28 U.S.C. § 2255 : US Code - Section 2255: Federal custody; remedies on motion attacking sentence

      (a) A prisoner in custody under sentence of a court established
    by Act of Congress claiming the right to be released upon the
    ground that the sentence was imposed in violation of the
    Constitution or laws of the United States, or that the court was
    without jurisdiction to impose such sentence, or that the sentence
    was in excess of the maximum authorized by law, or is otherwise
    subject to collateral attack, may move the court which imposed the
    sentence to vacate, set aside or correct the sentence.
      (b) Unless the motion and the files and records of the case
    conclusively show that the prisoner is entitled to no relief, the
    court shall cause notice thereof to be served upon the United
    States attorney, grant a prompt hearing thereon, determine the
    issues and make findings of fact and conclusions of law with
    respect thereto. If the court finds that the judgment was rendered
    without jurisdiction, or that the sentence imposed was not
    authorized by law or otherwise open to collateral attack, or that
    there has been such a denial or infringement of the constitutional
    rights of the prisoner as to render the judgment vulnerable to
    collateral attack, the court shall vacate and set the judgment
    aside and shall discharge the prisoner or resentence him or grant a
    new trial or correct the sentence as may appear appropriate.
      (c) A court may entertain and determine such motion without
    requiring the production of the prisoner at the hearing.
      (d) An appeal may be taken to the court of appeals from the order
    entered on the motion as from a final judgment on application for a
    writ of habeas corpus.
      (e) An application for a writ of habeas corpus in behalf of a
    prisoner who is authorized to apply for relief by motion pursuant
    to this section, shall not be entertained if it appears that the
    applicant has failed to apply for relief, by motion, to the court
    which sentenced him, or that such court has denied him relief,
    unless it also appears that the remedy by motion is inadequate or
    ineffective to test the legality of his detention.
      (f) A 1-year period of limitation shall apply to a motion under
    this section. The limitation period shall run from the latest of - 
        (1) the date on which the judgment of conviction becomes final;
        (2) the date on which the impediment to making a motion created
      by governmental action in violation of the Constitution or laws
      of the United States is removed, if the movant was prevented from
      making a motion by such governmental action;
        (3) the date on which the right asserted was initially
      recognized by the Supreme Court, if that right has been newly
      recognized by the Supreme Court and made retroactively applicable
      to cases on collateral review; or
        (4) the date on which the facts supporting the claim or claims
      presented could have been discovered through the exercise of due
      diligence.

      (g) Except as provided in section 408 of the Controlled
    Substances Act, in all proceedings brought under this section, and
    any subsequent proceedings on review, the court may appoint
    counsel, except as provided by a rule promulgated by the Supreme
    Court pursuant to statutory authority. Appointment of counsel under
    this section shall be governed by section 3006A of title 18.
      (h) A second or successive motion must be certified as provided
    in section 2244 by a panel of the appropriate court of appeals to
    contain - 
        (1) newly discovered evidence that, if proven and viewed in
      light of the evidence as a whole, would be sufficient to
      establish by clear and convincing evidence that no reasonable
      factfinder would have found the movant guilty of the offense; or
        (2) a new rule of constitutional law, made retroactive to cases
      on collateral review by the Supreme Court, that was previously
      unavailable.

-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139, Sec.
    114, 63 Stat. 105; Pub. L. 104-132, title I, Sec. 105, Apr. 24,
    1996, 110 Stat. 1220; Pub. L. 110-177, title V, Sec. 511, Jan. 7,
    2008, 121 Stat. 2545.)


-MISC1-
                       HISTORICAL AND REVISION NOTES                   

                                 1948 ACT                             
      This section restates, clarifies and simplifies the procedure in
    the nature of the ancient writ of error coram nobis. It provides an
    expeditious remedy for correcting erroneous sentences without
    resort to habeas corpus. It has the approval of the Judicial
    Conference of the United States. Its principal provisions are
    incorporated in H.R. 4233, Seventy-ninth Congress.

                                 1949 ACT                             
      This amendment conforms language of section 2255 of title 28,
    U.S.C., with that of section 1651 of such title and makes it clear
    that the section is applicable in the district courts in the
    Territories and possessions.

-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 408 of the Controlled Substances Act, referred to in
    subsec. (g), is classified to section 848 of Title 21, Food and
    Drugs.


-MISC2-
                                AMENDMENTS                            
      2008 - Pub. L. 110-177 designated first through eighth
    undesignated pars. as subsecs. (a) to (h), respectively.
      1996 - Pub. L. 104-132 inserted at end three new undesignated
    paragraphs beginning "A 1-year period of limitation", "Except as
    provided in section 408 of the Controlled Substances Act", and "A
    second or successive motion must be certified" and struck out
    second and fifth undesignated pars. providing, respectively, that
    "A motion for such relief may be made at any time." and "The
    sentencing court shall not be required to entertain a second or
    successive motion for similar relief on behalf of the same
    prisoner."
      1949 - Act May 24, 1949, substituted "court established by Act of
    Congress" for "court of the United States" in first par.

