item 4 or 5 in the response. Any

citation of authorities should be kept to an absolute minimum

and is only appropriate if there has been a change in the law

since the judgment you are attacking was rendered.

(VII) Respond to 4 or 5 below, not to both, unless (II) above

indicates that you must answer both sections.

RESPONSE

1. Have you had the assistance of an attorney, other law-trained

personnel, or writ writers since the conviction your petition is

attacking was entered?

Yes [] No []

2. If you checked "yes" above, specify as precisely as you can the

period(s) of time during which you received such assistance, up

to and including the present.

___________________________

___________________________

3. Describe the nature of the assistance, including the names of

those who rendered it to you.

___________________________

___________________________

___________________________

___________________________

4. If your petition is in jeopardy because of delay prejudicial to

the state under rule 9(a), explain why you feel the delay has not

been prejudicial and/or why the delay is excusable under the

terms of 9(a). This should be done by relying upon FACTS, not

your opinions or conclusions.

___________________________

___________________________

___________________________

___________________________

___________________________

5. If your petition is in jeopardy under rule 9(b) because it

asserts the same grounds as a previous petition, explain why you

feel it deserves a reconsideration. If its fault under rule 9(b)

is that it asserts new grounds which should have been included in

a prior petition, explain why you are raising these grounds now

rather than previously. Your explanation should rely on FACTS,

not your opinions or conclusions.

___________________________

___________________________

___________________________

___________________________

___________________________

___________________________

___________________________

___________________________

I declare (or certify, verify, or state) under penalty of perjury

that the foregoing is true and correct. Executed on _____.

(date)

______________

Signature of Petitioner

(As amended Apr. 28, 1982, eff. Aug. 1, 1982.)

-End-

-CITE-

28 USC Sec. 2255 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

Sec. 2255. Federal custody; remedies on motion attacking sentence

-STATUTE-

A prisoner in custody under sentence of a court established by

Act of Congress claiming the right to be released upon the ground

that the sentence was imposed in violation of the Constitution or

laws of the United States, or that the court was without

jurisdiction to impose such sentence, or that the sentence was in

excess of the maximum authorized by law, or is otherwise subject to

collateral attack, may move the court which imposed the sentence to

vacate, set aside or correct the sentence.

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 United

States attorney, grant a prompt hearing thereon, determine the

issues and make findings of fact and conclusions of law with

respect thereto. If the court finds that the judgment was rendered

without jurisdiction, or that the sentence imposed was not

authorized by law or 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 him or grant a

new trial or correct the sentence as may appear appropriate.

A court may entertain and determine such motion without requiring

the production of the prisoner at the hearing.

An appeal may be taken to the court of appeals from the order

entered on the motion as from a final judgment on application for a

writ of habeas corpus.

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 him, or that such court has denied him relief,

unless it also appears that the remedy by motion is inadequate or

ineffective to test the legality of his detention.

A 1-year period of limitation shall apply to a motion under this

section. The limitation period shall run from the latest of -

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created

by governmental action in violation of the Constitution or laws

of the United States is removed, if the movant was prevented from

making a motion by such governmental action;

(3) the date on which the right asserted was initially

recognized by the Supreme Court, if that right has been newly

recognized by the Supreme Court and made retroactively applicable

to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims

presented could have been discovered through the exercise of due

diligence.

Except as provided in section 408 of the Controlled Substances

Act, in all proceedings brought under this section, and any

subsequent proceedings on review, the court may appoint counsel,

except as provided by a rule promulgated by the Supreme Court

pursuant to statutory authority. Appointment of counsel under this

section shall be governed by section 3006A of title 18.

A second or successive motion must be certified as provided in

section 2244 by a panel of the appropriate court of appeals to

contain -

(1) newly discovered evidence that, if proven and viewed in

light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that no reasonable

factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was previously

unavailable.

-SOURCE-

(June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139, Sec.

114, 63 Stat. 105; Pub. L. 104-132, title I, Sec. 105, Apr. 24,

1996, 110 Stat. 1220.)

-MISC1-

HISTORICAL AND REVISION NOTES

1948 ACT

This section restates, clarifies and simplifies the procedure in

the nature of the ancient writ of error coram nobis. It provides an

expeditious remedy for correcting erroneous sentences without

resort to habeas corpus. It has the approval of the Judicial

Conference of the United States. Its principal provisions are

incorporated in H.R. 4233, Seventy-ninth Congress.

1949 ACT

This amendment conforms language of section 2255 of title 28,

U.S.C., with that of section 1651 of such title and makes it clear

that the section is applicable in the district courts in the

Territories and possessions.

-REFTEXT-

REFERENCES IN TEXT

Section 408 of the Controlled Substances Act, referred to in

text, is classified to section 848 of Title 21, Food and Drugs.

-MISC2-

AMENDMENTS

1996 - Pub. L. 104-132 inserted at end three new undesignated

paragraphs beginning "A 1-year period of limitation", "Except as

provided in section 408 of the Controlled Substances Act", and "A

second or successive motion must be certified" and struck out

second and fifth undesignated pars. providing, respectively, that

"A motion for such relief may be made at any time." and "The

sentencing court shall not be required to entertain a second or

successive motion for similar relief on behalf of the same

prisoner."

1949 - Act May 24, 1949, substituted "court established by Act of

Congress" for "court of the United States" in first par.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 753, 1825, 2244, 2253,

2266 of this title; title 18 section 3006A; title 21 section 848.

-MISC3-

APPROVAL AND EFFECTIVE DATE OF RULES GOVERNING SECTION 2254 CASES

AND SECTION 2255 PROCEEDINGS FOR UNITED STATES DISTRICT COURTS

Pub. L. 94-426, Sec. 1, Sept. 28, 1976, 90 Stat. 1334, provided:

"That the rules governing section 2254 cases in the United States

district courts and the rules governing section 2255 proceedings

for the United States district courts, as proposed by the United

States Supreme Court, which were delayed by the Act entitled 'An

Act to delay the effective date of certain proposed amendments to

the Federal Rules of Criminal Procedure and certain other rules

promulgated by the United States Supreme Court' (Public Law

94-349), are approved with the amendments set forth in section 2 of

this Act and shall take effect as so amended, with respect to

petitions under section 2254 and motions under section 2255 of

title 28 of the United States Code filed on or after February 1,

1977."

POSTPONEMENT OF EFFECTIVE DATE OF PROPOSED RULES AND FORMS

GOVERNING PROCEEDINGS UNDER SECTIONS 2254 AND 2255 OF THIS TITLE

Rules and forms governing proceedings under sections 2254 and

2255 of this title proposed by Supreme Court order of Apr. 26,

1976, effective 30 days after adjournment sine die of 94th

Congress, or until and to the extent approved by Act of Congress,

whichever is earlier, see section 2 of Pub. L. 94-349, set out as a

note under section 2074 of this title.

RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED STATES

DISTRICT COURTS

(EFFECTIVE FEBRUARY 1, 1977, AS AMENDED TO JANUARY 22, 2002)

Rule

1. Scope of rules.

2. Motion.

3. Filing motion.

4. Preliminary consideration by judge.

5. Answers; contents.

6. Discovery.

7. Expansion of record.

8. Evidentiary hearing.

9. Delayed or successive motions.

10. Powers of magistrates.

11. Time for appeal.

12. Federal Rules of Criminal and Civil Procedure; extent

of applicability.

APPENDIX OF FORMS

Model form for motions under 28 U.S.C. Sec. 2255.

Model form for use in 28 U.S.C. Sec. 2255 cases involving a Rule

9 issue.

EFFECTIVE DATE OF RULES; EFFECTIVE DATE OF 1975 AMENDMENT

Rules, and the amendments thereto by Pub. L. 94-426, Sept. 28,

1976, 90 Stat. 1334, effective with respect to petitions under

section 2254 of this title and motions under section 2255 of this

title filed on or after Feb. 1, 1977, see section 1 of Pub. L.

94-426, set out as a note above.

RULE 1. SCOPE OF RULES

These rules govern the procedure in the district court on a

motion under 28 U.S.C. Sec. 2255:

(1) by a person in custody pursuant to a judgment of that court

for a determination that the judgment was imposed in violation of

the Constitution or laws of the United States, or that the court

was without jurisdiction to impose such judgment, or that the

sentence was in excess of the maximum authorized by law, or is

otherwise subject to collateral attack; and

(2) by a person in custody pursuant to a judgment of a state or

other federal court and subject to future custody under a

judgment of the district court for a determination that such

future custody will be in violation of the Constitution or laws

of the United States, or that the district court was without

jurisdiction to impose such judgment, or that the sentence was in

excess of the maximum authorized by law, or is otherwise subject

to collateral attack.

ADVISORY COMMITTEE NOTE

The basic scope of this postconviction remedy is prescribed by 28

U.S.C. Sec. 2255. Under these rules the person seeking relief from

federal custody files a motion to vacate, set aside, or correct

sentence, rather than a petition for habeas corpus. This is

consistent with the terminology used in section 2255 and indicates

the difference between this remedy and federal habeas for a state

prisoner. Also, habeas corpus is available to the person in federal

custody if his "remedy by motion is inadequate or ineffective to

test the legality of his detention."

