-CITE-
    28 USC CHAPTER 153 - HABEAS CORPUS                          01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
                        CHAPTER 153 - HABEAS CORPUS                    
-MISC1-
    Sec.                                                     
    2241.       Power to grant writ.                                  
    2242.       Application.                                          
    2243.       Issuance of writ; return; hearing; decision.          
    2244.       Finality of determination.                            
    2245.       Certificate of trial judge admissible in evidence.    
    2246.       Evidence; depositions; affidavits.                    
    2247.       Documentary evidence.                                 
    2248.       Return or answer; conclusiveness.                     
    2249.       Certified copies of indictment, plea and judgment;
                 duty of respondent.                                  
    2250.       Indigent petitioner entitled to documents without
                 cost.                                                
    2251.       Stay of State court proceedings.                      
    2252.       Notice.                                               
    2253.       Appeal.                                               
    2254.       State custody; remedies in Federal courts.            
    2255.       Federal custody; remedies on motion attacking
                 sentence.                                            
    [2256.      Omitted.]                                             
                         SENATE REVISION AMENDMENT                     
      Chapter catchline was changed by Senate amendment. See 80th
    Congress Senate Report No. 1559.
                                AMENDMENTS                            
      1978 - Pub. L. 95-598, title II, Sec. 250(b), Nov. 6, 1978, 92
    Stat. 2672, directed the addition of item 2256 "Habeas corpus from
    bankruptcy courts", which amendment did not become effective
    pursuant to section 402(b) of Pub. L. 95-598, as amended, set out
    as an Effective Date note preceding section 101 of Title 11,
    Bankruptcy.
      1966 - Pub. L. 89-711, Sec. 3, Nov. 2, 1966, 80 Stat. 1106,
    substituted "Federal courts" for "State Courts" in item 2254.
-End-
-CITE-
    28 USC Sec. 2241                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    Sec. 2241. Power to grant writ
-STATUTE-
      (a) Writs of habeas corpus may be granted by the Supreme Court,
    any justice thereof, the district courts and any circuit judge
    within their respective jurisdictions. The order of a circuit judge
    shall be entered in the records of the district court of the
    district wherein the restraint complained of is had.
      (b) The Supreme Court, any justice thereof, and any circuit judge
    may decline to entertain an application for a writ of habeas corpus
    and may transfer the application for hearing and determination to
    the district court having jurisdiction to entertain it.
      (c) The writ of habeas corpus shall not extend to a prisoner
    unless - 
        (1) He is in custody under or by color of the authority of the
      United States or is committed for trial before some court
      thereof; or
        (2) He is in custody for an act done or omitted in pursuance of
      an Act of Congress, or an order, process, judgment or decree of a
      court or judge of the United States; or
        (3) He is in custody in violation of the Constitution or laws
      or treaties of the United States; or
        (4) He, being a citizen of a foreign state and domiciled
      therein is in custody for an act done or omitted under any
      alleged right, title, authority, privilege, protection, or
      exemption claimed under the commission, order or sanction of any
      foreign state, or under color thereof, the validity and effect of
      which depend upon the law of nations; or
        (5) It is necessary to bring him into court to testify or for
      trial.
      (d) Where an application for a writ of habeas corpus is made by a
    person in custody under the judgment and sentence of a State court
    of a State which contains two or more Federal judicial districts,
    the application may be filed in the district court for the district
    wherein such person is in custody or in the district court for the
    district within which the State court was held which convicted and
    sentenced him and each of such district courts shall have
    concurrent jurisdiction to entertain the application. The district
    court for the district wherein such an application is filed in the
    exercise of its discretion and in furtherance of justice may
    transfer the application to the other district court for hearing
    and determination.
      (e)(1) No court, justice, or judge shall have jurisdiction to
    hear or consider an application for a writ of habeas corpus filed
    by or on behalf of an alien detained by the United States who has
    been determined by the United States to have been properly detained
    as an enemy combatant or is awaiting such determination.
      (2) Except as provided in paragraphs (2) and (3) of section
    1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note),
    no court, justice, or judge shall have jurisdiction to hear or
    consider any other action against the United States or its agents
    relating to any aspect of the detention, transfer, treatment,
    trial, or conditions of confinement of an alien who is or was
    detained by the United States and has been determined by the United
    States to have been properly detained as an enemy combatant or is
    awaiting such determination.
-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 964; May 24, 1949, ch. 139, Sec.
    112, 63 Stat. 105; Pub. L. 89-590, Sept. 19, 1966, 80 Stat. 811;
    Pub. L. 109-148, div. A, title X, Sec. 1005(e)(1), Dec. 30, 2005,
    119 Stat. 2741; Pub. L. 109-163, div. A, title XIV, Sec.
    1405(e)(1), Jan. 6, 2006, 119 Stat. 3477; Pub. L. 109-366, Sec.
    7(a), Oct. 17, 2006, 120 Stat. 2635.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                                 1948 ACT                             
      Based on title 28, U.S.C., 1940 ed., Secs. 451, 452, 453 (R.S.
    Secs. 751, 752, 753; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat.
    1167; Feb. 13, 1925, ch. 229, Sec. 6, 43 Stat. 940).
      Section consolidates sections 451, 452 and 453 of title 28,
    U.S.C., 1940 ed., with changes in phraseology necessary to effect
    the consolidation.
      Words "for the purpose of an inquiry into the cause of restraint
    of liberty" in section 452 of title 28, U.S.C., 1940 ed., were
    omitted as merely descriptive of the writ.
      Subsection (b) was added to give statutory sanction to orderly
    and appropriate procedure. A circuit judge who unnecessarily
    entertains applications which should be addressed to the district
    court, thereby disqualifies himself to hear such matters on appeal
    and to that extent limits his usefulness as a judge of the court of
    appeals. The Supreme Court and Supreme Court Justices should not be
    burdened with applications for writs cognizable in the district
    courts.
                                 1949 ACT                             
      This section inserts commas in certain parts of the text of
    subsection (b) of section 2241 of title 28, U.S.C., for the purpose
    of proper punctuation.
-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 1005(e) of the Detainee Treatment Act of 2005, referred
    to in subsec. (e)(2), is section 1005(e) of title X of div. A of
    Pub. L. 109-148, which is set out as a note under section 801 of
    Title 10, Armed Forces.
-MISC2-
                                AMENDMENTS                            
      2006 - Subsec. (e). Pub. L. 109-366 added subsec. (e) and struck
    out both former subsecs. (e) relating to jurisdiction to hear or
    consider action against United States or its agents relating to
    detention of alien by Department of Defense at Guantanamo Bay,
    Cuba.
      Subsec. (e). Pub. L. 109-163 added subsec. (e), relating to
    section 1405 of the Detainee Treatment Act of 2005.
      2005 - Subsec. (e). Pub. L. 109-148 added subsec. (e), relating
    to section 1005 of the Detainee Treatment Act of 2005.
      1966 - Subsec. (d). Pub. L. 89-590 added subsec. (d).
      1949 - Subsec. (b). Act May 24, 1949, inserted commas after
    "Supreme Court" and "any justice thereof".
                     EFFECTIVE DATE OF 2006 AMENDMENT                 
      Pub. L. 109-366, Sec. 7(b), Oct. 17, 2006, 120 Stat. 2636,
    provided that: "The amendment made by subsection (a) [amending this
    section] shall take effect on the date of the enactment of this Act
    [Oct. 17, 2006], and shall apply to all cases, without exception,
    pending on or after the date of the enactment of this Act which
    relate to any aspect of the detention, transfer, treatment, trial,
    or conditions of detention of an alien detained by the United
    States since September 11, 2001."
      TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR CERTAIN CLAIMS  
      Pub. L. 109-366, Sec. 5, Oct. 17, 2006, 120 Stat. 2631, provided
    that:
      "(a) In General. - No person may invoke the Geneva Conventions or
    any protocols thereto in any habeas corpus or other civil action or
    proceeding to which the United States, or a current or former
    officer, employee, member of the Armed Forces, or other agent of
    the United States is a party as a source of rights in any court of
    the United States or its States or territories.
      "(b) Geneva Conventions Defined. - In this section, the term
    'Geneva Conventions' means - 
        "(1) the Convention for the Amelioration of the Condition of
      the Wounded and Sick in Armed Forces in the Field, done at Geneva
      August 12, 1949 (6 UST 3114);
        "(2) the Convention for the Amelioration of the Condition of
      the Wounded, Sick, and Shipwrecked Members of the Armed Forces at
      Sea, done at Geneva August 12, 1949 (6 UST 3217);
        "(3) the Convention Relative to the Treatment of Prisoners of
      War, done at Geneva August 12, 1949 (6 UST 3316); and
        "(4) the Convention Relative to the Protection of Civilian
      Persons in Time of War, done at Geneva August 12, 1949 (6 UST
      3516)."
-End-
-CITE-
    28 USC Sec. 2242                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    Sec. 2242. Application
-STATUTE-
      Application for a writ of habeas corpus shall be in writing
    signed and verified by the person for whose relief it is intended
    or by someone acting in his behalf.
      It shall allege the facts concerning the applicant's commitment
    or detention, the name of the person who has custody over him and
    by virtue of what claim or authority, if known.
      It may be amended or supplemented as provided in the rules of
    procedure applicable to civil actions.
      If addressed to the Supreme Court, a justice thereof or a circuit
    judge it shall state the reasons for not making application to the
    district court of the district in which the applicant is held.
-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 965.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
      Based on title 28, U.S.C., 1940 ed., Sec. 454 (R.S. Sec. 754).
      Words "or by someone acting in his behalf" were added. This
    follows the actual practice of the courts, as set forth in United
    States ex rel. Funaro v. Watchorn, C.C. 1908, 164 F. 152; Collins
    v. Traeger, C.C.A. 1928, 27 F.2d 842, and cases cited.
      The third paragraph is new. It was added to conform to existing
    practice as approved by judicial decisions. See Dorsey v. Gill
    (App.D.C.) 148 F.2d 857, 865, 866. See also Holiday v. Johnston, 61
    S.Ct. 1015, 313 U.S. 342, 85 L.Ed. 1392.
      Changes were made in phraseology.
-End-
-CITE-
    28 USC Sec. 2243                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    Sec. 2243. Issuance of writ; return; hearing; decision
-STATUTE-
      A court, justice or judge entertaining an application for a writ
    of habeas corpus shall forthwith award the writ or issue an order
    directing the respondent to show cause why the writ should not be
    granted, unless it appears from the application that the applicant
    or person detained is not entitled thereto.
      The writ, or order to show cause shall be directed to the person
    having custody of the person detained. It shall be returned within
    three days unless for good cause additional time, not exceeding
    twenty days, is allowed.
      The person to whom the writ or order is directed shall make a
    return certifying the true cause of the detention.
      When the writ or order is returned a day shall be set for
    hearing, not more than five days after the return unless for good
    cause additional time is allowed.
      Unless the application for the writ and the return present only
    issues of law the person to whom the writ is directed shall be
    required to produce at the hearing the body of the person detained.
      The applicant or the person detained may, under oath, deny any of
    the facts set forth in the return or allege any other material
    facts.
      The return and all suggestions made against it may be amended, by
    leave of court, before or after being filed.
      The court shall summarily hear and determine the facts, and
    dispose of the matter as law and justice require.
-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 965.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
      Based on title 28, U.S.C., 1940 ed., Secs. 455, 456, 457, 458,
    459, 460, and 461 (R.S. Secs. 755-761).
      Section consolidates sections 455-461 of title 28, U.S.C., 1940
    ed.
      The requirement for return within 3 days "unless for good cause
    additional time, not exceeding 20 days is allowed" in the second
    paragraph, was substituted for the provision of such section 455
    which allowed 3 days for return if within 20 miles, 10 days if more
    than 20 but not more than 100 miles, and 20 days if more than 100
    miles distant.
      Words "unless for good cause additional time is allowed" in the
    fourth paragraph, were substituted for words "unless the party
    petitioning requests a longer time" in section 459 of title 28,
    U.S.C., 1940 ed.
      The fifth paragraph providing for production of the body of the
    detained person at the hearing is in conformity with Walker v.
    Johnston, 1941, 61 S.Ct. 574, 312 U.S. 275, 85 L.Ed. 830.
      Changes were made in phraseology.
-End-
-CITE-
    28 USC Sec. 2244                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    Sec. 2244. Finality of determination
-STATUTE-
      (a) No circuit or district judge shall be required to entertain
    an application for a writ of habeas corpus to inquire into the
    detention of a person pursuant to a judgment of a court of the
    United States if it appears that the legality of such detention has
    been determined by a judge or court of the United States on a prior
    application for a writ of habeas corpus, except as provided in
    section 2255.
      (b)(1) A claim presented in a second or successive habeas corpus
    application under section 2254 that was presented in a prior
    application shall be dismissed.
      (2) A claim presented in a second or successive habeas corpus
    application under section 2254 that was not presented in a prior
    application shall be dismissed unless - 
        (A) the applicant shows that the claim relies on a new rule of
      constitutional law, made retroactive to cases on collateral
      review by the Supreme Court, that was previously unavailable; or
        (B)(i) the factual predicate for the claim could not have been
      discovered previously through the exercise of due diligence; and
        (ii) the facts underlying the claim, if proven and viewed in
      light of the evidence as a whole, would be sufficient to
      establish by clear and convincing evidence that, but for
      constitutional error, no reasonable factfinder would have found
      the applicant guilty of the underlying offense.
      (3)(A) Before a second or successive application permitted by
    this section is filed in the district court, the applicant shall
    move in the appropriate court of appeals for an order authorizing
    the district court to consider the application.
      (B) A motion in the court of appeals for an order authorizing the
    district court to consider a second or successive application shall
    be determined by a three-judge panel of the court of appeals.
      (C) The court of appeals may authorize the filing of a second or
    successive application only if it determines that the application
    makes a prima facie showing that the application satisfies the
    requirements of this subsection.
      (D) The court of appeals shall grant or deny the authorization to
    file a second or successive application not later than 30 days
    after the filing of the motion.
      (E) The grant or denial of an authorization by a court of appeals
    to file a second or successive application shall not be appealable
    and shall not be the subject of a petition for rehearing or for a
    writ of certiorari.