     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 AND FORMS
     GOVERNING PROCEEDINGS UNDER SECTIONS 2254 AND 2255 OF THIS TITLE
      Rules and forms governing proceedings under sections 2254 and
    2255 of this title proposed by Supreme Court order of Apr. 26,
    1976, effective 30 days after adjournment sine die of 94th
    Congress, or until and to the extent approved by Act of Congress,
    whichever is earlier, see section 2 of Pub. L. 94-349, set out as a
    note under section 2074 of this title.

      RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED STATES
                              DISTRICT COURTS


           (EFFECTIVE FEB. 1, 1977, AS AMENDED TO JAN. 7, 2011)       
    Rule                                                     
    1.          Scope.                                                
    2.          The Motion.                                           
    3.          Filing the Motion; Inmate Filing.                     
    4.          Preliminary Review.                                   
    5.          The Answer and the Reply.                             
    6.          Discovery.                                            
    7.          Expanding the Record.                                 
    8.          Evidentiary Hearing.                                  
    9.          Second or Successive Motions.                         
    10.         Powers of a Magistrate Judge.                         
    11.         Certificate of Appealability; Time to Appeal.         
    12.         Applicability of the Federal Rules of Civil Procedure
                 and the Federal Rules of Criminal Procedure.         

                             APPENDIX OF FORMS                         
      Motion Under 28 U.S.C. Sec. 2255 to Vacate, Set Aside, or Correct
    Sentence By a Person in Federal Custody.

         EFFECTIVE DATE OF RULES; EFFECTIVE DATE OF 1975 AMENDMENT     
      Rules, and the amendments thereto by Pub. L. 94-426, Sept. 28,
    1976, 90 Stat. 1334, effective with respect to petitions under
    section 2254 of this title and motions under section 2255 of this
    title filed on or after Feb. 1, 1977, see section 1 of Pub. L. 94-
    426, set out as a note under section 2074 of this title.

                               RULE 1. SCOPE                           
      These rules govern a motion filed in a United States district
    court under 28 U.S.C. Sec. 2255 by:
      (a) a person in custody under a judgment of that court who seeks
    a determination that:
        (1) the judgment violates the Constitution or laws of the
      United States;
        (2) the court lacked jurisdiction to enter the judgment;
        (3) the sentence exceeded the maximum allowed by law; or
        (4) the judgment or sentence is otherwise subject to collateral
      review; and

      (b) a person in custody under a judgment of a state court or
    another federal court, and subject to future custody under a
    judgment of the district court, who seeks a determination that:
        (1) future custody under a judgment of the district court would
      violate the Constitution or laws of the United States;
        (2) the district court lacked jurisdiction to enter the
      judgment;
        (3) the district court's sentence exceeded the maximum allowed
      by law; or
        (4) the district court's judgment or sentence is otherwise
      subject to collateral review.

    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)


                          ADVISORY COMMITTEE NOTE                      
      The basic scope of this postconviction remedy is prescribed by 28
    U.S.C. Sec. 2255. Under these rules the person seeking relief from
    federal custody files a motion to vacate, set aside, or correct
    sentence, rather than a petition for habeas corpus. This is
    consistent with the terminology used in section 2255 and indicates
    the difference between this remedy and federal habeas for a state
    prisoner. Also, habeas corpus is available to the person in federal
    custody if his "remedy by motion is inadequate or ineffective to
    test the legality of his detention."
      Whereas sections 2241-2254 (dealing with federal habeas corpus
    for those in state custody) speak of the district court judge
    "issuing the writ" as the operative remedy, section 2255 provides
    that, if the judge finds the movant's assertions to be meritorious,
    he "shall discharge the prisoner or resentence him or grant a new
    trial or correct the sentence as may appear appropriate." This is
    possible because a motion under Sec. 2255 is a further step in the
    movant's criminal case and not a separate civil action, as appears
    from the legislative history of section 2 of S. 20, 80th Congress,
    the provisions of which were incorporated by the same Congress in
    title 28 U.S.C. as Sec. 2255. In reporting S. 20 favorably the
    Senate Judiciary Committee said (Sen. Rep. 1526, 80th Cong. 2d
    Sess., p. 2):
      The two main advantages of such motion remedy over the present
    habeas corpus are as follows:
      First, habeas corpus is a separate civil action and not a further
    step in the criminal case in which petitioner is sentenced (Ex
    parte Tom Tong, 108 U.S. 556, 559 (1883)). It is not a
    determination of guilt or innocence of the charge upon which
    petitioner was sentenced. Where a prisoner sustains his right to
    discharge in habeas corpus, it is usually because some right - such
    as lack of counsel - has been denied which reflects no
    determination of his guilt or innocence but affects solely the
    fairness of his earlier criminal trial. Even under the broad power
    in the statute "to dispose of the party as law and justice require"
    (28 U.S.C.A., sec. 461), the court or judge is by no means in the
    same advantageous position in habeas corpus to do justice as would
    be so if the matter were determined in the criminal proceeding (see
    Medley, petitioner, 134 U.S. 160, 174 (1890)). For instance, the
    judge (by habeas corpus) cannot grant a new trial in the criminal
    case. Since the motion remedy is in the criminal proceeding, this
    section 2 affords the opportunity and expressly gives the broad
    powers to set aside the judgment and to "discharge the prisoner or
    resentence him or grant a new trial or correct the sentence as may
    appear appropriate."
      The fact that a motion under Sec. 2255 is a further step in the
    movant's criminal case rather than a separate civil action has
    significance at several points in these rules. See, e.g., advisory
    committee note to rule 3 (re no filing fee), advisory committee
    note to rule 4 (re availability of files, etc., relating to the
    judgment), advisory committee note to rule 6 (re availability of
    discovery under criminal procedure rules), advisory committee note
    to rule 11 (re no extension of time for appeal), and advisory
    committee not to rule 12 (re applicability of federal criminal
    rules). However, the fact that Congress has characterized the
    motion as a further step in the criminal proceedings does not mean
    that proceedings upon such a motion are of necessity governed by
    the legal principles which are applicable at a criminal trial
    regarding such matters as counsel, presence, confrontation, self-
    incrimination, and burden of proof.
      The challenge of decisions such as the revocation of probation or
    parole are not appropriately dealt with under 28 U.S.C. Sec. 2255,
    which is a continuation of the original criminal action. Other
    remedies, such as habeas corpus, are available in such situations.
      Although rule 1 indicates that these rules apply to a motion for
    a determination that the judgment was imposed "in violation of the
    . . . laws of the United States," the language of 28 U.S.C. Sec.
    2255, it is not the intent of these rules to define or limit what
    is encompassed within that phrase. See Davis v. United States, 417
    U.S. 333 (1974), holding that it is not true "that every asserted
    error of law can be raised on a Sec. 2255 motion," and that the
    appropriate inquiry is "whether the claimed error of law was a
    fundamental defect which inherently results in a complete
    miscarriage of justice,' and whether [i]t . . . present[s]
    exceptional circumstances where the need for the remedy afforded by
    the writ of habeas corpus is apparent.' "
      For a discussion of the "custody" requirement and the intended
    limited scope of this remedy, see advisory committee note to Sec.
    2254 rule 1.