Whereas sections 2241-2254 (dealing with federal habeas corpus

for those in state custody) speak of the district court judge

"issuing the writ" as the operative remedy, section 2255 provides

that, if the judge finds the movant's assertions to be meritorious,

he "shall discharge the prisoner or resentence him or grant a new

trial or correct the sentence as may appear appropriate." This is

possible because a motion under Sec. 2255 is a further step in the

movant's criminal case and not a separate civil action, as appears

from the legislative history of section 2 of S. 20, 80th Congress,

the provisions of which were incorporated by the same Congress in

title 28 U.S.C. as Sec. 2255. In reporting S. 20 favorably the

Senate Judiciary Committee said (Sen. Rep. 1526, 80th Cong. 2d

Sess., p. 2):

The two main advantages of such motion remedy over the present

habeas corpus are as follows:

First, habeas corpus is a separate civil action and not a further

step in the criminal case in which petitioner is sentenced (Ex

parte Tom Tong, 108 U.S. 556, 559 (1883)). It is not a

determination of guilt or innocence of the charge upon which

petitioner was sentenced. Where a prisoner sustains his right to

discharge in habeas corpus, it is usually because some right - such

as lack of counsel - has been denied which reflects no

determination of his guilt or innocence but affects solely the

fairness of his earlier criminal trial. Even under the broad power

in the statute "to dispose of the party as law and justice require"

(28 U.S.C.A., sec. 461), the court or judge is by no means in the

same advantageous position in habeas corpus to do justice as would

be so if the matter were determined in the criminal proceeding (see

Medley, petitioner, 134 U.S. 160, 174 (1890)). For instance, the

judge (by habeas corpus) cannot grant a new trial in the criminal

case. Since the motion remedy is in the criminal proceeding, this

section 2 affords the opportunity and expressly gives the broad

powers to set aside the judgment and to "discharge the prisoner or

resentence him or grant a new trial or correct the sentence as may

appear appropriate."

The fact that a motion under Sec. 2255 is a further step in the

movant's criminal case rather than a separate civil action has

significance at several points in these rules. See, e.g., advisory

committee note to rule 3 (re no filing fee), advisory committee

note to rule 4 (re availability of files, etc., relating to the

judgment), advisory committee note to rule 6 (re availability of

discovery under criminal procedure rules), advisory committee note

to rule 11 (re no extension of time for appeal), and advisory

committee not to rule 12 (re applicability of federal criminal

rules). However, the fact that Congress has characterized the

motion as a further step in the criminal proceedings does not mean

that proceedings upon such a motion are of necessity governed by

the legal principles which are applicable at a criminal trial

regarding such matters as counsel, presence, confrontation,

self-incrimination, and burden of proof.

The challenge of decisions such as the revocation of probation or

parole are not appropriately dealt with under 28 U.S.C. Sec. 2255,

which is a continuation of the original criminal action. Other

remedies, such as habeas corpus, are available in such situations.

Although rule 1 indicates that these rules apply to a motion for

a determination that the judgment was imposed "in violation of the

. . . laws of the United States," the language of 28 U.S.C. Sec.

2255, it is not the intent of these rules to define or limit what

is encompassed within that phrase. See Davis v. United States, 417

U.S. 333 (1974), holding that it is not true "that every asserted

error of law can be raised on a Sec. 2255 motion," and that the

appropriate inquiry is "whether the claimed error of law was a

fundamental defect which inherently results in a complete

miscarriage of justice,' and whether [i]t . . . present[s]

exceptional circumstances where the need for the remedy afforded by

the writ of habeas corpus is apparent.' "

For a discussion of the "custody" requirement and the intended

limited scope of this remedy, see advisory committee note to Sec.

2254 rule 1.

RULE 2. MOTION

(a) Nature of application for relief. If the person is presently

in custody pursuant to the federal judgment in question, or if not

presently in custody may be subject to such custody in the future

pursuant to such judgment, the application for relief shall be in

the form of a motion to vacate, set aside, or correct the sentence.

(b) Form of motion. The motion shall be in substantially the form

annexed to these rules, except that any district court may by local

rule require that motions filed with it shall be in a form

prescribed by the local rule. Blank motions in the prescribed form

shall be made available without charge by the clerk of the district

court to applicants upon their request. It shall specify all the

grounds for relief which are available to the movant and of which

he has or, by the exercise of reasonable diligence, should have

knowledge and shall set forth in summary form the facts supporting

each of the grounds thus specified. It shall also state the relief

requested. The motion shall be typewritten or legibly handwritten

and shall be signed under penalty of perjury by the petitioner.

(c) Motion to be directed to one judgment only. A motion shall be

limited to the assertion of a claim for relief against one judgment

only of the district court. If a movant desires to attack the

validity of other judgments of that or any other district court

under which he is in custody or may be subject to future custody,

as the case may be, he shall do so by separate motions.

(d) Return of insufficient motion. If a motion received by the

clerk of a district court does not substantially comply with the

requirements of rule 2 or rule 3, it may be returned to the movant,

if a judge of the court so directs, together with a statement of

the reason for its return. The clerk shall retain a copy of the

motion.

(As amended Pub. L. 94-426, Sec. 2(3), (4), Sept. 28, 1976, 90

Stat. 1334; Apr. 28, 1982, eff. Aug. 1, 1982.)

ADVISORY COMMITTEE NOTE

Under these rules the application for relief is in the form of a

motion rather than a petition (see rule 1 and advisory committee

note). Therefore, there is no requirement that the movant name a

respondent. This is consistent with 28 U.S.C. Sec. 2255. The United

States Attorney for the district in which the judgment under attack

was entered is the proper party to oppose the motion since the

federal government is the movant's adversary of record.

If the movant is attacking a federal judgment which will subject

him to future custody, he must be in present custody (see rule 1

and advisory committee note) as the result of a state or federal

governmental action. He need not alter the nature of the motion by

trying to include the government officer who presently has official

custody of him as a psuedo-respondent, or third-party plaintiff, or

other fabrication. The court hearing his motion attacking the

future custody can exercise jurisdiction over those having him in

present custody without the use of artificial pleading devices.

There is presently a split among the courts as to whether a

person currently in state custody may use a Sec. 2255 motion to

obtain relief from a federal judgment under which he will be

subjected to custody in the future. Negative, see Newton v. United

States, 329 F.Supp. 90 (S.D. Texas 1971); affirmative, see Desmond

v. The United States Board of Parole, 397 F.2d 386 (1st Cir. 1968),

cert. denied, 393 U.S. 919 (1968); and Paalino v. United States,

314 F.Supp. 875 (C.D.Cal. 1970). It is intended that these rules

settle the matter in favor of the prisoner's being able to file a

Sec. 2255 motion for relief under those circumstances. The proper

district in which to file such a motion is the one in which is

situated the court which rendered the sentence under attack.

Under rule 35, Federal Rules of Criminal Procedure, the court may

correct an illegal sentence or a sentence imposed in an illegal

manner, or may reduce the sentence. This remedy should be used,

rather than a motion under these Sec. 2255 rules, whenever

applicable, but there is some overlap between the two proceedings

which has caused the courts difficulty.

The movant should not be barred from an appropriate remedy

because he has misstyled his motion. See United States v. Morgan,

346 U.S. 502, 505 (1954). The court should construe it as whichever

one is proper under the circumstances and decide it on its merits.

For a Sec. 2255 motion construed as a rule 35 motion, see Heflin v.

United States, 358 U.S. 415 (1959); and United States v. Coke, 404

F.2d 836 (2d Cir. 1968). For writ of error coram nobis treated as a

rule 35 motion, see Hawkins v. United States, 324 F.Supp. 223

(E.D.Texas, Tyler Division 1971). For a rule 35 motion treated as a

Sec. 2255 motion, see Moss v. United States, 263 F.2d 615 (5th Cir.

1959); Jones v. United States, 400 F.2d 892 (8th Cir. 1968), cert.

denied 394 U.S. 991 (1969); and United States v. Brown, 413 F.2d

878 (9th Cir. 1969), cert. denied, 397 U.S. 947 (1970).

One area of difference between Sec. 2255 and rule 35 motions is

that for the latter there is no requirement that the movant be "in

custody." Heflin v. United States, 358 U.S. 415, 418, 422 (1959);

Duggins v. United States, 240 F.2d 479, 483 (6th Cir. 1957).

Compare with rule 1 and advisory committee note for Sec. 2255

motions. The importance of this distinction has decreased since

Peyton v. Rowe, 391 U.S. 54 (1968), but it might still make a

difference in particular situations.

A rule 35 motion is used to attack the sentence imposed, not the

basis for the sentence. The court in Gilinsky v. United States, 335

F.2d 914, 916 (9th Cir. 1964), stated, "a Rule 35 motion

presupposes a valid conviction. * * * [C]ollateral attack on errors

allegedly committed at trial is not permissible under Rule 35." By

illustration the court noted at page 917: "a Rule 35 proceeding

contemplates the correction of a sentence of a court having

jurisdiction. * * * [J]urisdictional defects * * * involve a

collateral attack, they must ordinarily be presented under 28

U.S.C. Sec. 2255." In United States v. Semet, 295 F.Supp. 1084

(E.D. Okla. 1968), the prisoner moved under rule 35 and Sec. 2255

to invalidate the sentence he was serving on the grounds of his

failure to understand the charge to which he pleaded guilty. The

court said:

As regards Defendant's Motion under Rule 35, said Motion must

be denied as its presupposes a valid conviction of the offense

with which he was charged and may be used only to attack the

sentence. It may not be used to examine errors occurring prior to

the imposition of sentence.

