§ 2254. — State custody; remedies in Federal courts.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC2254]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART VI--PARTICULAR PROCEEDINGS
CHAPTER 153--HABEAS CORPUS
Sec. 2254. State custody; remedies in Federal courts
(a) The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
(b)(1) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not be
granted unless it appears that--
(A) the applicant has exhausted the remedies available in the
courts of the State; or
(B)(i) there is an absence of available State corrective
process; or
(ii) circumstances exist that render such process ineffective to
protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion
requirement or be estopped from reliance upon the requirement unless the
State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this
section, if he has the right under the law of the State to raise, by any
available procedure, the question presented.
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits in
State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
(e)(1) In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a
claim in State court proceedings, the court shall not hold an
evidentiary hearing on the claim unless the applicant shows that--
(A) the claim relies on--
(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.
(f) If the applicant challenges the sufficiency of the evidence
adduced in such State court proceeding to support the State court's
determination of a factual issue made therein, the applicant, if able,
shall produce that part of the record pertinent to a determination of
the sufficiency of the evidence to support such determination. If the
applicant, because of indigency or other reason is unable to produce
such part of the record, then the State shall produce such part of the
record and the Federal court shall direct the State to do so by order
directed to an appropriate State official. If the State cannot provide
such pertinent part of the record, then the court shall determine under
the existing facts and circumstances what weight shall be given to the
State court's factual determination.
(g) A copy of the official records of the State court, duly
certified by the clerk of such court to be a true and correct copy of a
finding, judicial opinion, or other reliable written indicia showing
such a factual determination by the State court shall be admissible in
the Federal court proceeding.
(h) Except as provided in section 408 of the Controlled Substances
Act, in all proceedings brought under this section, and any subsequent
proceedings on review, the court may appoint counsel for an applicant
who is or becomes financially unable to afford counsel, except as
provided by a rule promulgated by the Supreme Court pursuant to
statutory authority. Appointment of counsel under this section shall be
governed by section 3006A of title 18.
(i) The ineffectiveness or incompetence of counsel during Federal or
State collateral post-conviction proceedings shall not be a ground for
relief in a proceeding arising under section 2254.
(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).
Section Referred to in Other Sections
This section is referred to in sections 2244, 2261, 2262, 2263,
2264, 2266 of this title; title 18 section 3006A; title 21 section 848.
Approval and Effective Date of Rules Governing Section 2254 Cases and
Section 2255 Proceedings for United States District Courts
Pub. L. 94-426, Sec. 1, Sept. 28, 1976, 90 Stat. 1334, provided:
``That the rules governing section 2254 cases in the United States
district courts and the rules governing section 2255 proceedings for the
United States district courts, as proposed by the United States Supreme
Court, which were delayed by the Act entitled `An Act to delay the
effective date of certain proposed amendments to the Federal Rules of
Criminal Procedure and certain other rules promulgated by the United
States Supreme Court' (Public Law 94-349), are approved with the
amendments set forth in section 2 of this Act and shall take effect as
so amended, with respect to petitions under section 2254 and motions
under section 2255 of title 28 of the United States Code filed on or
after February 1, 1977.''
Postponement of Effective Date of Proposed Rules Governing Proceedings
Under Sections 2254 and 2255 of this Title
Rules and forms governing proceedings under sections 2254 and 2255
of this title proposed by Supreme Court order of Apr. 26, 1976,
effective 30 days after adjournment sine die of 94th Congress, or until
and to the extent approved by Act of Congress, whichever is earlier, see
section 2 of Pub. L. 94-349, set out as a note under section 2074 of
this title.
RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS
(Effective February 1, 1977, as amended to January 22, 2002)
Rule
1. Scope of rules.
2. Petition.
3. Filing petition.
4. Preliminary consideration by judge.
5. Answer; contents.
6. Discovery.
7. Expansion of record.
8. Evidentiary hearing.
9. Delayed or successive petitions.
10. Powers of magistrates.
11. Federal Rules of Civil Procedure; extent of applicability.
APPENDIX OF FORMS
Model form for use in applications for habeas corpus under 28 U.S.C.
Sec. 2254.
Model form for use in 28 U.S.C. Sec. 2254 cases involving a Rule 9
issue.
Effective Date of Rules; Effective Date of 1975 Amendment
Rules governing Section 2254 cases, and the amendments thereto by
Pub. L. 94-426, Sept. 28, 1976, 90 Stat. 1334, effective with respect to
petitions under section 2254 of this title and motions under section
2255 of this title filed on or after Feb. 1, 1977, see section 1 of Pub.
L. 94-426, set out as a note above.
Rule 1. Scope of Rules
(a) Applicable to cases involving custody pursuant to a judgment of
a state court. These rules govern the procedure in the United States
district courts on applications under 28 U.S.C. Sec. 2254:
(1) by a person in custody pursuant to a judgment of a state
court, for a determination that such custody is in violation of the
Constitution, laws, or treaties of the United States; and
(2) by a person in custody pursuant to a judgment of either a
state or a federal court, who makes application for a determination
that custody to which he may be subject in the future under a
judgment of a state court will be in violation of the Constitution,
laws, or treaties of the United States.
(b) Other situations. In applications for habeas corpus in cases not
covered by subdivision (a), these rules may be applied at the discretion
of the United States district court.
Advisory Committee Note
Rule 1 provides that the habeas corpus rules are applicable to
petitions by persons in custody pursuant to a judgment of a state court.
See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Whether the rules
ought to apply to other situations (e.g., person in active military
service, Glazier v. Hackel, 440 F.2d 592 (9th Cir. 1971); or a reservist
called to active duty but not reported, Hammond v. Lenfest, 398 F.2d 705
(2d Cir. 1968)) is left to the discretion of the court.
The basic scope of habeas corpus is prescribed by statute. 28 U.S.C.
Sec. 2241(c) provides that the ``writ of habeas corpus shall not extend
to a prisoner unless * * * (h)e is in custody in violation of the
Constitution.'' 28 U.S.C. Sec. 2254 deals specifically with state
custody, providing that habeas corpus shall apply only ``in behalf of a
person in custody pursuant to a judgment of a state court * * *.''
In Preiser v. Rodriguez, supra, the court said: ``It is clear . .
. that the essence of habeas corpus is an attack by a person in custody
upon the legality of that custody, and that the traditional function of
the writ is to secure release from illegal custody.'' 411 U.S. at 484.
Initially the Supreme Court held that habeas corpus was appropriate
only in those situations in which petitioner's claim would, if upheld,
result in an immediate release from a present custody. McNally v. Hill,
293 U.S. 131 (1934). This was changed in Peyton v. Rowe, 391 U.S. 54
(1968), in which the court held that habeas corpus was a proper way to
attack a consecutive sentence to be served in the future, expressing the
view that consecutive sentences resulted in present custody under both
judgments, not merely the one imposing the first sentence. This view was
expanded in Carafas v. LaVallee, 391 U.S. 234 (1968), to recognize the
propriety of habeas corpus in a case in which petitioner was in custody
when the petition had been originally filed but had since been
unconditionally released from custody.
See also Preiser v. Rodriguez, 411 U.S. at 486 et seq.
Since Carafas, custody has been construed more liberally by the
courts so as to make a Sec. 2255 motion or habeas corpus petition proper
in more situations. ``In custody'' now includes a person who is: on
parole, Jones v. Cunningham, 371 U.S. 236 (1963); at large on his own
recognizance but subject to several conditions pending execution of his
sentence, Hensley v. Municipal Court, 411 U.S. 345 (1973); or released
on bail after conviction pending final disposition of his case,
Lefkowitz v. Newsome, 95 S.Ct. 886 (1975). See also United States v. Re,
372 F.2d 641 (2d Cir.), cert. denied, 388 U.S. 912 (1967) (on
probation); Walker v. North Carolina, 262 F.Supp. 102 (W.D.N.C. 1966),
aff'd per curiam, 372 F.2d 129 (4th Cir.), cert. denied, 388 U.S. 917
(1967) (recipient of a conditionally suspended sentence); Burris v.
Ryan, 397 F.2d 553 (7th Cir. 1968); Marden v. Purdy, 409 F.2d 784 (5th
Cir. 1969) (free on bail); United States ex rel. Smith v. Dibella, 314
F.Supp. 446 (D.Conn. 1970) (release on own recognizance); Choung v.
California, 320 F.Supp. 625 (E.D.Cal. 1970) (federal stay of state court
sentence); United States ex rel. Meadows v. New York, 426 F.2d 1176 (2d
Cir. 1970), cert. denied, 401 U.S. 941 (1971) (subject to parole
detainer warrant); Capler v. City of Greenville, 422 F.2d 299 (5th Cir.
1970) (released on appeal bond); Glover v. North Carolina, 301 F.Supp.
364 (E.D.N.C. 1969) (sentence served, but as convicted felon
disqualified from engaging in several activities).
The courts are not unanimous in dealing with the above situations,
and the boundaries of custody remain somewhat unclear. In Morgan v.
Thomas, 321 F.Supp. 565 (S.D.Miss. 1970), the court noted:
It is axiomatic that actual physical custody or restraint is not
required to confer habeas jurisdiction. Rather, the term is
synonymous with restraint of liberty. The real question is how much
restraint of one's liberty is necessary before the right to apply
for the writ comes into play. * * *
It is clear however, that something more than moral restraint is
necessary to make a case for habeas corpus.
321 F.Supp. at 573
Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968), reviewed prior
``custody'' doctrine and reaffirmed a generalized flexible approach to
the issue. In speaking about 28 U.S.C. Sec. 2241, the first section in
the habeas corpus statutes, the court said:
While the language of the Act indicates that a writ of habeas
corpus is appropriate only when a petitioner is ``in custody,'' * *
* the Act ``does not attempt to mark the boundaries of `custody' nor
in any way other than by use of that word attempt to limit the
situations in which the writ can be used.'' * * * And, recent
Supreme Court decisions have made clear that ``[i]t [habeas corpus]
is not now and never has been a static, narrow, formalistic remedy;
its scope has grown to achieve its grand purpose--the protection of
individuals against erosion of their right to be free from wrongful
restraints upon their liberty.'' * * * ``[B]esides physical
imprisonment, there are other restraints on a man's liberty,
restraints not shared by the public generally, which have been
thought sufficient in the English-speaking world to support the
issuance of habeas corpus.''
398 F.2d at 710-711
There is, as of now, no final list of the situations which are
appropriate for habeas corpus relief. It is not the intent of these
rules or notes to define or limit ``custody.''
It is, however, the view of the Advisory Committee that claims of
improper conditions of custody or confinement (not related to the
propriety of the custody itself), can better be handled by other means
such as 42 U.S.C. Sec. 1983 and other related statutes. In Wilwording v.
Swanson, 404 U.S. 249 (1971), the court treated a habeas corpus petition
by a state prisoner challenging the conditions of confinement as a claim
for relief under 42 U.S.C. Sec. 1983, the Civil Rights Act. Compare
Johnson v. Avery, 393 U.S. 483 (1969).
The distinction between duration of confinement and conditions of
confinement may be difficult to draw. Compare Preiser v. Rodriguez, 411
U.S. 475 (1973), with Clutchette v. Procunier, 497 F.2d 809 (9th Cir.
1974), modified, 510 F.2d 613 (1975).
Rule 2. Petition
(a) Applicants in present custody. If the applicant is presently in
custody pursuant to the state judgment in question, the application
shall be in the form of a petition for a writ of habeas corpus in which
the state officer having custody of the applicant shall be named as
respondent.
(b) Applicants subject to future custody. If the applicant is not
presently in custody pursuant to the state judgment against which he
seeks relief but may be subject to such custody in the future, the
application shall be in the form of a petition for a writ of habeas
corpus with an added prayer for appropriate relief against the judgment
which he seeks to attack. In such a case the officer having present
custody of the applicant and the attorney general of the state in which
the judgment which he seeks to attack was entered shall each be named as
respondents.
