Notes on 28 U.S.C. § 2254 : US Code - Notes

Search Notes on 28 U.S.C. § 2254 : US Code - Notes

(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.)
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."
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.
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).
APPROVAL AND EFFECTIVE DATE OF RULES GOVERNING SECTION 2254 CASES
AND SECTION 2255 PROCEEDINGS FOR UNITED STATES DISTRICT COURTS
For approval and effective date of rules governing petitions
under section 2254 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 under section 2074 of this title.
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 2, 2006)
Rule
1. Scope.
2. The Petition.
3. Filing the Petition; Inmate Filing.
4. Preliminary Review; Serving the Petition and Order.
5. The Answer and the Reply.
6. Discovery.
7. Expanding the Record.
8. Evidentiary Hearing.
9. Second or Successive Petitions.
10. Powers of a Magistrate Judge.
11. Applicability of the Federal Rules of Civil Procedure.
APPENDIX OF FORMS
Petition Under 28 U.S.C. Sec. 2254 for Writ of Habeas Corpus By a
Person in State Custody.
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 under section
2074 of this title.
RULE 1. SCOPE
(a) Cases Involving a Petition under 28 U.S.C. Sec. 2254. These
rules govern a petition for a writ of habeas corpus filed in a
United States district court under 28 U.S.C. Sec. 2254 by:
(1) a person in custody under a state-court judgment who seeks
a determination that the custody violates the Constitution, laws,
or treaties of the United States; and
(2) a person in custody under a state-court or federal-court
judgment who seeks a determination that future custody under a
state-court judgment would violate the Constitution, laws, or
treaties of the United States.
(b) Other Cases. The district court may apply any or all of these
rules to a habeas corpus petition not covered by Rule 1(a).
(As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
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).
COMMITTEE NOTES ON RULES - 2004 AMENDMENT
The language of Rule 1 has been amended as part of general
restyling of the rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These
changes are intended to be stylistic and no substantive change is
intended.
Changes Made After Publication and Comments. In response to at
least one commentator on the published rules, the Committee
modified Rule 1(b) to reflect the point that if the court was
considering a habeas petition not covered by Sec. 2254, the court
could apply some or all of the rules.
RULE 2. THE PETITION
(a) Current Custody; Naming the Respondent. If the petitioner is
currently in custody under a state-court judgment, the petition
must name as respondent the state officer who has custody.
(b) Future Custody; Naming the Respondents and Specifying the
Judgment. If the petitioner is not yet in custody - but may be
subject to future custody - under the state-court judgment being
contested, the petition must name as respondents both the officer
who has current custody and the attorney general of the state where
the judgment was entered. The petition must ask for relief from the
state-court judgment being contested.
(c) Form. The petition must:
(1) specify all the grounds for relief available to the
petitioner;
(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten; and
(5) be signed under penalty of perjury by the petitioner or by
a person authorized to sign it for the petitioner under 28 U.S.C.
Sec. 2242.
(d) Standard Form. The petition must substantially follow either
the form appended to these rules or a form prescribed by a local
district-court rule. The clerk must make forms available to
petitioners without charge.
(e) Separate Petitions for Judgments of Separate Courts. A
petitioner who seeks relief from judgments of more than one state
court must file a separate petition covering the judgment or
judgments of each court.
(As amended Pub. L. 94-426, Sec. 2(1), (2), Sept. 28, 1976, 90
Stat. 1334; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 26, 2004, eff.
Dec. 1, 2004.)
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.
COMMITTEE NOTES ON RULES - 2004 AMENDMENT
The language of Rule 2 has been amended as part of general
restyling of the rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These
changes are intended to be stylistic and no substantive change is
intended, except as described below.
Revised Rule 2(c)(5) has been amended by removing the requirement
that the petition be signed personally by the petitioner. As
reflected in 28 U.S.C. Sec. 2242, an application for habeas corpus
relief may be filed by the person who is seeking relief, or by
someone acting on behalf of that person. See, e.g., Whitmore v.