      (4) A district court shall dismiss any claim presented in a
    second or successive application that the court of appeals has
    authorized to be filed unless the applicant shows that the claim
    satisfies the requirements of this section.
      (c) In a habeas corpus proceeding brought in behalf of a person
    in custody pursuant to the judgment of a State court, a prior
    judgment of the Supreme Court of the United States on an appeal or
    review by a writ of certiorari at the instance of the prisoner of
    the decision of such State court, shall be conclusive as to all
    issues of fact or law with respect to an asserted denial of a
    Federal right which constitutes ground for discharge in a habeas
    corpus proceeding, actually adjudicated by the Supreme Court
    therein, unless the applicant for the writ of habeas corpus shall
    plead and the court shall find the existence of a material and
    controlling fact which did not appear in the record of the
    proceeding in the Supreme Court and the court shall further find
    that the applicant for the writ of habeas corpus could not have
    caused such fact to appear in such record by the exercise of
    reasonable diligence.
      (d)(1) A 1-year period of limitation shall apply to an
    application for a writ of habeas corpus by a person in custody
    pursuant to the judgment of a State court. The limitation period
    shall run from the latest of - 
        (A) the date on which the judgment became final by the
      conclusion of direct review or the expiration of the time for
      seeking such review;
        (B) the date on which the impediment to filing an application
      created by State action in violation of the Constitution or laws
      of the United States is removed, if the applicant was prevented
      from filing by such State action;
        (C) the date on which the constitutional right asserted was
      initially recognized by the Supreme Court, if the right has been
      newly recognized by the Supreme Court and made retroactively
      applicable to cases on collateral review; or
        (D) the date on which the factual predicate of the claim or
      claims presented could have been discovered through the exercise
      of due diligence.
      (2) The time during which a properly filed application for State
    post-conviction or other collateral review with respect to the
    pertinent judgment or claim is pending shall not be counted toward
    any period of limitation under this subsection.
-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 965; Pub. L. 89-711, Sec. 1, Nov.
    2, 1966, 80 Stat. 1104; Pub. L. 104-132, title I, Secs. 101, 106,
    Apr. 24, 1996, 110 Stat. 1217, 1220.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
      This section makes no material change in existing practice.
    Notwithstanding the opportunity open to litigants to abuse the
    writ, the courts have consistently refused to entertain successive
    "nuisance" applications for habeas corpus. It is derived from H.R.
    4232 introduced in the first session of the Seventy-ninth Congress
    by Chairman Hatton Sumners of the Committee on the Judiciary and
    referred to that Committee.
      The practice of suing out successive, repetitious, and unfounded
    writs of habeas corpus imposes an unnecessary burden on the courts.
    See Dorsey v. Gill, 1945, 148 F.2d 857, 862, in which Miller, J.,
    notes that "petitions for the writ are used not only as they should
    be to protect unfortunate persons against miscarriages of justice,
    but also as a device for harassing court, custodial, and
    enforcement officers with a multiplicity of repetitious, meritless
    requests for relief. The most extreme example is that of a person
    who, between July 1, 1939, and April 1944 presented in the District
    Court 50 petitions for writs of habeas corpus; another person has
    presented 27 petitions; a third, 24; a fourth, 22; a fifth, 20. One
    hundred nineteen persons have presented 597 petitions - an average
    of 5."
                        SENATE REVISION AMENDMENTS                    
      Section amended to modify original language which denied Federal
    judges power to entertain application for writ where legality of
    detention had been determined on prior application and later
    application presented no new grounds, and to omit reference to
    rehearing in section catch line and original provision authorizing
    hearing judge to grant rehearing. 80th Congress, Senate Report No.
    1559, Amendment No. 45.
                                AMENDMENTS                            
      1996 - Subsec. (a). Pub. L. 104-132, Sec. 106(a), substituted ",
    except as provided in section 2255." for "and the petition presents
    no new ground not heretofore presented and determined, and the
    judge or court is satisfied that the ends of justice will not be
    served by such inquiry."
      Subsec. (b). Pub. L. 104-132, Sec. 106(b), amended subsec. (b)
    generally. Prior to amendment, subsec. (b) read as follows: "When
    after an evidentiary hearing on the merits of a material factual
    issue, or after a hearing on the merits of an issue of law, a
    person in custody pursuant to the judgment of a State court has
    been denied by a court of the United States or a justice or judge
    of the United States release from custody or other remedy on an
    application for a writ of habeas corpus, a subsequent application
    for a writ of habeas corpus in behalf of such person need not be
    entertained by a court of the United States or a justice or judge
    of the United States unless the application alleges and is
    predicated on a factual or other ground not adjudicated on the
    hearing of the earlier application for the writ, and unless the
    court, justice, or judge is satisfied that the applicant has not on
    the earlier application deliberately withheld the newly asserted
    ground or otherwise abused the writ."
      Subsec. (d). Pub. L. 104-132, Sec. 101, added subsec. (d).
      1966 - Pub. L. 89-711 designated existing provisions as subsec.
    (a), struck out provision making the subsection's terms applicable
    to applications seeking inquiry into detention of persons detained
    pursuant to judgments of State courts, and added subsecs. (b) and
    (c).
-End-
-CITE-
    28 USC Sec. 2245                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    Sec. 2245. Certificate of trial judge admissible in evidence
-STATUTE-
      On the hearing of an application for a writ of habeas corpus to
    inquire into the legality of the detention of a person pursuant to
    a judgment the certificate of the judge who presided at the trial
    resulting in the judgment, setting forth the facts occurring at the
    trial, shall be admissible in evidence. Copies of the certificate
    shall be filed with the court in which the application is pending
    and in the court in which the trial took place.
-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 966.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
      This section makes no substantive change in existing law. It is
    derived from H.R. 4232 introduced in the first session of the
    Seventy-ninth Congress by Chairman Sumners of the House Committee
    on the Judiciary. It clarifies existing law and promotes uniform
    procedure.
-End-
-CITE-
    28 USC Sec. 2246                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    Sec. 2246. Evidence; depositions; affidavits
-STATUTE-
      On application for a writ of habeas corpus, evidence may be taken
    orally or by deposition, or, in the discretion of the judge, by
    affidavit. If affidavits are admitted any party shall have the
    right to propound written interrogatories to the affiants, or to
    file answering affidavits.
-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 966.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
      This section is derived from H.R. 4232 introduced in the first
    session of the Seventy-ninth Congress by Chairman Sumners of the
    House Committee on the Judiciary. It clarifies existing practice
    without substantial change.
-End-
-CITE-
    28 USC Sec. 2247                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    Sec. 2247. Documentary evidence
-STATUTE-
      On application for a writ of habeas corpus documentary evidence,
    transcripts of proceedings upon arraignment, plea and sentence and
    a transcript of the oral testimony introduced on any previous
    similar application by or in behalf of the same petitioner, shall
    be admissible in evidence.
-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 966.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
      Derived from H.R. 4232, Seventy-ninth Congress, first session. It
    is declaratory of existing law and practice.
-End-
-CITE-
    28 USC Sec. 2248                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    Sec. 2248. Return or answer; conclusiveness
-STATUTE-
      The allegations of a return to the writ of habeas corpus or of an
    answer to an order to show cause in a habeas corpus proceeding, if
    not traversed, shall be accepted as true except to the extent that
    the judge finds from the evidence that they are not true.
-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 966.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
      Derived from H.R. 4232, Seventy-ninth Congress, first session. At
    common law the return was conclusive and could not be controverted
    but it is now almost universally held that the return is not
    conclusive of the facts alleged therein. 39 C.J.S. pp. 664-666,
    Secs. 98, 99.
-End-
-CITE-
    28 USC Sec. 2249                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    Sec. 2249. Certified copies of indictment, plea and judgment; duty
      of respondent
-STATUTE-
      On application for a writ of habeas corpus to inquire into the
    detention of any person pursuant to a judgment of a court of the
    United States, the respondent shall promptly file with the court
    certified copies of the indictment, plea of petitioner and the
    judgment, or such of them as may be material to the questions
    raised, if the petitioner fails to attach them to his petition, and
    same shall be attached to the return to the writ, or to the answer
    to the order to show cause.
-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 966.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
      Derived from H.R. 4232, Seventy-ninth Congress, first session. It
    conforms to the prevailing practice in habeas corpus proceedings.
-End-
-CITE-
    28 USC Sec. 2250                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    Sec. 2250. Indigent petitioner entitled to documents without cost
-STATUTE-
      If on any application for a writ of habeas corpus an order has
    been made permitting the petitioner to prosecute the application in
    forma pauperis, the clerk of any court of the United States shall
    furnish to the petitioner without cost certified copies of such
    documents or parts of the record on file in his office as may be
    required by order of the judge before whom the application is
    pending.
-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 966.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
      Derived from H.R. 4232, Seventy-ninth Congress, first session. It
    conforms to the prevailing practice.
-End-
-CITE-
    28 USC Sec. 2251                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    Sec. 2251. Stay of State court proceedings
-STATUTE-
      (a) In General. - 
        (1) Pending matters. - A justice or judge of the United States
      before whom a habeas corpus proceeding is pending, may, before
      final judgment or after final judgment of discharge, or pending
      appeal, stay any proceeding against the person detained in any
      State court or by or under the authority of any State for any
      matter involved in the habeas corpus proceeding.
        (2) Matter not pending. - For purposes of this section, a
      habeas corpus proceeding is not pending until the application is
      filed.
        (3) Application for appointment of counsel. - If a State
      prisoner sentenced to death applies for appointment of counsel
      pursuant to section 3599(a)(2) of title 18 in a court that would
      have jurisdiction to entertain a habeas corpus application
      regarding that sentence, that court may stay execution of the
      sentence of death, but such stay shall terminate not later than
      90 days after counsel is appointed or the application for
      appointment of counsel is withdrawn or denied.
      (b) No Further Proceedings. - After the granting of such a stay,
    any such proceeding in any State court or by or under the authority
    of any State shall be void. If no stay is granted, any such
    proceeding shall be as valid as if no habeas corpus proceedings or
    appeal were pending.
-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 966; Pub. L. 109-177, title V,
    Sec. 507(f), Mar. 9, 2006, 120 Stat. 251.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
      Based on title 28, U.S.C., 1940 ed., Sec. 465 (R.S. Sec. 766;
    Mar. 3, 1893, ch. 226, 27 Stat. 751; Feb. 13, 1925, ch. 229, Sec.
    8(c), 43 Stat. 940; June 19, 1934, ch. 673, 48 Stat. 1177).
      Provisions relating to proceedings pending in 1934 were deleted
    as obsolete.
      A provision requiring an appeal to be taken within 3 months was
    omitted as covered by sections 2101 and 2107 of this title.
      Changes were made in phraseology.
                                AMENDMENTS                            
      2006 - Pub. L. 109-177 designated first par. of existing
    provisions as subsec. (a)(1) and inserted headings, added pars. (2)
    and (3), and designated second par. of existing provisions as
    subsec. (b) and inserted heading.
                     EFFECTIVE DATE OF 2006 AMENDMENT                 
      Pub. L. 109-177, title V, Sec. 507(d), Mar. 9, 2006, 120 Stat.
    251, provided that:
      "(1) In general. - This section [enacting section 2265 of this
    title, amending this section and sections 2261 and 2266 of this
    title, and repealing former section 2265 of this title] and the
    amendments made by this section shall apply to cases pending on or
    after the date of enactment of this Act [Mar. 9, 2006].
      "(2) Time limits. - In a case pending on the date of enactment of
    this Act, if the amendments made by this section establish a time
    limit for taking certain action, the period of which began on the
    date of an event that occurred prior to the date of enactment of
    this Act, the period of such time limit shall instead begin on the
    date of enactment of this Act."
-End-
-CITE-
    28 USC Sec. 2252                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    Sec. 2252. Notice
-STATUTE-
      Prior to the hearing of a habeas corpus proceeding in behalf of a
    person in custody of State officers or by virtue of State laws
    notice shall be served on the attorney general or other appropriate
    officer of such State as the justice or judge at the time of
    issuing the writ shall direct.
-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 967.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
      Based on title 28, U.S.C., 1940 ed., Sec. 462 (R.S. Sec. 762).
      Section 462 of title 28, U.S.C., 1940 ed., was limited to alien
    prisoners described in section 453 of title 28, U.S.C., 1940 ed.
    The revised section extends to all cases of all prisoners under
    State custody or authority, leaving it to the justice or judge to
    prescribe the notice to State officers, to specify the officer
    served, and to satisfy himself that such notice has been given.
      Provision for making due proof of such service was omitted as
    unnecessary. The sheriff's or marshal's return is sufficient.
      Changes were made in phraseology.
-End-
-CITE-
    28 USC Sec. 2253                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    Sec. 2253. Appeal
-STATUTE-
      (a) In a habeas corpus proceeding or a proceeding under section
    2255 before a district judge, the final order shall be subject to
    review, on appeal, by the court of appeals for the circuit in which
    the proceeding is held.
      (b) There shall be no right of appeal from a final order in a
    proceeding to test the validity of a warrant to remove to another
    district or place for commitment or trial a person charged with a
    criminal offense against the United States, or to test the validity
    of such person's detention pending removal proceedings.
      (c)(1) Unless a circuit justice or judge issues a certificate of
    appealability, an appeal may not be taken to the court of appeals
    from - 
        (A) the final order in a habeas corpus proceeding in which the
      detention complained of arises out of process issued by a State
      court; or
        (B) the final order in a proceeding under section 2255.
      (2) A certificate of appealability may issue under paragraph (1)
    only if the applicant has made a substantial showing of the denial
    of a constitutional right.
      (3) The certificate of appealability under paragraph (1) shall
    indicate which specific issue or issues satisfy the showing
    required by paragraph (2).
-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139, Sec.
    113, 63 Stat. 105; Oct. 31, 1951, ch. 655, Sec. 52, 65 Stat. 727;
    Pub. L. 104-132, title I, Sec. 102, Apr. 24, 1996, 110 Stat. 1217.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                                 1948 ACT                             
      Based on title 28, U.S.C., 1940 ed., Secs. 463(a) and 466 (Mar.