(c) Form of petition. The petition shall be in substantially the
form annexed to these rules, except that any district court may by local
rule require that petitions filed with it shall be in a form prescribed
by the local rule. Blank petitions in the prescribed form shall be made
available without charge by the clerk of the district court to
applicants upon their request. It shall specify all the grounds for
relief which are available to the petitioner and of which he has or by
the exercise of reasonable diligence should have knowledge and shall set
forth in summary form the facts supporting each of the grounds thus
specified. It shall also state the relief requested. The petition shall
be typewritten or legibly handwritten and shall be signed under penalty
of perjury by the petitioner.
(d) Petition to be directed to judgments of one court only. A
petition shall be limited to the assertion of a claim for relief against
the judgment or judgments of a single state court (sitting in a county
or other appropriate political subdivision). If a petitioner desires to
attack the validity of the judgments of two or more state courts under
which he is in custody or may be subject to future custody, as the case
may be, he shall do so by separate petitions.
(e) Return of insufficient petition. If a petition received by the
clerk of a district court does not substantially comply with the
requirements of rule 2 or rule 3, it may be returned to the petitioner,
if a judge of the court so directs, together with a statement of the
reason for its return. The clerk shall retain a copy of the petition.
(As amended Pub. L. 94-426, Sec. 2(1), (2), Sept. 28, 1976, 90 Stat.
1334; Apr. 28, 1982, eff. Aug. 1, 1982.)
Advisory Committee Note
Rule 2 describes the requirements of the actual petition, including
matters relating to its form, contents, scope, and sufficiency. The rule
provides more specific guidance for a petitioner and the court than 28
U.S.C. Sec. 2242, after which it is patterned.
Subdivision (a) provides that an applicant challenging a state
judgment, pursuant to which he is presently in custody, must make his
application in the form of a petition for a writ of habeas corpus. It
also requires that the state officer having custody of the applicant be
named as respondent. This is consistent with 28 U.S.C. Sec. 2242, which
says in part, ``[Application for a writ of habeas corpus] shall allege *
* * the name of the person who has custody over [the applicant] * * *.''
The proper person to be served in the usual case is either the warden of
the institution in which the petitioner is incarcerated (Sanders v.
Bennett, 148 F.2d 19 (D.C.Cir. 1945)) or the chief officer in charge of
state penal institutions.
Subdivision (b) prescribes the procedure to be used for a petition
challenging a judgment under which the petitioner will be subject to
custody in the future. In this event the relief sought will usually not
be released from present custody, but rather for a declaration that the
judgment being attacked is invalid. Subdivision (b) thus provides for a
prayer for ``appropriate relief.'' It is also provided that the attorney
general of the state of the judgment as well as the state officer having
actual custody of the petitioner shall be named as respondents. This is
appropriate because no one will have custody of the petitioner in the
state of the judgment being attacked, and the habeas corpus action will
usually be defended by the attorney general. The attorney general is in
the best position to inform the court as to who the proper party
respondent is. If it is not the attorney general, he can move for a
substitution of party.
Since the concept of ``custody'' requisite to the consideration of a
petition for habeas corpus has been enlarged significantly in recent
years, it may be worthwhile to spell out the various situations which
might arise and who should be named as respondent(s) for each situation.
(1) The applicant is in jail, prison, or other actual physical
restraint due to the state action he is attacking. The named respondent
shall be the state officer who has official custody of the petitioner
(for example, the warden of the prison).
(2) The applicant is on probation or parole due to the state
judgment he is attacking. The named respondents shall be the particular
probation or parole officer responsible for supervising the applicant,
and the official in charge of the parole or probation agency, or the
state correctional agency, as appropriate.
(3) The applicant is in custody in any other manner differing from
(1) and (2) above due to the effects of the state action he seeks relief
from. The named respondent should be the attorney general of the state
wherein such action was taken.
(4) The applicant is in jail, prison, or other actual physical
restraint but is attacking a state action which will cause him to be
kept in custody in the future rather than the government action under
which he is presently confined. The named respondents shall be the state
or federal officer who has official custody of him at the time the
petition is filed and the attorney general of the state whose action
subjects the petitioner to future custody.
(5) The applicant is in custody, although not physically restrained,
and is attacking a state action which will result in his future custody
rather than the government action out of which his present custody
arises. The named respondent(s) shall be the attorney general of the
state whose action subjects the petitioner to future custody, as well as
the government officer who has present official custody of the
petitioner if there is such an officer and his identity is
ascertainable.
In any of the above situations the judge may require or allow the
petitioner to join an additional or different party as a respondent if
to do so would serve the ends of justice.
As seen in rule 1 and paragraphs (4) and (5) above, these rules
contemplate that a petitioner currently in federal custody will be
permitted to apply for habeas relief from a state restraint which is to
go into effect in the future. There has been disagreement in the courts
as to whether they have jurisdiction of the habeas application under
these circumstances (compare Piper v. United States, 306 F.Supp. 1259
(D.Conn. 1969), with United States ex rel. Meadows v. New York, 426 F.2d
1176 (2d Cir. 1970), cert. denied, 401 U.S. 941 (1971)). This rule seeks
to make clear that they do have such jurisdiction.
Subdivision (c) provides that unless a district court requires
otherwise by local rule, the petition must be in the form annexed to
these rules. Having a standard prescribed form has several advantages.
In the past, petitions have frequently contained mere conclusions of
law, unsupported by any facts. Since it is the relationship of the facts
to the claim asserted that is important, these petitions were obviously
deficient. In addition, lengthy and often illegible petitions, arranged
in no logical order, were submitted to judges who have had to spend
hours deciphering them. For example, in Passic v. Michigan, 98 F.Supp.
1015, 1016 (E.D.Mich. 1951), the court dismissed a petition for habeas
corpus, describing it as ``two thousand pages of irrational, prolix and
redundant pleadings * * *.''
Administrative convenience, of benefit to both the court and the
petitioner, results from the use of a prescribed form. Judge Hubert L.
Will briefly described the experience with the use of a standard form in
the Northern District of Illinois:
Our own experience, though somewhat limited, has been quite
satisfactory. * * *
In addition, [petitions] almost always contain the necessary
basic information * * *. Very rarely do we get the kind of hybrid
federal-state habeas corpus petition with civil rights allegations
thrown in which were not uncommon in the past. * * * [W]hen a real
constitutional issue is raised it is quickly apparent * * *.
33 F.R.D. 363, 384
Approximately 65 to 70% of all districts have adopted forms or local
rules which require answers to essentially the same questions as
contained in the standard form annexed to these rules. All courts using
forms have indicated the petitions are time-saving and more legible. The
form is particularly helpful in getting information about whether there
has been an exhaustion of state remedies or, at least, where that
information can be obtained.
The requirement of a standard form benefits the petitioner as well.
His assertions are more readily apparent, and a meritorious claim is
more likely to be properly raised and supported. The inclusion in the
form of the ten most frequently raised grounds in habeas corpus
petitions is intended to encourage the applicant to raise all his
asserted grounds in one petition. It may better enable him to recognize
if an issue he seeks to raise is cognizable under habeas corpus and
hopefully inform him of those issues as to which he must first exhaust
his state remedies.
Some commentators have suggested that the use of forms is of little
help because the questions usually are too general, amounting to little
more than a restatement of the statute. They contend the blanks permit a
prisoner to fill in the same ambiguous answers he would have offered
without the aid of a form. See Comment, Developments in the Law--Federal
Habeas Corpus, 83 Harv.L.Rev. 1038, 1177-1178 (1970). Certainly, as long
as the statute requires factual pleading, the adequacy of a petition
will continue to be affected largely by the petitioner's intelligence
and the legal advice available to him. On balance, however, the use of
forms has contributed enough to warrant mandating their use.
Giving the petitioner a list of often-raised grounds may, it is
said, encourage perjury. See Comment, Developments in the Law--Federal
Habeas Corpus, 83 Harv.L.Rev. 1038, 1178 (1970). Most inmates are aware
of, or have access to, some common constitutional grounds for relief.
Thus, the risk of perjury is not likely to be substantially increased
and the benefit of the list for some inmates seems sufficient to
outweigh any slight risk that perjury will increase. There is a penalty
for perjury, and this would seem the most appropriate way to try to
discourage it.
Legal assistance is increasingly available to inmates either through
paraprofessional programs involving law students or special programs
staffed by members of the bar. See Jacob and Sharma, Justice After
Trial: Prisoners' Need for Legal Services in the Criminal-Correctional
Process, 18 Kan.L.Rev. 493 (1970). In these situations, the prescribed
form can be filled out more competently, and it does serve to ensure a
degree of uniformity in the manner in which habeas corpus claims are
presented.
Subdivision (c) directs the clerk of the district court to make
available to applicants upon request, without charge, blank petitions in
the prescribed form.
Subdivision (c) also requires that all available grounds for relief
be presented in the petition, including those grounds of which, by the
exercise of reasonable diligence, the petitioner should be aware. This
is reinforced by rule 9(b), which allows dismissal of a second petition
which fails to allege new grounds or, if new grounds are alleged, the
judge finds an inexcusable failure to assert the ground in the prior
petition.
Both subdivision (c) and the annexed form require a legibly
handwritten or typewritten petition. As required by 28 U.S.C. Sec. 2242,
the petition must be signed and sworn to by the petitioner (or someone
acting in his behalf).
Subdivision (d) provides that a single petition may assert a claim
only against the judgment or judgments of a single state court (i.e., a
court of the same county or judicial district or circuit). This permits,
but does not require, an attack in a single petition on judgments based
upon separate indictments or on separate counts even though sentences
were imposed on separate days by the same court. A claim against a
judgment of a court of a different political subdivision must be raised
by means of a separate petition.
Subdivision (e) allows the clerk to return an insufficient petition
to the petitioner, and it must be returned if the clerk is so directed
by a judge of the court. Any failure to comply with the requirements of
rule 2 or 3 is grounds for insufficiency. In situations where there may
be arguable noncompliance with another rule, such as rule 9, the judge,
not the clerk, must make the decision. If the petition is returned it
must be accompanied by a statement of the reason for its return. No
petitioner should be left to speculate as to why or in what manner his
petition failed to conform to these rules.
Subdivision (e) also provides that the clerk shall retain one copy
of the insufficient petition. If the prisoner files another petition,
the clerk will be in a better position to determine the sufficiency of
the new petition. If the new petition is insufficient, comparison with
the prior petition may indicate whether the prisoner has failed to
understand the clerk's prior explanation for its insufficiency, so that
the clerk can make another, hopefully successful, attempt at
transmitting this information to the petitioner. If the petitioner
insists that the original petition was in compliance with the rules, a
copy of the original petition is available for the consideration of the
judge. It is probably better practice to make a photocopy of a petition
which can be corrected by the petitioner, thus saving the petitioner the
task of completing an additional copy.
1982 Amendment
Subdivision (c). The amendment takes into account 28 U.S.C.
Sec. 1746, enacted after adoption of the Sec. 2254 rules. Section 1746
provides that in lieu of an affidavit an unsworn statement may be given
under penalty of perjury in substantially the following form if executed
within the United States, its territories, possessions or commonwealths:
``I declare (or certify, verify, or state) under penalty of perjury that
the foregoing is true and correct. Executed on (date). (Signature).''
The statute is ``intended to encompass prisoner litigation,'' and the
statutory alternative is especially appropriate in such cases because a
notary might not be readily available. Carter v. Clark, 616 F.2d 228
(5th Cir. 1980). The Sec. 2254 forms have been revised accordingly.
Amendments
1976--Subd. (c). Pub. L. 94-426, Sec. 2(1), inserted
``substantially'' after ``The petition shall be in'', and struck out
requirement that the petition follow the prescribed form.
Subd. (e). Pub. L. 94-426, Sec. 2(2), inserted ``substantially''
after ``district court does not'', and struck out provision which
permitted the clerk to return a petition for noncompliance without a
judge so directing.
Rule 3. Filing Petition
(a) Place of filing; copies; filing fee. A petition shall be filed
in the office of the clerk of the district court. It shall be
accompanied by two conformed copies thereof. It shall also be
accompanied by the filing fee prescribed by law unless the petitioner
applies for and is given leave to prosecute the petition in forma
pauperis. If the petitioner desires to prosecute the petition in forma
pauperis, he shall file the affidavit required by 28 U.S.C. Sec. 1915.