Arkansas, 495 U.S. 149 (1990) (discussion of requisites for "next
friend" standing in petition for habeas corpus). Thus, under the,
[sic] amended rule the petition may be signed by petitioner
personally or by someone acting on behalf of the petitioner,
assuming that the person is authorized to do so, for example, an
attorney for the petitioner. The Committee envisions that the
courts will apply third-party, or "next-friend," standing analysis
in deciding whether the signer was actually authorized to sign the
petition on behalf of the petitioner.
The language in new Rule 2(d) has been changed to reflect that a
petitioner must substantially follow the standard form, which is
appended to the rules, or a form provided by the court. The current
rule, Rule 2(c), seems to indicate a preference for the standard
"national" form. Under the amended rule, there is no stated
preference. The Committee understood that current practice in some
courts is that if the petitioner first files a petition using the
national form, the courts may then ask the petitioner to supplement
it with the local form.
Current Rule 2(e), which provided for returning an insufficient
petition, has been deleted. The Committee believed that the
approach in Federal Rule of Civil Procedure 5(e) was more
appropriate for dealing with petitions that do not conform to the
form requirements of the rule. That Rule provides that the clerk
may not refuse to accept a filing solely for the reason that it
fails to comply with these rules or local rules. Before the
adoption of a one-year statute of limitations in the Antiterrorism
and Effective Death Penalty Act of 1996, 110 Stat. 1214, the
petitioner suffered no penalty, other than delay, if the petition
was deemed insufficient. Now that a one-year statute of limitations
applies to petitions filed under Sec. 2254, see 28 U.S.C. Sec.
2244(d)(1), the court's dismissal of a petition because it is not
in proper form may pose a significant penalty for a petitioner, who
may not be able to file another petition within the one-year
limitations period. Now, under revised Rule 3(b), the clerk is
required to file a petition, even though it may otherwise fail to
comply with the provisions in revised Rule 2(c). The Committee
believed that the better procedure was to accept the defective
petition and require the petitioner to submit a corrected petition
that conforms to Rule 2(c).
Changes Made After Publication and Comments. The Committee
changed Rule 2(c)(2) to read "state the facts" rather then [sic]
"briefly summarize the facts." As one commentator noted, the
current language may actually mislead the petitioner and is also
redundant. The Committee modified Rule 2(c)(5) to emphasize that
any person, other than the petitioner, who signs the petition must
be authorized to do so; the revised rule now specifically cites
Sec. 2242. The Note was changed to reflect that point.
Rule 2(c)(4) was modified to account for those cases where the
petitioner prints the petition on a computer word-processing
program.
AMENDMENTS BY PUBLIC LAW
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 THE PETITION; INMATE FILING
(a) Where to File; Copies; Filing Fee. An original and two copies
of the petition must be filed with the clerk and must be
accompanied by:
(1) the applicable filing fee, or
(2) a motion for leave to proceed in forma pauperis, the
affidavit required by 28 U.S.C. Sec. 1915, and a certificate from
the warden or other appropriate officer of the place of
confinement showing the amount of money or securities that the
petitioner has in any account in the institution.
(b) Filing. The clerk must file the petition and enter it on the
docket.
(c) Time to File. The time for filing a petition is governed by
28 U.S.C. Sec. 2244(d).
(d) Inmate Filing. A paper filed by an inmate confined in an
institution is timely if deposited in the institution's internal
mailing system on or before the last day for filing. If an
institution has a system designed for legal mail, the inmate must
use that system to receive the benefit of this rule. Timely filing
may be shown by a declaration in compliance with 28 U.S.C. Sec.
1746 or by a notarized statement, either of which must set forth
the date of deposit and state that first-class postage has been
prepaid.
(As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
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.
COMMITTEE NOTES ON RULES - 2004 AMENDMENT
The language of Rule 3 has been amended as part of general
restyling of the rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These
changes are intended to be stylistic and no substantive change is
intended except as described below.
The last sentence of current Rule 3(b), dealing with an answer
being filed by the respondent, has been moved to revised Rule 5(a).
Revised Rule 3(b) is new and is intended to parallel Federal Rule
of Civil Procedure 5(e), which provides that the clerk may not
refuse to accept a filing solely for the reason that it fails to
comply with these rules or local rules. Before the adoption of a
one-year statute of limitations in the Antiterrorism and Effective
Death Penalty Act of 1996, 110 Stat. 1214, the petitioner suffered
no penalty, other than delay, if the petition was deemed
insufficient. That Act, however, added a one-year statute of
limitations to petitions filed under Sec. 2254, see 28 U.S.C. Sec.