                 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. The Committee made
    no changes to Rule 1.

                            RULE 2. THE MOTION                        
      (a) Applying for Relief. The application must be in the form of a
    motion to vacate, set aside, or correct the sentence.
      (b) Form. The motion must:
        (1) specify all the grounds for relief available to the moving
      party;
        (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 movant or by a
      person authorized to sign it for the movant.

      (c) Standard Form. The motion 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 moving
    parties without charge.
      (d) Separate Motions for Separate Judgments. A moving party who
    seeks relief from more than one judgment must file a separate
    motion covering each judgment.

    (As amended Pub. L. 94-426, Sec. 2(3), (4), Sept. 28, 1976, 90
    Stat. 1334; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 26, 2004, eff.
    Dec. 1, 2004.)


                          ADVISORY COMMITTEE NOTE                      
      Under these rules the application for relief is in the form of a
    motion rather than a petition (see rule 1 and advisory committee
    note). Therefore, there is no requirement that the movant name a
    respondent. This is consistent with 28 U.S.C. Sec. 2255. The United
    States Attorney for the district in which the judgment under attack
    was entered is the proper party to oppose the motion since the
    federal government is the movant's adversary of record.
      If the movant is attacking a federal judgment which will subject
    him to future custody, he must be in present custody (see rule 1
    and advisory committee note) as the result of a state or federal
    governmental action. He need not alter the nature of the motion by
    trying to include the government officer who presently has official
    custody of him as a psuedo-respondent, or third-party plaintiff, or
    other fabrication. The court hearing his motion attacking the
    future custody can exercise jurisdiction over those having him in
    present custody without the use of artificial pleading devices.
      There is presently a split among the courts as to whether a
    person currently in state custody may use a Sec. 2255 motion to
    obtain relief from a federal judgment under which he will be
    subjected to custody in the future. Negative, see Newton v. United
    States, 329 F.Supp. 90 (S.D. Texas 1971); affirmative, see Desmond
    v. The United States Board of Parole, 397 F.2d 386 (1st Cir. 1968),
    cert. denied, 393 U.S. 919 (1968); and Paalino v. United States,
    314 F.Supp. 875 (C.D.Cal. 1970). It is intended that these rules
    settle the matter in favor of the prisoner's being able to file a
    Sec. 2255 motion for relief under those circumstances. The proper
    district in which to file such a motion is the one in which is
    situated the court which rendered the sentence under attack.
      Under rule 35, Federal Rules of Criminal Procedure, the court may
    correct an illegal sentence or a sentence imposed in an illegal
    manner, or may reduce the sentence. This remedy should be used,
    rather than a motion under these Sec. 2255 rules, whenever
    applicable, but there is some overlap between the two proceedings
    which has caused the courts difficulty.
      The movant should not be barred from an appropriate remedy
    because he has misstyled his motion. See United States v. Morgan,
    346 U.S. 502, 505 (1954). The court should construe it as whichever
    one is proper under the circumstances and decide it on its merits.
    For a Sec. 2255 motion construed as a rule 35 motion, see Heflin v.
    United States, 358 U.S. 415 (1959); and United States v. Coke, 404
    F.2d 836 (2d Cir. 1968). For writ of error coram nobis treated as a
    rule 35 motion, see Hawkins v. United States, 324 F.Supp. 223
    (E.D.Texas, Tyler Division 1971). For a rule 35 motion treated as a
    Sec. 2255 motion, see Moss v. United States, 263 F.2d 615 (5th Cir.
    1959); Jones v. United States, 400 F.2d 892 (8th Cir. 1968), cert.
    denied 394 U.S. 991 (1969); and United States v. Brown, 413 F.2d
    878 (9th Cir. 1969), cert. denied, 397 U.S. 947 (1970).
      One area of difference between Sec. 2255 and rule 35 motions is
    that for the latter there is no requirement that the movant be "in
    custody." Heflin v. United States, 358 U.S. 415, 418, 422 (1959);
    Duggins v. United States, 240 F.2d 479, 483 (6th Cir. 1957).
    Compare with rule 1 and advisory committee note for Sec. 2255
    motions. The importance of this distinction has decreased since
    Peyton v. Rowe, 391 U.S. 54 (1968), but it might still make a
    difference in particular situations.
      A rule 35 motion is used to attack the sentence imposed, not the
    basis for the sentence. The court in Gilinsky v. United States, 335
    F.2d 914, 916 (9th Cir. 1964), stated, "a Rule 35 motion
    presupposes a valid conviction. * * * [C]ollateral attack on errors
    allegedly committed at trial is not permissible under Rule 35." By
    illustration the court noted at page 917: "a Rule 35 proceeding
    contemplates the correction of a sentence of a court having
    jurisdiction. * * * [J]urisdictional defects * * * involve a
    collateral attack, they must ordinarily be presented under 28
    U.S.C. Sec. 2255." In United States v. Semet, 295 F.Supp. 1084
    (E.D. Okla. 1968), the prisoner moved under rule 35 and Sec. 2255
    to invalidate the sentence he was serving on the grounds of his
    failure to understand the charge to which he pleaded guilty. The
    court said:
        As regards Defendant's Motion under Rule 35, said Motion must
      be denied as its presupposes a valid conviction of the offense
      with which he was charged and may be used only to attack the
      sentence. It may not be used to examine errors occurring prior to
      the imposition of sentence.