In all such cases the petition shall also be accompanied by a
certificate of the warden or other appropriate officer of the
institution in which the petitioner is confined as to the amount of
money or securities on deposit to the petitioner's credit in any account
in the institution, which certificate may be considered by the court in
acting upon his application for leave to proceed in forma pauperis.
(b) Filing and service. Upon receipt of the petition and the filing
fee, or an order granting leave to the petitioner to proceed in forma
pauperis, and having ascertained that the petition appears on its face
to comply with rules 2 and 3, the clerk of the district court shall file
the petition and enter it on the docket in his office. The filing of the
petition shall not require the respondent to answer the petition or
otherwise move with respect to it unless so ordered by the court.
Advisory Committee Note
Rule 3 sets out the procedures to be followed by the petitioner and
the court in filing the petition. Some of its provisions are currently
dealt with by local rule or practice, while others are innovations.
Subdivision (a) specifies the petitioner's responsibilities. It requires
that the petition, which must be accompanied by two conformed copies
thereof, be filed in the office of the clerk of the district court. The
petition must be accompanied by the filing fee prescribed by law
(presently $5; see 28 U.S.C. Sec. 1914(a)), unless leave to prosecute
the petition in forma pauperis is applied for and granted. In the event
the petitioner desires to prosecute the petition in forma pauperis, he
must file the affidavit required by 28 U.S.C. Sec. 1915, together with a
certificate showing the amount of funds in his institutional account.
Requiring that the petition be filed in the office of the clerk of
the district court provides an efficient and uniform system of filing
habeas corpus petitions.
Subdivision (b) requires the clerk to file the petition. If the
filing fee accompanies the petition, it may be filed immediately, and,
if not, it is contemplated that prompt attention will be given to the
request to proceed in forma pauperis. The court may delegate the
issuance of the order to the clerk in those cases in which it is clear
from the petition that there is full compliance with the requirements to
proceed in forma pauperis.
Requiring the copies of the petition to be filed with the clerk will
have an impact not only upon administrative matters, but upon more basic
problems as well. In districts with more than one judge, a petitioner
under present circumstances may send a petition to more than one judge.
If no central filing system exists for each district, two judges may
independently take different action on the same petition. Even if the
action taken is consistent, there may be needless duplication of effort.
The requirement of an additional two copies of the form of the
petition is a current practice in many courts. An efficient filing
system requires one copy for use by the court (central file), one for
the respondent (under 3(b), the respondent receives a copy of the
petition whether an answer is required or not), and one for petitioner's
counsel, if appointed. Since rule 2 provides that blank copies of the
petition in the prescribed form are to be furnished to the applicant
free of charge, there should be no undue burden created by this
requirement.
Attached to copies of the petition supplied in accordance with rule
2 is an affidavit form for the use of petitioners desiring to proceed in
forma pauperis. The form requires information concerning the
petitioner's financial resources.
In forma pauperis cases, the petition must also be accompanied by a
certificate indicating the amount of funds in the petitioner's
institution account. Usually the certificate will be from the warden. If
the petitioner is on probation or parole, the court might want to
require a certificate from the supervising officer. Petitions by persons
on probation or parole are not numerous enough, however, to justify
making special provision for this situation in the text of the rule.
The certificate will verify the amount of funds credited to the
petitioner in an institution account. The district court may by local
rule require that any amount credited to the petitioner, in excess of a
stated maximum, must be used for the payment of the filing fee. Since
prosecuting an action in forma pauperis is a privilege (see Smart v.
Heinze, 347 F.2d 114, 116 (9th Cir. 1965)), it is not to be granted when
the petitioner has sufficient resources.
Subdivision (b) details the clerk's duties with regard to filing the
petition. If the petition does not appear on its face to comply with the
requirements of rules 2 and 3, it may be returned in accordance with
rule 2(e). If it appears to comply, it must be filed and entered on the
docket in the clerk's office. However, under this subdivision the
respondent is not required to answer or otherwise move with respect to
the petition unless so ordered by the court.
Rule 4. Preliminary Consideration by Judge
The original petition shall be presented promptly to a judge of the
district court in accordance with the procedure of the court for the
assignment of its business. The petition shall be examined promptly by
the judge to whom it is assigned. If it plainly appears from the face of
the petition and any exhibits annexed to it that the petitioner is not
entitled to relief in the district court, the judge shall make an order
for its summary dismissal and cause the petitioner to be notified.
Otherwise the judge shall order the respondent to file an answer or
other pleading within the period of time fixed by the court or to take
such other action as the judge deems appropriate. In every case a copy
of the petition and any order shall be served by certified mail on the
respondent and the attorney general of the state involved.
Advisory Committee Note
Rule 4 outlines the options available to the court after the
petition is properly filed. The petition must be promptly presented to
and examined by the judge to whom it is assigned. If it plainly appears
from the face of the petition and any exhibits attached thereto that the
petitioner is not entitled to relief in the district court, the judge
must enter an order summarily dismissing the petition and cause the
petitioner to be notified. If summary dismissal is not ordered, the
judge must order the respondent to file an answer or to otherwise plead
to the petition within a time period to be fixed in the order.
28 U.S.C. Sec. 2243 requires that the writ shall be awarded, or an
order to show cause issued, ``unless it appears from the application
that the applicant or person detained is not entitled thereto.'' Such
consideration may properly encompass any exhibits attached to the
petition, including, but not limited to, transcripts, sentencing
records, and copies of state court opinions. The judge may order any of
these items for his consideration if they are not yet included with the
petition. See 28 U.S.C. Sec. 753(f) which authorizes payment for
transcripts in habeas corpus cases.
It has been suggested that an answer should be required in every
habeas proceeding, taking into account the usual petitioner's lack of
legal expertise and the important functions served by the return. See
Developments in the Law--Federal Habeas Corpus, 83 Harv.L.Rev. 1038,
1178 (1970). However, under Sec. 2243 it is the duty of the court to
screen out frivolous applications and eliminate the burden that would be
placed on the respondent by ordering an unnecessary answer. Allen v.
Perini, 424 F.2d 134, 141 (6th Cir. 1970). In addition, ``notice''
pleading is not sufficient, for the petition is expected to state facts
that point to a ``real possibility of constitutional error.'' See Aubut
v. State of Maine, 431 F.2d 688, 689 (1st Cir. 1970).
In the event an answer is ordered under rule 4, the court is
accorded greater flexibility than under Sec. 2243 in determining within
what time period an answer must be made. Under Sec. 2243, the respondent
must make a return within three days after being so ordered, with
additional time of up to forty days allowed under the Federal Rules of
Civil Procedure, Rule 81(a)(2), for good cause. In view of the
widespread state of work overload in prosecutors' offices (see, e.g.,
Allen, 424 F.2d at 141), additional time is granted in some
jurisdictions as a matter of course. Rule 4, which contains no fixed
time requirement, gives the court the discretion to take into account
various factors such as the respondent's workload and the availability
of transcripts before determining a time within which an answer must be
made.
Rule 4 authorizes the judge to ``take such other action as the judge
deems appropriate.'' This is designed to afford the judge flexibility in
a case where either dismissal or an order to answer may be
inappropriate. For example, the judge may want to authorize the
respondent to make a motion to dismiss based upon information furnished
by respondent, which may show that petitioner's claims have already been
decided on the merits in a federal court; that petitioner has failed to
exhaust state remedies; that the petitioner is not in custody within the
meaning of 28 U.S.C. Sec. 2254; or that a decision in the matter is
pending in state court. In these situations, a dismissal may be called
for on procedural grounds, which may avoid burdening the respondent with
the necessity of filing an answer on the substantive merits of the
petition. In other situations, the judge may want to consider a motion
from respondent to make the petition more certain. Or the judge may want
to dismiss some allegations in the petition, requiring the respondent to
answer only those claims which appear to have some arguable merit.
Rule 4 requires that a copy of the petition and any order be served
by certified mail on the respondent and the attorney general of the
state involved. See 28 U.S.C. Sec. 2252. Presently, the respondent often
does not receive a copy of the petition unless the court directs an
answer under 28 U.S.C. Sec. 2243. Although the attorney general is
served, he is not required to answer if it is more appropriate for some
other agency to do so. Although the rule does not specifically so
provide, it is assumed that copies of the court orders to respondent
will be mailed to petitioner by the court.
Rule 5. Answer; Contents
The answer shall respond to the allegations of the petition. In
addition it shall state whether the petitioner has exhausted his state
remedies including any post-conviction remedies available to him under
the statutes or procedural rules of the state and including also his
right of appeal both from the judgment of conviction and from any
adverse judgment or order in the post-conviction proceeding. The answer
shall indicate what transcripts (of pretrial, trial, sentencing, and
post-conviction proceedings) are available, when they can be furnished,
and also what proceedings have been recorded and not transcribed. There
shall be attached to the answer such portions of the transcripts as the
answering party deems relevant. The court on its own motion or upon
request of the petitioner may order that further portions of the
existing transcripts be furnished or that certain portions of the non-
transcribed proceedings be transcribed and furnished. If a transcript is
neither available nor procurable, a narrative summary of the evidence
may be submitted. If the petitioner appealed from the judgment of
conviction or from an adverse judgment or order in a post-conviction
proceeding, a copy of the petitioner's brief on appeal and of the
opinion of the appellate court, if any, shall also be filed by the
respondent with the answer.
Advisory Committee Note
Rule 5 details the contents of the ``answer''. (This is a change in
terminology from ``return,'' which is still used below when referring to
prior practice.) The answer plays an obviously important rule in a
habeas proceeding:
The return serves several important functions: it permits the court
and the parties to uncover quickly the disputed issues; it may
reveal to the petitioner's attorney grounds for release that the
petitioner did not know; and it may demonstrate that the
petitioner's claim is wholly without merit.
Developments in the Law--Federal Habeas Corpus, 83 Harv.L.Rev. 1083,
1178 (1970).
The answer must respond to the allegations of the petition. While
some districts require this by local rule (see, e.g., E.D.N.C.R. 17(B)),
under 28 U.S.C. Sec. 2243 little specificity is demanded. As a result,
courts occasionally receive answers which contain only a statement
certifying the true cause of detention, or a series of delaying motions
such as motions to dismiss. The requirement of the proposed rule that
the ``answer shall respond to the allegations of the petition'' is
intended to ensure that a responsive pleading will be filed and thus the
functions of the answer fully served.
The answer must also state whether the petitioner has exhausted his
state remedies. This is a prerequisite to eligibility for the writ under
28 U.S.C. Sec. 2254(b) and applies to every ground the petitioner
raises. Most form petitions now in use contain questions requiring
information relevant to whether the petitioner has exhausted his
remedies. However, the exhaustion requirement is often not understood by
the unrepresented petitioner. The attorney general has both the legal
expertise and access to the record and thus is in a much better position
to inform the court on the matter of exhaustion of state remedies. An
alleged failure to exhaust state remedies as to any ground in the
petition may be raised by a motion by the attorney general, thus
avoiding the necessity of a formal answer as to that ground.
The rule requires the answer to indicate what transcripts are
available, when they can be furnished, and also what proceedings have
been recorded and not transcribed. This will serve to inform the court
and petitioner as to what factual allegations can be checked against the
actual transcripts. The transcripts include pretrial transcripts
relating, for example, to pretrial motions to suppress; transcripts of
the trial or guilty plea proceeding; and transcripts of any post-
conviction proceedings which may have taken place. The respondent is
required to furnish those portions of the transcripts which he believes
relevant. The court may order the furnishing of additional portions of
the transcripts upon the request of petitioner or upon the court's own
motion.
Where transcripts are unavailable, the rule provides that a
narrative summary of the evidence may be submitted.
Rule 5 (and the general procedure set up by this entire set of
rules) does not contemplate a traverse to the answer, except under
special circumstances. See advisory committee note to rule 9. Therefore,
the old common law assumption of verity of the allegations of a return
until impeached, as codified in 28 U.S.C. Sec. 2248, is no longer
applicable. The meaning of the section, with its exception to the
assumption ``to the extent that the judge finds from the evidence that
they (the allegations) are not true,'' has given attorneys and courts a
great deal of difficulty. It seems that when the petition and return
pose an issue of fact, no traverse is required; Stewart v. Overholser,
186 F.2d 339 (D.C. Cir. 1950).
We read Sec. 2248 of the Judicial Code as not requiring a
traverse when a factual issue has been clearly framed by the
petition and the return or answer. This section provides that the
allegations of a return or answer to an order to show cause shall be
accepted as true if not traversed, except to the extent the judge
finds from the evidence that they are not true. This contemplates
that where the petition and return or answer do present an issue of
fact material to the legality of detention, evidence is required to
resolve that issue despite the absence of a traverse. This reference
to evidence assumes a hearing on issues raised by the allegations of
the petition and the return or answer to the order to show cause.