295 F.SUPP. AT 1085

See also: Moss v. United States, 263 F.2d at 616; Duggins v. United

States, 240 F. 2d at 484; Migdal v. United States, 298 F.2d 513,

514 (9th Cir. 1961); Jones v. United States, 400 F.2d at 894;

United States v. Coke, 404 F.2d at 847; and United States v. Brown,

413 F.2d at 879.

A major difficulty in deciding whether rule 35 or Sec. 2255 is

the proper remedy is the uncertainty as to what is meant by an

"illegal sentence." The Supreme Court dealt with this issue in Hill

v. United States, 368 U.S. 424 (1962). The prisoner brought a Sec.

2255 motion to vacate sentence on the ground that he had not been

given a Fed.R.Crim. P. 32(a) opportunity to make a statement in his

own behalf at the time of sentencing. The majority held this was

not an error subject to collateral attack under Sec. 2255. The

five-member majority considered the motion as one brought pursuant

to rule 35, but denied relief, stating:

[T]he narrow function of Rule 35 is to permit correction at any

time of an illegal sentence, not to re-examine errors occurring

at the trial or other proceedings prior to the imposition of

sentence. The sentence in this case was not illegal. The

punishment meted out was not in excess of that prescribed by the

relevant statutes, multiple terms were not imposed for the same

offense, nor were the terms of the sentence itself legally or

constitutionally invalid in any other respect.

368 U.S. AT 430

The four dissenters felt the majority definition of "illegal" was

too narrow.

[Rule 35] provides for the correction of an "illegal sentence"

without regard to the reasons why that sentence is illegal and

contains not a single word to support the Court's conclusion that

only a sentence illegal by reason of the punishment it imposes is

"illegal" within the meaning of the Rule. I would have thought

that a sentence imposed in an illegal manner - whether the amount

or form of the punishment meted out constitutes an additional

violation of law or not - would be recognized as an "illegal

sentence" under any normal reading of the English language.

368 U.S. AT 431-432

The 1966 amendment of rule 35 added language permitting correction

of a sentence imposed in an "illegal manner." However, there is a

120-day time limit on a motion to do this, and the added language

does not clarify the intent of the rule or its relation to Sec.

2255.

The courts have been flexible in considering motions under

circumstances in which relief might appear to be precluded by Hill

v. United States. In Peterson v. United States, 432 F.2d 545 (8th

Cir. 1970), the court was confronted with a motion for reduction of

sentence by a prisoner claiming to have received a harsher sentence

than his codefendants because he stood trial rather than plead

guilty. He alleged that this violated his constitutional right to a

jury trial. The court ruled that, even though it was past the

120-day time period for a motion to reduce sentence, the claim was

still cognizable under rule 35 as a motion to correct an illegal

sentence.

The courts have made even greater use of Sec. 2255 in these types

of situations. In United States v. Lewis, 392 F.2d 440 (4th Cir.

1968), the prisoner moved under Sec. 2255 and rule 35 for relief

from a sentence he claimed was the result of the judge's

misunderstanding of the relevant sentencing law. The court held

that he could not get relief under rule 35 because it was past the

120 days for correction of a sentence imposed in an illegal manner

and under Hill v. United States it was not an illegal sentence.

However, Sec. 2255 was applicable because of its "otherwise subject

to collateral attack" language. The flaw was not a mere trial error

relating to the finding of guilt, but a rare and unusual error

which amounted to "exceptional circumstances" embraced in Sec.

2255's words "collateral attack." See 368 U.S. at 444 for

discussion of other cases allowing use of Sec. 2255 to attack the

sentence itself in similar circumstances, especially where the

judge has sentenced out of a misapprehension of the law.

In United States v. McCarthy, 433 F.2d 591, 592 (1st Cir. 1970),

the court allowed a prisoner who was past the time limit for a

proper rule 35 motion to use Sec. 2255 to attack the sentence which

he received upon a plea of guilty on the ground that it was induced

by an unfulfilled promise of the prosecutor to recommend leniency.

The court specifically noted that under Sec. 2255 this was a proper

collateral attack on the sentence and there was no need to attack

the conviction as well.

The court in United States v. Malcolm, 432 F.2d 809, 814, 818 (2d

Cir. 1970), allowed a prisoner to challenge his sentence under Sec.

2255 without attacking the conviction. It held rule 35 inapplicable

because the sentence was not illegal on its face, but the manner in

which the sentence was imposed raised a question of the denial of

due process in the sentencing itself which was cognizable under

Sec. 2255.

The flexible approach taken by the courts in the above cases

seems to be the reasonable way to handle these situations in which

rule 35 and Sec. 2255 appear to overlap. For a further discussion

of this problem, see C. Wright, Federal Practice and Procedure;

Criminal Secs. 581-587 (1969, Supp. 1975).

See the advisory committee note to rule 2 of the Sec. 2254 rules

for further discussion of the purposes and intent of rule 2 of

these Sec. 2255 rules.

1982 AMENDMENT

Subdivision (b). The amendment takes into account 28 U.S.C. Sec.

1746, enacted after adoption of the Sec. 2255 rules. Section 1746

provides that in lieu of an affidavit an unsworn statement may be

given under penalty of perjury in substantially the following form

if executed within the United States, its territories, possessions

or commonwealths: "I declare (or certify, verify, or state) under

penalty of perjury that the foregoing is true and correct. Executed

on (date). (Signature)." The statute is "intended to encompass

prisoner litigation," and the statutory alternative is especially

appropriate in such cases because a notary might not be readily

available. Carter v. Clark, 616 F.2d 228 (5th Cir. 1980). The Sec.

2255 forms have been revised accordingly.

AMENDMENTS

1976 - Subd. (b). Pub. L. 94-426, Sec. 2(3), inserted

"substantially" after "The motion shall be in", and struck out

requirement that the motion follow the prescribed form.

Subd. (d). Pub. L. 94-426, Sec. 2(4), inserted "substantially"

after "district court does not", and struck out provision which

permitted the clerk to return a motion for noncompliance without a

judge so directing.

RULE 3. FILING MOTION

(a) Place of filing; copies. A motion under these rules shall be

filed in the office of the clerk of the district court. It shall be

accompanied by two conformed copies thereof.

(b) Filing and service. Upon receipt of the motion and having

ascertained that it appears on its face to comply with rules 2 and

3, the clerk of the district court shall file the motion and enter

it on the docket in his office in the criminal action in which was

entered the judgment to which it is directed. He shall thereupon

deliver or serve a copy of the motion together with a notice of its

filing on the United States Attorney of the district in which the

judgment under attack was entered. The filing of the motion shall

not require said United States Attorney to answer the motion or

otherwise move with respect to it unless so ordered by the court.

ADVISORY COMMITTEE NOTE

There is no filing fee required of a movant under these rules.

This is a change from the practice of charging $15 and is done to

recognize specifically the nature of a Sec. 2255 motion as being a

continuation of the criminal case whose judgment is under attack.

The long-standing practice of requiring a $15 filing fee has

followed from 28 U.S.C. Sec. 1914(a) whereby "parties instituting

any civil action * * * pay a filing fee of $15, except that on an

application for a writ of habeas corpus the filing fee shall be

$5." This has been held to apply to a proceeding under Sec. 2255

despite the rationale that such a proceeding is a motion and thus a

continuation of the criminal action. (See note to rule 1.)

A motion under Section 2255 is a civil action and the clerk has

no choice but to charge a $15.00 filing fee unless by leave of

court it is filed in forma pauperis.

McCune v. United States, 406 F.2d 417, 419 (6th Cir. 1969).

Although the motion has been considered to be a new civil action

in the nature of habeas corpus for filing purposes, the reduced fee

for habeas has been held not applicable. The Tenth Circuit

considered the specific issue in Martin v. United States, 273 F.2d

775 (10th Cir. 1960), cert. denied, 365 U.S. 853 (1961), holding

that the reduced fee was exclusive to habeas petitions.

Counsel for Martin insists that, if a docket fee must be paid,

the amount is $5 rather than $15 and bases his contention on the

exception contained in 28 U.S.C. Sec. 1914 that in habeas corpus

the fee is $5. This reads into Sec. 1914 language which is not

there. While an application under Sec. 2255 may afford the same

relief as that previously obtainable by habeas corpus, it is not

a petition for a writ of habeas corpus. A change in Sec. 1914

must come from Congress.

273 F.2D AT 778

Although for most situations Sec. 2255 is intended to provide to

the federal prisoner a remedy equivalent to habeas corpus as used

by state prisoners, there is a major distinction between the two.