    10, 1908, ch. 76, 36 Stat. 40; Feb. 13, 1925, ch. 229, Secs. 6, 13,
    43 Stat. 940, 942; June 29, 1938, ch. 806, 52 Stat. 1232).
      This section consolidates paragraph (a) of section 463, and
    section 466 of title 28, U.S.C., 1940 ed.
      The last two sentences of section 463(a) of title 28, U.S.C.,
    1940 ed., were omitted. They were repeated in section 452 of title
    28, U.S.C., 1940 ed. (See reviser's note under section 2241 of this
    title.)
      Changes were made in phraseology.
                                 1949 ACT                             
      This section corrects a typographical error in the second
    paragraph of section 2253 of title 28.
                                AMENDMENTS                            
      1996 - Pub. L. 104-132 reenacted section catchline without change
    and amended text generally. Prior to amendment, text read as
    follows:
      "In a habeas corpus proceeding before a circuit or district
    judge, the final order shall be subject to review, on appeal, by
    the court of appeals for the circuit where the proceeding is had.
      "There shall be no right of appeal from such an order in a
    proceeding to test the validity of a warrant to remove, to another
    district or place for commitment or trial, a person charged with a
    criminal offense against the United States, or to test the validity
    of his detention pending removal proceedings.
      "An appeal may not be taken to the court of appeals from the
    final order in a habeas corpus proceeding where the detention
    complained of arises out of process issued by a State court, unless
    the justice or judge who rendered the order or a circuit justice or
    judge issues a certificate of probable cause."
      1951 - Act Oct. 31, 1951, substituted "to remove, to another
    district or place for commitment or trial, a person charged with a
    criminal offense against the United States, or to test the validity
    of his" for "of removal issued pursuant to section 3042 of Title 18
    or the" in second par.
      1949 - Act May 24, 1949, substituted "3042" for "3041" in second
    par.
-End-
-CITE-
    28 USC Sec. 2254                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    Sec. 2254. State custody; remedies in Federal courts
-STATUTE-
      (a) The Supreme Court, a Justice thereof, a circuit judge, or a
    district court shall entertain an application for a writ of habeas
    corpus in behalf of a person in custody pursuant to the judgment of
    a State court only on the ground that he is in custody in violation
    of the Constitution or laws or treaties of the United States.
      (b)(1) An application for a writ of habeas corpus on behalf of a
    person in custody pursuant to the judgment of a State court shall
    not be granted unless it appears that - 
        (A) the applicant has exhausted the remedies available in the
      courts of the State; or
        (B)(i) there is an absence of available State corrective
      process; or
        (ii) circumstances exist that render such process ineffective
      to protect the rights of the applicant.
      (2) An application for a writ of habeas corpus may be denied on
    the merits, notwithstanding the failure of the applicant to exhaust
    the remedies available in the courts of the State.
      (3) A State shall not be deemed to have waived the exhaustion
    requirement or be estopped from reliance upon the requirement
    unless the State, through counsel, expressly waives the
    requirement.
      (c) An applicant shall not be deemed to have exhausted the
    remedies available in the courts of the State, within the meaning
    of this section, if he has the right under the law of the State to
    raise, by any available procedure, the question presented.
      (d) An application for a writ of habeas corpus on behalf of a
    person in custody pursuant to the judgment of a State court shall
    not be granted with respect to any claim that was adjudicated on
    the merits in State court proceedings unless the adjudication of
    the claim - 
        (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or
        (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in
      the State court proceeding.
      (e)(1) In a proceeding instituted by an application for a writ of
    habeas corpus by a person in custody pursuant to the judgment of a
    State court, a determination of a factual issue made by a State
    court shall be presumed to be correct. The applicant shall have the
    burden of rebutting the presumption of correctness by clear and
    convincing evidence.
      (2) If the applicant has failed to develop the factual basis of a
    claim in State court proceedings, the court shall not hold an
    evidentiary hearing on the claim unless the applicant shows that - 
        (A) the claim relies on - 
          (i) a new rule of constitutional law, made retroactive to
        cases on collateral review by the Supreme Court, that was
        previously unavailable; or
          (ii) a factual predicate that could not have been previously
        discovered through the exercise of due diligence; and
        (B) the facts underlying the claim would be sufficient to
      establish by clear and convincing evidence that but for
      constitutional error, no reasonable factfinder would have found
      the applicant guilty of the underlying offense.
      (f) If the applicant challenges the sufficiency of the evidence
    adduced in such State court proceeding to support the State court's
    determination of a factual issue made therein, the applicant, if
    able, shall produce that part of the record pertinent to a
    determination of the sufficiency of the evidence to support such
    determination. If the applicant, because of indigency or other
    reason is unable to produce such part of the record, then the State
    shall produce such part of the record and the Federal court shall
    direct the State to do so by order directed to an appropriate State
    official. If the State cannot provide such pertinent part of the
    record, then the court shall determine under the existing facts and
    circumstances what weight shall be given to the State court's
    factual determination.
      (g) A copy of the official records of the State court, duly
    certified by the clerk of such court to be a true and correct copy
    of a finding, judicial opinion, or other reliable written indicia
    showing such a factual determination by the State court shall be
    admissible in the Federal court proceeding.
      (h) Except as provided in section 408 of the Controlled
    Substances Act, in all proceedings brought under this section, and
    any subsequent proceedings on review, the court may appoint counsel
    for an applicant who is or becomes financially unable to afford
    counsel, except as provided by a rule promulgated by the Supreme
    Court pursuant to statutory authority. Appointment of counsel under
    this section shall be governed by section 3006A of title 18.
      (i) The ineffectiveness or incompetence of counsel during Federal
    or State collateral post-conviction proceedings shall not be a
    ground for relief in a proceeding arising under section 2254.
-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 967; Pub. L. 89-711, Sec. 2, Nov.
    2, 1966, 80 Stat. 1105; Pub. L. 104-132, title I, Sec. 104, Apr.
    24, 1996, 110 Stat. 1218.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
      This new section is declaratory of existing law as affirmed by
    the Supreme Court. (See Ex parte Hawk, 1944, 64 S. Ct. 448, 321,
    U.S. 114, 88L. Ed. 572.)
                        SENATE REVISION AMENDMENTS                    
      Senate amendment to this section, Senate Report No. 1559,
    amendment No. 47, has three declared purposes, set forth as
    follows:
      "The first is to eliminate from the prohibition of the section
    applications in behalf of prisoners in custody under authority of a
    State officer but whose custody has not been directed by the
    judgment of a State court. If the section were applied to
    applications by persons detained solely under authority of a State
    officer it would unduly hamper Federal courts in the protection of
    Federal officers prosecuted for acts committed in the course of
    official duty.
      "The second purpose is to eliminate, as a ground of Federal
    jurisdiction to review by habeas corpus judgments of State courts,
    the proposition that the State court has denied a prisoner a 'fair
    adjudication of the legality of his detention under the
    Constitution and laws of the United States.' The Judicial
    Conference believes that this would be an undesirable ground for
    Federal jurisdiction in addition to exhaustion of State remedies or
    lack of adequate remedy in the State courts because it would permit
    proceedings in the Federal court on this ground before the
    petitioner had exhausted his State remedies. This ground would, of
    course, always be open to a petitioner to assert in the Federal
    court after he had exhausted his State remedies or if he had no
    adequate State remedy.
      "The third purpose is to substitute detailed and specific
    language for the phrase 'no adequate remedy available.' That phrase
    is not sufficiently specific and precise, and its meaning should,
    therefore, be spelled out in more detail in the section as is done
    by the amendment."
-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 408 of the Controlled Substances Act, referred to in
    subsec. (h), is classified to section 848 of Title 21, Food and
    Drugs.
-MISC2-
                                AMENDMENTS                            
      1996 - Subsec. (b). Pub. L. 104-132, Sec. 104(1), amended subsec.
    (b) generally. Prior to amendment, subsec. (b) read as follows: "An
    application for a writ of habeas corpus in behalf of a person in
    custody pursuant to the judgment of a State court shall not be
    granted unless it appears that the applicant has exhausted the
    remedies available in the courts of the State, or that there is
    either an absence of available State corrective process or the
    existence of circumstances rendering such process ineffective to
    protect the rights of the prisoner."
      Subsec. (d). Pub. L. 104-132, Sec. 104(3), added subsec. (d).
    Former subsec. (d) redesignated (e).
      Subsec. (e). Pub. L. 104-132, Sec. 104(4), amended subsec. (e)
    generally, substituting present provisions for provisions which
    stated that presumption of correctness existed unless applicant
    were to establish or it otherwise appeared or respondent were to
    admit that any of several enumerated factors applied to invalidate
    State determination or else that factual determination by State
    court was clearly erroneous.
      Pub. L. 104-132, Sec. 104(2), redesignated subsec. (d) as (e).
    Former subsec. (e) redesignated (f).
      Subsecs. (f), (g). Pub. L. 104-132, Sec. 104(2), redesignated
    subsecs. (e) and (f) as (f) and (g), respectively.
      Subsecs. (h), (i). Pub. L. 104-132, Sec. 104(5), added subsecs.
    (h) and (i).
      1966 - Pub. L. 89-711 substituted "Federal courts" for "State
    Courts" in section catchline, added subsec. (a), designated
    existing paragraphs as subsecs. (b) and (c), and added subsecs. (d)
    to (f).
     APPROVAL AND EFFECTIVE DATE OF RULES GOVERNING SECTION 2254 CASES
      AND SECTION 2255 PROCEEDINGS FOR UNITED STATES DISTRICT COURTS
      For approval and effective date of rules governing petitions
    under section 2254 and motions under section 2255 of this title
    filed on or after Feb. 1, 1977, see section 1 of Pub. L. 94-426,
    set out as a note under section 2074 of this title.
        POSTPONEMENT OF EFFECTIVE DATE OF PROPOSED RULES GOVERNING
          PROCEEDINGS UNDER SECTIONS 2254 AND 2255 OF THIS TITLE
      Rules and forms governing proceedings under sections 2254 and
    2255 of this title proposed by Supreme Court order of Apr. 26,
    1976, effective 30 days after adjournment sine die of 94th
    Congress, or until and to the extent approved by Act of Congress,
    whichever is earlier, see section 2 of Pub. L. 94-349, set out as a
    note under section 2074 of this title.
     RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT
                                  COURTS
        (EFFECTIVE FEBRUARY 1, 1977, AS AMENDED TO JANUARY 3, 2007)    
    Rule                                                     
    1.          Scope.                                                
    2.          The Petition.                                         
    3.          Filing the Petition; Inmate Filing.                   
    4.          Preliminary Review; Serving the Petition and Order.   
    5.          The Answer and the Reply.                             
    6.          Discovery.                                            
    7.          Expanding the Record.                                 
    8.          Evidentiary Hearing.                                  
    9.          Second or Successive Petitions.                       
    10.         Powers of a Magistrate Judge.                         
    11.         Applicability of the Federal Rules of Civil Procedure.
                             APPENDIX OF FORMS                         
      Petition Under 28 U.S.C. Sec. 2254 for Writ of Habeas Corpus By a
    Person in State Custody.
         EFFECTIVE DATE OF RULES; EFFECTIVE DATE OF 1975 AMENDMENT     
      Rules governing Section 2254 cases, and the amendments thereto by
    Pub. L. 94-426, Sept. 28, 1976, 90 Stat. 1334, effective with
    respect to petitions under section 2254 of this title and motions
    under section 2255 of this title filed on or after Feb. 1, 1977,
    see section 1 of Pub. L. 94-426, set out as a note under section
    2074 of this title.
                               RULE 1. SCOPE                           
      (a) Cases Involving a Petition under 28 U.S.C. Sec. 2254. These
    rules govern a petition for a writ of habeas corpus filed in a
    United States district court under 28 U.S.C. Sec. 2254 by:
        (1) a person in custody under a state-court judgment who seeks
      a determination that the custody violates the Constitution, laws,
      or treaties of the United States; and
        (2) a person in custody under a state-court or federal-court
      judgment who seeks a determination that future custody under a
      state-court judgment would violate the Constitution, laws, or
      treaties of the United States.
      (b) Other Cases. The district court may apply any or all of these
    rules to a habeas corpus petition not covered by Rule 1(a).
    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      Rule 1 provides that the habeas corpus rules are applicable to
    petitions by persons in custody pursuant to a judgment of a state
    court. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Whether
    the rules ought to apply to other situations (e.g., person in
    active military service, Glazier v. Hackel, 440 F.2d 592 (9th Cir.
    1971); or a reservist called to active duty but not reported,
    Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968)) is left to the
    discretion of the court.
      The basic scope of habeas corpus is prescribed by statute. 28
    U.S.C. Sec. 2241(c) provides that the "writ of habeas corpus shall
    not extend to a prisoner unless * * * (h)e is in custody in
    violation of the Constitution." 28 U.S.C. Sec. 2254 deals
    specifically with state custody, providing that habeas corpus shall
    apply only "in behalf of a person in custody pursuant to a judgment
    of a state court * * *."
      In Preiser v. Rodriguez, supra, the court said: "It is clear . .
    . that the essence of habeas corpus is an attack by a person in
    custody upon the legality of that custody, and that the traditional
    function of the writ is to secure release from illegal custody."
    411 U.S. at 484.
      Initially the Supreme Court held that habeas corpus was
    appropriate only in those situations in which petitioner's claim
    would, if upheld, result in an immediate release from a present
    custody. McNally v. Hill, 293 U.S. 131 (1934). This was changed in
    Peyton v. Rowe, 391 U.S. 54 (1968), in which the court held that
    habeas corpus was a proper way to attack a consecutive sentence to
    be served in the future, expressing the view that consecutive
    sentences resulted in present custody under both judgments, not
    merely the one imposing the first sentence. This view was expanded
    in Carafas v. LaVallee, 391 U.S. 234 (1968), to recognize the
    propriety of habeas corpus in a case in which petitioner was in
    custody when the petition had been originally filed but had since
    been unconditionally released from custody.
      See also Preiser v. Rodriguez, 411 U.S. at 486 et seq.