186 F.2d at 342, n. 5
In actual practice, the traverse tends to be a mere pro forma
refutation of the return, serving little if any expository function. In
the interests of a more streamlined and manageable habeas corpus
procedure, it is not required except in those instances where it will
serve a truly useful purpose. Also, under rule 11 the court is given the
discretion to incorporate Federal Rules of Civil Procedure when
appropriate, so civil rule 15(a) may be used to allow the petitioner to
amend his petition when the court feels this is called for by the
contents of the answer.
Rule 5 does not indicate who the answer is to be served upon, but it
necessarily implies that it will be mailed to the petitioner (or to his
attorney if he has one). The number of copies of the answer required is
left to the court's discretion. Although the rule requires only a copy
of petitioner's brief on appeal, respondent is free also to file a copy
of respondent's brief. In practice, courts have found it helpful to have
a copy of respondent's brief.
Rule 6. Discovery
(a) Leave of court required. A party shall be entitled to invoke the
processes of discovery available under the Federal Rules of Civil
Procedure if, and to the extent that, the judge in the exercise of his
discretion and for good cause shown grants leave to do so, but not
otherwise. If necessary for effective utilization of discovery
procedures, counsel shall be appointed by the judge for a petitioner who
qualifies for the appointment of counsel under 18 U.S.C. Sec. 3006A(g).
(b) Requests for discovery. Requests for discovery shall be
accompanied by a statement of the interrogatories or requests for
admission and a list of the documents, if any, sought to be produced.
(c) Expenses. If the respondent is granted leave to take the
deposition of the petitioner or any other person the judge may as a
condition of taking it direct that the respondent pay the expenses of
travel and subsistence and fees of counsel for the petitioner to attend
the taking of the deposition.
Advisory Committee Note
This rule prescribes the procedures governing discovery in habeas
corpus cases. Subdivision (a) provides that any party may utilize the
processes of discovery available under the Federal Rules of Civil
Procedure (rules 26-37) if, and to the extent that, the judge allows. It
also provides for the appointment of counsel for a petitioner who
qualifies for this when counsel is necessary for effective utilization
of discovery procedures permitted by the judge.
Subdivision (a) is consistent with Harris v. Nelson, 394 U.S. 286
(1969). In that case the court noted,
[I]t is clear that there was no intention to extend to habeas
corpus, as a matter of right, the broad discovery provisions * * *
of the new [Federal Rules of Civil Procedure].
394 U.S. at 295
However, citing the lack of methods for securing information in habeas
proceedings, the court pointed to an alternative.
Clearly, in these circumstances * * * the courts may fashion
appropriate modes of procedure, by analogy to existing rules or
otherwise in conformity with judicial usage. * * * Their authority
is expressly confirmed in the All Writs Act, 28 U.S.C. Sec. 1651.
394 U.S. at 299
The court concluded that the issue of discovery in habeas corpus
cases could best be dealt with as part of an effort to provide general
rules of practice for habeas corpus cases:
In fact, it is our view that the rulemaking machinery should be
invoked to formulate rules of practice with respect to federal
habeas corpus and Sec. 2255 proceedings, on a comprehensive basis
and not merely one confined to discovery. The problems presented by
these proceedings are materially different from those dealt with in
the Federal Rules of Civil Procedure and the Federal Rules of
Criminal Procedure, and reliance upon usage and the opaque language
of Civil Rule 81(a)(2) is transparently inadequate. In our view the
results of a meticulous formulation and adoption of special rules
for federal habeas corpus and Sec. 2255 proceedings would promise
much benefit.
394 U.S. at 301 n. 7
Discovery may, in appropriate cases, aid in developing facts
necessary to decide whether to order an evidentiary hearing or to grant
the writ following an evidentiary hearing:
We are aware that confinement sometimes induces fantasy which has
its basis in the paranoia of prison rather than in fact. But where
specific allegations before the court show reason to believe that
the petitioner may, if the facts are fully developed, be able to
demonstrate that he is confined illegally and is therefore entitled
to relief, it is the duty of the court to provide the necessary
facilities and procedures for an adequate inquiry. Obviously, in
exercising this power, the court may utilize familiar procedures, as
appropriate, whether these are found in the civil or criminal rules
or elsewhere in the ``usages and principles.''
Granting discovery is left to the discretion of the court,
discretion to be exercised where there is a showing of good cause why
discovery should be allowed. Several commentators have suggested that at
least some discovery should be permitted without leave of court. It is
argued that the courts will be burdened with weighing the propriety of
requests to which the discovered party has no objection. Additionally,
the availability of protective orders under Fed.R.Civ.R., Rules 30(b)
and 31(d) will provide the necessary safeguards. See Developments in the
Law--Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1186-87 (1970); Civil
Discovery in Habeas Corpus, 67 Colum.L.Rev. 1296, 1310 (1967).
Nonetheless, it is felt the requirement of prior court approval of
all discovery is necessary to prevent abuse, so this requirement is
specifically mandated in the rule.
While requests for discovery in habeas proceedings normally follow
the granting of an evidentiary hearing, there may be instances in which
discovery would be appropriate beforehand. Such an approach was
advocated in Wagner v. United States, 418 F.2d 618, 621 (9th Cir. 1969),
where the opinion stated the trial court could permit interrogatories,
provide for deposing witnesses, ``and take such other prehearing steps
as may be appropriate.'' While this was an action under Sec. 2255, the
reasoning would apply equally well to petitions by state prisoners. Such
pre-hearing discovery may show an evidentiary hearing to be unnecessary,
as when there are ``no disputed issues of law or fact.'' 83 Harv. L.Rev.
1038, 1181 (1970). The court in Harris alluded to such a possibility
when it said ``the court may * * * authorize such proceedings with
respect to development, before or in conjunction with the hearing of the
facts * * *.'' [emphasis added] 394 U.S. at 300. Such pre-hearing
discovery, like all discovery under rule 6, requires leave of court. In
addition, the provisions in rule 7 for the use of an expanded record may
eliminate much of the need for this type of discovery. While probably
not as frequently sought or granted as discovery in conjunction with a
hearing, it may nonetheless serve a valuable function.
In order to make pre-hearing discovery meaningful, subdivision (a)
provides that the judge should appoint counsel for a petitioner who is
without counsel and qualifies for appointment when this is necessary for
the proper utilization of discovery procedures. Rule 8 provides for the
appointment of counsel at the evidentiary hearing stage (see rule 8(b)
and advisory committee note), but this would not assist the petitioner
who seeks to utilize discovery to stave off dismissal of his petition
(see rule 9 and advisory committee note) or to demonstrate that an
evidentiary hearing is necessary. Thus, if the judge grants a
petitioner's request for discovery prior to making a decision as to the
necessity for an evidentiary hearing, he should determine whether
counsel is necessary for the effective utilization of such discovery
and, if so, appoint counsel for the petitioner if the petitioner
qualifies for such appointment.
This rule contains very little specificity as to what types and
methods of discovery should be made available to the parties in a habeas
proceeding, or how, once made available, these discovery procedures
should be administered. The purpose of this rule is to get some
experience in how discovery would work in actual practice by letting
district court judges fashion their own rules in the context of
individual cases. When the results of such experience are available it
would be desirable to consider whether further, more specific
codification should take place.
Subdivision (b) provides for judicial consideration of all matters
subject to discovery. A statement of the interrogatories, or requests
for admission sought to be answered, and a list of any documents sought
to be produced, must accompany a request for discovery. This is to
advise the judge of the necessity for discovery and enable him to make
certain that the inquiry is relevant and appropriately narrow.
Subdivision (c) refers to the situation where the respondent is
granted leave to take the deposition of the petitioner or any other
person. In such a case the judge may direct the respondent to pay the
expenses and fees of counsel for the petitioner to attend the taking of
the deposition, as a condition granting the respondent such leave. While
the judge is not required to impose this condition subdivision (c) will
give the court the means to do so. Such a provision affords some
protection to the indigent petitioner who may be prejudiced by his
inability to have counsel, often court-appointed, present at the taking
of a deposition. It is recognized that under 18 U.S.C. Sec. 3006A(g),
court-appointed counsel in a Sec. 2254 proceeding is entitled to receive
up to $250 and reimbursement for expenses reasonably incurred. (Compare
Fed.R. Crim.P. 15(c).) Typically, however, this does not adequately
reimburse counsel if he must attend the taking of depositions or be
involved in other pre-hearing proceedings. Subdivision (c) is intended
to provide additional funds, if necessary, to be paid by the state
government (respondent) to petitioner's counsel.
Although the rule does not specifically so provide, it is assumed
that a petitioner who qualifies for the appointment of counsel under 18
U.S.C. Sec. 3006A(g) and is granted leave to take a deposition will be
allowed witness costs. This will include recording and transcription of
the witness's statement. Such costs are payable pursuant to 28 U.S.C.
Sec. 1825. See Opinion of Comptroller General, February 28, 1974.
Subdivision (c) specifically recognizes the right of the respondent
to take the deposition of the petitioner. Although the petitioner could
not be called to testify against his will in a criminal trial, it is
felt the nature of the habeas proceeding, along with the safeguards
accorded by the Fifth Amendment and the presence of counsel, justify
this provision. See 83 Harv.L.Rev. 1038, 1183-84 (1970).
Rule 7. Expansion of Record
(a) Direction for expansion. If the petition is not dismissed
summarily the judge may direct that the record be expanded by the
parties by the inclusion of additional materials relevant to the
determination of the merits of the petition.
(b) Materials to be added. The expanded record may include, without
limitation, letters predating the filing of the petition in the district
court, documents, exhibits, and answers under oath, if so directed, to
written interrogatories propounded by the judge. Affidavits may be
submitted and considered as a part of the record.
(c) Submission to opposing party. In any case in which an expanded
record is directed, copies of the letters, documents, exhibits, and
affidavits proposed to be included shall be submitted to the party
against whom they are to be offered, and he shall be afforded an
opportunity to admit or deny their correctness.
(d) Authentication. The court may require the authentication of any
material under subdivision (b) or (c).
Advisory Committee Note
This rule provides that the judge may direct that the record be
expanded. The purpose is to enable the judge to dispose of some habeas
petitions not dismissed on the pleadings, without the time and expense
required for an evidentiary hearing. An expanded record may also be
helpful when an evidentiary hearing is ordered.
The record may be expanded to include additional material relevant
to the merits of the petition. While most petitions are dismissed either
summarily or after a response has been made, of those that remain, by
far the majority require an evidentiary hearing. In the fiscal year
ending June 30, 1970, for example, of 8,423 Sec. 2254 cases terminated,
8,231 required court action. Of these, 7,812 were dismissed before a
prehearing conference and 469 merited further court action (e.g.,
expansion of the record, prehearing conference, or an evidentiary
hearing). Of the remaining 469 cases, 403 required an evidentiary
hearing, often time-consuming, costly, and, at least occasionally,
unnecessary. See Director of the Administrative Office of the United
States Courts, Annual Report, 245a-245c (table C4) (1970). In some
instances these hearings were necessitated by slight omissions in the
state record which might have been cured by the use of an expanded
record.
Authorizing expansion of the record will, hopefully, eliminate some
unnecessary hearings. The value of this approach was articulated in
Raines v. United States, 423 F.2d 526, 529-530 (4th Cir. 1970):
Unless it is clear from the pleadings and the files and records
that the prisoner is entitled to no relief, the statute makes a
hearing mandatory. We think there is a permissible intermediate step
that may avoid the necessity for an expensive and time consuming
evidentiary hearing in every Section 2255 case. It may instead be
perfectly appropriate, depending upon the nature of the allegations,
for the district court to proceed by requiring that the record be
expanded to include letters, documentary evidence, and, in an
appropriate case, even affidavits. United States v. Carlino, 400
F.2d 56 (2nd Cir. 1968); Mirra v. United States, 379 F.2d 782 (2nd
Cir. 1967); Accardi v. United States, 379 F.2d 312 (2nd Cir. 1967).