                            295 F.SUPP. AT 1085                        
    See also: Moss v. United States, 263 F.2d at 616; Duggins v. United
    States, 240 F. 2d at 484; Migdal v. United States, 298 F.2d 513,
    514 (9th Cir. 1961); Jones v. United States, 400 F.2d at 894;
    United States v. Coke, 404 F.2d at 847; and United States v. Brown,
    413 F.2d at 879.
      A major difficulty in deciding whether rule 35 or Sec. 2255 is
    the proper remedy is the uncertainty as to what is meant by an
    "illegal sentence." The Supreme Court dealt with this issue in Hill
    v. United States, 368 U.S. 424 (1962). The prisoner brought a Sec.
    2255 motion to vacate sentence on the ground that he had not been
    given a Fed.R.Crim. P. 32(a) opportunity to make a statement in his
    own behalf at the time of sentencing. The majority held this was
    not an error subject to collateral attack under Sec. 2255. The five-
    member majority considered the motion as one brought pursuant to
    rule 35, but denied relief, stating:
      [T]he narrow function of Rule 35 is to permit correction at any
      time of an illegal sentence, not to re-examine errors occurring
      at the trial or other proceedings prior to the imposition of
      sentence. The sentence in this case was not illegal. The
      punishment meted out was not in excess of that prescribed by the
      relevant statutes, multiple terms were not imposed for the same
      offense, nor were the terms of the sentence itself legally or
      constitutionally invalid in any other respect.

                              368 U.S. AT 430                          
    The four dissenters felt the majority definition of "illegal" was
    too narrow.
      [Rule 35] provides for the correction of an "illegal sentence"
      without regard to the reasons why that sentence is illegal and
      contains not a single word to support the Court's conclusion that
      only a sentence illegal by reason of the punishment it imposes is
      "illegal" within the meaning of the Rule. I would have thought
      that a sentence imposed in an illegal manner - whether the amount
      or form of the punishment meted out constitutes an additional
      violation of law or not - would be recognized as an "illegal
      sentence" under any normal reading of the English language.