Calling a Sec. 2255 request for relief a motion rather than a

petition militates toward charging no new filing fee, not an

increased one. In the absence of convincing evidence to the

contrary, there is no reason to suppose that Congress did not mean

what it said in making a Sec. 2255 action a motion. Therefore, as

in other motions filed in a criminal action, there is no

requirement of a filing fee. It is appropriate that the present

situation of docketing a Sec. 2255 motion as a new action and

charging a $15 filing fee be remedied by the rule when the whole

question of Sec. 2255 motions is thoroughly thought through and

organized.

Even though there is no need to have a forma pauperis affidavit

to proceed with the action since there is no requirement of a fee

for filing the motion the affidavit remains attached to the form to

be supplied potential movants. Most such movants are indigent, and

this is a convenient way of getting this into the official record

so that the judge may appoint counsel, order the government to pay

witness fees, allow docketing of an appeal, and grant any other

rights to which an indigent is entitled in the course of a Sec.

2255 motion, when appropriate to the particular situation, without

the need for an indigency petition and adjudication at such later

point in the proceeding. This should result in a streamlining of

the process to allow quicker disposition of these motions.

For further discussion of this rule, see the advisory committee

note to rule 3 of the Sec. 2254 rules.

RULE 4. PRELIMINARY CONSIDERATION BY JUDGE

(a) Reference to judge; dismissal or order to answer. The

original motion shall be presented promptly to the judge of the

district court who presided at the movant's trial and sentenced

him, or, if the judge who imposed sentence was not the trial judge,

then it shall go to the judge who was in charge of that part of the

proceedings being attacked by the movant. If the appropriate judge

is unavailable to consider the motion, it shall be presented to

another judge of the district in accordance with the procedure of

the court for the assignment of its business.

(b) Initial consideration by judge. The motion, together with all

the files, records, transcripts, and correspondence relating to the

judgment under attack, shall be examined promptly by the judge to

whom it is assigned. If it plainly appears from the face of the

motion and any annexed exhibits and the prior proceedings in the

case that the movant is not entitled to relief in the district

court, the judge shall make an order for its summary dismissal and

cause the movant to be notified. Otherwise, the judge shall order

the United States Attorney to file an answer or other pleading

within the period of time fixed by the court or to take such other

action as the judge deems appropriate.

ADVISORY COMMITTEE NOTE

Rule 4 outlines the procedure for assigning the motion to a

specific judge of the district court and the options available to

the judge and the government after the motion is properly filed.

The long-standing majority practice in assigning motions made

pursuant to Sec. 2255 has been for the trial judge to determine the

merits of the motion. In cases where the Sec. 2255 motion is

directed against the sentence, the merits have traditionally been

decided by the judge who imposed sentence. The reasoning for this

was first noted in Currell v. United States, 173 F.2d 348, 348-349

(4th Cir. 1949):

Complaint is made that the judge who tried the case passed upon

the motion. Not only was there no impropriety in this, but it is

highly desirable in such cases that the motions be passed on by

the judge who is familiar with the facts and circumstances

surrounding the trial, and is consequently not likely to be

misled by false allegations as to what occurred.

This case, and its reasoning, has been almost unanimously endorsed

by other courts dealing with the issue.

Commentators have been critical of having the motion decided by

the trial judge. See Developments in the Law - Federal Habeas

Corpus, 83 Harv.L.Rev. 1038, 1206-1208 (1970).

[T]he trial judge may have become so involved with the decision

that it will be difficult for him to review it objectively.

Nothing in the legislative history suggests that "court" refers

to a specific judge, and the procedural advantages of section

2255 are available whether or not the trial judge presides at the

hearing.

The theory that Congress intended the trial judge to preside at

a section 2255 hearing apparently originated in Carvell v. United

States, 173 F.2d 348 (4th Cir. 1949) (per curiam), where the

panel of judges included Chief Judge Parker of the Fourth

Circuit, chairman of the Judicial Conference committee which

drafted section 2255. But the legislative history does not

indicate that Congress wanted the trial judge to preside. Indeed

the advantages of section 2255 can all be achieved if the case is

heard in the sentencing district, regardless of which judge hears

it. According to the Senate committee report the purpose of the

bill was to make the proceeding a part of the criminal action so

the court could resentence the applicant, or grant him a new

trial. (A judge presiding over a habeas corpus action does not

have these powers.) In addition, Congress did not want the cases

heard in the district of confinement because that tended to

concentrate the burden on a few districts, and made it difficult

for witnesses and records to be produced.

83 HARV.L.REV. AT 1207-1208

The Court of Appeals for the First Circuit has held that a judge

other than the trial judge should rule on the 2255 motion. See

Halliday v. United States, 380 F.2d 270 (1st Cir. 1967).

There is a procedure by which the movant can have a judge other

than the trial judge decide his motion in courts adhering to the

majority rule. He can file an affidavit alleging bias in order to

disqualify the trial judge. And there are circumstances in which

the trial judge will, on his own, disqualify himself. See, e.g.,

Webster v. United States, 330 F.Supp. 1080 (1972). However, there

has been some questioning of the effectiveness of this procedure.

See Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev.

1038, 1200-1207 (1970).

Subdivision (a) adopts the majority rule and provides that the

trial judge, or sentencing judge if different and appropriate for

the particular motion, will decide the motion made pursuant to

these rules, recognizing that, under some circumstances, he may

want to disqualify himself. A movant is not without remedy if he

feels this is unfair to him. He can file an affidavit of bias. And

there is the right to appellate review if the trial judge refuses

to grant his motion. Because the trial judge is thoroughly familiar

with the case, there is obvious administrative advantage in giving

him the first opportunity to decide whether there are grounds for

granting the motion.

Since the motion is part of the criminal action in which was

entered the judgment to which it is directed, the files, records,

transcripts, and correspondence relating to that judgment are

automatically available to the judge in his consideration of the

motion. He no longer need order them incorporated for that purpose.

Rule 4 has its basis in Sec. 2255 (rather than 28 U.S.C. Sec.

2243 in the corresponding habeas corpus rule) which does not have a

specific time limitation as to when the answer must be made. Also,

under Sec. 2255, the United States Attorney for the district is the

party served with the notice and a copy of the motion and required

to answer (when appropriate). Subdivision (b) continues this

practice since there is no respondent involved in the motion

(unlike habeas) and the United States Attorney, as prosecutor in

the case in question, is the most appropriate one to defend the

judgment and oppose the motion.

The judge has discretion to require an answer or other

appropriate response from the United States Attorney. See advisory

committee note to rule 4 of the Sec. 2254 rules.

RULE 5. ANSWER; CONTENTS

(a) Contents of answer. The answer shall respond to the

allegations of the motion. In addition it shall state whether the

movant has used any other available federal remedies including any

prior post-conviction motions under these rules or those existing

previous to the adoption of the present rules. The answer shall

also state whether an evidentiary hearing was accorded the movant

in a federal court.

(b) Supplementing the answer. The court shall examine its files

and records to determine whether it has available copies of

transcripts and briefs whose existence the answer has indicated. If

any of these items should be absent, the government shall be

ordered to supplement its answer by filing the needed records. The

court shall allow the government an appropriate period of time in

which to do so, without unduly delaying the consideration of the

motion.

ADVISORY COMMITTEE NOTE

Unlike the habeas corpus statutes (see 28 U.S.C. Secs. 2243,

2248) Sec. 2255 does not specifically call for a return or answer

by the United States Attorney or set any time limits as to when one

must be submitted. The general practice, however, if the motion is

not summarily dismissed, is for the government to file an answer to

the motion as well as counter-affidavits, when appropriate. Rule 4

provides for an answer to the motion by the United States Attorney,

and rule 5 indicates what its contents should be.

There is no requirement that the movant exhaust his remedies

prior to seeking relief under Sec. 2255. However, the courts have

held that such a motion is inappropriate if the movant is

simultaneously appealing the decision.

We are of the view that there is no jurisdictional bar to the

District Court's entertaining a Section 2255 motion during the

pendency of a direct appeal but that the orderly administration

of criminal law precludes considering such a motion absent

extraordinary circumstances.

WOMACK V. UNITED STATES, 395 F.2D 630, 631 (D.C.CIR. 1968)

Also see Masters v. Eide, 353 F.2d 517 (8th Cir. 1965). The answer

may thus cut short consideration of the motion if it discloses the

taking of an appeal which was omitted from the form motion filed by

the movant.

There is nothing in Sec. 2255 which corresponds to the Sec. 2248

requirement of a traverse to the answer. Numerous cases have held

that the government's answer and affidavits are not conclusive

against the movant, and if they raise disputed issues of fact a

hearing must be held. Machibroda v. United States, 368 U.S. 487,

494, 495 (1962); United States v. Salerno, 290 F.2d 105, 106 (2d

Cir. 1961); Romero v. United States, 327 F.2d 711, 712 (5th Cir.

1964); Scott v. United States, 349 F.2d 641, 642, 643 (6th Cir.

1965); Schiebelhut v. United States, 357 F.2d 743, 745 (6th Cir.

1966); and Del Piano v. United States, 362 F.2d 931, 932, 933 (3d

Cir. 1966). None of these cases make any mention of a traverse by

the movant to the government's answer. As under rule 5 of the Sec.

2254 rules, there is no intention here that such a traverse be

required, except under special circumstances. See advisory

committee note to rule 9.