When the issue is one of credibility, resolution on the basis of
affidavits can rarely be conclusive, but that is not to say they may
not be helpful.
In Harris v. Nelson, 394 U.S. 286, 300 (1969), the court said:
At any time in the proceedings * * * either on [the court's] own
motion or upon cause shown by the petitioner, it may issue such
writs and take or authorize such proceedings * * * before or in
conjunction with the hearing of the facts * * * [emphasis added]
Subdivision (b) specifies the materials which may be added to the
record. These include, without limitation, letters predating the filing
of the petition in the district court, documents, exhibits, and answers
under oath directed to written interrogatories propounded by the judge.
Under this subdivision affidavits may be submitted and considered part
of the record. Subdivision (b) is consistent with 28 U.S.C. Secs. 2246
and 2247 and the decision in Raines with regard to types of material
that may be considered upon application for a writ of habeas corpus. See
United States v. Carlino, 400 F.2d 56, 58 (2d Cir. 1968), and Machibroda
v. United States, 368 U.S. 487 (1962).
Under subdivision (c) all materials proposed to be included in the
record must be submitted to the party against whom they are to be
offered.
Under subdivision (d) the judge can require authentication if he
believes it desirable to do so.
Rule 8. Evidentiary Hearing
(a) Determination by court. If the petition is not dismissed at a
previous stage in the proceeding, the judge, after the answer and the
transcript and record of state court proceedings are filed, shall, upon
a review of those proceedings and of the expanded record, if any,
determine whether an evidentiary hearing is required. If it appears that
an evidentiary hearing is not required, the judge shall make such
disposition of the petition as justice shall require.
(b) Function of the magistrate.
(1) When designated to do so in accordance with 28 U.S.C.
Sec. 636(b), a magistrate may conduct hearings, including
evidentiary hearings, on the petition, and submit to a judge of the
court proposed findings of fact and recommendations for disposition.
(2) The magistrate shall file proposed findings and
recommendations with the court and a copy shall forthwith be mailed
to all parties.
(3) Within ten days after being served with a copy, any party
may serve and file written objections to such proposed findings and
recommendations as provided by rules of court.
(4) A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the court may
accept, reject, or modify in whole or in part any findings or
recommendations made by the magistrate.
(c) Appointment of counsel; time for hearing. If an evidentiary
hearing is required the judge shall appoint counsel for a petitioner who
qualifies for the appointment of counsel under 18 U.S.C. Sec. 3006A(g)
and the hearing shall be conducted as promptly as practicable, having
regard for the need of counsel for both parties for adequate time for
investigation and preparation. These rules do not limit the appointment
of counsel under 18 U.S.C. Sec. 3006A at any stage of the case if the
interest of justice so requires.
(As amended Pub. L. 94-426, Sec. 2(5), Sept. 28, 1976, 90 Stat. 1334;
Pub. L. 94-577, Sec. 2(a)(1), (b)(1), Oct. 21, 1976, 90 Stat. 2730,
2731.)
Advisory Committee Note
This rule outlines the procedure to be followed by the court
immediately prior to and after the determination of whether to hold an
evidentiary hearing.
The provisions are applicable if the petition has not been dismissed
at a previous stage in the proceeding [including a summary dismissal
under rule 4; a dismissal pursuant to a motion by the respondent; a
dismissal after the answer and petition are considered; or a dismissal
after consideration of the pleadings and an expanded record].
If dismissal has not been ordered, the court must determine whether
an evidentiary hearing is required. This determination is to be made
upon a review of the answer, the transcript and record of state court
proceedings, and if there is one, the expanded record. As the United
States Supreme Court noted in Townsend v. Sam, 372 U.S. 293, 319 (1963):
Ordinarily [the complete state-court] record--including the
transcript of testimony (or if unavailable some adequate substitute,
such as a narrative record), the pleadings, court opinions, and
other pertinent documents--is indispensable to determining whether
the habeas applicant received a full and fair state-court
evidentiary hearing resulting in reliable findings.
Subdivision (a) contemplates that all of these materials, if
available, will be taken into account. This is especially important in
view of the standard set down in Townsend for determining when a hearing
in the federal habeas proceeding is mandatory.
The appropriate standard * * * is this: Where the facts are in
dispute, the federal court in habeas corpus must hold an evidentiary
hearing if the habeas applicant did not receive a full and fair
evidentiary hearing in a state court, either at the time of the
trial or in a collateral proceeding.
372 U.S. at 312
The circumstances under which a federal hearing is mandatory are now
specified in 28 U.S.C. Sec. 2254(d). The 1966 amendment clearly places
the burden on the petitioner, when there has already been a state
hearing, to show that it was not a fair or adequate hearing for one or
more of the specifically enumerated reasons, in order to force a federal
evidentiary hearing. Since the function of an evidentiary hearing is to
try issues of fact (372 U.S. at 309), such a hearing is unnecessary when
only issues of law are raised. See, e.g., Yeaman v. United States, 326
F.2d 293 (9th Cir. 1963).
In situations in which an evidentiary hearing is not mandatory, the
judge may nonetheless decide that an evidentiary hearing is desirable:
The purpose of the test is to indicate the situations in which the
holding of an evidentiary hearing is mandatory. In all other cases
where the material facts are in dispute, the holding of such a
hearing is in the discretion of the district judge.
372 U.S. at 318
If the judge decides that an evidentiary hearing is neither required
nor desirable, he shall make such a disposition of the petition ``as
justice shall require.'' Most habeas petitions are dismissed before the
prehearing conference stage (see Director of the Administrative Office
of the United States Courts, Annual Report 245a-245c (table C4) (1970))
and of those not dismissed, the majority raise factual issues that
necessitate an evidentiary hearing. If no hearing is required, most
petitions are dismissed, but in unusual cases the court may grant the
relief sought without a hearing. This includes immediate release from
custody or nullification of a judgment under which the sentence is to be
served in the future.
Subdivision (b) provides that a magistrate, when so empowered by
rule of the district court, may recommend to the district judge that an
evidentiary hearing be held or that the petition be dismissed, provided
he gives the district judge a sufficiently detailed description of the
facts so that the judge may decide whether or not to hold an evidentiary
hearing. This provision is not inconsistent with the holding in Wingo v.
Wedding, 418 U.S. 461 (1974), that the Federal Magistrates Act did not
change the requirement of the habeas corpus statute that federal judges
personally conduct habeas evidentiary hearings, and that consequently a
local district court rule was invalid insofar as it authorized a
magistrate to hold such hearings. 28 U.S.C. Sec. 636(b) provides that a
district court may by rule authorize any magistrate to perform certain
additional duties, including preliminary review of applications for
posttrial relief made by individuals convicted of criminal offenses, and
submission of a report and recommendations to facilitate the decision of
the district judge having jurisdiction over the case as to whether there
should be a hearing.
As noted in Wingo, review ``by Magistrates of applications for post-
trial relief is thus limited to review for the purpose of proposing, not
holding, evidentiary hearings.''
Utilization of the magistrate as specified in subdivision (b) will
aid in the expeditious and fair handling of habeas petitions.
A qualified, experienced magistrate will, it is hoped, acquire
an expertise in examining these [postconviction review] applications
and summarizing their important contents for the district judge,
thereby facilitating his decisions. Law clerks are presently charged
with this responsibility by many judges, but judges have noted that
the normal 1-year clerkship does not afford law clerks the time or
experience necessary to attain real efficiency in handling such
applications.
S. Rep. No. 371, 90th Cong., 1st Sess., 26 (1967)
Under subdivision (c) there are two provisions that differ from the
procedure set forth in 28 U.S.C. Sec. 2243. These are the appointment of
counsel and standard for determining how soon the hearing will be held.
If an evidentiary hearing is required the judge must appoint counsel
for a petitioner who qualified for appointment under the Criminal
Justice Act. Currently, the appointment of counsel is not recognized as
a right at any stage of a habeas proceeding. See, e.g., United States ex
rel. Marshall v. Wilkins, 338 F.2d 404 (2d Cir. 1964). Some district
courts have, however, by local rule, required that counsel must be
provided for indigent petitioners in cases requiring a hearing. See,
e.g., D.N.M.R. 21(f), E.D. N.Y.R. 26(d). Appointment of counsel at this
stage is mandatory under subdivision (c). This requirement will not
limit the authority of the court to provide counsel at an earlier stage
if it is thought desirable to do so as is done in some courts under
current practice. At the evidentiary hearing stage, however, an indigent
petitioner's access to counsel should not depend on local practice and,
for this reason, the furnishing of counsel is made mandatory.
Counsel can perform a valuable function benefiting both the court
and the petitioner. The issues raised can be more clearly identified if
both sides have the benefit of trained legal personnel. The presence of
counsel at the prehearing conference may help to expedite the
evidentiary hearing or make it unnecessary, and counsel will be able to
make better use of available prehearing discovery procedures. Compare
ABA Project on Standards for Criminal Justice, Standards Relating to
Post-Conviction Remedies Sec. 4.4, p. 66 (Approved Draft 1968). At a
hearing, the petitioner's claims are more likely to be effectively and
properly presented by counsel.
Under 18 U.S.C. Sec. 3006A(g), payment is allowed counsel up to
$250, plus reimbursement for expenses reasonably incurred. The standards
of indigency under this section are less strict than those regarding
eligibility to prosecute a petition in forma pauperis, and thus many who
cannot qualify to proceed under 28 U.S.C. Sec. 1915 will be entitled to
the benefits of counsel under 18 U.S.C. Sec. 3006A(g). Under rule 6(c),
the court may order the respondent to reimburse counsel from state funds
for fees and expenses incurred as the result of the utilization of
discovery procedures by the respondent.
Subdivision (c) provides that the hearing shall be conducted as
promptly as possible, taking into account ``the need of counsel for both
parties for adequate time for investigation and preparation.'' This
differs from the language of 28 U.S.C. Sec. 2243, which requires that
the day for the hearing be set ``not more than five days after the
return unless for good cause additional time is allowed.'' This time
limit fails to take into account the function that may be served by a
prehearing conference and the time required to prepare adequately for an
evidentiary hearing. Although ``additional time'' is often allowed under
Sec. 2243, subdivision (c) provides more flexibility to take account of
the complexity of the case, the availability of important materials, the
workload of the attorney general, and the time required by appointed
counsel to prepare.
While the rule does not make specific provision for a prehearing
conference, the omission is not intended to cast doubt upon the value of
such a conference:
The conference may limit the questions to be resolved, identify
areas of agreement and dispute, and explore evidentiary problems
that may be expected to arise. * * * [S]uch conferences may also
disclose that a hearing is unnecessary * * *.
ABA Project on Standards for Criminal Justice, Standards Relating to
Post-Conviction Remedies Sec. 4.6, commentary pp. 74-75.
(Approved Draft, 1968.)
See also Developments in the Law--Federal Habeas Corpus, 83 Harv.L.Rev.
1038, 1188 (1970).
The rule does not contain a specific provision on the subpoenaing of
witnesses. It is left to local practice to determine the method for
doing this. The implementation of 28 U.S.C. Sec. 1825 on the payment of
witness fees is dealt with in an opinion of the Comptroller General,
February 28, 1974.
Amendments
1976--Subd. (b). Pub. L. 94-577, Sec. 2(a)(1), substituted
provisions which authorized magistrates, when designated to do so in
accordance with section 636(b) of this title, to conduct hearings,
including evidentiary hearings, on the petition and to submit to a judge
of the court proposed findings of fact and recommendations for
disposition, which directed the magistrate to file proposed findings and
recommendations with the court with copies furnished to all parties,
which allowed parties thus served 10 days to file written objections
thereto, and which directed a judge of the court to make de novo
determinations of the objected-to portions and to accept, reject, or
modify the findings or recommendations for provisions under which the
magistrate had been empowered only to recommend to the district judge
that an evidentiary hearing be held or that the petition be dismissed.
Subd. (c). Pub. L. 94-577, Sec. 2(b)(1), substituted ``and the
hearing shall be conducted'' for ``and shall conduct the hearing''.