      Since Carafas, custody has been construed more liberally by the
    courts so as to make a Sec. 2255 motion or habeas corpus petition
    proper in more situations. "In custody" now includes a person who
    is: on parole, Jones v. Cunningham, 371 U.S. 236 (1963); at large
    on his own recognizance but subject to several conditions pending
    execution of his sentence, Hensley v. Municipal Court, 411 U.S. 345
    (1973); or released on bail after conviction pending final
    disposition of his case, Lefkowitz v. Newsome, 95 S.Ct. 886 (1975).
    See also United States v. Re, 372 F.2d 641 (2d Cir.), cert. denied,
    388 U.S. 912 (1967) (on probation); Walker v. North Carolina, 262
    F.Supp. 102 (W.D.N.C. 1966), aff'd per curiam, 372 F.2d 129 (4th
    Cir.), cert. denied, 388 U.S. 917 (1967) (recipient of a
    conditionally suspended sentence); Burris v. Ryan, 397 F.2d 553
    (7th Cir. 1968); Marden v. Purdy, 409 F.2d 784 (5th Cir. 1969)
    (free on bail); United States ex rel. Smith v. Dibella, 314 F.Supp.
    446 (D.Conn. 1970) (release on own recognizance); Choung v.
    California, 320 F.Supp. 625 (E.D.Cal. 1970) (federal stay of state
    court sentence); United States ex rel. Meadows v. New York, 426
    F.2d 1176 (2d Cir. 1970), cert. denied, 401 U.S. 941 (1971)
    (subject to parole detainer warrant); Capler v. City of Greenville,
    422 F.2d 299 (5th Cir. 1970) (released on appeal bond); Glover v.
    North Carolina, 301 F.Supp. 364 (E.D.N.C. 1969) (sentence served,
    but as convicted felon disqualified from engaging in several
    activities).
      The courts are not unanimous in dealing with the above
    situations, and the boundaries of custody remain somewhat unclear.
    In Morgan v. Thomas, 321 F.Supp. 565 (S.D.Miss. 1970), the court
    noted:
        It is axiomatic that actual physical custody or restraint is
      not required to confer habeas jurisdiction. Rather, the term is
      synonymous with restraint of liberty. The real question is how
      much restraint of one's liberty is necessary before the right to
      apply for the writ comes into play. * * *
        It is clear however, that something more than moral restraint
      is necessary to make a case for habeas corpus.
                            321 F.SUPP. AT 573                        
      Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968), reviewed prior
    "custody" doctrine and reaffirmed a generalized flexible approach
    to the issue. In speaking about 28 U.S.C. Sec. 2241, the first
    section in the habeas corpus statutes, the court said:
        While the language of the Act indicates that a writ of habeas
      corpus is appropriate only when a petitioner is "in custody," * *
      * the Act "does not attempt to mark the boundaries of 'custody'
      nor in any way other than by use of that word attempt to limit
      the situations in which the writ can be used." * * * And, recent
      Supreme Court decisions have made clear that "[i]t [habeas
      corpus] is not now and never has been a static, narrow,
      formalistic remedy; its scope has grown to achieve its grand
      purpose - the protection of individuals against erosion of their
      right to be free from wrongful restraints upon their liberty." *
      * * "[B]esides physical imprisonment, there are other restraints
      on a man's liberty, restraints not shared by the public
      generally, which have been thought sufficient in the English-
      speaking world to support the issuance of habeas corpus."
                            398 F.2D AT 710-711                        
      There is, as of now, no final list of the situations which are
    appropriate for habeas corpus relief. It is not the intent of these
    rules or notes to define or limit "custody."
      It is, however, the view of the Advisory Committee that claims of
    improper conditions of custody or confinement (not related to the
    propriety of the custody itself), can better be handled by other
    means such as 42 U.S.C. Sec. 1983 and other related statutes. In
    Wilwording v. Swanson, 404 U.S. 249 (1971), the court treated a
    habeas corpus petition by a state prisoner challenging the
    conditions of confinement as a claim for relief under 42 U.S.C.
    Sec. 1983, the Civil Rights Act. Compare Johnson v. Avery, 393 U.S.
    483 (1969).
      The distinction between duration of confinement and conditions of
    confinement may be difficult to draw. Compare Preiser v. Rodriguez,
    411 U.S. 475 (1973), with Clutchette v. Procunier, 497 F.2d 809
    (9th Cir. 1974), modified, 510 F.2d 613 (1975).
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 1 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended.
      Changes Made After Publication and Comments. In response to at
    least one commentator on the published rules, the Committee
    modified Rule 1(b) to reflect the point that if the court was
    considering a habeas petition not covered by Sec. 2254, the court
    could apply some or all of the rules.
                           RULE 2. THE PETITION                       
      (a) Current Custody; Naming the Respondent. If the petitioner is
    currently in custody under a state-court judgment, the petition
    must name as respondent the state officer who has custody.
      (b) Future Custody; Naming the Respondents and Specifying the
    Judgment. If the petitioner is not yet in custody - but may be
    subject to future custody - under the state-court judgment being
    contested, the petition must name as respondents both the officer
    who has current custody and the attorney general of the state where
    the judgment was entered. The petition must ask for relief from the
    state-court judgment being contested.
      (c) Form. The petition must:
        (1) specify all the grounds for relief available to the
      petitioner;
        (2) state the facts supporting each ground;
        (3) state the relief requested;
        (4) be printed, typewritten, or legibly handwritten; and
        (5) be signed under penalty of perjury by the petitioner or by
      a person authorized to sign it for the petitioner under 28 U.S.C.
      Sec. 2242.
      (d) Standard Form. The petition must substantially follow either
    the form appended to these rules or a form prescribed by a local
    district-court rule. The clerk must make forms available to
    petitioners without charge.
      (e) Separate Petitions for Judgments of Separate Courts. A
    petitioner who seeks relief from judgments of more than one state
    court must file a separate petition covering the judgment or
    judgments of each court.
    (As amended Pub. L. 94-426, Sec. 2(1), (2), Sept. 28, 1976, 90
    Stat. 1334; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 26, 2004, eff.
    Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      Rule 2 describes the requirements of the actual petition,
    including matters relating to its form, contents, scope, and
    sufficiency. The rule provides more specific guidance for a
    petitioner and the court than 28 U.S.C. Sec. 2242, after which it
    is patterned.
      Subdivision (a) provides that an applicant challenging a state
    judgment, pursuant to which he is presently in custody, must make
    his application in the form of a petition for a writ of habeas
    corpus. It also requires that the state officer having custody of
    the applicant be named as respondent. This is consistent with 28
    U.S.C. Sec. 2242, which says in part, "[Application for a writ of
    habeas corpus] shall allege * * * the name of the person who has
    custody over [the applicant] * * *." The proper person to be served
    in the usual case is either the warden of the institution in which
    the petitioner is incarcerated (Sanders v. Bennett, 148 F.2d 19
    (D.C.Cir. 1945)) or the chief officer in charge of state penal
    institutions.
      Subdivision (b) prescribes the procedure to be used for a
    petition challenging a judgment under which the petitioner will be
    subject to custody in the future. In this event the relief sought
    will usually not be released from present custody, but rather for a
    declaration that the judgment being attacked is invalid.
    Subdivision (b) thus provides for a prayer for "appropriate
    relief." It is also provided that the attorney general of the state
    of the judgment as well as the state officer having actual custody
    of the petitioner shall be named as respondents. This is
    appropriate because no one will have custody of the petitioner in
    the state of the judgment being attacked, and the habeas corpus
    action will usually be defended by the attorney general. The
    attorney general is in the best position to inform the court as to
    who the proper party respondent is. If it is not the attorney
    general, he can move for a substitution of party.
      Since the concept of "custody" requisite to the consideration of
    a petition for habeas corpus has been enlarged significantly in
    recent years, it may be worthwhile to spell out the various
    situations which might arise and who should be named as
    respondent(s) for each situation.
      (1) The applicant is in jail, prison, or other actual physical
    restraint due to the state action he is attacking. The named
    respondent shall be the state officer who has official custody of
    the petitioner (for example, the warden of the prison).
      (2) The applicant is on probation or parole due to the state
    judgment he is attacking. The named respondents shall be the
    particular probation or parole officer responsible for supervising
    the applicant, and the official in charge of the parole or
    probation agency, or the state correctional agency, as appropriate.
      (3) The applicant is in custody in any other manner differing
    from (1) and (2) above due to the effects of the state action he
    seeks relief from. The named respondent should be the attorney
    general of the state wherein such action was taken.
      (4) The applicant is in jail, prison, or other actual physical
    restraint but is attacking a state action which will cause him to
    be kept in custody in the future rather than the government action
    under which he is presently confined. The named respondents shall
    be the state or federal officer who has official custody of him at
    the time the petition is filed and the attorney general of the
    state whose action subjects the petitioner to future custody.
      (5) The applicant is in custody, although not physically
    restrained, and is attacking a state action which will result in
    his future custody rather than the government action out of which
    his present custody arises. The named respondent(s) shall be the
    attorney general of the state whose action subjects the petitioner
    to future custody, as well as the government officer who has
    present official custody of the petitioner if there is such an
    officer and his identity is ascertainable.
      In any of the above situations the judge may require or allow the
    petitioner to join an additional or different party as a respondent
    if to do so would serve the ends of justice.
      As seen in rule 1 and paragraphs (4) and (5) above, these rules
    contemplate that a petitioner currently in federal custody will be
    permitted to apply for habeas relief from a state restraint which
    is to go into effect in the future. There has been disagreement in
    the courts as to whether they have jurisdiction of the habeas
    application under these circumstances (compare Piper v. United
    States, 306 F.Supp. 1259 (D.Conn. 1969), with United States ex rel.
    Meadows v. New York, 426 F.2d 1176 (2d Cir. 1970), cert. denied,
    401 U.S. 941 (1971)). This rule seeks to make clear that they do
    have such jurisdiction.
      Subdivision (c) provides that unless a district court requires
    otherwise by local rule, the petition must be in the form annexed
    to these rules. Having a standard prescribed form has several
    advantages. In the past, petitions have frequently contained mere
    conclusions of law, unsupported by any facts. Since it is the
    relationship of the facts to the claim asserted that is important,
    these petitions were obviously deficient. In addition, lengthy and
    often illegible petitions, arranged in no logical order, were
    submitted to judges who have had to spend hours deciphering them.
    For example, in Passic v. Michigan, 98 F.Supp. 1015, 1016
    (E.D.Mich. 1951), the court dismissed a petition for habeas corpus,
    describing it as "two thousand pages of irrational, prolix and
    redundant pleadings * * *."
      Administrative convenience, of benefit to both the court and the
    petitioner, results from the use of a prescribed form. Judge Hubert
    L. Will briefly described the experience with the use of a standard
    form in the Northern District of Illinois:
        Our own experience, though somewhat limited, has been quite
      satisfactory. * * *
        In addition, [petitions] almost always contain the necessary
      basic information * * *. Very rarely do we get the kind of hybrid
      federal-state habeas corpus petition with civil rights
      allegations thrown in which were not uncommon in the past. * * *
      [W]hen a real constitutional issue is raised it is quickly
      apparent * * *.
                            33 F.R.D. 363, 384                        
      Approximately 65 to 70% of all districts have adopted forms or
    local rules which require answers to essentially the same questions
    as contained in the standard form annexed to these rules. All
    courts using forms have indicated the petitions are time-saving and
    more legible. The form is particularly helpful in getting
    information about whether there has been an exhaustion of state
    remedies or, at least, where that information can be obtained.
      The requirement of a standard form benefits the petitioner as
    well. His assertions are more readily apparent, and a meritorious
    claim is more likely to be properly raised and supported. The
    inclusion in the form of the ten most frequently raised grounds in
    habeas corpus petitions is intended to encourage the applicant to
    raise all his asserted grounds in one petition. It may better
    enable him to recognize if an issue he seeks to raise is cognizable
    under habeas corpus and hopefully inform him of those issues as to
    which he must first exhaust his state remedies.
      Some commentators have suggested that the use of forms is of
    little help because the questions usually are too general,
    amounting to little more than a restatement of the statute. They
    contend the blanks permit a prisoner to fill in the same ambiguous
    answers he would have offered without the aid of a form. See
    Comment, Developments in the Law - Federal Habeas Corpus, 83
    Harv.L.Rev. 1038, 1177-1178 (1970). Certainly, as long as the
    statute requires factual pleading, the adequacy of a petition will
    continue to be affected largely by the petitioner's intelligence
    and the legal advice available to him. On balance, however, the use
    of forms has contributed enough to warrant mandating their use.
      Giving the petitioner a list of often-raised grounds may, it is
    said, encourage perjury. See Comment, Developments in the Law -
    Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1178 (1970). Most
    inmates are aware of, or have access to, some common constitutional
    grounds for relief. Thus, the risk of perjury is not likely to be
    substantially increased and the benefit of the list for some
    inmates seems sufficient to outweigh any slight risk that perjury
    will increase. There is a penalty for perjury, and this would seem
    the most appropriate way to try to discourage it.
      Legal assistance is increasingly available to inmates either
    through paraprofessional programs involving law students or special
    programs staffed by members of the bar. See Jacob and Sharma,
    Justice After Trial: Prisoners' Need for Legal Services in the
    Criminal-Correctional Process, 18 Kan.L.Rev. 493 (1970). In these
    situations, the prescribed form can be filled out more competently,
    and it does serve to ensure a degree of uniformity in the manner in
    which habeas corpus claims are presented.
      Subdivision (c) directs the clerk of the district court to make
    available to applicants upon request, without charge, blank
    petitions in the prescribed form.
      Subdivision (c) also requires that all available grounds for
    relief be presented in the petition, including those grounds of
    which, by the exercise of reasonable diligence, the petitioner
    should be aware. This is reinforced by rule 9(b), which allows
    dismissal of a second petition which fails to allege new grounds
    or, if new grounds are alleged, the judge finds an inexcusable
    failure to assert the ground in the prior petition.
      Both subdivision (c) and the annexed form require a legibly
    handwritten or typewritten petition. As required by 28 U.S.C. Sec.
    2242, the petition must be signed and sworn to by the petitioner
    (or someone acting in his behalf).