Subdivision (b) provides for the government to supplement its

answers with appropriate copies of transcripts or briefs if for

some reason the judge does not already have them under his control.

This is because the government will in all probability have easier

access to such papers than the movant, and it will conserve the

court's time to have the government produce them rather than the

movant, who would in most instances have to apply in forma pauperis

for the government to supply them for him anyway.

For further discussion, see the advisory committee note to rule 5

of the Sec. 2254 rules.

RULE 6. DISCOVERY

(a) Leave of court required. A party may invoke the processes of

discovery available under the Federal Rules of Criminal Procedure

or the Federal Rules of Civil Procedure or elsewhere in the usages

and principles of law if, and to the extent that, the judge in the

exercise of his discretion and for good cause shown grants leave to

do so, but not otherwise. If necessary for effective utilization of

discovery procedures, counsel shall be appointed by the judge for a

movant who qualifies for appointment of counsel under 18 U.S.C.

Sec. 3006A(g).

(b) Requests for discovery. Requests for discovery shall be

accompanied by a statement of the interrogatories or requests for

admission and a list of the documents, if any, sought to be

produced.

(c) Expenses. If the government is granted leave to take the

deposition of the movant or any other person, the judge may as a

condition of taking it direct that the government pay the expenses

of travel and subsistence and fees of counsel for the movant to

attend the taking of the deposition.

ADVISORY COMMITTEE NOTE

This rule differs from the corresponding discovery rule under the

Sec. 2254 rules in that it includes the processes of discovery

available under the Federal Rules of Criminal Procedure as well as

the civil. This is because of the nature of a Sec. 2255 motion as a

continuing part of the criminal proceeding (see advisory committee

note to rule 1) as well as a remedy analogous to habeas corpus by

state prisoners.

See the advisory committee note to rule 6 of the Sec. 2254 rules.

The discussion there is fully applicable to discovery under these

rules for Sec. 2255 motions.

RULE 7. EXPANSION OF RECORD

(a) Direction for expansion. If the motion is not dismissed

summarily, the judge may direct that the record be expanded by the

parties by the inclusion of additional materials relevant to the

determination of the merits of the motion.

(b) Materials to be added. The expanded record may include,

without limitation, letters predating the filing of the motion in

the district court, documents, exhibits, and answers under oath, if

so directed, to written interrogatories propounded by the judge.

Affidavits may be submitted and considered as a part of the record.

(c) Submission to opposing party. In any case in which an

expanded record is directed, copies of the letters, documents,

exhibits, and affidavits proposed to be included shall be submitted

to the party against whom they are to be offered, and he shall be

afforded an opportunity to admit or deny their correctness.

(d) Authentication. The court may require the authentication of

any material under subdivision (b) or (c).

ADVISORY COMMITTEE NOTE

It is less likely that the court will feel the need to expand the

record in a Sec. 2255 proceeding than in a habeas corpus

proceeding, because the trial (or sentencing) judge is the one

hearing the motion (see rule 4) and should already have a complete

file on the case in his possession. However, rule 7 provides a

convenient method for supplementing his file if the case warrants

it.

See the advisory committee note to rule 7 of the Sec. 2254 rules

for a full discussion of reasons and procedures for expanding the

record.

RULE 8. EVIDENTIARY HEARING

(a) Determination by court. If the motion has not been dismissed

at a previous stage in the proceeding, the judge, after the answer

is filed and any transcripts or records of prior court actions in

the matter are in his possession, shall, upon a review of those

proceedings and of the expanded record, if any, determine whether

an evidentiary hearing is required. If it appears that an

evidentiary hearing is not required, the judge shall make such

disposition of the motion as justice dictates.

(b) Function of the magistrate.

(1) When designated to do so in accordance with 28 U.S.C. Sec.

636(b), a magistrate may conduct hearings, including evidentiary

hearings, on the motion, and submit to a judge of the court

proposed findings and recommendations for disposition.

(2) The magistrate shall file proposed findings and

recommendations with the court and a copy shall forthwith be

mailed to all parties.

(3) Within ten days after being served with a copy, any party

may serve and file written objections to such proposed findings

and recommendations as provided by rules of court.

(4) A judge of the court shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made. A judge of the court

may accept, reject, or modify in whole or in part any findings or

recommendations made by the magistrate.

(c) Appointment of counsel; time for hearing. If an evidentiary

hearing is required, the judge shall appoint counsel for a movant

who qualifies for the appointment of counsel under 18 U.S.C. Sec.

3006A(g) and the hearing shall be conducted as promptly as

practicable, having regard for the need of counsel for both parties

for adequate time for investigation and preparation. These rules do

not limit the appointment of counsel under 18 U.S.C. Sec. 3006A at

any stage of the proceeding if the interest of justice so requires.

(d) Production of statements at evidentiary hearing.

(1) In general. Federal Rule of Criminal Procedure 26.2(a)-(d),

and (f) applies at an evidentiary hearing under these rules.

(2) Sanctions for failure to produce statement. If a party

elects not to comply with an order under Federal Rule of Criminal

Procedure 26.2(a) to deliver a statement to the moving party, at

the evidentiary hearing the court may not consider the testimony

of the witness whose statement is withheld.

(As amended Pub. L. 94-426, Sec. 2(6), Sept. 28, 1976, 90 Stat.

1335; Pub. L. 94-577, Sec. 2(a)(2), (b)(2), Oct. 21, 1976, 90 Stat.

2730, 2731; Apr. 22, 1993, eff. Dec. 1, 1993.)

ADVISORY COMMITTEE NOTE

The standards for Sec. 2255 hearings are essentially the same as

for evidentiary hearings under a habeas petition, except that the

previous federal fact-finding proceeding is in issue rather than

the state's. Also Sec. 2255 does not set specific time limits for

holding the hearing, as does Sec. 2243 for a habeas action. With

these minor differences in mind, see the advisory committee note to

rule 8 of Sec. 2254 rules, which is applicable to rule 8 of these

Sec. 2255 rules.

1993 AMENDMENT

The amendment to Rule 8 is one of a series of parallel amendments

to Federal Rules of Criminal Procedure 32, 32.1, and 46 which

extend the scope of Rule 26.2 (Production of Witness Statements) to

proceedings other than the trial itself. The amendments are

grounded on the compelling need for accurate and credible

information in making decisions concerning the defendant's liberty.

See the Advisory Committee Note to Rule 26.2(g). A few courts have

recognized the authority of a judicial officer to order production

of prior statements by a witness at a Section 2255 hearing, see,

e.g., United States v. White, 342 F.2d 379, 382, n.4 (4th Cir.

1959). The amendment to Rule 8 grants explicit authority to do so.

The amendment is not intended to require production of a witness's

statement before the witness actually presents oral testimony.

AMENDMENTS

1976 - Subd. (b). Pub. L. 94-577, Sec. 2(a)(2), substituted

provisions which authorized magistrates, when designated to do so

in accordance with section 636(b) of this title, to conduct

hearings, including evidentiary hearings, on the petition and to

submit to a judge of the court proposed findings of fact and

recommendations for disposition, which directed the magistrate to

file proposed findings and recommendations with the court with

copies furnished to all parties, which allowed parties thus served

10 days to file written objections thereto, and which directed a

judge of the court to make de novo determinations of the

objected-to portions and to accept, reject, or modify the findings

or recommendations for provisions under which the magistrate had

been empowered only to recommend to the district judge that an

evidentiary hearing be held or that the petition be dismissed.

Subd. (c). Pub. L. 94-577, Sec. 2(b)(2), substituted "and the

hearing shall be conducted" for "and shall conduct the hearing."

Pub. L. 94-426 provided that these rules not limit the

appointment of counsel under section 3006A of title 18, if the

interest of justice so require.

EFFECTIVE DATE OF 1976 AMENDMENT

Amendments made by Pub. L. 94-577 effective with respect to

motions under section 2255 of this title filed on or after Feb. 1,

1977, see section 2(c) of Pub. L. 94-577, set out as a note under

Rule 8 of the Rules Governing Cases Under Section 2254 of this

title.

RULE 9. DELAYED OR SUCCESSIVE MOTIONS

(a) Delayed motions. A motion for relief made pursuant to these

rules may be dismissed if it appears that the government has been

prejudiced in its ability to respond to the motion by delay in its

filing unless the movant shows that it is based on grounds of which

he could not have had knowledge by the exercise of reasonable

diligence before the circumstances prejudicial to the government

occurred.

(b) Successive motions. A second or successive motion may be

dismissed if the judge finds that it fails to allege new or

different grounds for relief and the prior determination was on the

merits or, if new and different grounds are alleged, the judge

finds that the failure of the movant to assert those grounds in a

prior motion constituted an abuse of the procedure governed by

these rules.

(As amended Pub. L. 94-426, Sec. 2(9), (10), Sept. 28, 1976, 90

Stat. 1335.)

ADVISORY COMMITTEE NOTE

Unlike the statutory provisions on habeas corpus (28 U.S.C. Secs.