Pub. L. 94-426 provided that these rules not limit the appointment
of counsel under section 3006A of title 18, if the interest of justice
so require.
Effective Date of 1976 Amendment
Section 2(c) of Pub. L. 94-577 provided that: ``The amendments made
by this section [amending subdivs. (b) and (c) of this rule and Rule
8(b), (c) of the Rules Governing Proceedings Under Section 2255 of this
title] shall take effect with respect to petitions under section 2254
and motions under section 2255 of title 28 of the United States Code
filed on or after February 1, 1977.''
Rule 9. Delayed or Successive Petitions
(a) Delayed petitions. A petition may be dismissed if it appears
that the state of which the respondent is an officer has been prejudiced
in its ability to respond to the petition by delay in its filing unless
the petitioner shows that it is based on grounds of which he could not
have had knowledge by the exercise of reasonable diligence before the
circumstances prejudicial to the state occurred.
(b) Successive petitions. A second or successive petition may be
dismissed if the judge finds that it fails to allege new or different
grounds for relief and the prior determination was on the merits or, if
new and different grounds are alleged, the judge finds that the failure
of the petitioner to assert those grounds in a prior petition
constituted an abuse of the writ.
(As amended Pub. L. 94-426, Sec. 2(7), (8), Sept. 28, 1976, 90 Stat.
1335.)
Advisory Committee Note
This rule is intended to minimize abuse of the writ of habeas corpus
by limiting the right to assert stale claims and to file multiple
petitions. Subdivision (a) deals with the delayed petition. Subdivision
(b) deals with the second or successive petition.
Subdivision (a) provides that a petition attacking the judgment of a
state court may be dismissed on the grounds of delay if the petitioner
knew or should have known of the existence of the grounds he is
presently asserting in the petition and the delay has resulted in the
state being prejudiced in its ability to respond to the petition. If the
delay is more than five years after the judgment of conviction,
prejudice is presumed, although this presumption is rebuttable by the
petitioner. Otherwise, the state has the burden of showing such
prejudice.
The assertion of stale claims is a problem which is not likely to
decrease in frequency. Following the decisions in Jones v. Cunningham,
371 U.S. 236 (1963), and Benson v. California, 328 F.2d 159 (9th Cir.
1964), the concept of custody expanded greatly, lengthening the time
period during which a habeas corpus petition may be filed. The
petitioner who is not unconditionally discharged may be on parole or
probation for many years. He may at some date, perhaps ten or fifteen
years after conviction, decide to challenge the state court judgment.
The grounds most often troublesome to the courts are ineffective
counsel, denial of right of appeal, plea of guilty unlawfully induced,
use of a coerced confession, and illegally constituted jury. The latter
four grounds are often interlocked with the allegation of ineffective
counsel. When they are asserted after the passage of many years, both
the attorney for the defendant and the state have difficulty in
ascertaining what the facts are. It often develops that the defense
attorney has little or no recollection as to what took place and that
many of the participants in the trial are dead or their whereabouts
unknown. The court reporter's notes may have been lost or destroyed,
thus eliminating any exact record of what transpired. If the case was
decided on a guilty plea, even if the record is intact, it may not
satisfactorily reveal the extent of the defense attorney's efforts in
behalf of the petitioner. As a consequence, there is obvious difficulty
in investigating petitioner's allegations.
The interest of both the petitioner and the government can best be
served if claims are raised while the evidence is still fresh. The
American Bar Association has recognized the interest of the state in
protecting itself against stale claims by limiting the right to raise
such claims after completion of service of a sentence imposed pursuant
to a challenged judgment. See ABA Standards Relating to Post-Conviction
Remedies Sec. 2.4 (c), p. 45 (Approved Draft, 1968). Subdivision (a) is
not limited to those who have completed their sentence. Its reach is
broader, extending to all instances where delay by the petitioner has
prejudiced the state, subject to the qualifications and conditions
contained in the subdivision.
In McMann v. Richardson, 397 U.S. 759 (1970), the court made
reference to the issue of the stale claim:
What is at stake in this phase of the case is not the integrity
of the state convictions obtained on guilty pleas, but whether,
years later, defendants must be permitted to withdraw their pleas,
which were perfectly valid when made, and be given another choice
between admitting their guilt and putting the State to its proof.
[Emphasis added.]
397 U.S. at 773
The court refused to allow this, intimating its dislike of
collateral attacks on sentences long since imposed which disrupt the
state's interest in finality of convictions which were constitutionally
valid when obtained.
Subdivision (a) is not a statute of limitations. Rather, the
limitation is based on the equitable doctrine of laches. ``Laches is
such delay in enforcing one's rights as works disadvantage to another.''
30A C.J.S. Equity Sec. 112, p. 19. Also, the language of the
subdivision, ``a petition may be dismissed'' [emphasis added], is
permissive rather than mandatory. This clearly allows the court which is
considering the petition to use discretion in assessing the equities of
the particular situation.
The use of a flexible rule analogous to laches to bar the assertion
of stale claims is suggested in ABA Standards Relating to Post-
Conviction Remedies Sec. 2.4, commentary at 48 (Approved Draft, 1968).
Additionally, in Fay v. Noia, 372 U.S. 391 (1963), the Supreme Court
noted:
Furthermore, habeas corpus has traditionally been regarded as
governed by equitable principles. United States ex rel. Smith v.
Baldi, 344 U.S. 561, 573 (dissenting opinion). Among them is the
principle that a suitor's conduct in relation to the matter at hand
may disentitle him to the relief he seeks.
372 U.S. at 438
Finally, the doctrine of laches has been applied with reference to
another postconviction remedy, the writ of coram nobis. See 24 C.J.S.
Criminal Law Sec. 1606(25), p. 779.
The standard used for determining if the petitioner shall be barred
from asserting his claim is consistent with that used in laches
provisions generally. The petitioner is held to a standard of reasonable
diligence. Any inference or presumption arising by reason of the failure
to attack collaterally a conviction may be disregarded where (1) there
has been a change of law or fact (new evidence) or (2) where the court,
in the interest of justice, feels that the collateral attack should be
entertained and the prisoner makes a proper showing as to why he has not
asserted a particular ground for relief.
Subdivision (a) establishes the presumption that the passage of more
than five years from the time of the judgment of conviction to the time
of filing a habeas petition is prejudicial to the state. ``Presumption''
has the meaning given it by Fed.R.Evid. 301. The prisoner has ``the
burden of going forward with evidence to rebut or meet the presumption''
that the state has not been prejudiced by the passage of a substantial
period of time. This does not impose too heavy a burden on the
petitioner. He usually knows what persons are important to the issue of
whether the state has been prejudiced. Rule 6 can be used by the court
to allow petitioner liberal discovery to learn whether witnesses have
died or whether other circumstances prejudicial to the state have
occurred. Even if the petitioner should fail to overcome the presumption
of prejudice to the state, he is not automatically barred from asserting
his claim. As discussed previously, he may proceed if he neither knew
nor, by the exercise of reasonable diligence, could have known of the
grounds for relief.
The presumption of prejudice does not come into play if the time lag
is not more than five years.
The time limitation should have a positive effect in encouraging
petitioners who have knowledge of it to assert all their claims as soon
after conviction as possible. The implementation of this rule can be
substantially furthered by the development of greater legal resources
for prisoners. See ABA Standards Relating to Post-Conviction Remedies
Sec. 3.1, pp. 49-50 (Approved Draft, 1968).
Subdivision (a) does not constitute an abridgement or modification
of a substantive right under 28 U.S.C. Sec. 2072. There are safeguards
for the hardship case. The rule provides a flexible standard for
determining when a petition will be barred.
Subdivision (b) deals with the problem of successive habeas
petitions. It provides that the judge may dismiss a second or successive
petition (1) if it fails to allege new or different grounds for relief
or (2) if new or different grounds for relief are alleged and the judge
finds the failure of the petitioner to assert those grounds in a prior
petition is inexcusable.
In Sanders v. United States, 373 U.S. 1 (1963), the court, in
dealing with the problem of successive applications, stated:
Controlling weight may be given to denial of a prior application
for federal habeas corpus or Sec. 2255 relief only if (1) the same
ground presented in the subsequent application was determined
adversely to the applicant on the prior application, (2) the prior
determination was on the merits, and (3) the ends of justice would
not be served by reaching the merits of the subsequent application.
[Emphasis added.]
373 U.S. at 15
The requirement is that the prior determination of the same ground
has been on the merits. This requirement is in 28 U.S.C. Sec. 2244(b)
and has been reiterated in many cases since Sanders. See Gains v.
Allgood, 391 F.2d 692 (5th Cir. 1968); Hutchinson v. Craven, 415 F.2d
278 (9th Cir. 1969); Brown v. Peyton, 435 F.2d 1352 (4th Cir. 1970).
With reference to a successive application asserting a new ground or
one not previously decided on the merits, the court in Sanders noted:
In either case, full consideration of the merits of the new
application can be avoided only if there has been an abuse of the
writ * * * and this the Government has the burden of pleading. * * *
Thus, for example, if a prisoner deliberately withholds one of
two grounds for federal collateral relief at the time of filing his
first application, * * * he may be deemed to have waived his right
to a hearing on a second application presenting the withheld ground.
373 U.S. at 17-18
Subdivision (b) has incorporated this principle and requires that the
judge find petitioner's failure to have asserted the new grounds in the
prior petition to be inexcusable.
Sanders, 18 U.S.C. Sec. 2244, and subdivision (b) make it clear that
the court has discretion to entertain a successive application.
The burden is on the government to plead abuse of the writ. See
Sanders v. United States, 373 U.S. 1, 10 (1963); Dixon v. Jacobs, 427
F.2d 589, 596 (D.C.Cir. 1970); cf. Johnson v. Copinger, 420 F.2d 395
(4th Cir. 1969). Once the government has done this, the petitioner has
the burden of proving that he has not abused the writ. In Price v.
Johnston, 334 U.S. 266, 292 (1948), the court said:
[I]f the Government chooses * * * to claim that the prisoner has
abused the writ of habeas corpus, it rests with the Government to
make that claim with clarity and particularity in its return to the
order to show cause. That is not an intolerable burden. The
Government is usually well acquainted with the facts that are
necessary to make such a claim. Once a particular abuse has been
alleged, the prisoner has the burden of answering that allegation
and of proving that he has not abused the writ.
Subdivision (b) is consistent with the important and well
established purpose of habeas corpus. It does not eliminate a remedy to
which the petitioner is rightfully entitled. However, in Sanders, the
court pointed out:
Nothing in the traditions of habeas corpus requires the federal
courts to tolerate needless piecemeal litigation, or to entertain
collateral proceedings whose only purpose is to vex, harass, or
delay.
373 U.S. at 18
There are instances in which petitioner's failure to assert a ground in
a prior petition is excusable. A retroactive change in the law and newly
discovered evidence are examples. In rare instances, the court may feel
a need to entertain a petition alleging grounds that have already been
decided on the merits. Sanders, 373 U.S. at 1, 16. However, abusive use
of the writ should be discouraged, and instances of abuse are frequent
enough to require a means of dealing with them. For example, a
successive application, already decided on the merits, may be submitted
in the hope of getting before a different judge in multijudge courts. A
known ground may be deliberately withheld in the hope of getting two or
more hearings or in the hope that delay will result in witnesses and
records being lost. There are instances in which a petitioner will have
three or four petitions pending at the same time in the same court.
There are many hundreds of cases where the application is at least the
second one by the petitioner. This subdivision is aimed at screening out
the abusive petitions from this large volume, so that the more
meritorious petitions can get quicker and fuller consideration.
The form petition, supplied in accordance with rule 2(c), encourages
the petitioner to raise all of his available grounds in one petition. It
sets out the most common grounds asserted so that these may be brought
to his attention.
Some commentators contend that the problem of abuse of the writ of
habeas corpus is greatly overstated:
Most prisoners, of course, are interested in being released as
soon as possible; only rarely will one inexcusably neglect to raise
all available issues in his first federal application. The purpose
of the ``abuse'' bar is apparently to deter repetitious applications
from those few bored or vindictive prisoners * * *.