                            368 U.S. AT 431-432                        
    The 1966 amendment of rule 35 added language permitting correction
    of a sentence imposed in an "illegal manner." However, there is a
    120-day time limit on a motion to do this, and the added language
    does not clarify the intent of the rule or its relation to Sec.
    2255.
      The courts have been flexible in considering motions under
    circumstances in which relief might appear to be precluded by Hill
    v. United States. In Peterson v. United States, 432 F.2d 545 (8th
    Cir. 1970), the court was confronted with a motion for reduction of
    sentence by a prisoner claiming to have received a harsher sentence
    than his codefendants because he stood trial rather than plead
    guilty. He alleged that this violated his constitutional right to a
    jury trial. The court ruled that, even though it was past the 120-
    day time period for a motion to reduce sentence, the claim was
    still cognizable under rule 35 as a motion to correct an illegal
    sentence.
      The courts have made even greater use of Sec. 2255 in these types
    of situations. In United States v. Lewis, 392 F.2d 440 (4th Cir.
    1968), the prisoner moved under Sec. 2255 and rule 35 for relief
    from a sentence he claimed was the result of the judge's
    misunderstanding of the relevant sentencing law. The court held
    that he could not get relief under rule 35 because it was past the
    120 days for correction of a sentence imposed in an illegal manner
    and under Hill v. United States it was not an illegal sentence.
    However, Sec. 2255 was applicable because of its "otherwise subject
    to collateral attack" language. The flaw was not a mere trial error
    relating to the finding of guilt, but a rare and unusual error
    which amounted to "exceptional circumstances" embraced in Sec.
    2255's words "collateral attack." See 368 U.S. at 444 for
    discussion of other cases allowing use of Sec. 2255 to attack the
    sentence itself in similar circumstances, especially where the
    judge has sentenced out of a misapprehension of the law.
      In United States v. McCarthy, 433 F.2d 591, 592 (1st Cir. 1970),
    the court allowed a prisoner who was past the time limit for a
    proper rule 35 motion to use Sec. 2255 to attack the sentence which
    he received upon a plea of guilty on the ground that it was induced
    by an unfulfilled promise of the prosecutor to recommend leniency.
    The court specifically noted that under Sec. 2255 this was a proper
    collateral attack on the sentence and there was no need to attack
    the conviction as well.
      The court in United States v. Malcolm, 432 F.2d 809, 814, 818 (2d
    Cir. 1970), allowed a prisoner to challenge his sentence under Sec.
    2255 without attacking the conviction. It held rule 35 inapplicable
    because the sentence was not illegal on its face, but the manner in
    which the sentence was imposed raised a question of the denial of
    due process in the sentencing itself which was cognizable under
    Sec. 2255.
      The flexible approach taken by the courts in the above cases
    seems to be the reasonable way to handle these situations in which
    rule 35 and Sec. 2255 appear to overlap. For a further discussion
    of this problem, see C. Wright, Federal Practice and Procedure;
    Criminal Secs. 581-587 (1969, Supp. 1975).
      See the advisory committee note to rule 2 of the Sec. 2254 rules
    for further discussion of the purposes and intent of rule 2 of
    these Sec. 2255 rules.

                              1982 AMENDMENT                          
      Subdivision (b). The amendment takes into account 28 U.S.C. Sec.
    1746, enacted after adoption of the Sec. 2255 rules. Section 1746
    provides that in lieu of an affidavit an unsworn statement may be
    given under penalty of perjury in substantially the following form
    if executed within the United States, its territories, possessions
    or commonwealths: "I declare (or certify, verify, or state) under
    penalty of perjury that the foregoing is true and correct. Executed
    on (date). (Signature)." The statute is "intended to encompass
    prisoner litigation," and the statutory alternative is especially
    appropriate in such cases because a notary might not be readily
    available. Carter v. Clark, 616 F.2d 228 (5th Cir. 1980). The Sec.
    2255 forms have been revised accordingly.

                 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(b)(5) has been amended by removing the requirement
    that the motion be signed personally by the moving party. Thus,
    under the amended rule the motion may be signed by [the] movant
    personally or by someone acting on behalf of the movant, assuming
    that the person is authorized to do so, for example, an attorney
    for the movant. The Committee envisions that the courts would apply
    third-party, or "next-friend," standing analysis in deciding
    whether the signer was actually authorized to sign the motion on
    behalf of the movant. See generally Whitmore v. Arkansas, 495 U.S.
    149 (1990) (discussion of requisites for "next friend" standing in
    habeas petitions). See also 28 U.S.C. Sec. 2242 (application for
    state habeas corpus relief may be filed by the person who is
    seeking relief, or by someone acting on behalf of that person).
      The language in new Rule 2(c) has been changed to reflect that a
    moving party 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 the current practice in
    some courts is that if the moving party first files a motion using
    the national form, that courts may ask the moving party to
    supplement it with the local form.
      Current Rule 2(d), which provided for returning an insufficient
    motion[,] has been deleted. The Committee believed that the
    approach in Federal Rule of Civil Procedure 5(e) was more
    appropriate for dealing with motions 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 moving
    party suffered no penalty, other than delay, if the motion was
    deemed insufficient. Now that a one-year statute of limitations
    applies to motions filed under Sec. 2255, see 28 U.S.C. Sec.
    2244(d)(1), the court's dismissal of a motion because it is not in
    proper form may pose a significant penalty for a moving party, who
    may not be able to file another motion within the one-year
    limitations period. Now, under revised Rule 3(b), the clerk is
    required to file a motion, even though it may otherwise fail to
    comply with the provisions in revised Rule 2(b). The Committee
    believed that the better procedure was to accept the defective
    motion and require the moving party to submit a corrected motion
    that conforms to Rule 2(b).
      Changes Made After Publication and Comments. The Committee
    changed Rule 2(b)(2) to read "state the facts" rather then [sic]
    "briefly summarize the facts." One commentator had written that the
    current language may actually mislead the petitioner and is also
    redundant.
      Rule 2(b)(4) was also modified to reflect that some motions may
    be printed using a word processing program.
      Finally, Rule 2(b)(5) was changed to emphasize that any person,
    other than the petitioner, who signs the petition must be
    authorized to do so.