      Subdivision (d) provides that a single petition may assert a
    claim only against the judgment or judgments of a single state
    court (i.e., a court of the same county or judicial district or
    circuit). This permits, but does not require, an attack in a single
    petition on judgments based upon separate indictments or on
    separate counts even though sentences were imposed on separate days
    by the same court. A claim against a judgment of a court of a
    different political subdivision must be raised by means of a
    separate petition.
      Subdivision (e) allows the clerk to return an insufficient
    petition to the petitioner, and it must be returned if the clerk is
    so directed by a judge of the court. Any failure to comply with the
    requirements of rule 2 or 3 is grounds for insufficiency. In
    situations where there may be arguable noncompliance with another
    rule, such as rule 9, the judge, not the clerk, must make the
    decision. If the petition is returned it must be accompanied by a
    statement of the reason for its return. No petitioner should be
    left to speculate as to why or in what manner his petition failed
    to conform to these rules.
      Subdivision (e) also provides that the clerk shall retain one
    copy of the insufficient petition. If the prisoner files another
    petition, the clerk will be in a better position to determine the
    sufficiency of the new petition. If the new petition is
    insufficient, comparison with the prior petition may indicate
    whether the prisoner has failed to understand the clerk's prior
    explanation for its insufficiency, so that the clerk can make
    another, hopefully successful, attempt at transmitting this
    information to the petitioner. If the petitioner insists that the
    original petition was in compliance with the rules, a copy of the
    original petition is available for the consideration of the judge.
    It is probably better practice to make a photocopy of a petition
    which can be corrected by the petitioner, thus saving the
    petitioner the task of completing an additional copy.
                              1982 AMENDMENT                          
      Subdivision (c). The amendment takes into account 28 U.S.C. Sec.
    1746, enacted after adoption of the Sec. 2254 rules. Section 1746
    provides that in lieu of an affidavit an unsworn statement may be
    given under penalty of perjury in substantially the following form
    if executed within the United States, its territories, possessions
    or commonwealths: "I declare (or certify, verify, or state) under
    penalty of perjury that the foregoing is true and correct. Executed
    on (date). (Signature)." The statute is "intended to encompass
    prisoner litigation," and the statutory alternative is especially
    appropriate in such cases because a notary might not be readily
    available. Carter v. Clark, 616 F.2d 228 (5th Cir. 1980). The Sec.
    2254 forms have been revised accordingly.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 2 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended, except as described below.
      Revised Rule 2(c)(5) has been amended by removing the requirement
    that the petition be signed personally by the petitioner. As
    reflected in 28 U.S.C. Sec. 2242, an application for habeas corpus
    relief may be filed by the person who is seeking relief, or by
    someone acting on behalf of that person. See, e.g., Whitmore v.
    Arkansas, 495 U.S. 149 (1990) (discussion of requisites for "next
    friend" standing in petition for habeas corpus). Thus, under the,
    [sic] amended rule the petition may be signed by petitioner
    personally or by someone acting on behalf of the petitioner,
    assuming that the person is authorized to do so, for example, an
    attorney for the petitioner. The Committee envisions that the
    courts will apply third-party, or "next-friend," standing analysis
    in deciding whether the signer was actually authorized to sign the
    petition on behalf of the petitioner.
      The language in new Rule 2(d) has been changed to reflect that a
    petitioner must substantially follow the standard form, which is
    appended to the rules, or a form provided by the court. The current
    rule, Rule 2(c), seems to indicate a preference for the standard
    "national" form. Under the amended rule, there is no stated
    preference. The Committee understood that current practice in some
    courts is that if the petitioner first files a petition using the
    national form, the courts may then ask the petitioner to supplement
    it with the local form.
      Current Rule 2(e), which provided for returning an insufficient
    petition, has been deleted. The Committee believed that the
    approach in Federal Rule of Civil Procedure 5(e) was more
    appropriate for dealing with petitions that do not conform to the
    form requirements of the rule. That Rule provides that the clerk
    may not refuse to accept a filing solely for the reason that it
    fails to comply with these rules or local rules. Before the
    adoption of a one-year statute of limitations in the Antiterrorism
    and Effective Death Penalty Act of 1996, 110 Stat. 1214, the
    petitioner suffered no penalty, other than delay, if the petition
    was deemed insufficient. Now that a one-year statute of limitations
    applies to petitions filed under Sec. 2254, see 28 U.S.C. Sec.
    2244(d)(1), the court's dismissal of a petition because it is not
    in proper form may pose a significant penalty for a petitioner, who
    may not be able to file another petition within the one-year
    limitations period. Now, under revised Rule 3(b), the clerk is
    required to file a petition, even though it may otherwise fail to
    comply with the provisions in revised Rule 2(c). The Committee
    believed that the better procedure was to accept the defective
    petition and require the petitioner to submit a corrected petition
    that conforms to Rule 2(c).
      Changes Made After Publication and Comments. The Committee
    changed Rule 2(c)(2) to read "state the facts" rather then [sic]
    "briefly summarize the facts." As one commentator noted, the
    current language may actually mislead the petitioner and is also
    redundant. The Committee modified Rule 2(c)(5) to emphasize that
    any person, other than the petitioner, who signs the petition must
    be authorized to do so; the revised rule now specifically cites
    Sec. 2242. The Note was changed to reflect that point.
      Rule 2(c)(4) was modified to account for those cases where the
    petitioner prints the petition on a computer word-processing
    program.
                         AMENDMENTS BY PUBLIC LAW                     
      1976 - Subd. (c). Pub. L. 94-426, Sec. 2(1), inserted
    "substantially" after "The petition shall be in", and struck out
    requirement that the petition follow the prescribed form.
      Subd. (e). Pub. L. 94-426, Sec. 2(2), inserted "substantially"
    after "district court does not", and struck out provision which
    permitted the clerk to return a petition for noncompliance without
    a judge so directing.
                RULE 3. FILING THE PETITION; INMATE FILING            
      (a) Where to File; Copies; Filing Fee. An original and two copies
    of the petition must be filed with the clerk and must be
    accompanied by:
        (1) the applicable filing fee, or
        (2) a motion for leave to proceed in forma pauperis, the
      affidavit required by 28 U.S.C. Sec. 1915, and a certificate from
      the warden or other appropriate officer of the place of
      confinement showing the amount of money or securities that the
      petitioner has in any account in the institution.
      (b) Filing. The clerk must file the petition and enter it on the
    docket.
      (c) Time to File. The time for filing a petition is governed by
    28 U.S.C. Sec. 2244(d).
      (d) Inmate Filing. A paper filed by an inmate confined in an
    institution is timely if deposited in the institution's internal
    mailing system on or before the last day for filing. If an
    institution has a system designed for legal mail, the inmate must
    use that system to receive the benefit of this rule. Timely filing
    may be shown by a declaration in compliance with 28 U.S.C. Sec.
    1746 or by a notarized statement, either of which must set forth
    the date of deposit and state that first-class postage has been
    prepaid.
    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      Rule 3 sets out the procedures to be followed by the petitioner
    and the court in filing the petition. Some of its provisions are
    currently dealt with by local rule or practice, while others are
    innovations. Subdivision (a) specifies the petitioner's
    responsibilities. It requires that the petition, which must be
    accompanied by two conformed copies thereof, be filed in the office
    of the clerk of the district court. The petition must be
    accompanied by the filing fee prescribed by law (presently $5; see
    28 U.S.C. Sec. 1914(a)), unless leave to prosecute the petition in
    forma pauperis is applied for and granted. In the event the
    petitioner desires to prosecute the petition in forma pauperis, he
    must file the affidavit required by 28 U.S.C. Sec. 1915, together
    with a certificate showing the amount of funds in his institutional
    account.
      Requiring that the petition be filed in the office of the clerk
    of the district court provides an efficient and uniform system of
    filing habeas corpus petitions.
      Subdivision (b) requires the clerk to file the petition. If the
    filing fee accompanies the petition, it may be filed immediately,
    and, if not, it is contemplated that prompt attention will be given
    to the request to proceed in forma pauperis. The court may delegate
    the issuance of the order to the clerk in those cases in which it
    is clear from the petition that there is full compliance with the
    requirements to proceed in forma pauperis.
      Requiring the copies of the petition to be filed with the clerk
    will have an impact not only upon administrative matters, but upon
    more basic problems as well. In districts with more than one judge,
    a petitioner under present circumstances may send a petition to
    more than one judge. If no central filing system exists for each
    district, two judges may independently take different action on the
    same petition. Even if the action taken is consistent, there may be
    needless duplication of effort.
      The requirement of an additional two copies of the form of the
    petition is a current practice in many courts. An efficient filing
    system requires one copy for use by the court (central file), one
    for the respondent (under 3(b), the respondent receives a copy of
    the petition whether an answer is required or not), and one for
    petitioner's counsel, if appointed. Since rule 2 provides that
    blank copies of the petition in the prescribed form are to be
    furnished to the applicant free of charge, there should be no undue
    burden created by this requirement.
      Attached to copies of the petition supplied in accordance with
    rule 2 is an affidavit form for the use of petitioners desiring to
    proceed in forma pauperis. The form requires information concerning
    the petitioner's financial resources.
      In forma pauperis cases, the petition must also be accompanied by
    a certificate indicating the amount of funds in the petitioner's
    institution account. Usually the certificate will be from the
    warden. If the petitioner is on probation or parole, the court
    might want to require a certificate from the supervising officer.
    Petitions by persons on probation or parole are not numerous
    enough, however, to justify making special provision for this
    situation in the text of the rule.
      The certificate will verify the amount of funds credited to the
    petitioner in an institution account. The district court may by
    local rule require that any amount credited to the petitioner, in
    excess of a stated maximum, must be used for the payment of the
    filing fee. Since prosecuting an action in forma pauperis is a
    privilege (see Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)),
    it is not to be granted when the petitioner has sufficient
    resources.
      Subdivision (b) details the clerk's duties with regard to filing
    the petition. If the petition does not appear on its face to comply
    with the requirements of rules 2 and 3, it may be returned in
    accordance with rule 2(e). If it appears to comply, it must be
    filed and entered on the docket in the clerk's office. However,
    under this subdivision the respondent is not required to answer or
    otherwise move with respect to the petition unless so ordered by
    the court.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 3 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended except as described below.
      The last sentence of current Rule 3(b), dealing with an answer
    being filed by the respondent, has been moved to revised Rule 5(a).
      Revised Rule 3(b) is new and is intended to parallel Federal Rule
    of Civil Procedure 5(e), which provides that the clerk may not
    refuse to accept a filing solely for the reason that it fails to
    comply with these rules or local rules. Before the adoption of a
    one-year statute of limitations in the Antiterrorism and Effective
    Death Penalty Act of 1996, 110 Stat. 1214, the petitioner suffered
    no penalty, other than delay, if the petition was deemed
    insufficient. That Act, however, added a one-year statute of
    limitations to petitions filed under Sec. 2254, see 28 U.S.C. Sec.
    2244(d)(1). Thus, a court's dismissal of a defective petition may
    pose a significant penalty for a petitioner who may not be able to
    file a corrected petition within the one-year limitations period.
    The Committee believed that the better procedure was to accept the
    defective petition and require the petitioner to submit a corrected
    petition that conforms to Rule 2. Thus, revised Rule 3(b) requires
    the clerk to file a petition, even though it may otherwise fail to
    comply with Rule 2. The rule, however, is not limited to those
    instances where the petition is defective only in form; the clerk
    would also be required, for example, to file the petition even
    though it lacked the requisite filing fee or an in forma pauperis
    form.
      Revised Rule 3(c), which sets out a specific reference to 28
    U.S.C. Sec. 2244(d), is new and has been added to put petitioners
    on notice that a one-year statute of limitations applies to
    petitions filed under these Rules. Although the rule does not
    address the issue, every circuit that has addressed the issue has
    taken the position that equitable tolling of the statute of
    limitations is available in appropriate circumstances. See, e.g.,
    Smith v. McGinnis, 208 F.3d 13, 17-18 (2d Cir. 2000); Miller v. New
    Jersey State Department of Corrections, 145 F.3d 616, 618-19 (3d
    Cir. 1998); Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.
    2000). The Supreme Court has not addressed the question directly.
    See Duncan v. Walker, 533 U.S. 167, 181 (2001) ("We . . . have no
    occasion to address the question that Justice Stevens raises
    concerning the availability of equitable tolling.").
      Rule 3(d) is new and provides guidance on determining whether a
    petition from an inmate is considered to have been filed in a
    timely fashion. The new provision parallels Federal Rule of
    Appellate Procedure 25(a)(2)(C).
      Changes Made After Publication and Comments. The Committee Note
    was changed to reflect that the clerk must file a petition, even in
    those instances where the necessary filing fee or in forma pauperis
    form is not attached. The Note also includes new language
    concerning the equitable tolling of the statute of limitations.
        RULE 4. PRELIMINARY REVIEW; SERVING THE PETITION AND ORDER    
      The clerk must promptly forward the petition to a judge under the
    court's assignment procedure, and the judge must promptly examine
    it. If it plainly appears from the petition and any attached
    exhibits that the petitioner is not entitled to relief in the
    district court, the judge must dismiss the petition and direct the
    clerk to notify the petitioner. If the petition is not dismissed,
    the judge must order the respondent to file an answer, motion, or
    other response within a fixed time, or to take other action the
    judge may order. In every case, the clerk must serve a copy of the
    petition and any order on the respondent and on the attorney
    general or other appropriate officer of the state involved.
    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      Rule 4 outlines the options available to the court after the
    petition is properly filed. The petition must be promptly presented
    to and examined by the judge to whom it is assigned. If it plainly
    appears from the face of the petition and any exhibits attached
    thereto that the petitioner is not entitled to relief in the
    district court, the judge must enter an order summarily dismissing
    the petition and cause the petitioner to be notified. If summary
    dismissal is not ordered, the judge must order the respondent to
    file an answer or to otherwise plead to the petition within a time
    period to be fixed in the order.