83 Harv.L.Rev. at 1153-1154
See also ABA Standards Relating to Post-Conviction Remedies Sec. 6.2,
commentary at 92 (Approved Draft, 1968), which states: ``The occasional,
highly litigious prisoner stands out as the rarest exception.'' While no
recent systematic study of repetitious applications exists, there is no
reason to believe that the problem has decreased in significance in
relation to the total number of Sec. 2254 petitions filed. That number
has increased from 584 in 1949 to 12,088 in 1971. See Director of the
Administrative Office of the United States Courts, Annual Report, table
16 (1971). It is appropriate that action be taken by rule to allow the
courts to deal with this problem, whatever its specific magnitude. The
bar set up by subdivision (b) is not one of rigid application, but
rather is within the discretion of the courts on a case-by-case basis.
If it appears to the court after examining the petition and answer
(where appropriate) that there is a high probability that the petition
will be barred under either subdivision of rule 9, the court ought to
afford petitioner an opportunity to explain his apparent abuse. One way
of doing this is by the use of the form annexed hereto. The use of a
form will ensure a full airing of the issue so that the court is in a
better position to decide whether the petition should be barred. This
conforms with Johnson v. Copinger, 420 F.2d 395 (4th Cir. 1969), where
the court stated:
[T]he petitioner is obligated to present facts demonstrating that
his earlier failure to raise his claims is excusable and does not
amount to an abuse of the writ. However, it is inherent in this
obligation placed upon the petitioner that he must be given an
opportunity to make his explanation, if he has one. If he is not
afforded such an opportunity, the requirement that he satisfy the
court that he has not abused the writ is meaningless. Nor do we
think that a procedure which allows the imposition of a forfeiture
for abuse of the writ, without allowing the petitioner an
opportunity to be heard on the issue, comports with the minimum
requirements of fairness.
420 F.2d at 399
Use of the recommended form will contribute to an orderly handling of
habeas petitions and will contribute to the ability of the court to
distinguish the excusable from the inexcusable delay or failure to
assert a ground for relief in a prior petition.
Amendments
1976--Subd. (a). Pub. L. 94-426, Sec. 2(7), struck out provision
which established a rebuttable presumption of prejudice to the state if
the petition was filed more than five years after conviction and started
the running of the five year period, where a petition challenged the
validity of an action after conviction, from the time of the order of
such action.
Subd. (b). Pub. L. 94-426, Sec. 2(8), substituted ``constituted an
abuse of the writ'' for ``is not excusable''.
Rule 10. Powers of Magistrates
The duties imposed upon the judge of the district court by these
rules may be performed by a United States magistrate pursuant to 28
U.S.C. Sec. 636.
(As amended Pub. L. 94-426, Sec. 2(11), Sept. 28, 1976, 90 Stat. 1335;
Apr. 30, 1979, eff. Aug. 1, 1979.)
Advisory Committee Note
Under this rule the duties imposed upon the judge of the district
court by rules 2, 3, 4, 6, and 7 may be performed by a magistrate if and
to the extent he is empowered to do so by a rule of the district court.
However, when such duties involve the making of an order under rule 4
disposing of the petition, that order must be made by the court. The
magistrate in such instances must submit to the court his report as to
the facts and his recommendation with respect to the order.
The Federal Magistrates Act allows magistrates, when empowered by
local rule, to perform certain functions in proceedings for post-trial
relief. See 28 U.S.C. Sec. 636(b)(3). The performance of such functions,
when authorized, is intended to ``afford some degree of relief to
district judges and their law clerks, who are presently burdened with
burgeoning numbers of habeas corpus petitions and applications under 28
U.S.C. Sec. 2255.'' Committee on the Judiciary, The Federal Magistrates
Act, S.Rep. No. 371, 90th Cong., 1st sess., 26 (1967).
Under 28 U.S.C. Sec. 636(b), any district court,
by the concurrence of a majority of all the judges of such district
court, may establish rules pursuant to which any full-time United
States magistrate * * * may be assigned within the territorial
jurisdiction of such court such additional duties as are not
inconsistent with the Constitution and laws of the United States.
The proposed rule recognizes the limitations imposed by 28 U.S.C.
Sec. 636(b) upon the powers of magistrates to act in federal
postconviction proceedings. These limitations are: (1) that the
magistrate may act only pursuant to a rule passed by the majority of the
judges in the district court in which the magistrate serves, and (2)
that the duties performed by the magistrate pursuant to such rule be
consistent with the Constitution and laws of the United States.
It has been suggested that magistrates be empowered by law to hold
hearings and make final decisions in habeas proceedings. See Proposed
Reformation of Federal Habeas Corpus Procedure: Use of Federal
Magistrates, 54 Iowa L.Rev. 1147, 1158 (1969). However, the Federal
Magistrates Act does not authorize such use of magistrates. Wingo v.
Wedding, 418 U.S. 461 (1974). See advisory committee note to rule 8.
While the use of magistrates can help alleviate the strain imposed on
the district courts by the large number of unmeritorious habeas
petitions, neither 28 U.S.C. Sec. 636(b) nor this rule contemplate the
abdication by the court of its decision-making responsibility. See also
Developments in the Law--Federal Habeas Corpus, 83 Harv. L.Rev. 1038,
1188 (1970)
Where a full-time magistrate is not available, the duties
contemplated by this rule may be assigned to a part-time magistrate.
1979 Amendment
This amendment conforms the rule to subsequently enacted legislation
clarifying and further defining the duties which may be assigned to a
magistrate, 18 U.S.C. Sec. 636, as amended in 1976 by Pub. L. 94-577. To
the extent that rule 10 is more restrictive than Sec. 636, the
limitations are of no effect, for the statute expressly governs
``[n]otwithstanding any provision of law to the contrary.''
The reference to particular rules is stricken, as under
Sec. 636(b)(1)(A) a judge may designate a magistrate to perform duties
under other rules as well (e.g., order that further transcripts be
furnished under rule 5; appoint counsel under rule 8). The reference to
``established standards and criteria'' is stricken, as Sec. 636(4)
requires each district court to ``establish rules pursuant to which the
magistrates shall discharge their duties.'' The exception with respect
to a rule 4 order dismissing a petition is stricken, as that limitation
appears in Sec. 636(b)(1)(B) and is thereby applicable to certain other
actions under these rules as well (e.g., determination of a need for an
evidentiary hearing under rule 8; dismissal of a delayed or successive
petition under rule 9).
Amendments
1976--Pub. L. 94-426 inserted ``, and to the extent the district
court has established standards and criteria for the performance of such
duties'' after ``rule of the district court''.
Change of Name
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
Rule 11. Federal Rules of Civil Procedure; Extent of Applicability
The Federal Rules of Civil Procedure, to the extent that they are
not inconsistent with these rules, may be applied, when appropriate, to
petitions filed under these rules.
Advisory Committee Note
Habeas corpus proceedings are characterized as civil in nature. See
e.g., Fisher v. Baker, 203 U.S. 174, 181 (1906). However, under
Fed.R.Civ.P. 81(a)(2), the applicability of the civil rules to habeas
corpus actions has been limited, although the various courts which have
considered this problem have had difficulty in setting out the
boundaries of this limitation. See Harris v. Nelson, 394 U.S. 286 (1969)
at 289, footnote 1. Rule 11 is intended to conform with the Supreme
Court's approach in the Harris case. There the court was dealing with
the petitioner's contention that Civil Rule 33 granting the right to
discovery via written interrogatories is wholly applicable to habeas
corpus proceedings. The court held:
We agree with the Ninth Circuit that Rule 33 of the Federal Rules of
Civil Procedure is not applicable to habeas corpus proceedings and
that 28 U.S.C. Sec. 2246 does not authorize interrogatories except
in limited circumstances not applicable to this case; but we
conclude that, in appropriate circumstances, a district court,
confronted by a petition for habeas corpus which establishes a prima
facie case for relief, may use or authorize the use of suitable
discovery procedures, including interrogatories, reasonably
fashioned to elicit facts necessary to help the court to ``dispose
of the matter as law and justice require'' 28 U.S.C. Sec. 2243.
394 U.S. at 290
The court then went on to consider the contention that the
``conformity'' provision of Rule 81(a)(2) should be rigidly applied so
that the civil rules would be applicable only to the extent that habeas
corpus practice had conformed to the practice in civil actions at the
time of the adoption of the Federal Rules of Civil Procedure on
September 16, 1938. The court said:
Although there is little direct evidence, relevant to the present
problem, of the purpose of the ``conformity'' provision of Rule
81(a)(2), the concern of the draftsmen, as a general matter, seems
to have been to provide for the continuing applicability of the
``civil'' rules in their new form to those areas of practice in
habeas corpus and other enumerated proceedings in which the
``specified'' proceedings had theretofore utilized the modes of
civil practice. Otherwise, those proceedings were to be considered
outside of the scope of the rules without prejudice, of course, to
the use of particular rules by analogy or otherwise, where
appropriate.
394 U.S. at 294
The court then reiterated its commitment to judicial discretion in
formulating rules and procedures for habeas corpus proceedings by
stating:
[T]he habeas corpus jurisdiction and the duty to exercise it being
present, the courts may fashion appropriate modes of procedure, by
analogy to existing rules or otherwise in conformity with judicial
usage.
Where their duties require it, this is the inescapable obligation of the
courts. Their authority is expressly confirmed in the All Writs Act, 28
U.S.C. Sec. 1651.
394 U.S. at 299
Rule 6 of these proposed rules deals specifically with the issue of
discovery in habeas actions in a manner consistent with Harris. Rule 11
extends this approach to allow the court considering the petition to use
any of the rules of civil procedure (unless inconsistent with these
rules of habeas corpus) when in its discretion the court decides they
are appropriate under the circumstances of the particular case. The
court does not have to rigidly apply rules which would be inconsistent
or inequitable in the overall framework of habeas corpus. Rule 11 merely
recognizes and affirms their discretionary power to use their judgment
in promoting the ends of justice.
Rule 11 permits application of the civil rules only when it would be
appropriate to do so. Illustrative of an inappropriate application is
that rejected by the Supreme Court in Pitchess v. Davis, 95 S.Ct. 1748
(1975), holding that Fed.R.Civ.P. 60(b) should not be applied in a
habeas case when it would have the effect of altering the statutory
exhaustion requirement of 28 U.S.C. Sec. 2254.
APPENDIX OF FORMS
MODEL FORM FOR USE IN APPLICATIONS FOR HABEAS CORPUS UNDER 28
U.S.C. Sec. 2254
Name __________________________
Prison number _____________________
_________________________
Place of confinement _________________
United States District Court _____ District of _____
Case No. ________________________
(To be supplied by Clerk of U.S. District Court)
___________________, PETITIONER
(Full name)
v.
__________________, RESPONDENT
(Name of Warden, Superintendent, Jailor, or authorized person having
custody of petitioner)
and
THE ATTORNEY GENERAL OF THE STATE OF ___________, ADDITIONAL RESPONDENT.
(If petitioner is attacking a judgment which imposed a sentence to
be served in the future, petitioner must fill in the name of the state
where the judgment was entered. If petitioner has a sentence to be
served in the future under a federal judgment which he wishes to attack,
he should file a motion under 28 U.S.C. Sec. 2255, in the federal court
which entered the judgment.)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
Instructions--Read Carefully
(1) This petition must be legibly handwritten or typewritten, and signed
by the petitioner under penalty of perjury. Any false statement
of a material fact may serve as the basis for prosecution and
conviction for perjury. All questions must be answered concisely
in the proper space on the form.
(2) Additional pages are not permitted except with respect to the facts
which you rely upon to support your grounds for relief. No
citation of authorities need be furnished. If briefs or
arguments are submitted, they should be submitted in the form of
a separate memorandum.
(3) Upon receipt of a fee of $5 your petition will be filed if it is in
proper order.
(4) If you do not have the necessary filing fee, you may request
permission to proceed in forma pauperis, in which event you must
execute the declaration on the last page, setting forth
information establishing your inability to prepay the fees and
costs or give security therefor. If you wish to proceed in forma
pauperis, you must have an authorized officer at the penal
institution complete the certificate as to the amount of money
and securities on deposit to your credit in any account in the
institution. If your prison account exceeds $___, you must pay
the filing fee as required by the rule of the district court.