2244(d)(1). Thus, a court's dismissal of a defective petition may
pose a significant penalty for a petitioner who may not be able to
file a corrected petition within the one-year limitations period.
The Committee believed that the better procedure was to accept the
defective petition and require the petitioner to submit a corrected
petition that conforms to Rule 2. Thus, revised Rule 3(b) requires
the clerk to file a petition, even though it may otherwise fail to
comply with Rule 2. The rule, however, is not limited to those
instances where the petition is defective only in form; the clerk
would also be required, for example, to file the petition even
though it lacked the requisite filing fee or an in forma pauperis
form.
Revised Rule 3(c), which sets out a specific reference to 28
U.S.C. Sec. 2244(d), is new and has been added to put petitioners
on notice that a one-year statute of limitations applies to
petitions filed under these Rules. Although the rule does not
address the issue, every circuit that has addressed the issue has
taken the position that equitable tolling of the statute of
limitations is available in appropriate circumstances. See, e.g.,
Smith v. McGinnis, 208 F.3d 13, 17-18 (2d Cir. 2000); Miller v. New
Jersey State Department of Corrections, 145 F.3d 616, 618-19 (3d
Cir. 1998); Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.
2000). The Supreme Court has not addressed the question directly.
See Duncan v. Walker, 533 U.S. 167, 181 (2001) ("We . . . have no
occasion to address the question that Justice Stevens raises
concerning the availability of equitable tolling.").
Rule 3(d) is new and provides guidance on determining whether a
petition from an inmate is considered to have been filed in a
timely fashion. The new provision parallels Federal Rule of
Appellate Procedure 25(a)(2)(C).
Changes Made After Publication and Comments. The Committee Note
was changed to reflect that the clerk must file a petition, even in
those instances where the necessary filing fee or in forma pauperis
form is not attached. The Note also includes new language
concerning the equitable tolling of the statute of limitations.
RULE 4. PRELIMINARY REVIEW; SERVING THE PETITION AND ORDER
The clerk must promptly forward the petition to a judge under the
court's assignment procedure, and the judge must promptly examine
it. If it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court, the judge must dismiss the petition and direct the
clerk to notify the petitioner. If the petition is not dismissed,
the judge must order the respondent to file an answer, motion, or
other response within a fixed time, or to take other action the
judge may order. In every case, the clerk must serve a copy of the
petition and any order on the respondent and on the attorney
general or other appropriate officer of the state involved.
(As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
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.
COMMITTEE NOTES ON RULES - 2004 AMENDMENT
The language of Rule 4 has been amended as part of general
restyling of the rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These
changes are intended to be stylistic and no substantive change is
intended, except as described below.
The amended rule reflects that the response to a habeas petition
may be a motion.
The requirement that in every case the clerk must serve a copy of
the petition on the respondent by certified mail has been deleted.
In addition, the current requirement that the petition be sent to
the Attorney General of the state has been modified to reflect
practice in some jurisdictions that the appropriate state official
may be someone other than the Attorney General, for example, the
officer in charge of a local confinement facility. This comports
with a similar provision in 28 U.S.C. Sec. 2252, which addresses
notice of habeas corpus proceedings to the state's attorney general
or other appropriate officer of the state.
Changes Made After Publication and Comments. The Rule was
modified slightly to reflect the view of some commentators that it
is common practice in some districts for the government to file a
pre-answer motion to dismiss. The Committee agreed with that
recommendation and changed the word "pleading" in the rule to
"response." It also made several minor changes to the Committee
Note.
RULE 5. THE ANSWER AND THE REPLY
(a) When Required. The respondent is not required to answer the
petition unless a judge so orders.
(b) Contents: Addressing the Allegations; Stating a Bar. The
answer must address the allegations in the petition. In addition,
it must state whether any claim in the petition is barred by a
failure to exhaust state remedies, a procedural bar, non-
retroactivity, or a statute of limitations.