2241-2254), Sec. 2255 specifically provides that "a motion for such

relief may be made at any time." [Emphasis added.] Subdivision (a)

provides that delayed motions may be barred from consideration if

the government has been prejudiced in its ability to respond to the

motion by the delay and the movant's failure to seek relief earlier

is not excusable within the terms of the rule. Case law, dealing

with this issue, is in conflict.

Some courts have held that the literal language of Sec. 2255

precludes any possible time bar to a motion brought under it. In

Heflin v. United States, 358 U.S. 415 (1959), the concurring

opinion noted:

The statute [28 U.S.C. Sec. 2255] further provides; "A motion * *

* may be made at any time." This * * * simply means that, as in

habeas corpus, there is no statute of limitations, no res

judicata, and that the doctrine of laches is inapplicable.

358 U.S. AT 420

McKinney v. United States, 208 F.2d 844 (D.C.Cir. 1953) reversed

the district court's dismissal of a Sec. 2255 motion for being too

late, the court stating:

McKinney's present application for relief comes late in the

day: he has served some fifteen years in prison. But tardiness is

irrelevant where a constitutional issue is raised and where the

prisoner is still confined.

208 F.2D AT 846, 847

In accord, see: Juelich v. United States, 300 F.2d 381, 383 (5th

Cir. 1962); Conners v. United States, 431 F.2d 1207, 1208 (9th Cir.

1970); Sturrup v. United States, 218 F.Supp. 279, 281 (E.D.N.Car.

1963); and Banks v. United States, 319 F.Supp. 649, 652 (S.D.N.Y.

1970).

It has also been held that delay in filing a Sec. 2255 motion

does not bar the movant because of lack of reasonable diligence in

pressing the claim.

The statute [28 U.S.C. Sec. 2255], when it states that the motion

may be made at any time, excludes the addition of a showing of

diligence in delayed filings. A number of courts have considered

contentions similar to those made here and have concluded that

there are no time limitations. This result excludes the

requirement of diligence which is in reality a time limitation.

HAIER V. UNITED STATES, 334 F.2D 441, 442 (10TH CIR. 1964)

Other courts have recognized that delay may have a negative

effect on the movant. In Raines v. United States, 423 F.2d 526 (4th

Cir. 1970), the court stated:

[B]oth petitioners' silence for extended periods, one for 28

months and the other for nine years, serves to render their

allegations less believable. "Although a delay in filing a

section 2255 motion is not a controlling element * * * it may

merit some consideration * * *."

423 F.2D AT 531

In Aiken v. United States, 191 F.Supp. 43, 50 (M.D.N.Car. 1961),

aff'd 296 F.2d 604 (4th Cir. 1961), the court said: "While motions

under 28 U.S.C. Sec. 2255 may be made at any time, the lapse of

time affects the good faith and credibility of the moving party."

For similar conclusions, see: Parker v. United States, 358 F.2d 50,

54 n. 4 (7th Cir. 1965), cert. denied, 386 U.S. 916 (1967); Le

Clair v. United States, 241 F.Supp. 819, 824 (N.D. Ind. 1965);

Malone v. United States, 299 F.2d 254, 256 (6th Cir. 1962), cert.

denied, 371 U.S. 863 (1962); Howell v. United States, 442 F.2d 265,

274 (7th Cir. 1971); and United States v. Wiggins, 184 F. Supp.

673, 676 (D.C.Cir. 1960).

There have been holdings by some courts that a delay in filing a

Sec. 2255 motion operates to increase the burden of proof which the

movant must meet to obtain relief. The reasons for this, as

expressed in United States v. Bostic, 206 F.Supp. 855 (D.C.Cir.

1962), are equitable in nature.

Obviously, the burden of proof on a motion to vacate a sentence

under 28 U.S.C. Sec. 2255 is on the moving party. . . . The

burden is particularly heavy if the issue is one of fact and a

long time has elapsed since the trial of the case. While neither

the statute of limitations nor laches can bar the assertion of a

constitutional right, nevertheless, the passage of time may make

it impracticable to retry a case if the motion is granted and a

new trial is ordered. No doubt, at times such a motion is a

product of an afterthought. Long delay may raise a question of

good faith.

206 F.SUPP. AT 856-857

See also United States v. Wiggins, 184 F.Supp. at 676.

A requirement that the movant display reasonable diligence in

filing a Sec. 2255 motion has been adopted by some courts dealing

with delayed motions. The court in United States v. Moore, 166 F.2d

102 (7th Cir. 1948), cert. denied, 334 U.S. 849 (1948), did this,

again for equitable reasons.

[W]e agree with the District Court that the petitioner has too

long slept upon his rights. * * * [A]pparently there is no

limitation of time within which * * * a motion to vacate may be

filed, except that an applicant must show reasonable diligence in

presenting his claim. * * *

The reasons which support the rule requiring diligence seem

obvious. * * * Law enforcement officials change, witnesses die,

memories grow dim. The prosecuting tribunal is put to a

disadvantage if an unexpected retrial should be necessary after

long passage of time.

166 F.2D AT 105

In accord see Desmond v. United States, 333 F.2d 378, 381 (1st Cir.

1964), on remand, 345 F.2d 225 (1st Cir. 1965).

One of the major arguments advanced by the courts which would

penalize a movant who waits an unduly long time before filing a

Sec. 2255 motion is that such delay is highly prejudicial to the

prosecution. In Desmond v. United States, writing of a Sec. 2255

motion alleging denial of effective appeal because of deception by

movant's own counsel, the court said:

[A]pplications for relief such as this must be made promptly. It

will not do for a prisoner to wait until government witnesses

have become unavailable as by death, serious illness or absence

from the country, or until the memory of available government

witnesses has faded. It will not even do for a prisoner to wait

any longer than is reasonably necessary to prepare appropriate

moving papers, however inartistic, after discovery of the

deception practiced upon him by his attorney.

333 F.2D AT 381

In a similar vein are United States v. Moore and United States v.

Bostic, supra, and United States v. Wiggins, 184 F. Supp. at 676.

Subdivision (a) provides a flexible, equitable time limitation

based on laches to prevent movants from withholding their claims so

as to prejudice the government both in meeting the allegations of

the motion and in any possible retrial. It includes a reasonable

diligence requirement for ascertaining possible grounds for relief.

If the delay is found to be excusable, or nonprejudicial to the

government, the time bar is inoperative.

Subdivision (b) is consistent with the language of Sec. 2255 and

relevant case law.

The annexed form is intended to serve the same purpose as the

comparable one included in the Sec. 2254 rules.

For further discussion applicable to this rule, see the advisory

committee note to rule 9 of the Sec. 2254 rules.

AMENDMENTS

1976 - Subd. (a). Pub. L. 94-426, Sec. 2(9), struck out provision

which established a rebuttable presumption of prejudice to

government if the petition was filed more than five years after

conviction.

Subd. (b). Pub. L. 94-426, Sec. 2(10), substituted "constituted

an abuse of the procedure governed by these rules" for "is not

excusable".

RULE 10. POWERS OF MAGISTRATES

The duties imposed upon the judge of the district court by these

rules may be performed by a United States magistrate pursuant to 28

U.S.C. Sec. 636.

(As amended Pub. L. 94-426, Sec. 2(12), Sept. 28, 1976, 90 Stat.

1335; Apr. 30, 1979, eff. Aug. 1, 1979.)

ADVISORY COMMITTEE NOTE

See the advisory committee note to rule 10 of the Sec. 2254 rules

for a discussion fully applicable here as well.

1979 AMENDMENT

This amendment conforms the rule to 18 U.S.C. Sec. 636. See

Advisory Committee Note to rule 10 of the Rules Governing Section

2254 Cases in the United States District Courts.

AMENDMENTS

1976 - Pub. L. 94-426 inserted ", and to the extent the district

court has established standards and criteria for the performance of

such duties," after "rule of the district court".

CHANGE OF NAME

Reference to United States magistrate or to magistrate deemed to

refer to United States magistrate judge pursuant to section 321 of

Pub. L. 101-650, set out as a note under section 631 of this title.

RULE 11. TIME FOR APPEAL

The time for appeal from an order entered on a motion for relief

made pursuant to these rules is as provided in Rule 4(a) of the

Federal Rules of Appellate Procedure. Nothing in these rules shall

be construed as extending the time to appeal from the original

judgment of conviction in the district court.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979.)

ADVISORY COMMITTEE NOTE

Rule 11 is intended to make clear that, although a Sec. 2255

action is a continuation of the criminal case, the bringing of a

Sec. 2255 action does not extend the time.

1979 AMENDMENT

Prior to the promulgation of the Rules Governing Section 2255

Proceedings, the courts consistently held that the time for appeal

in a section 2255 case is as provided in Fed.R.App.P. 4(a), that

is, 60 days when the government is a party, rather than as provided

in appellate rule 4(b), which says that the time is 10 days in

criminal cases. This result has often been explained on the ground

that rule 4(a) has to do with civil cases and that "proceedings

under section 2255 are civil in nature." E.g., Rothman v. United

States, 508 F.2d 648 (3d Cir. 1975). Because the new section 2255

rules are based upon the premise "that a motion under Sec. 2255 is

a further step in the movant's criminal case rather than a separate

civil action," see Advisory Committee Note to rule 1, the question

has arisen whether the new rules have the effect of shortening the

time for appeal to that provided in appellate rule 4(b). A sentence

has been added to rule 11 in order to make it clear that this is

not the case.