(5) Only judgments entered by one court may be challenged in a single
petition. If you seek to challenge judgments entered by
different courts either in the same state or in different
states, you must file separate petitions as to each court.
(6) Your attention is directed to the fact that you must include all
grounds for relief and all facts supporting such grounds for
relief in the petition you file seeking relief from any judgment
of conviction.
(7) When the petition is fully completed, the original and two copies
must be mailed to the Clerk of the United States District Court
whose address is __
___________________________
(8) Petitions which do not conform to these instructions will be
returned with a notation as to the deficiency.
PETITION
1. Name and location of court which entered the judgment of conviction
under attack__________
___________________________
2. Date of judgment of conviction ___________
3. Length of sentence _________________
4. Nature of offense involved (all counts) _______
___________________________
___________________________
___________________________
5. What was your plea? (Check one)
(a) Not guilty
(b) Guilty
(c) Nolo contendere
If you entered a guilty plea to one count or indictment, and a not
guilty plea to another count or indictment, give details:
___________________________
___________________________
___________________________
6. Kind of trial: (Check one)
(a) Jury
(b) Judge only
7. Did you testify at the trial?
Yes
No
8. Did you appeal from the judgment of conviction?
Yes
No
9. If you did appeal, answer the following:
(a) Name of court ________________
(b) Result ____________________
(c) Date of result _________________
10. Other than a direct appeal from the judgment of conviction and
sentence, have you previously filed any petitions, applications,
or motions with respect to this judgment in any court, state or
federal?
Yes
No
11. If your answer to 10 was ``yes,'' give the following information:
(a) (1) Name of court ______________
(2) Nature of proceeding __________
______________________
(3) Grounds raised ______________
______________________
______________________
______________________
______________________
(4) Did you receive an evidentiary hearing on your
petition, application or motion?
Yes
No
(5) Result___________________
(6) Date of result_______________
(b) As to any second petition, application or motion give the
same information:
(1) Name of court ______________
(2) Nature of proceeding __________
______________________
(3) Grounds raised ______________
______________________
______________________
______________________
______________________
(4) Did you receive an evidentiary hearing on
your petition, application or motion?
Yes
No
(5) Result___________________
(6) Date of result_______________
(c) As to any third petition, application or motion, give the
same information:
(1) Name of court ______________
(2) Nature of proceeding __________
______________________
(3) Grounds raised ______________
______________________
______________________
______________________
______________________
(4) Did you receive an evidentiary hearing on your
petition, application or motion?
Yes
No
(5) Result___________________
(6) Date of result_______________
(d) Did you appeal to the highest state court having
jurisdiction the result of action taken on any
petition, application or motion?
(1) First petition, etc. Yes
No
(2) Second petition, etc. Yes
No
(3) Third petition, etc. Yes
No
(e) If you did not appeal from the adverse action on any
petition, application or motion, explain briefly why
you did not:
__________________________
__________________________
__________________________
12. State concisely every ground on which you claim that you are being
held unlawfully. Summarize briefly the facts supporting each
ground. If necessary, you may attach pages stating additional
grounds and facts supporting same.
Caution: In order to proceed in the federal court, you must
ordinarily first exhaust your state court remedies as to
each ground on which you request action by the federal
court. If you fail to set forth all grounds in this
petition, you may be barred from presenting additional
grounds at a later date.
For your information, the following is a list of the most
frequently raised grounds for relief in habeas corpus
proceedings. Each statement preceded by a letter constitutes a
separate ground for possible relief. You may raise any grounds
which you may have other than those listed if you have exhausted
your state court remedies with respect to them. However, you
should raise in this petition all available grounds (relating to
this conviction) on which you base your allegations that you are
being held in custody unlawfully.
Do not check any of these listed grounds. If you select one
or more of these grounds for relief, you must allege facts. The
petition will be returned to you if you merely check (a) through
(j) or any one of these grounds.
(a) Conviction obtained by plea of guilty which was unlawfully induced
or not made voluntarily with understanding of the nature
of the charge and the consequences of the plea.
(b) Conviction obtained by use of coerced confession.
(c) Conviction obtained by use of evidence gained pursuant to an
unconstitutional search and seizure.
(d) Conviction obtained by use of evidence obtained pursuant to an
unlawful arrest.
(e) Conviction obtained by a violation of the privilege against self-
incrimination.
(f) Conviction obtained by the unconstitutional failure of the
prosecution to disclose to the defendant evidence
favorable to the defendant.
(g) Conviction obtained by a violation of the protection against
double jeopardy.
(h) Conviction obtained by action of a grand or petit jury which was
unconstitutionally selected and impaneled.
(i) Denial of effective assistance of counsel.
(j) Denial of right of appeal.
A. Ground one: ___________________
__________________________
Supporting FACTS (tell your story briefly without citing cases
or law): _____________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
B. Ground two: __________________
__________________________
Supporting FACTS (tell your story briefly without citing cases
or law): _____________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
C. Ground three: __________________
__________________________
Supporting FACTS (tell your story briefly without citing cases
or law): _____________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
D. Ground four: __________________
__________________________
Supporting FACTS (tell your story briefly without citing cases
or law): _____________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
13. If any of the grounds listed in 12A, B, C, and D were not previously
presented in any other court, state or federal, state briefly
what grounds were not so presented, and give your reasons for
not presenting them:
___________________________
___________________________
___________________________
14. Do you have any petition or appeal now pending in any court, either
state or federal, as to the judgment under attack?
Yes
No
15. Give the name and address, if known, of each attorney who
represented you in the following stages of the judgment attacked
herein:
(a) At preliminary hearing __________
________________________
(b) At arraignment and plea _________
________________________
(c) At trial ___________________
________________________
(d) At sentencing _______________
________________________
(e) On appeal __________________
________________________
(f) In any post-conviction proceeding ____
________________________
________________________
(g) On appeal from any adverse ruling in a postconviction
proceeding _________
________________________
________________________
16. Were you sentenced on more than one count of an indictment, or on
more than one indictment, in the same court and at the same
time?
Yes
No
17. Do you have any future sentence to serve after you complete the
sentence imposed by the judgment under attack?
Yes
No
(a) If so, give name and location of court which imposed
sentence to be served in the future:
________________________
________________________
(b) And give date and length of sentence to be served in the
future:
________________________
________________________
(c) Have you filed, or do you contemplate filing, any petition
attacking the judgment which imposed the sentence to
be served in the future?
Yes
No
Wherefore, petitioner prays that the Court grant petitioner relief
to which he may be entitled in this proceeding.
_________________
Signature of Attorney (if any)
I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on _____.
(date)
______________
Signature of Petitioner
IN FORMA PAUPERIS DECLARATION
_________________________
[Insert appropriate court]
______________ DECLARATION IN
(Petitioner) SUPPORT
OF REQUEST
v. TO PROCEED
______________ IN FORMA
(Respondent(s)) PAUPERIS
I, ______________, declare that I am the petitioner in the above
entitled case; that in support of my motion to proceed without being
required to prepay fees, costs or give security therefor, I state that
because of my poverty I am unable to pay the costs of said proceeding or
to give security therefor; that I believe I am entitled to relief.
1. Are you presently employed? Yes
No
a. If the answer is ``yes,'' state the amount of your salary or
wages per month, and give the name and address of your
employer.
_________________________
_________________________
b. If the answer is ``no,'' state the date of last employment and
the amount of the salary and wages per month which you
received.
_________________________
_________________________
2. Have you received within the past twelve months any money from any of
the following sources?
a. Business, profession or form of self-employment? Yes
No
b. Rent payments, interest or dividends? Yes
No
c. Pensions, annuities or life insurance payments? Yes
No
d. Gifts or inheritances? Yes
No
e. Any other sources? Yes
No
If the answer to any of the above is ``yes,'' describe each
source of money and state the amount received from each during
the past twelve months.
___________________________
___________________________
___________________________
___________________________
3. Do you own cash, or do you have money in a checking or savings
account?
Yes
No
(Include any funds in prison accounts.)
If the answer is ``yes,'' state the total value of the items
owned.
___________________________
___________________________
___________________________
4. Do you own any real estate, stocks, bonds, notes, automobiles, or
other valuable property (excluding ordinary household
furnishings and clothing)?
Yes
No
If the answer is ``yes,'' describe the property and state
its approximate value.
___________________________
___________________________
___________________________
5. List the persons who are dependent upon you for support, state your
relationship to those persons, and indicate how much you
contribute toward their support.
___________________________
___________________________
___________________________
I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on _____.
(date)
______________
Signature of Petitioner
Certificate
I hereby certify that the petitioner herein has the sum of $____ on
account to his credit at the ____ institution where he is confined. I
further certify that petitioner likewise has the following securities to
his credit according to the records of said ____ institution:
_________________________
_________________________
_________________________
_________________________
______________
Authorized Officer of
Institution
(As amended Apr. 28, 1982, eff. Aug. 1, 1982.)
MODEL FORM FOR USE IN 28 U.S.C. Sec. 2254 CASES INVOLVING A RULE
9 ISSUE
Form No. 9
United States District Court,
__________ District of __________
Case No. --------
__________, PETITIONER
v.
__________, RESPONDENT
and
______, ADDITIONAL RESPONDENT
Petitioner's Response as to Why His Petition Should Not Be
Barred Under Rule 9
Explanation and Instructions--Read Carefully
(I) Rule 9. Delayed or successive petitions.
(a) Delayed petitions. A petition may be dismissed if it appears
that the state of which the respondent is an officer has been prejudiced
in its ability to respond to the petition by delay in its filing unless
the petitioner shows that it is based on grounds of which he could not
have had knowledge by the exercise of reasonable diligence before the
circumstances prejudicial to the state occurred.
(b) Successive petitions. A second or successive petition may be
dismissed if the judge finds that it fails to allege new or different
grounds for relief and the prior determination was on the merits or, if
new and different grounds are alleged, the judge finds that the failure
of the petitioner to assert those grounds in a prior petition
constituted an abuse of the writ.
(II) Your petition for habeas corpus has been found to be subject to
dismissal under rule 9( ) for the following reason(s):
___________________________
___________________________
___________________________
___________________________
(III) This form has been sent so that you may explain why your petition
contains the defect(s) noted in (II) above. It is
required that you fill out this form and send it back to
the court within ____ days. Failure to do so will result
in the automatic dismissal of your petition.
(IV) When you have fully completed this form, the original and two
copies must be mailed to the Clerk of the United States
District Court whose address is ________________
___________________________
(V) This response must be legibly handwritten or typewritten, and signed
by the petitioner, under penalty of perjury. Any false
statement of a material fact may serve as the basis for
prosecution and conviction for perjury. All questions
must be answered concisely in the proper space on the
form.
(VI) Additional pages are not permitted except with respect to the facts
which you rely upon in item 4 or 5 in the response. Any
citation of authorities should be kept to an absolute
minimum and is only appropriate if there has been a
change in the law since the judgment you are attacking
was rendered.
(VII) Respond to 4 or 5 below, not to both, unless (II) above indicates
that you must answer both sections.
RESPONSE
1. Have you had the assistance of an attorney, other law-trained
personnel, or writ writers since the conviction your petition is
attacking was entered?
Yes
No
2. If you checked ``yes'' above, specify as precisely as you can the
period(s) of time during which you received such assistance, up
to and including the present.
___________________________
___________________________
3. Describe the nature of the assistance, including the names of those
who rendered it to you.
___________________________
___________________________
___________________________
___________________________
4. If your petition is in jeopardy because of delay prejudicial to the
state under rule 9(a), explain why you feel the delay has not
been prejudicial and/or why the delay is excusable under the
terms of 9(a). This should be done by relying upon FACTS, not
your opinions or conclusions.
___________________________
___________________________
___________________________
___________________________
___________________________
5. If your petition is in jeopardy under rule 9(b) because it asserts
the same grounds as a previous petition, explain why you feel it
deserves a reconsideration. If its fault under rule 9(b) is that
it asserts new grounds which should have been included in a
prior petition, explain why you are raising these grounds now
rather than previously. Your explanation should rely on FACTS,
not your opinions or conclusions.
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on _____.
(date)
______________
Signature of Petitioner
(As amended Apr. 28, 1982, eff. Aug. 1, 1982.)