      28 U.S.C. Sec. 2243 requires that the writ shall be awarded, or
    an order to show cause issued, "unless it appears from the
    application that the applicant or person detained is not entitled
    thereto." Such consideration may properly encompass any exhibits
    attached to the petition, including, but not limited to,
    transcripts, sentencing records, and copies of state court
    opinions. The judge may order any of these items for his
    consideration if they are not yet included with the petition. See
    28 U.S.C. Sec. 753(f) which authorizes payment for transcripts in
    habeas corpus cases.
      It has been suggested that an answer should be required in every
    habeas proceeding, taking into account the usual petitioner's lack
    of legal expertise and the important functions served by the
    return. See Developments in the Law - Federal Habeas Corpus, 83
    Harv.L.Rev. 1038, 1178 (1970). However, under Sec. 2243 it is the
    duty of the court to screen out frivolous applications and
    eliminate the burden that would be placed on the respondent by
    ordering an unnecessary answer. Allen v. Perini, 424 F.2d 134, 141
    (6th Cir. 1970). In addition, "notice" pleading is not sufficient,
    for the petition is expected to state facts that point to a "real
    possibility of constitutional error." See Aubut v. State of Maine,
    431 F.2d 688, 689 (1st Cir. 1970).
      In the event an answer is ordered under rule 4, the court is
    accorded greater flexibility than under Sec. 2243 in determining
    within what time period an answer must be made. Under Sec. 2243,
    the respondent must make a return within three days after being so
    ordered, with additional time of up to forty days allowed under the
    Federal Rules of Civil Procedure, Rule 81(a)(2), for good cause. In
    view of the widespread state of work overload in prosecutors'
    offices (see, e.g., Allen, 424 F.2d at 141), additional time is
    granted in some jurisdictions as a matter of course. Rule 4, which
    contains no fixed time requirement, gives the court the discretion
    to take into account various factors such as the respondent's
    workload and the availability of transcripts before determining a
    time within which an answer must be made.
      Rule 4 authorizes the judge to "take such other action as the
    judge deems appropriate." This is designed to afford the judge
    flexibility in a case where either dismissal or an order to answer
    may be inappropriate. For example, the judge may want to authorize
    the respondent to make a motion to dismiss based upon information
    furnished by respondent, which may show that petitioner's claims
    have already been decided on the merits in a federal court; that
    petitioner has failed to exhaust state remedies; that the
    petitioner is not in custody within the meaning of 28 U.S.C. Sec.
    2254; or that a decision in the matter is pending in state court.
    In these situations, a dismissal may be called for on procedural
    grounds, which may avoid burdening the respondent with the
    necessity of filing an answer on the substantive merits of the
    petition. In other situations, the judge may want to consider a
    motion from respondent to make the petition more certain. Or the
    judge may want to dismiss some allegations in the petition,
    requiring the respondent to answer only those claims which appear
    to have some arguable merit.
      Rule 4 requires that a copy of the petition and any order be
    served by certified mail on the respondent and the attorney general
    of the state involved. See 28 U.S.C. Sec. 2252. Presently, the
    respondent often does not receive a copy of the petition unless the
    court directs an answer under 28 U.S.C. Sec. 2243. Although the
    attorney general is served, he is not required to answer if it is
    more appropriate for some other agency to do so. Although the rule
    does not specifically so provide, it is assumed that copies of the
    court orders to respondent will be mailed to petitioner by the
    court.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 4 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended, except as described below.
      The amended rule reflects that the response to a habeas petition
    may be a motion.
      The requirement that in every case the clerk must serve a copy of
    the petition on the respondent by certified mail has been deleted.
    In addition, the current requirement that the petition be sent to
    the Attorney General of the state has been modified to reflect
    practice in some jurisdictions that the appropriate state official
    may be someone other than the Attorney General, for example, the
    officer in charge of a local confinement facility. This comports
    with a similar provision in 28 U.S.C. Sec. 2252, which addresses
    notice of habeas corpus proceedings to the state's attorney general
    or other appropriate officer of the state.
      Changes Made After Publication and Comments. The Rule was
    modified slightly to reflect the view of some commentators that it
    is common practice in some districts for the government to file a
    pre-answer motion to dismiss. The Committee agreed with that
    recommendation and changed the word "pleading" in the rule to
    "response." It also made several minor changes to the Committee
    Note.
                     RULE 5. THE ANSWER AND THE REPLY                 
      (a) When Required. The respondent is not required to answer the
    petition unless a judge so orders.
      (b) Contents: Addressing the Allegations; Stating a Bar. The
    answer must address the allegations in the petition. In addition,
    it must state whether any claim in the petition is barred by a
    failure to exhaust state remedies, a procedural bar, non-
    retroactivity, or a statute of limitations.
      (c) Contents: Transcripts. The answer must also indicate what
    transcripts (of pretrial, trial, sentencing, or post-conviction
    proceedings) are available, when they can be furnished, and what
    proceedings have been recorded but not transcribed. The respondent
    must attach to the answer parts of the transcript that the
    respondent considers relevant. The judge may order that the
    respondent furnish other parts of existing transcripts or that
    parts of untranscribed recordings be transcribed and furnished. If
    a transcript cannot be obtained, the respondent may submit a
    narrative summary of the evidence.
      (d) Contents: Briefs on Appeal and Opinions. The respondent must
    also file with the answer a copy of:
        (1) any brief that the petitioner submitted in an appellate
      court contesting the conviction or sentence, or contesting an
      adverse judgment or order in a post-conviction proceeding;
        (2) any brief that the prosecution submitted in an appellate
      court relating to the conviction or sentence; and
        (3) the opinions and dispositive orders of the appellate court
      relating to the conviction or the sentence.
      (e) Reply. The petitioner may submit a reply to the respondent's
    answer or other pleading within a time fixed by the judge.
    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      Rule 5 details the contents of the "answer". (This is a change in
    terminology from "return," which is still used below when referring
    to prior practice.) The answer plays an obviously important rule in
    a habeas proceeding:
      The return serves several important functions: it permits the
      court and the parties to uncover quickly the disputed issues; it
      may reveal to the petitioner's attorney grounds for release that
      the petitioner did not know; and it may demonstrate that the
      petitioner's claim is wholly without merit.
      Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev.
         1083, 1178 (1970).
      The answer must respond to the allegations of the petition. While
    some districts require this by local rule (see, e.g., E.D.N.C.R.
    17(B)), under 28 U.S.C. Sec. 2243 little specificity is demanded.
    As a result, courts occasionally receive answers which contain only
    a statement certifying the true cause of detention, or a series of
    delaying motions such as motions to dismiss. The requirement of the
    proposed rule that the "answer shall respond to the allegations of
    the petition" is intended to ensure that a responsive pleading will
    be filed and thus the functions of the answer fully served.
      The answer must also state whether the petitioner has exhausted
    his state remedies. This is a prerequisite to eligibility for the
    writ under 28 U.S.C. Sec. 2254(b) and applies to every ground the
    petitioner raises. Most form petitions now in use contain questions
    requiring information relevant to whether the petitioner has
    exhausted his remedies. However, the exhaustion requirement is
    often not understood by the unrepresented petitioner. The attorney
    general has both the legal expertise and access to the record and
    thus is in a much better position to inform the court on the matter
    of exhaustion of state remedies. An alleged failure to exhaust
    state remedies as to any ground in the petition may be raised by a
    motion by the attorney general, thus avoiding the necessity of a
    formal answer as to that ground.
      The rule requires the answer to indicate what transcripts are
    available, when they can be furnished, and also what proceedings
    have been recorded and not transcribed. This will serve to inform
    the court and petitioner as to what factual allegations can be
    checked against the actual transcripts. The transcripts include
    pretrial transcripts relating, for example, to pretrial motions to
    suppress; transcripts of the trial or guilty plea proceeding; and
    transcripts of any post-conviction proceedings which may have taken
    place. The respondent is required to furnish those portions of the
    transcripts which he believes relevant. The court may order the
    furnishing of additional portions of the transcripts upon the
    request of petitioner or upon the court's own motion.
      Where transcripts are unavailable, the rule provides that a
    narrative summary of the evidence may be submitted.
      Rule 5 (and the general procedure set up by this entire set of
    rules) does not contemplate a traverse to the answer, except under
    special circumstances. See advisory committee note to rule 9.
    Therefore, the old common law assumption of verity of the
    allegations of a return until impeached, as codified in 28 U.S.C.
    Sec. 2248, is no longer applicable. The meaning of the section,
    with its exception to the assumption "to the extent that the judge
    finds from the evidence that they (the allegations) are not true,"
    has given attorneys and courts a great deal of difficulty. It seems
    that when the petition and return pose an issue of fact, no
    traverse is required; Stewart v. Overholser, 186 F.2d 339 (D.C.
    Cir. 1950).
        We read Sec. 2248 of the Judicial Code as not requiring a
      traverse when a factual issue has been clearly framed by the
      petition and the return or answer. This section provides that the
      allegations of a return or answer to an order to show cause shall
      be accepted as true if not traversed, except to the extent the
      judge finds from the evidence that they are not true. This
      contemplates that where the petition and return or answer do
      present an issue of fact material to the legality of detention,
      evidence is required to resolve that issue despite the absence of
      a traverse. This reference to evidence assumes a hearing on
      issues raised by the allegations of the petition and the return
      or answer to the order to show cause.
                           186 F.2D AT 342, N. 5                       
      In actual practice, the traverse tends to be a mere pro forma
    refutation of the return, serving little if any expository
    function. In the interests of a more streamlined and manageable
    habeas corpus procedure, it is not required except in those
    instances where it will serve a truly useful purpose. Also, under
    rule 11 the court is given the discretion to incorporate Federal
    Rules of Civil Procedure when appropriate, so civil rule 15(a) may
    be used to allow the petitioner to amend his petition when the
    court feels this is called for by the contents of the answer.
      Rule 5 does not indicate who the answer is to be served upon, but
    it necessarily implies that it will be mailed to the petitioner (or
    to his attorney if he has one). The number of copies of the answer
    required is left to the court's discretion. Although the rule
    requires only a copy of petitioner's brief on appeal, respondent is
    free also to file a copy of respondent's brief. In practice, courts
    have found it helpful to have a copy of respondent's brief.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 5 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended, except as described below.
      Revised Rule 5(a), which provides that the respondent is not
    required to file an answer to the petition, unless a judge so
    orders, is taken from current Rule 3(b). The revised rule does not
    address the practice in some districts, where the respondent files
    a pre-answer motion to dismiss the petition. But revised Rule 4
    permits that practice and reflects the view that if the court does
    not dismiss the petition, it may require (or permit) the respondent
    to file a motion.
      Rule 5(b) has been amended to require that the answer address not
    only failure to exhaust state remedies, but also procedural bars,
    non-retroactivity, and any statute of limitations. Although the
    latter three matters are not addressed in the current rule, the
    Committee intends no substantive change with the additional new
    language. See, e.g., 28 U.S.C. Sec. 2254(b)(3). Instead, the
    Committee believes that the explicit mention of those issues in the
    rule conforms to current case law and statutory provisions. See,
    e.g., 28 U.S.C. Sec. 2244(d)(1).
      Revised Rule 5(d) includes new material. First, Rule 5(d)(2),
    requires a respondent - assuming an answer is filed - to provide
    the court with a copy of any brief submitted by the prosecution to
    the appellate court. And Rule 5(d)(3) now provides that the
    respondent also file copies of any opinions and dispositive orders
    of the appellate court concerning the conviction or sentence. These
    provisions are intended to ensure that the court is provided with
    additional information that may assist it in resolving the issues
    raised, or not raised, in the petition.
      Finally, revised Rule 5(e) adopts the practice in some
    jurisdictions of giving the petitioner an opportunity to file a
    reply to the respondent's answer. Rather than using terms such as
    "traverse," see 28 U.S.C. Sec. 2248, to identify the petitioner's
    response to the answer, the rule uses the more general term
    "reply." The Rule prescribes that the court set the time for such
    responses and in lieu of setting specific time limits in each case,
    the court may decide to include such time limits in its local
    rules.
      Changes Made After Publication and Comments. Rule 5(a) was
    modified to read that the government is not required to "respond"
    to the petition unless the court so orders; the term "respond" was
    used because it leaves open the possibility that the government's
    first response (as it is in some districts) is in the form of a pre-
    answer motion to dismiss the petition. The Note has been changed
    to reflect the fact that although the rule itself does not reflect
    that particular motion, it is used in some districts and refers the
    reader to Rule 4.
      The Committee also deleted the reference to "affirmative
    defenses," because the Committee believed that the term was a
    misnomer in the context of habeas petitions. The Note was also
    changed to reflect that there has been a potential substantive
    change from the current rule, to the extent that the published rule
    now requires that the answer address procedural bars and any
    statute of limitations. The Note states that the Committee believes
    the new language reflects current law.
      The Note was modified to address the use of the term "traverse."
    One commentator noted that that is the term that is commonly used
    but that it does not appear in the rule itself.
                             RULE 6. DISCOVERY                         
      (a) Leave of Court Required. A judge may, for good cause,
    authorize a party to conduct discovery under the Federal Rules of
    Civil Procedure and may limit the extent of discovery. If necessary
    for effective discovery, the judge must appoint an attorney for a
    petitioner who qualifies to have counsel appointed under 18 U.S.C.
    Sec. 3006A.
      (b) Requesting Discovery. A party requesting discovery must
    provide reasons for the request. The request must also include any
    proposed interrogatories and requests for admission, and must
    specify any requested documents.
      (c) Deposition Expenses. If the respondent is granted leave to
    take a deposition, the judge may require the respondent to pay the
    travel expenses, subsistence expenses, and fees of the petitioner's
    attorney to attend the deposition.
    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      This rule prescribes the procedures governing discovery in habeas
    corpus cases. Subdivision (a) provides that any party may utilize
    the processes of discovery available under the Federal Rules of
    Civil Procedure (rules 26-37) if, and to the extent that, the judge
    allows. It also provides for the appointment of counsel for a
    petitioner who qualifies for this when counsel is necessary for
    effective utilization of discovery procedures permitted by the
    judge.
      Subdivision (a) is consistent with Harris v. Nelson, 394 U.S. 286
    (1969). In that case the court noted,
      [I]t is clear that there was no intention to extend to habeas
      corpus, as a matter of right, the broad discovery provisions * *
      * of the new [Federal Rules of Civil Procedure].