                                AMENDMENTS                            
      1976 - Subd. (b). Pub. L. 94-426, Sec. 2(3), inserted
    "substantially" after "The motion shall be in", and struck out
    requirement that the motion follow the prescribed form.
      Subd. (d). Pub. L. 94-426, Sec. 2(4), inserted "substantially"
    after "district court does not", and struck out provision which
    permitted the clerk to return a motion for noncompliance without a
    judge so directing.

                 RULE 3. FILING THE MOTION; INMATE FILING             
      (a) Where to File; Copies. An original and two copies of the
    motion must be filed with the clerk.
      (b) Filing and Service. The clerk must file the motion and enter
    it on the criminal docket of the case in which the challenged
    judgment was entered. The clerk must then deliver or serve a copy
    of the motion on the United States attorney in that district,
    together with a notice of its filing.
      (c) Time to File. The time for filing a motion is governed by 28
    U.S.C. Sec. 2255 para. 6.
      (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                      
      There is no filing fee required of a movant under these rules.
    This is a change from the practice of charging $15 and is done to
    recognize specifically the nature of a Sec. 2255 motion as being a
    continuation of the criminal case whose judgment is under attack.
      The long-standing practice of requiring a $15 filing fee has
    followed from 28 U.S.C. Sec. 1914(a) whereby "parties instituting
    any civil action * * * pay a filing fee of $15, except that on an
    application for a writ of habeas corpus the filing fee shall be
    $5." This has been held to apply to a proceeding under Sec. 2255
    despite the rationale that such a proceeding is a motion and thus a
    continuation of the criminal action. (See note to rule 1.)
        A motion under Section 2255 is a civil action and the clerk has
      no choice but to charge a $15.00 filing fee unless by leave of
      court it is filed in forma pauperis.
      McCune v. United States, 406 F.2d 417, 419 (6th Cir. 1969).
      Although the motion has been considered to be a new civil action
    in the nature of habeas corpus for filing purposes, the reduced fee
    for habeas has been held not applicable. The Tenth Circuit
    considered the specific issue in Martin v. United States, 273 F.2d
    775 (10th Cir. 1960), cert. denied, 365 U.S. 853 (1961), holding
    that the reduced fee was exclusive to habeas petitions.
        Counsel for Martin insists that, if a docket fee must be paid,
      the amount is $5 rather than $15 and bases his contention on the
      exception contained in 28 U.S.C. Sec. 1914 that in habeas corpus
      the fee is $5. This reads into Sec. 1914 language which is not
      there. While an application under Sec. 2255 may afford the same
      relief as that previously obtainable by habeas corpus, it is not
      a petition for a writ of habeas corpus. A change in Sec. 1914
      must come from Congress.

                              273 F.2D AT 778                          
      Although for most situations Sec. 2255 is intended to provide to
    the federal prisoner a remedy equivalent to habeas corpus as used
    by state prisoners, there is a major distinction between the two.
    Calling a Sec. 2255 request for relief a motion rather than a
    petition militates toward charging no new filing fee, not an
    increased one. In the absence of convincing evidence to the
    contrary, there is no reason to suppose that Congress did not mean
    what it said in making a Sec. 2255 action a motion. Therefore, as
    in other motions filed in a criminal action, there is no
    requirement of a filing fee. It is appropriate that the present
    situation of docketing a Sec. 2255 motion as a new action and
    charging a $15 filing fee be remedied by the rule when the whole
    question of Sec. 2255 motions is thoroughly thought through and
    organized.
      Even though there is no need to have a forma pauperis affidavit
    to proceed with the action since there is no requirement of a fee
    for filing the motion the affidavit remains attached to the form to
    be supplied potential movants. Most such movants are indigent, and
    this is a convenient way of getting this into the official record
    so that the judge may appoint counsel, order the government to pay
    witness fees, allow docketing of an appeal, and grant any other
    rights to which an indigent is entitled in the course of a Sec.
    2255 motion, when appropriate to the particular situation, without
    the need for an indigency petition and adjudication at such later
    point in the proceeding. This should result in a streamlining of
    the process to allow quicker disposition of these motions.
      For further discussion of this rule, see the advisory committee
    note to rule 3 of the Sec. 2254 rules.