(c) Contents: Transcripts. The answer must also indicate what
transcripts (of pretrial, trial, sentencing, or post-conviction
proceedings) are available, when they can be furnished, and what
proceedings have been recorded but not transcribed. The respondent
must attach to the answer parts of the transcript that the
respondent considers relevant. The judge may order that the
respondent furnish other parts of existing transcripts or that
parts of untranscribed recordings be transcribed and furnished. If
a transcript cannot be obtained, the respondent may submit a
narrative summary of the evidence.
(d) Contents: Briefs on Appeal and Opinions. The respondent must
also file with the answer a copy of:
(1) any brief that the petitioner submitted in an appellate
court contesting the conviction or sentence, or contesting an
adverse judgment or order in a post-conviction proceeding;
(2) any brief that the prosecution submitted in an appellate
court relating to the conviction or sentence; and
(3) the opinions and dispositive orders of the appellate court
relating to the conviction or the sentence.
(e) Reply. The petitioner may submit a reply to the respondent's
answer or other pleading within a time fixed by the judge.
(As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
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.
COMMITTEE NOTES ON RULES - 2004 AMENDMENT
The language of Rule 5 has been amended as part of general
restyling of the rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These
changes are intended to be stylistic and no substantive change is
intended, except as described below.
Revised Rule 5(a), which provides that the respondent is not
required to file an answer to the petition, unless a judge so
orders, is taken from current Rule 3(b). The revised rule does not
address the practice in some districts, where the respondent files
a pre-answer motion to dismiss the petition. But revised Rule 4
permits that practice and reflects the view that if the court does
not dismiss the petition, it may require (or permit) the respondent
to file a motion.
Rule 5(b) has been amended to require that the answer address not
only failure to exhaust state remedies, but also procedural bars,
non-retroactivity, and any statute of limitations. Although the
latter three matters are not addressed in the current rule, the
Committee intends no substantive change with the additional new
language. See, e.g., 28 U.S.C. Sec. 2254(b)(3). Instead, the
Committee believes that the explicit mention of those issues in the
rule conforms to current case law and statutory provisions. See,
e.g., 28 U.S.C. Sec. 2244(d)(1).
Revised Rule 5(d) includes new material. First, Rule 5(d)(2),
requires a respondent - assuming an answer is filed - to provide
the court with a copy of any brief submitted by the prosecution to
the appellate court. And Rule 5(d)(3) now provides that the
respondent also file copies of any opinions and dispositive orders
of the appellate court concerning the conviction or sentence. These
provisions are intended to ensure that the court is provided with
additional information that may assist it in resolving the issues
raised, or not raised, in the petition.
Finally, revised Rule 5(e) adopts the practice in some
jurisdictions of giving the petitioner an opportunity to file a
reply to the respondent's answer. Rather than using terms such as
"traverse," see 28 U.S.C. Sec. 2248, to identify the petitioner's
response to the answer, the rule uses the more general term
"reply." The Rule prescribes that the court set the time for such
responses and in lieu of setting specific time limits in each case,
the court may decide to include such time limits in its local
rules.
Changes Made After Publication and Comments. Rule 5(a) was
modified to read that the government is not required to "respond"
to the petition unless the court so orders; the term "respond" was
used because it leaves open the possibility that the government's
first response (as it is in some districts) is in the form of a pre-
answer motion to dismiss the petition. The Note has been changed
to reflect the fact that although the rule itself does not reflect
that particular motion, it is used in some districts and refers the
reader to Rule 4.
The Committee also deleted the reference to "affirmative
defenses," because the Committee believed that the term was a
misnomer in the context of habeas petitions. The Note was also
changed to reflect that there has been a potential substantive
change from the current rule, to the extent that the published rule
now requires that the answer address procedural bars and any
statute of limitations. The Note states that the Committee believes
the new language reflects current law.
The Note was modified to address the use of the term "traverse."
One commentator noted that that is the term that is commonly used
but that it does not appear in the rule itself.
RULE 6. DISCOVERY
(a) Leave of Court Required. A judge may, for good cause,
authorize a party to conduct discovery under the Federal Rules of
Civil Procedure and may limit the extent of discovery. If necessary
for effective discovery, the judge must appoint an attorney for a
petitioner who qualifies to have counsel appointed under 18 U.S.C.