                              394 U.S. AT 295                          
    However, citing the lack of methods for securing information in
    habeas proceedings, the court pointed to an alternative.
      Clearly, in these circumstances * * * the courts may fashion
      appropriate modes of procedure, by analogy to existing rules or
      otherwise in conformity with judicial usage. * * * Their
      authority is expressly confirmed in the All Writs Act, 28 U.S.C.
      Sec. 1651.
                              394 U.S. AT 299                          
      The court concluded that the issue of discovery in habeas corpus
    cases could best be dealt with as part of an effort to provide
    general rules of practice for habeas corpus cases:
        In fact, it is our view that the rulemaking machinery should be
      invoked to formulate rules of practice with respect to federal
      habeas corpus and Sec. 2255 proceedings, on a comprehensive basis
      and not merely one confined to discovery. The problems presented
      by these proceedings are materially different from those dealt
      with in the Federal Rules of Civil Procedure and the Federal
      Rules of Criminal Procedure, and reliance upon usage and the
      opaque language of Civil Rule 81(a)(2) is transparently
      inadequate. In our view the results of a meticulous formulation
      and adoption of special rules for federal habeas corpus and Sec.
      2255 proceedings would promise much benefit.
                           394 U.S. AT 301 N. 7                       
      Discovery may, in appropriate cases, aid in developing facts
    necessary to decide whether to order an evidentiary hearing or to
    grant the writ following an evidentiary hearing:
      We are aware that confinement sometimes induces fantasy which has
      its basis in the paranoia of prison rather than in fact. But
      where specific allegations before the court show reason to
      believe that the petitioner may, if the facts are fully
      developed, be able to demonstrate that he is confined illegally
      and is therefore entitled to relief, it is the duty of the court
      to provide the necessary facilities and procedures for an
      adequate inquiry. Obviously, in exercising this power, the court
      may utilize familiar procedures, as appropriate, whether these
      are found in the civil or criminal rules or elsewhere in the
      "usages and principles."
      Granting discovery is left to the discretion of the court,
    discretion to be exercised where there is a showing of good cause
    why discovery should be allowed. Several commentators have
    suggested that at least some discovery should be permitted without
    leave of court. It is argued that the courts will be burdened with
    weighing the propriety of requests to which the discovered party
    has no objection. Additionally, the availability of protective
    orders under Fed.R.Civ.R., Rules 30(b) and 31(d) will provide the
    necessary safeguards. See Developments in the Law - Federal Habeas
    Corpus, 83 Harv.L.Rev. 1038, 1186-87 (1970); Civil Discovery in
    Habeas Corpus, 67 Colum.L.Rev. 1296, 1310 (1967).
      Nonetheless, it is felt the requirement of prior court approval
    of all discovery is necessary to prevent abuse, so this requirement
    is specifically mandated in the rule.
      While requests for discovery in habeas proceedings normally
    follow the granting of an evidentiary hearing, there may be
    instances in which discovery would be appropriate beforehand. Such
    an approach was advocated in Wagner v. United States, 418 F.2d 618,
    621 (9th Cir. 1969), where the opinion stated the trial court could
    permit interrogatories, provide for deposing witnesses, "and take
    such other prehearing steps as may be appropriate." While this was
    an action under Sec. 2255, the reasoning would apply equally well
    to petitions by state prisoners. Such pre-hearing discovery may
    show an evidentiary hearing to be unnecessary, as when there are
    "no disputed issues of law or fact." 83 Harv. L.Rev. 1038, 1181
    (1970). The court in Harris alluded to such a possibility when it
    said "the court may * * * authorize such proceedings with respect
    to development, before or in conjunction with the hearing of the
    facts * * *." [emphasis added] 394 U.S. at 300. Such pre-hearing
    discovery, like all discovery under rule 6, requires leave of
    court. In addition, the provisions in rule 7 for the use of an
    expanded record may eliminate much of the need for this type of
    discovery. While probably not as frequently sought or granted as
    discovery in conjunction with a hearing, it may nonetheless serve a
    valuable function.
      In order to make pre-hearing discovery meaningful, subdivision
    (a) provides that the judge should appoint counsel for a petitioner
    who is without counsel and qualifies for appointment when this is
    necessary for the proper utilization of discovery procedures. Rule
    8 provides for the appointment of counsel at the evidentiary
    hearing stage (see rule 8(b) and advisory committee note), but this
    would not assist the petitioner who seeks to utilize discovery to
    stave off dismissal of his petition (see rule 9 and advisory
    committee note) or to demonstrate that an evidentiary hearing is
    necessary. Thus, if the judge grants a petitioner's request for
    discovery prior to making a decision as to the necessity for an
    evidentiary hearing, he should determine whether counsel is
    necessary for the effective utilization of such discovery and, if
    so, appoint counsel for the petitioner if the petitioner qualifies
    for such appointment.
      This rule contains very little specificity as to what types and
    methods of discovery should be made available to the parties in a
    habeas proceeding, or how, once made available, these discovery
    procedures should be administered. The purpose of this rule is to
    get some experience in how discovery would work in actual practice
    by letting district court judges fashion their own rules in the
    context of individual cases. When the results of such experience
    are available it would be desirable to consider whether further,
    more specific codification should take place.
      Subdivision (b) provides for judicial consideration of all
    matters subject to discovery. A statement of the interrogatories,
    or requests for admission sought to be answered, and a list of any
    documents sought to be produced, must accompany a request for
    discovery. This is to advise the judge of the necessity for
    discovery and enable him to make certain that the inquiry is
    relevant and appropriately narrow.
      Subdivision (c) refers to the situation where the respondent is
    granted leave to take the deposition of the petitioner or any other
    person. In such a case the judge may direct the respondent to pay
    the expenses and fees of counsel for the petitioner to attend the
    taking of the deposition, as a condition granting the respondent
    such leave. While the judge is not required to impose this
    condition subdivision (c) will give the court the means to do so.
    Such a provision affords some protection to the indigent petitioner
    who may be prejudiced by his inability to have counsel, often court-
    appointed, present at the taking of a deposition. It is recognized
    that under 18 U.S.C. Sec. 3006A(g), court-appointed counsel in a
    Sec. 2254 proceeding is entitled to receive up to $250 and
    reimbursement for expenses reasonably incurred. (Compare Fed.R.
    Crim.P. 15(c).) Typically, however, this does not adequately
    reimburse counsel if he must attend the taking of depositions or be
    involved in other pre-hearing proceedings. Subdivision (c) is
    intended to provide additional funds, if necessary, to be paid by
    the state government (respondent) to petitioner's counsel.
      Although the rule does not specifically so provide, it is assumed
    that a petitioner who qualifies for the appointment of counsel
    under 18 U.S.C. Sec. 3006A(g) and is granted leave to take a
    deposition will be allowed witness costs. This will include
    recording and transcription of the witness's statement. Such costs
    are payable pursuant to 28 U.S.C. Sec. 1825. See Opinion of
    Comptroller General, February 28, 1974.
      Subdivision (c) specifically recognizes the right of the
    respondent to take the deposition of the petitioner. Although the
    petitioner could not be called to testify against his will in a
    criminal trial, it is felt the nature of the habeas proceeding,
    along with the safeguards accorded by the Fifth Amendment and the
    presence of counsel, justify this provision. See 83 Harv.L.Rev.
    1038, 1183-84 (1970).
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 6 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended.
      Although current Rule 6(b) contains no requirement that the
    parties provide reasons for the requested discovery, the revised
    rule does so and also includes a requirement that the request be
    accompanied by any proposed interrogatories and requests for
    admission, and must specify any requested documents. The Committee
    believes that the revised rule makes explicit what has been
    implicit in current practice.
      Changes Made After Publication and Comments. Rule 6(b) was
    modified to require that discovery requests be supported by
    reasons, to assist the court in deciding what, if any, discovery
    should take place. The Committee believed that the change made
    explicit what has been implicit in current practice.
                       RULE 7. EXPANDING THE RECORD                   
      (a) In General. If the petition is not dismissed, the judge may
    direct the parties to expand the record by submitting additional
    materials relating to the petition. The judge may require that
    these materials be authenticated.
      (b) Types of Materials. The materials that may be required
    include letters predating the filing of the petition, documents,
    exhibits, and answers under oath to written interrogatories
    propounded by the judge. Affidavits may also be submitted and
    considered as part of the record.
      (c) Review by the Opposing Party. The judge must give the party
    against whom the additional materials are offered an opportunity to
    admit or deny their correctness.
    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      This rule provides that the judge may direct that the record be
    expanded. The purpose is to enable the judge to dispose of some
    habeas petitions not dismissed on the pleadings, without the time
    and expense required for an evidentiary hearing. An expanded record
    may also be helpful when an evidentiary hearing is ordered.
      The record may be expanded to include additional material
    relevant to the merits of the petition. While most petitions are
    dismissed either summarily or after a response has been made, of
    those that remain, by far the majority require an evidentiary
    hearing. In the fiscal year ending June 30, 1970, for example, of
    8,423 Sec. 2254 cases terminated, 8,231 required court action. Of
    these, 7,812 were dismissed before a prehearing conference and 469
    merited further court action (e.g., expansion of the record,
    prehearing conference, or an evidentiary hearing). Of the remaining
    469 cases, 403 required an evidentiary hearing, often time-
    consuming, costly, and, at least occasionally, unnecessary. See
    Director of the Administrative Office of the United States Courts,
    Annual Report, 245a-245c (table C4) (1970). In some instances these
    hearings were necessitated by slight omissions in the state record
    which might have been cured by the use of an expanded record.
      Authorizing expansion of the record will, hopefully, eliminate
    some unnecessary hearings. The value of this approach was
    articulated in Raines v. United States, 423 F.2d 526, 529-530 (4th
    Cir. 1970):
        Unless it is clear from the pleadings and the files and records
      that the prisoner is entitled to no relief, the statute makes a
      hearing mandatory. We think there is a permissible intermediate
      step that may avoid the necessity for an expensive and time
      consuming evidentiary hearing in every Section 2255 case. It may
      instead be perfectly appropriate, depending upon the nature of
      the allegations, for the district court to proceed by requiring
      that the record be expanded to include letters, documentary
      evidence, and, in an appropriate case, even affidavits. United
      States v. Carlino, 400 F.2d 56 (2nd Cir. 1968); Mirra v. United
      States, 379 F.2d 782 (2nd Cir. 1967); Accardi v. United States,
      379 F.2d 312 (2nd Cir. 1967). When the issue is one of
      credibility, resolution on the basis of affidavits can rarely be
      conclusive, but that is not to say they may not be helpful.
      In Harris v. Nelson, 394 U.S. 286, 300 (1969), the court said:
        At any time in the proceedings * * * either on [the court's]
      own motion or upon cause shown by the petitioner, it may issue
      such writs and take or authorize such proceedings * * * before or
      in conjunction with the hearing of the facts * * * [emphasis
      added]
      Subdivision (b) specifies the materials which may be added to the
    record. These include, without limitation, letters predating the
    filing of the petition in the district court, documents, exhibits,
    and answers under oath directed to written interrogatories
    propounded by the judge. Under this subdivision affidavits may be
    submitted and considered part of the record. Subdivision (b) is
    consistent with 28 U.S.C. Secs. 2246 and 2247 and the decision in
    Raines with regard to types of material that may be considered upon
    application for a writ of habeas corpus. See United States v.
    Carlino, 400 F.2d 56, 58 (2d Cir. 1968), and Machibroda v. United
    States, 368 U.S. 487 (1962).
      Under subdivision (c) all materials proposed to be included in
    the record must be submitted to the party against whom they are to
    be offered.
      Under subdivision (d) the judge can require authentication if he
    believes it desirable to do so.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 7 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended, except as noted below.
      Revised Rule 7(a) is not intended to restrict the court's
    authority to expand the record through means other than requiring
    the parties themselves to provide the information. Further, the
    rule has been changed to remove the reference to the "merits" of
    the petition in the recognition that a court may wish to expand the
    record in order to assist it in deciding an issue other than the
    merits of the petition.
      The language in current Rule 7(d), which deals with
    authentication of materials in the expanded record, has been moved
    to revised Rule 7(a).
      Changes Made After Publication and Comments. The Committee
    modified Rule 7(a) by removing the reference to the "merits" of the
    petition. One commentator had commented that the court might wish
    to expand the record for purposes other than the merits of the
    case. The Committee agreed to the change and also changed the rule
    to reflect that someone other than a party may authenticate the
    materials.
                        RULE 8. EVIDENTIARY HEARING                    
      (a) Determining Whether to Hold a Hearing. If the petition is not
    dismissed, the judge must review the answer, any transcripts and
    records of state-court proceedings, and any materials submitted
    under Rule 7 to determine whether an evidentiary hearing is
    warranted.
      (b) Reference to a Magistrate Judge. A judge may, under 28 U.S.C.
    Sec. 636(b), refer the petition to a magistrate judge to conduct
    hearings and to file proposed findings of fact and recommendations
    for disposition. When they are filed, the clerk must promptly serve
    copies of the proposed findings and recommendations on all parties.
    Within 10 days after being served, a party may file objections as
    provided by local court rule. The judge must determine de novo any
    proposed finding or recommendation to which objection is made. The
    judge may accept, reject, or modify any proposed finding or
    recommendation.
      (c) Appointing Counsel; Time of Hearing. If an evidentiary
    hearing is warranted, the judge must appoint an attorney to
    represent a petitioner who qualifies to have counsel appointed
    under 18 U.S.C. Sec. 3006A. The judge must conduct the hearing as
    soon as practicable after giving the attorneys adequate time to
    investigate and prepare. These rules do not limit the appointment
    of counsel under Sec. 3006A at any stage of the proceeding.
    (As amended Pub. L. 94-426, Sec. 2(5), Sept. 28, 1976, 90 Stat.
    1334; Pub. L. 94-577, Sec. 2(a)(1), (b)(1), Oct. 21, 1976, 90 Stat.
    2730, 2731; Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      This rule outlines the procedure to be followed by the court
    immediately prior to and after the determination of whether to hold
    an evidentiary hearing.