Even though section 2255 proceedings are a further step in the

criminal case, the added sentence correctly states current law. In

United States v. Hayman, 342 U.S. 205 (1952), the Supreme Court

noted that such appeals "are governed by the civil rules applicable

to appeals from final judgments in habeas corpus actions." In

support, the Court cited Mercado v. United States, 183 F.2d 486

(1st Cir. 1950), a case rejecting the argument that because Sec.

2255 proceedings are criminal in nature the time for appeal is only

10 days. The Mercado court concluded that the situation was

governed by that part of 28 U.S.C. Sec. 2255 which reads: "An

appeal may be taken to the court of appeals from the order entered

on the motion as from a final judgment on application for a writ of

habeas corpus." Thus, because appellate rule 4(a) is applicable in

habeas cases, it likewise governs in Sec. 2255 cases even though

they are criminal in nature.

RULE 12. FEDERAL RULES OF CRIMINAL AND CIVIL PROCEDURE; EXTENT OF

APPLICABILITY

If no procedure is specifically prescribed by these rules, the

district court may proceed in any lawful manner not inconsistent

with these rules, or any applicable statute, and may apply the

Federal Rules of Criminal Procedure or the Federal Rules of Civil

Procedure, whichever it deems most appropriate, to motions filed

under these rules.

ADVISORY COMMITTEE NOTE

This rule differs from rule 11 of the Sec. 2254 rules in that it

includes the Federal Rules of Criminal Procedure as well as the

civil. This is because of the nature of a Sec. 2255 motion as a

continuing part of the criminal proceeding (see advisory committee

note to rule 1) as well as a remedy analogous to habeas corpus by

state prisoners.

Since Sec. 2255 has been considered analogous to habeas as

respects the restrictions in Fed.R.Civ.P. 81(a)(2) (see Sullivan v.

United States, 198 F.Supp. 624 (S.D.N.Y. 1961)), rule 12 is needed.

For discussion, see the advisory committee note to rule 11 of the

Sec. 2254 rules.

REFERENCES IN TEXT

The Federal Rules of Criminal Procedure, referred to in text, are

classified generally to the Appendix to Title 18, Crimes and

Criminal Procedure.

The Federal Rules of Civil Procedure, referred to in text, are

classified generally to the Appendix to this title.

APPENDIX OF FORMS

MODEL FORM FOR MOTIONS UNDER 28 U.S.C. SEC. 2255

Name __________________________

Prison Number _____________________

Place of Confinement _________________

United States District Court ___ District of ____

Case No. ____ (to be supplied by Clerk of U.S. District Court)

United States,

V.

_________________________

(FULL NAME OF MOVANT)

(If movant has a sentence to be served in the future under a

federal judgment which he wishes to attack, he should file a motion

in the federal court which entered the judgment.)

MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN

FEDERAL CUSTODY

(1) This motion must be legibly handwritten or typewritten, and

signed by the movant under penalty of perjury. Any false

statement of a material fact may serve as the basis for

prosecution and conviction for perjury. All questions must be

answered concisely in the proper space on the form.

(2) Additional pages are not permitted except with respect to the

facts which you rely upon to support your grounds for relief. No

citation of authorities need be furnished. If briefs or arguments

are submitted, they should be submitted in the form of a separate

memorandum.

(3) Upon receipt, your motion will be filed if it is in proper

order. No fee is required with this motion.

(4) If you do not have the necessary funds for transcripts,

counsel, appeal, and other costs connected with a motion of this

type, you may request permission to proceed in forma pauperis, in

which event you must execute the declaration on the last page,

setting forth information establishing your inability to pay the

costs. If you wish to proceed in forma pauperis, you must have an

authorized officer at the penal institution complete the

certificate as to the amount of money and securities on deposit

to your credit in any account in the institution.

(5) Only judgments entered by one court may be challenged in a

single motion. If you seek to challenge judgments entered by

different judges or divisions either in the same district or in

different districts, you must file separate motions as to each

such judgment.

(6) Your attention is directed to the fact that you must include

all grounds for relief and all facts supporting such grounds for

relief in the motion you file seeking relief from any judgment of

conviction.

(7) When the motion is fully completed, the original and two copies

must be mailed to the Clerk of the United States District Court

whose address is___

___________________________

(8) Motions which do not conform to these instructions will be

returned with a notation as to the deficiency.

MOTION

1. Name and location of court which entered the judgment of

conviction under attack _______

2. Date of judgment of conviction __________

3. Length of sentence _________________

4. Nature of offense involved (all counts) ______

___________________________

___________________________

___________________________

5. What was your plea? (Check one)

(a) Not guilty []

(b) Guilty []

(c) Nolo contendere []

If you entered a guilty plea to one count or indictment, and a

not guilty plea to another count or indictment, give details:

___________________________

___________________________

___________________________

6. Kind of trial: (Check one)

(a) Jury []

(b) Judge only []

7. Did you testify at the trial?

Yes [] No []

8. Did you appeal from the judgment of conviction?

Yes [] No []

9. If you did appeal, answer the following:

(a) Name of court ________________

(b) Result ____________________

(c) Date of result _________________

10. Other than a direct appeal from the judgment of conviction and

sentence, have you previously filed any petitions, applications

or motions with respect to this judgment in any federal court?

Yes [] No []

11. If your answer to 10 was "yes," give the following information:

(a) (1) Name of court ______________

(2) Nature of proceeding __________

______________________

(3) Grounds raised ______________

_______________________

_______________________

_______________________

_______________________

(4) Did you receive an evidentiary hearing on

your petition, application or motion?

Yes [] No []

(5) Result __________________

(6) Date of result ______________

(b) As to any second petition, application or

motion give the same information:

(1) Name of court ______________

(2) Nature of proceeding __________

______________________

(3) Grounds raised ______________

______________________

______________________

______________________

______________________

(4) Did you receive an evidentiary hearing on

your petition, application or motion?

Yes [] No []

(5) Result __________________

(6) Date of result ______________

(c) As to any third petition, application or

motion, give the same information:

(1) Name of court ______________

(2) Nature of proceeding __________

(3) Grounds raised ______________

______________________

______________________

______________________

______________________

(4) Did you receive an evidentiary hearing on

your petition, application or motion?

Yes [] No []

(d) Did you appeal, to an appellate federal court

having jurisdiction, the result of action taken on

any petition, application or motion?

(1) First petition, etc. Yes [] No []

(2) Second petition, etc. Yes [] No []

(3) Third petition, etc. Yes [] No []

(e) If you did not appeal from the adverse action on

any petition, application or motion, explain briefly

why you did not:

________________________

________________________

________________________

12. State concisely every ground on which you claim that you are

being held unlawfully. Summarize briefly the facts supporting

each ground. If necessary, you may attach pages stating

additional grounds and facts supporting same.

Caution: If you fail to set forth all grounds in this

motion, you may be barred from presenting additional grounds

at a later date.

For your information, the following is a list of the most

frequently raised grounds for relief in these proceedings. Each

statement preceded by a letter constitutes a separate ground

for possible relief. You may raise any grounds which you have

other than those listed. However, you should raise in this

motion all available grounds (relating to this conviction) on

which you based your allegations that you are being held in

custody unlawfully.

Do not check any of these listed grounds. If you select one or

more of these grounds for relief, you must allege facts. The motion

will be returned to you if you merely check (a) through (j) or any

one of the grounds.

(a) Conviction obtained by plea of guilty which was unlawfully

induced or not made voluntarily or with understanding of the

nature of the charge and the consequences of the plea.

(b) Conviction obtained by use of coerced confession.

(c) Conviction obtained by use of evidence gained pursuant to an

unconstitutional search and seizure.

(d) Conviction obtained by use of evidence obtained pursuant to an

unlawful arrest.

(e) Conviction obtained by a violation of the privilege against

self-incrimination.

(f) Conviction obtained by the unconstitutional failure of the

prosecution to disclose to the defendant evidence favorable

to the defendant.

(g) Conviction obtained by a violation of the protection against

double jeopardy.

(h) Conviction obtained by action of a grand or petit jury which

was unconstitutionally selected and impanelled.

(i) Denial of effective assistance of counsel.

(j) Denial of right of appeal.

A. Ground one: __________________

__________________________

Supporting FACTS (tell your story briefly without citing

cases or law): __________

__________________________

__________________________

__________________________

__________________________

__________________________

__________________________

B. Ground two: _________________

__________________________

Supporting FACTS (tell your story briefly without citing

cases or law): __________

__________________________

__________________________

__________________________

__________________________

__________________________

__________________________

C. Ground three: _________________

__________________________

Supporting FACTS (tell your story briefly without citing

cases or law): __________

__________________________

__________________________

__________________________

__________________________

__________________________

__________________________

D. Ground four: _________________

__________________________

Supporting FACTS (tell your story briefly without citing

cases or law): __________

__________________________

__________________________

__________________________

__________________________

__________________________

__________________________

13. If any of the grounds listed in 12A, B, C, and D were not

previously presented, state briefly what grounds were not so

presented, and give your reasons for not presenting them:

___________________________

___________________________

___________________________

___________________________

14. Do you have any petition or appeal now pending in any court as

to the judgment under attack?