Sec. 3006A.
(b) Requesting Discovery. A party requesting discovery must
provide reasons for the request. The request must also include any
proposed interrogatories and requests for admission, and must
specify any requested documents.
(c) Deposition Expenses. If the respondent is granted leave to
take a deposition, the judge may require the respondent to pay the
travel expenses, subsistence expenses, and fees of the petitioner's
attorney to attend the deposition.
(As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
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).
COMMITTEE NOTES ON RULES - 2004 AMENDMENT
The language of Rule 6 has been amended as part of general
restyling of the rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These
changes are intended to be stylistic and no substantive change is
intended.
Although current Rule 6(b) contains no requirement that the
parties provide reasons for the requested discovery, the revised
rule does so and also includes a requirement that the request be
accompanied by any proposed interrogatories and requests for
admission, and must specify any requested documents. The Committee
believes that the revised rule makes explicit what has been
implicit in current practice.
Changes Made After Publication and Comments. Rule 6(b) was
modified to require that discovery requests be supported by
reasons, to assist the court in deciding what, if any, discovery
should take place. The Committee believed that the change made
explicit what has been implicit in current practice.
RULE 7. EXPANDING THE RECORD
(a) In General. If the petition is not dismissed, the judge may
direct the parties to expand the record by submitting additional
materials relating to the petition. The judge may require that
these materials be authenticated.
(b) Types of Materials. The materials that may be required
include letters predating the filing of the petition, documents,
exhibits, and answers under oath to written interrogatories
propounded by the judge. Affidavits may also be submitted and
considered as part of the record.
(c) Review by the Opposing Party. The judge must give the party
against whom the additional materials are offered an opportunity to
admit or deny their correctness.
(As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
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.
COMMITTEE NOTES ON RULES - 2004 AMENDMENT
The language of Rule 7 has been amended as part of general
restyling of the rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These
changes are intended to be stylistic and no substantive change is
intended, except as noted below.
Revised Rule 7(a) is not intended to restrict the court's
authority to expand the record through means other than requiring
the parties themselves to provide the information. Further, the
rule has been changed to remove the reference to the "merits" of
the petition in the recognition that a court may wish to expand the
record in order to assist it in deciding an issue other than the
merits of the petition.
The language in current Rule 7(d), which deals with
authentication of materials in the expanded record, has been moved
to revised Rule 7(a).
Changes Made After Publication and Comments. The Committee
modified Rule 7(a) by removing the reference to the "merits" of the
petition. One commentator had commented that the court might wish
to expand the record for purposes other than the merits of the
case. The Committee agreed to the change and also changed the rule
to reflect that someone other than a party may authenticate the
materials.
RULE 8. EVIDENTIARY HEARING
(a) Determining Whether to Hold a Hearing. If the petition is not
dismissed, the judge must review the answer, any transcripts and
records of state-court proceedings, and any materials submitted
under Rule 7 to determine whether an evidentiary hearing is
warranted.
(b) Reference to a Magistrate Judge. A judge may, under 28 U.S.C.
Sec. 636(b), refer the petition to a magistrate judge to conduct
hearings and to file proposed findings of fact and recommendations
for disposition. When they are filed, the clerk must promptly serve
copies of the proposed findings and recommendations on all parties.
Within 10 days after being served, a party may file objections as
provided by local court rule. The judge must determine de novo any
proposed finding or recommendation to which objection is made. The
judge may accept, reject, or modify any proposed finding or
recommendation.
(c) Appointing Counsel; Time of Hearing. If an evidentiary
hearing is warranted, the judge must appoint an attorney to
represent a petitioner who qualifies to have counsel appointed
under 18 U.S.C. Sec. 3006A. The judge must conduct the hearing as
soon as practicable after giving the attorneys adequate time to
investigate and prepare. These rules do not limit the appointment
of counsel under Sec. 3006A at any stage of the proceeding.
(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; Apr. 26, 2004, eff. Dec. 1, 2004.)
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.
COMMITTEE NOTES ON RULES - 2004 AMENDMENT
The language of Rule 8 has been amended as part of general
restyling of the rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These
changes are intended to be stylistic and no substantive change is
intended.