                 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 indicated below.
      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 moving party
    suffered no penalty, other than delay, if the petition was deemed
    insufficient. That Act, however, added a one-year statute of
    limitations to motions filed under Sec. 2255, see 28 U.S.C. Sec.
    2244(d)(1). Thus, a court's dismissal of a defective motion may
    pose a significant penalty for a moving party who may not be able
    to file a corrected motion within the one-year limitation period.
    The Committee believed that the better procedure was to accept the
    defective motion and require the moving party to submit a corrected
    motion that conforms to Rule 2. Thus, revised Rule 3(b) requires
    the clerk to file a motion, even though it may otherwise fail to
    comply with Rule 2.
      Revised Rule 3(c), which sets out a specific reference to 28
    U.S.C. Sec. 2255, paragraph 6, is new and has been added to put
    moving parties on notice that a one-year statute of limitations
    applies to motions 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.,
    Dunlap v. United States, 250 F.3d 1001, 1004-07 (6th Cir. 2001);
    Moore v. United States, 173 F.3d 1131, 1133-35 (8th Cir. 1999);
    Sandvik v. United States, 177 F.3d 1269, 1270-72 (11th Cir. 1999).
    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
    motion 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
    modified the Committee Note to reflect that the clerk must file a
    motion, 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                    
      (a) Referral to a Judge. The clerk must promptly forward the
    motion to the judge who conducted the trial and imposed sentence
    or, if the judge who imposed sentence was not the trial judge, to
    the judge who conducted the proceedings being challenged. If the
    appropriate judge is not available, the clerk must forward the
    motion to a judge under the court's assignment procedure.
      (b) Initial Consideration by the Judge. The judge who receives
    the motion must promptly examine it. If it plainly appears from the
    motion, any attached exhibits, and the record of prior proceedings
    that the moving party is not entitled to relief, the judge must
    dismiss the motion and direct the clerk to notify the moving party.
    If the motion is not dismissed, the judge must order the United
    States attorney to file an answer, motion, or other response within
    a fixed time, or to take other action the judge may order.

    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)


                          ADVISORY COMMITTEE NOTE                      
      Rule 4 outlines the procedure for assigning the motion to a
    specific judge of the district court and the options available to
    the judge and the government after the motion is properly filed.
      The long-standing majority practice in assigning motions made
    pursuant to Sec. 2255 has been for the trial judge to determine the
    merits of the motion. In cases where the Sec. 2255 motion is
    directed against the sentence, the merits have traditionally been
    decided by the judge who imposed sentence. The reasoning for this
    was first noted in Currell v. United States, 173 F.2d 348, 348-349
    (4th Cir. 1949):
        Complaint is made that the judge who tried the case passed upon
      the motion. Not only was there no impropriety in this, but it is
      highly desirable in such cases that the motions be passed on by
      the judge who is familiar with the facts and circumstances
      surrounding the trial, and is consequently not likely to be
      misled by false allegations as to what occurred.
    This case, and its reasoning, has been almost unanimously endorsed
    by other courts dealing with the issue.
      Commentators have been critical of having the motion decided by
    the trial judge. See Developments in the Law - Federal Habeas
    Corpus, 83 Harv.L.Rev. 1038, 1206-1208 (1970).
      [T]he trial judge may have become so involved with the decision
      that it will be difficult for him to review it objectively.
      Nothing in the legislative history suggests that "court" refers
      to a specific judge, and the procedural advantages of section
      2255 are available whether or not the trial judge presides at the
      hearing.
        The theory that Congress intended the trial judge to preside at
      a section 2255 hearing apparently originated in Carvell v. United
      States, 173 F.2d 348 (4th Cir. 1949) (per curiam), where the
      panel of judges included Chief Judge Parker of the Fourth
      Circuit, chairman of the Judicial Conference committee which
      drafted section 2255. But the legislative history does not
      indicate that Congress wanted the trial judge to preside. Indeed
      the advantages of section 2255 can all be achieved if the case is
      heard in the sentencing district, regardless of which judge hears
      it. According to the Senate committee report the purpose of the
      bill was to make the proceeding a part of the criminal action so
      the court could resentence the applicant, or grant him a new
      trial. (A judge presiding over a habeas corpus action does not
      have these powers.) In addition, Congress did not want the cases
      heard in the district of confinement because that tended to
      concentrate the burden on a few districts, and made it difficult
      for witnesses and records to be produced.

                        83 HARV.L.REV. AT 1207-1208                    
      The Court of Appeals for the First Circuit has held that a judge
    other than the trial judge should rule on the 2255 motion. See
    Halliday v. United States, 380 F.2d 270 (1st Cir. 1967).
      There is a procedure by which the movant can have a judge other
    than the trial judge decide his motion in courts adhering to the
    majority rule. He can file an affidavit alleging bias in order to
    disqualify the trial judge. And there are circumstances in which
    the trial judge will, on his own, disqualify himself. See, e.g.,
    Webster v. United States, 330 F.Supp. 1080 (1972). However, there
    has been some questioning of the effectiveness of this procedure.
    See Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev.
    1038, 1200-1207 (1970).
      Subdivision (a) adopts the majority rule and provides that the
    trial judge, or sentencing judge if different and appropriate for
    the particular motion, will decide the motion made pursuant to
    these rules, recognizing that, under some circumstances, he may
    want to disqualify himself. A movant is not without remedy if he
    feels this is unfair to him. He can file an affidavit of bias. And
    there is the right to appellate review if the trial judge refuses
    to grant his motion. Because the trial judge is thoroughly familiar
    with the case, there is obvious administrative advantage in giving
    him the first opportunity to decide whether there are grounds for
    granting the motion.
      Since the motion is part of the criminal action in which was
    entered the judgment to which it is directed, the files, records,
    transcripts, and correspondence relating to that judgment are
    automatically available to the judge in his consideration of the
    motion. He no longer need order them incorporated for that purpose.
      Rule 4 has its basis in Sec. 2255 (rather than 28 U.S.C. Sec.
    2243 in the corresponding habeas corpus rule) which does not have a
    specific time limitation as to when the answer must be made. Also,
    under Sec. 2255, the United States Attorney for the district is the
    party served with the notice and a copy of the motion and required
    to answer (when appropriate). Subdivision (b) continues this
    practice since there is no respondent involved in the motion
    (unlike habeas) and the United States Attorney, as prosecutor in
    the case in question, is the most appropriate one to defend the
    judgment and oppose the motion.
      The judge has discretion to require an answer or other
    appropriate response from the United States Attorney. See advisory
    committee note to rule 4 of the Sec. 2254 rules.