Yes [] No []

15. Give the name and address, if known, of each attorney who

represented you in the following stages of the judgment attacked

herein:

(a) At preliminary hearing ___________

________________________

(b) At arraignment and plea ___________

________________________

(c) At trial ____________________

________________________

(d) At sentencing ________________

________________________

(e) On appeal __________________

________________________

(f) In any post-conviction proceeding ______

________________________

(g) On appeal from any adverse ruling in a post-

conviction proceeding ____________

________________________

16. Were you sentenced on more than one count of an indictment, or

on more than one indictment, in the same court and at

approximately the same time?

Yes [] No []

17. Do you have any future sentence to serve after you complete the

sentence imposed by the judgment under attack?

Yes [] No []

(a) If so, give name and location of court which imposed

sentence to be served in the future:

_______________________

_______________________

(b) And give date and length of sentence to be served in

the future:

_______________________

(c) Have you filed, or do you contemplate filing, any

petition attacking the judgment which imposed the

sentence to be served in the future?

Yes [] No []

Wherefore, movant prays that the Court grant him all relief to

which he may be entitled in this proceeding.

______________

Signature of Attorney (if any)

I declare (or certify, verify, or state) under penalty of perjury

that the foregoing is true and correct. Executed on _____.

(date)

______________

Signature of Movant

IN FORMA PAUPERIS DECLARATION

_________________________

[INSERT APPROPRIATE COURT]

United States

DECLARATION IN

SUPPORT

v.

OF REQUEST

______________

TO PROCEED

(Movant)

IN FORMA

PAUPERIS

I, ______________, declare that I am the movant in the above

entitled case; that in support of my motion to proceed without

being required to prepay fees, costs or give security therefor, I

state that because of my poverty, I am unable to pay the costs of

said proceeding or to give security therefor; that I believe I am

entitled to relief.

1. Are you presently employed? Yes [] No []

a. If the answer is "yes," state the amount of your salary or

wages per month, and give the name and address of your

employer.

_________________________

_________________________

b. If the answer is "no," state the date of last employment and

the amount of the salary and wages per month which you

received.

_________________________

_________________________

2. Have you received within the past twelve months any money from

any of the following sources?

a. Business, profession or form of self-employment? Yes [] No []

b. Rent payments, interest or dividends?

Yes [] No []

c. Pensions, annuities or life insurance payments? Yes [] No []

d. Gifts or inheritances? Yes [] No []

e. Any other sources? Yes [] No []

If the answer to any of the above is "yes," describe each

source of money and state the amount received from each during

the past twelve months.

___________________________

___________________________

___________________________

3. Do you own any cash, or do you have money in a checking or

savings account?

Yes [] No [] (Include any funds in prison accounts)

If the answer is "yes," state the total value of the items

owned.

___________________________

___________________________

___________________________

4. Do you own real estate, stocks, bonds, notes, automobiles, or

other valuable property (excluding ordinary household furnishings

and clothing)?

Yes [] No []

If the answer is "yes," describe the property and state its

approximate value.

___________________________

___________________________

5. List the persons who are dependent upon you for support, state

your relationship to those persons, and indicate how much you

contribute toward their support.

___________________________

___________________________

I declare (or certify, verify, or state) under penalty of perjury

that the foregoing is true and correct. Executed on _____.

(date)

______________

Signature of Movant

CERTIFICATE

I hereby certify that the movant herein has the sum of $____ on

account to his credit at the ____ institution where he is confined.

I further certify that movant likewise has the following securities

to his credit according to the records of said ____ institution:

_________________________

_________________________

_________________________

_________________________

______________

Authorized Officer of

Institution

(As amended Apr. 28, 1982, eff. Aug. 1, 1982.)

MODEL FORM FOR USE IN 28 U.S.C. SEC. 2255 CASES INVOLVING A RULE 9

ISSUE

FORM NO. 9

UNITED STATES DISTRICT COURT

__________ DISTRICT OF __________

CASE NO. ____

UNITED STATES

V.

______________

(NAME OF MOVANT)

MOVANT'S RESPONSE AS TO WHY HIS MOTION SHOULD NOT BE BARRED UNDER

RULE 9

EXPLANATION AND INSTRUCTIONS - READ CAREFULLY

(I) Rule 9. Delayed or Successive Motions.

(a) Delayed motions. A motion for relief made pursuant to these

rules may be dismissed if it appears that the government has been

prejudiced in its ability to respond to the motion by delay in its

filing unless the movant shows that it is based on grounds of which

he could not have had knowledge by the exercise of reasonable

diligence before the circumstances prejudicial to the government

occurred.

(b) Successive motions. A second or successive motion may be

dismissed if the judge finds that it fails to allege new or

different grounds for relief and the prior determination was on the

merits or, if new and different grounds are alleged, the judge

finds that the failure of the movant to assert those grounds in a

prior motion constituted an abuse of the procedure governed by

these rules.

(II) Your motion to vacate, set aside, or correct sentence has been

found to be subject to dismissal under rule 9( ) for the

following reason(s):

_________________________

_________________________

_________________________

_________________________

(III) This form has been sent so that you may explain why your

motion contains the defect(s) noted in (II) above. It is

required that you fill out this form and send it back to the

court within ____ days. Failure to do so will result in the

automatic dismissal of your motion.

(IV) When you have fully completed this form, the original and two

copies must be mailed to the Clerk of the United States

District Court whose address is ________________

_________________________

(V) This response must be legibly handwritten or typewritten, and

signed by the movant under penalty of perjury. Any false

statement of a material fact may serve as the basis for

prosecution and conviction for perjury. All questions must be

answered concisely in the proper space on the form.

(VI) Additional pages are not permitted except with respect to the

facts which you rely upon in item 4 or 5 in the response. Any

citation of authorities should be kept to an absolute minimum

and is only appropriate if there has been a change in the law

since the judgment you are attacking was rendered.

(VII) Respond to 4 or 5, not to both, unless (II) above indicates

that you must answer both sections.

RESPONSE

1. Have you had the assistance of an attorney, other law-trained

personnel, or writ writers since the conviction your motion is

attacking was entered?

Yes [] No []

2. If you checked "Yes" above, specify as precisely as you can the

period(s) of time during which you received such assistance, up

to and including the present.

___________________________

3. Describe the nature of the assistance, including the names of

those who rendered it to you.

___________________________

___________________________

___________________________

___________________________

4. If your motion is in jeopardy because of delay prejudicial to

the government under rule 9(a), explain why you feel the delay

has not been prejudicial and/or why the delay is excusable under

the terms of 9(a). This should be done by relying upon FACTS, not

your opinions or conclusions.

___________________________

___________________________

___________________________

___________________________

___________________________

5. If your motion is in jeopardy under rule 9(b) because it asserts

the same grounds as a previous motion, explain why you feel it

deserves a reconsideration. If its fault under rule 9(b) is that

it asserts new grounds which should have been included in a prior

motion, explain why you are raising these grounds now rather than

previously. Your explanation should rely on FACTS, not your

opinions or conclusions.

___________________________

___________________________

___________________________

___________________________

___________________________

___________________________

___________________________

___________________________

I declare (or certify, verify, or state) under penalty of perjury

that the foregoing is true and correct. Executed on _____.

(date)

______________

Signature of Movant

(As amended Apr. 28, 1982, eff. Aug. 1, 1982.)

-End-

-CITE-

28 USC Sec. 2256 01/06/03

-EXPCITE-

TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE

PART VI - PARTICULAR PROCEEDINGS

CHAPTER 153 - HABEAS CORPUS

-HEAD-

[Sec. 2256. Omitted]

-COD-

CODIFICATION

Section, added Pub. L. 95-598, title II, Sec. 250(a), Nov. 6,

1978, 92 Stat. 2672, did not become effective pursuant to section

402(b) of Pub. L. 95-598, as amended, set out as an Effective Date

note preceding section 101 of Title 11, Bankruptcy. Section read as

follows:

Sec. 2256. Habeas corpus from bankruptcy courts

A bankruptcy court may issue a writ of habeas corpus -

(1) when appropriate to bring a person before the court -

(A) for examination;

(B) to testify; or

(C) to perform a duty imposed on such person under this

title; or

(2) ordering the release of a debtor in a case under title 11

in custody under the judgment of a Federal or State court if -

(A) such debtor was arrested or imprisoned on process in any

civil action;

(B) such process was issued for the collection of a debt -

(i) dischargeable under title 11; or

(ii) that is or will be provided for in a plan under

chapter 11 or 13 of title 11; and

(C) before the issuance of such writ, notice and a hearing

have been afforded the adverse party of such debtor in custody

to contest the issuance of such writ.

-MISC1-

PRIOR PROVISIONS

A prior section 2256, added Pub. L. 95-144, Sec. 3, Oct. 28,

1977, 91 Stat. 1220, related to jurisdiction of proceedings

relating to transferred offenders, prior to transfer to section

3244 of Title 18, Crimes and Criminal Procedure, by Pub. L. 95-598,

title III, Sec. 314(j), Nov. 6, 1978, 92 Stat. 2677.

-End-