Rule 8(a) is not intended to supersede the restrictions on
evidentiary hearings contained in 28 U.S.C. Sec. 2254(e)(2).
The requirement in current Rule 8(b)(2) that a copy of the
magistrate judge's findings must be promptly mailed to all parties
has been changed in revised Rule 8(b) to require that copies of
those findings be served on all parties. As used in this rule,
"service" means service consistent with Federal Rule of Civil
Procedure 5(b), which allows mailing the copies.
Changes Made After Publication and Comments. The Committee
changed the Committee Note to reflect the view that the amendments
to Rule 8 were not intended to supercede the restrictions on
evidentiary hearings contained in Sec. 2254(e)(2).
AMENDMENTS BY PUBLIC LAW
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. SECOND OR SUCCESSIVE PETITIONS
Before presenting a second or successive petition, the petitioner
must obtain an order from the appropriate court of appeals
authorizing the district court to consider the petition as required
by 28 U.S.C. Sec. 2244(b)(3) and (4).
(As amended Pub. L. 94-426, Sec. 2(7), (8), Sept. 28, 1976, 90
Stat. 1335; Apr. 26, 2004, eff. Dec. 1, 2004.)
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.
COMMITTEE NOTES ON RULES - 2004 AMENDMENT
The language of Rule 9 has been amended as part of general
restyling of the rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These
changes are intended to be stylistic and no substantive change is
intended, except as noted below.
First, current Rule 9(a) has been deleted as unnecessary in light
of the applicable one-year statute of limitations for Sec. 2254
petitions, added as part of the Antiterrorism and Effective Death
Penalty Act of 1996, 28 U.S.C. Sec. 2244(d).
Second, current Rule 9(b), now Rule 9, has been changed to also
reflect provisions in the Antiterrorism and Effective Death Penalty
Act of 1996, 28 U.S.C. Sec. 2244(b)(3) and (4), which now require a
petitioner to obtain approval from the appropriate court of appeals
before filing a second or successive petition.
Finally, the title of Rule 9 has been changed to reflect the fact
that the only topic now addressed in the rules is that of second or
successive petitions.
Changes Made After Publication and Comments. The Committee made
no changes to Rule 9.
AMENDMENTS BY PUBLIC LAW
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 A MAGISTRATE JUDGE
A magistrate judge may perform the duties of a district judge
under these rules, as authorized under 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; Apr. 26, 2004, eff. Dec. 1,
2004.)
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).
COMMITTEE NOTES ON RULES - 2004 AMENDMENT
The language of Rule 10 has been amended as part of general
restyling of the rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These
changes are intended to be stylistic and no substantive change is
intended.
Changes Made After Publication and Comments. The Committee
restyled the proposed rule.
AMENDMENTS BY PUBLIC LAW
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".
RULE 11. APPLICABILITY OF THE FEDERAL RULES OF CIVIL PROCEDURE
The Federal Rules of Civil Procedure, to the extent that they are
not inconsistent with any statutory provisions or these rules, may
be applied to a proceeding under these rules.
(As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
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.
COMMITTEE NOTES ON RULES - 2004 AMENDMENT
The language of Rule 11 has been amended as part of general
restyling of the rules to make them more easily understood and to
make style and terminology consistent throughout the rules. These
changes are intended to be stylistic and no substantive change is
intended.
Changes Made After Publication and Comments. The Committee made
no changes to Rule 11.
REFERENCES IN TEXT
The Federal Rules of Civil Procedure, referred to in heading and
text, are set out in the Appendix to this title.
APPENDIX OF FORMS
















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; Apr. 26, 2004, eff.
Dec. 1, 2004.)
MODEL FORM FOR USE IN 28 U.S.C. SEC. 2254 CASES INVOLVING A RULE 9
ISSUE
FORM NO. 9
[OMITTED AS OBSOLETE]
Changes Made After Publication and Comments - Forms Accompanying
Rules Governing Sec. 2254 and Sec. 2255 Proceedings. Responding to
a number of comments from the public, the Committee deleted from
both sets of official forms the list of possible grounds of relief.
The Committee made additional minor style corrections to the forms.