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 FEB. 1, 1977, AS AMENDED TO JAN. 3, 2012)       
    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.         Certificate of Appealability; Time to Appeal.         
    12.         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 14 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; Mar. 26, 2009, eff.
    Dec. 1, 2009.)


                          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).

                 COMMITTEE NOTES ON RULES - 2009 AMENDMENT             
      The time set in the former rule at 10 days has been revised to 14
    days. See the Committee Note to Federal Rules of Criminal Procedure
    45(a).

                         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. CERTIFICATE OF APPEALABILITY; TIME TO APPEAL       
      (a) Certificate of Appealability. The district court must issue
    or deny a certificate of appealability when it enters a final order
    adverse to the applicant. Before entering the final order, the
    court may direct the parties to submit arguments on whether a
    certificate should issue. If the court issues a certificate, the
    court must state the specific issue or issues that satisfy the
    showing required by 28 U.S.C. Sec. 2253(c)(2). If the court denies
    a certificate, the parties may not appeal the denial but may seek a
    certificate from the court of appeals under Federal Rule of
    Appellate Procedure 22. A motion to reconsider a denial does not
    extend the time to appeal.
      (b) Time to Appeal. Federal Rule of Appellate Procedure 4(a)
    governs the time to appeal an order entered under these rules. A
    timely notice of appeal must be filed even if the district court
    issues a certificate of appealability.

    (As added Mar. 26, 2009, eff. Dec. 1, 2009.)


                      COMMITTEE NOTES ON RULES - 2009                  
      Subdivision (a). As provided in 28 U.S.C. Sec. 2253(c), an
    applicant may not appeal to the court of appeals from a final order
    in a proceeding under Sec. 2254 unless a judge issues a certificate
    of appealability (COA), identifying the specific issues for which
    the applicant has made a substantial showing of a denial of
    constitutional right. New Rule 11(a) makes the requirements
    concerning COAs more prominent by adding and consolidating them in
    the appropriate rule of the Rules Governing Sec. 2254 Cases in the
    United States District Courts. Rule 11(a) also requires the
    district judge to grant or deny the certificate at the time a final
    order is issued. See 3d Cir. R. 22.2, 111.3. This will ensure
    prompt decision making when the issues are fresh, rather than
    postponing consideration of the certificate until after a notice of
    appeal is filed. These changes will expedite proceedings, avoid
    unnecessary remands, and help inform the applicant's decision
    whether to file a notice of appeal.
      Subdivision (b). The new subdivision is designed to direct
    parties to the appropriate rule governing the timing of the notice
    of appeal and make it clear that the district court's grant of a
    COA does not eliminate the need to file a notice of appeal.
      Changes Made to Proposed Amendment Released for Public Comment.
    In response to public comments, a sentence was added stating that
    prior to the entry of the final order the district court may direct
    the parties to submit arguments on whether or not a certificate
    should issue. This allows a court in complex cases (such as death
    penalty cases with numerous claims) to solicit briefing that might
    narrow the issues for appeal. For purposes of clarification, two
    sentences were added at the end of subdivision (a) stating that (1)
    although the district court's denial of a certificate is not
    appealable, a certificate may be sought in the court of appeals,
    and (2) a motion for reconsideration of a denial of a certificate
    does not extend the time to appeal.
      Finally, a new subdivision (b) was added to mirror the
    information provided in subdivision (b) of Rule 11 of the Rules
    Governing Sec. 2255 Proceedings, directing petitioners to Rule 4 of
    the appellate rules and indicating that notice of appeal must be
    filed even if a COA is issued.
      Minor changes were also made to conform to style conventions.

                            REFERENCES IN TEXT                        
      The Federal Rules of Appellate Procedure, referred to in text,
    are set out in the Appendix to this title.

      RULE 12. 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; Mar. 26, 2009, eff.
    Dec. 1, 2009.)


                          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.

                 COMMITTEE NOTES ON RULES - 2009 AMENDMENT             
      The amendment renumbers current Rule 11 to accommodate the new
    rule on certificates of appealability.

                            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                         

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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 [ABROGATED APR. 30, 2007, EFF. DEC. 1, 2007.] 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.