                 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.
      The amended rule reflects that the response to a Section 2255
    motion may be a motion to dismiss or some other response.
      Changes Made After Publication and Comments. The Committee
    modified Rule 4 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 Sec. 2255 motion. 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
    motion unless a judge so orders.
      (b) Contents. The answer must address the allegations in the
    motion. In addition, it must state whether the moving party has
    used any other federal remedies, including any prior post-
    conviction motions under these rules or any previous rules, and
    whether the moving party received an evidentiary hearing.
      (c) Records of Prior Proceedings. If the answer refers to briefs
    or transcripts of the prior proceedings that are not available in
    the court's records, the judge must order the government to furnish
    them within a reasonable time that will not unduly delay the
    proceedings.
      (d) Reply. The moving party 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                      
      Unlike the habeas corpus statutes (see 28 U.S.C. Secs. 2243,
    2248) Sec. 2255 does not specifically call for a return or answer
    by the United States Attorney or set any time limits as to when one
    must be submitted. The general practice, however, if the motion is
    not summarily dismissed, is for the government to file an answer to
    the motion as well as counter-affidavits, when appropriate. Rule 4
    provides for an answer to the motion by the United States Attorney,
    and rule 5 indicates what its contents should be.
      There is no requirement that the movant exhaust his remedies
    prior to seeking relief under Sec. 2255. However, the courts have
    held that such a motion is inappropriate if the movant is
    simultaneously appealing the decision.
        We are of the view that there is no jurisdictional bar to the
      District Court's entertaining a Section 2255 motion during the
      pendency of a direct appeal but that the orderly administration
      of criminal law precludes considering such a motion absent
      extraordinary circumstances.

        WOMACK V. UNITED STATES, 395 F.2D 630, 631 (D.C.CIR. 1968)    
    Also see Masters v. Eide, 353 F.2d 517 (8th Cir. 1965). The answer
    may thus cut short consideration of the motion if it discloses the
    taking of an appeal which was omitted from the form motion filed by
    the movant.
      There is nothing in Sec. 2255 which corresponds to the Sec. 2248
    requirement of a traverse to the answer. Numerous cases have held
    that the government's answer and affidavits are not conclusive
    against the movant, and if they raise disputed issues of fact a
    hearing must be held. Machibroda v. United States, 368 U.S. 487,
    494, 495 (1962); United States v. Salerno, 290 F.2d 105, 106 (2d
    Cir. 1961); Romero v. United States, 327 F.2d 711, 712 (5th Cir.
    1964); Scott v. United States, 349 F.2d 641, 642, 643 (6th Cir.
    1965); Schiebelhut v. United States, 357 F.2d 743, 745 (6th Cir.
    1966); and Del Piano v. United States, 362 F.2d 931, 932, 933 (3d
    Cir. 1966). None of these cases make any mention of a traverse by
    the movant to the government's answer. As under rule 5 of the Sec.
    2254 rules, there is no intention here that such a traverse be
    required, except under special circumstances. See advisory
    committee note to rule 9.
      Subdivision (b) provides for the government to supplement its
    answers with appropriate copies of transcripts or briefs if for
    some reason the judge does not already have them under his control.
    This is because the government will in all probability have easier
    access to such papers than the movant, and it will conserve the
    court's time to have the government produce them rather than the
    movant, who would in most instances have to apply in forma pauperis
    for the government to supply them for him anyway.
      For further discussion, see the advisory committee note to rule 5
    of the Sec. 2254 rules.

                 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.
      Revised Rule 5(a), which provides that the respondent is not
    required to file an answer to the motion, 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 motion. But revised Rule 4(b)
    contemplates that practice and has been changed to reflect the view
    that if the court does not dismiss the motion, it may require (or
    permit) the respondent to file a motion.
      Finally, revised Rule 5(d) adopts the practice in some
    jurisdictions giving the movant 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 movant'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 motion 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.
      Finally, the Committee changed the Note to address the use of the
    term "traverse," a point raised by one of the commentators on the
    proposed rule.

                             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
    Criminal Procedure or Civil Procedure, or in accordance with the
    practices and principles of law. If necessary for effective
    discovery, the judge must appoint an attorney for a moving party
    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 government is granted leave to
    take a deposition, the judge may require the government to pay the
    travel expenses, subsistence expenses, and fees of the moving
    party's attorney to attend the deposition.