      The provisions are applicable if the petition has not been
    dismissed at a previous stage in the proceeding [including a
    summary dismissal under rule 4; a dismissal pursuant to a motion by
    the respondent; a dismissal after the answer and petition are
    considered; or a dismissal after consideration of the pleadings and
    an expanded record].
      If dismissal has not been ordered, the court must determine
    whether an evidentiary hearing is required. This determination is
    to be made upon a review of the answer, the transcript and record
    of state court proceedings, and if there is one, the expanded
    record. As the United States Supreme Court noted in Townsend v.
    Sam, 372 U.S. 293, 319 (1963):
      Ordinarily [the complete state-court] record - including the
      transcript of testimony (or if unavailable some adequate
      substitute, such as a narrative record), the pleadings, court
      opinions, and other pertinent documents - is indispensable to
      determining whether the habeas applicant received a full and fair
      state-court evidentiary hearing resulting in reliable findings.
      Subdivision (a) contemplates that all of these materials, if
    available, will be taken into account. This is especially important
    in view of the standard set down in Townsend for determining when a
    hearing in the federal habeas proceeding is mandatory.
      The appropriate standard * * * is this: Where the facts are in
      dispute, the federal court in habeas corpus must hold an
      evidentiary hearing if the habeas applicant did not receive a
      full and fair evidentiary hearing in a state court, either at the
      time of the trial or in a collateral proceeding.
                              372 U.S. AT 312                          
      The circumstances under which a federal hearing is mandatory are
    now specified in 28 U.S.C. Sec. 2254(d). The 1966 amendment clearly
    places the burden on the petitioner, when there has already been a
    state hearing, to show that it was not a fair or adequate hearing
    for one or more of the specifically enumerated reasons, in order to
    force a federal evidentiary hearing. Since the function of an
    evidentiary hearing is to try issues of fact (372 U.S. at 309),
    such a hearing is unnecessary when only issues of law are raised.
    See, e.g., Yeaman v. United States, 326 F.2d 293 (9th Cir. 1963).
      In situations in which an evidentiary hearing is not mandatory,
    the judge may nonetheless decide that an evidentiary hearing is
    desirable:
      The purpose of the test is to indicate the situations in which
      the holding of an evidentiary hearing is mandatory. In all other
      cases where the material facts are in dispute, the holding of
      such a hearing is in the discretion of the district judge.
                              372 U.S. AT 318                          
      If the judge decides that an evidentiary hearing is neither
    required nor desirable, he shall make such a disposition of the
    petition "as justice shall require." Most habeas petitions are
    dismissed before the prehearing conference stage (see Director of
    the Administrative Office of the United States Courts, Annual
    Report 245a-245c (table C4) (1970)) and of those not dismissed, the
    majority raise factual issues that necessitate an evidentiary
    hearing. If no hearing is required, most petitions are dismissed,
    but in unusual cases the court may grant the relief sought without
    a hearing. This includes immediate release from custody or
    nullification of a judgment under which the sentence is to be
    served in the future.
      Subdivision (b) provides that a magistrate, when so empowered by
    rule of the district court, may recommend to the district judge
    that an evidentiary hearing be held or that the petition be
    dismissed, provided he gives the district judge a sufficiently
    detailed description of the facts so that the judge may decide
    whether or not to hold an evidentiary hearing. This provision is
    not inconsistent with the holding in Wingo v. Wedding, 418 U.S. 461
    (1974), that the Federal Magistrates Act did not change the
    requirement of the habeas corpus statute that federal judges
    personally conduct habeas evidentiary hearings, and that
    consequently a local district court rule was invalid insofar as it
    authorized a magistrate to hold such hearings. 28 U.S.C. Sec.
    636(b) provides that a district court may by rule authorize any
    magistrate to perform certain additional duties, including
    preliminary review of applications for posttrial relief made by
    individuals convicted of criminal offenses, and submission of a
    report and recommendations to facilitate the decision of the
    district judge having jurisdiction over the case as to whether
    there should be a hearing.
    As noted in Wingo, review "by Magistrates of applications for post-
    trial relief is thus limited to review for the purpose of
    proposing, not holding, evidentiary hearings."
      Utilization of the magistrate as specified in subdivision (b)
    will aid in the expeditious and fair handling of habeas petitions.
        A qualified, experienced magistrate will, it is hoped, acquire
      an expertise in examining these [postconviction review]
      applications and summarizing their important contents for the
      district judge, thereby facilitating his decisions. Law clerks
      are presently charged with this responsibility by many judges,
      but judges have noted that the normal 1-year clerkship does not
      afford law clerks the time or experience necessary to attain real
      efficiency in handling such applications.
             S. REP. NO. 371, 90TH CONG., 1ST SESS., 26 (1967)         
      Under subdivision (c) there are two provisions that differ from
    the procedure set forth in 28 U.S.C. Sec. 2243. These are the
    appointment of counsel and standard for determining how soon the
    hearing will be held.
      If an evidentiary hearing is required the judge must appoint
    counsel for a petitioner who qualified for appointment under the
    Criminal Justice Act. Currently, the appointment of counsel is not
    recognized as a right at any stage of a habeas proceeding. See,
    e.g., United States ex rel. Marshall v. Wilkins, 338 F.2d 404 (2d
    Cir. 1964). Some district courts have, however, by local rule,
    required that counsel must be provided for indigent petitioners in
    cases requiring a hearing. See, e.g., D.N.M.R. 21(f), E.D. N.Y.R.
    26(d). Appointment of counsel at this stage is mandatory under
    subdivision (c). This requirement will not limit the authority of
    the court to provide counsel at an earlier stage if it is thought
    desirable to do so as is done in some courts under current
    practice. At the evidentiary hearing stage, however, an indigent
    petitioner's access to counsel should not depend on local practice
    and, for this reason, the furnishing of counsel is made mandatory.
      Counsel can perform a valuable function benefiting both the court
    and the petitioner. The issues raised can be more clearly
    identified if both sides have the benefit of trained legal
    personnel. The presence of counsel at the prehearing conference may
    help to expedite the evidentiary hearing or make it unnecessary,
    and counsel will be able to make better use of available prehearing
    discovery procedures. Compare ABA Project on Standards for Criminal
    Justice, Standards Relating to Post-Conviction Remedies Sec. 4.4,
    p. 66 (Approved Draft 1968). At a hearing, the petitioner's claims
    are more likely to be effectively and properly presented by
    counsel.
      Under 18 U.S.C. Sec. 3006A(g), payment is allowed counsel up to
    $250, plus reimbursement for expenses reasonably incurred. The
    standards of indigency under this section are less strict than
    those regarding eligibility to prosecute a petition in forma
    pauperis, and thus many who cannot qualify to proceed under 28
    U.S.C. Sec. 1915 will be entitled to the benefits of counsel under
    18 U.S.C. Sec. 3006A(g). Under rule 6(c), the court may order the
    respondent to reimburse counsel from state funds for fees and
    expenses incurred as the result of the utilization of discovery
    procedures by the respondent.
      Subdivision (c) provides that the hearing shall be conducted as
    promptly as possible, taking into account "the need of counsel for
    both parties for adequate time for investigation and preparation."
    This differs from the language of 28 U.S.C. Sec. 2243, which
    requires that the day for the hearing be set "not more than five
    days after the return unless for good cause additional time is
    allowed." This time limit fails to take into account the function
    that may be served by a prehearing conference and the time required
    to prepare adequately for an evidentiary hearing. Although
    "additional time" is often allowed under Sec. 2243, subdivision (c)
    provides more flexibility to take account of the complexity of the
    case, the availability of important materials, the workload of the
    attorney general, and the time required by appointed counsel to
    prepare.
      While the rule does not make specific provision for a prehearing
    conference, the omission is not intended to cast doubt upon the
    value of such a conference:
      The conference may limit the questions to be resolved, identify
      areas of agreement and dispute, and explore evidentiary problems
      that may be expected to arise. * * * [S]uch conferences may also
      disclose that a hearing is unnecessary * * *.
      ABA Project on Standards for Criminal Justice, Standards Relating
         to Post-Conviction Remedies Sec. 4.6, commentary pp. 74-75.
         (Approved Draft, 1968.)
    See also Developments in the Law - Federal Habeas Corpus, 83
    Harv.L.Rev. 1038, 1188 (1970).
      The rule does not contain a specific provision on the subpoenaing
    of witnesses. It is left to local practice to determine the method
    for doing this. The implementation of 28 U.S.C. Sec. 1825 on the
    payment of witness fees is dealt with in an opinion of the
    Comptroller General, February 28, 1974.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 8 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended.
      Rule 8(a) is not intended to supersede the restrictions on
    evidentiary hearings contained in 28 U.S.C. Sec. 2254(e)(2).
      The requirement in current Rule 8(b)(2) that a copy of the
    magistrate judge's findings must be promptly mailed to all parties
    has been changed in revised Rule 8(b) to require that copies of
    those findings be served on all parties. As used in this rule,
    "service" means service consistent with Federal Rule of Civil
    Procedure 5(b), which allows mailing the copies.
      Changes Made After Publication and Comments. The Committee
    changed the Committee Note to reflect the view that the amendments
    to Rule 8 were not intended to supercede the restrictions on
    evidentiary hearings contained in Sec. 2254(e)(2).
                         AMENDMENTS BY PUBLIC LAW                     
      1976 - Subd. (b). Pub. L. 94-577, Sec. 2(a)(1), substituted
    provisions which authorized magistrates, when designated to do so
    in accordance with section 636(b) of this title, to conduct
    hearings, including evidentiary hearings, on the petition and to
    submit to a judge of the court proposed findings of fact and
    recommendations for disposition, which directed the magistrate to
    file proposed findings and recommendations with the court with
    copies furnished to all parties, which allowed parties thus served
    10 days to file written objections thereto, and which directed a
    judge of the court to make de novo determinations of the objected-
    to portions and to accept, reject, or modify the findings or
    recommendations for provisions under which the magistrate had been
    empowered only to recommend to the district judge that an
    evidentiary hearing be held or that the petition be dismissed.
      Subd. (c). Pub. L. 94-577, Sec. 2(b)(1), substituted "and the
    hearing shall be conducted" for "and shall conduct the hearing".
      Pub. L. 94-426 provided that these rules not limit the
    appointment of counsel under section 3006A of title 18, if the
    interest of justice so require.
                     EFFECTIVE DATE OF 1976 AMENDMENT                 
      Section 2(c) of Pub. L. 94-577 provided that: "The amendments
    made by this section [amending subdivs. (b) and (c) of this rule
    and Rule 8(b), (c) of the Rules Governing Proceedings Under Section
    2255 of this title] shall take effect with respect to petitions
    under section 2254 and motions under section 2255 of title 28 of
    the United States Code filed on or after February 1, 1977."
                  RULE 9. SECOND OR SUCCESSIVE PETITIONS              
      Before presenting a second or successive petition, the petitioner
    must obtain an order from the appropriate court of appeals
    authorizing the district court to consider the petition as required
    by 28 U.S.C. Sec. 2244(b)(3) and (4).
    (As amended Pub. L. 94-426, Sec. 2(7), (8), Sept. 28, 1976, 90
    Stat. 1335; Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      This rule is intended to minimize abuse of the writ of habeas
    corpus by limiting the right to assert stale claims and to file
    multiple petitions. Subdivision (a) deals with the delayed
    petition. Subdivision (b) deals with the second or successive
    petition.
      Subdivision (a) provides that a petition attacking the judgment
    of a state court may be dismissed on the grounds of delay if the
    petitioner knew or should have known of the existence of the
    grounds he is presently asserting in the petition and the delay has
    resulted in the state being prejudiced in its ability to respond to
    the petition. If the delay is more than five years after the
    judgment of conviction, prejudice is presumed, although this
    presumption is rebuttable by the petitioner. Otherwise, the state
    has the burden of showing such prejudice.
      The assertion of stale claims is a problem which is not likely to
    decrease in frequency. Following the decisions in Jones v.
    Cunningham, 371 U.S. 236 (1963), and Benson v. California, 328 F.2d
    159 (9th Cir. 1964), the concept of custody expanded greatly,
    lengthening the time period during which a habeas corpus petition
    may be filed. The petitioner who is not unconditionally discharged
    may be on parole or probation for many years. He may at some date,
    perhaps ten or fifteen years after conviction, decide to challenge
    the state court judgment. The grounds most often troublesome to the
    courts are ineffective counsel, denial of right of appeal, plea of
    guilty unlawfully induced, use of a coerced confession, and
    illegally constituted jury. The latter four grounds are often
    interlocked with the allegation of ineffective counsel. When they
    are asserted after the passage of many years, both the attorney for
    the defendant and the state have difficulty in ascertaining what
    the facts are. It often develops that the defense attorney has
    little or no recollection as to what took place and that many of
    the participants in the trial are dead or their whereabouts
    unknown. The court reporter's notes may have been lost or
    destroyed, thus eliminating any exact record of what transpired. If
    the case was decided on a guilty plea, even if the record is
    intact, it may not satisfactorily reveal the extent of the defense
    attorney's efforts in behalf of the petitioner. As a consequence,
    there is obvious difficulty in investigating petitioner's
    allegations.
      The interest of both the petitioner and the government can best
    be served if claims are raised while the evidence is still fresh.
    The American Bar Association has recognized the interest of the
    state in protecting itself against stale claims by limiting the
    right to raise such claims after completion of service of a
    sentence imposed pursuant to a challenged judgment. See ABA
    Standards Relating to Post-Conviction Remedies Sec. 2.4 (c), p. 45
    (Approved Draft, 1968). Subdivision (a) is not limited to those who
    have completed their sentence. Its reach is broader, extending to
    all instances where delay by the petitioner has prejudiced the
    state, subject to the qualifications and conditions contained in
    the subdivision.
      In McMann v. Richardson, 397 U.S. 759 (1970), the court made
    reference to the issue of the stale claim:
        What is at stake in this phase of the case is not the integrity
      of the state convictions obtained on guilty pleas, but whether,
      years later, defendants must be permitted to withdraw their
      pleas, which were perfectly valid when made, and be given another
      choice between admitting their guilt and putting the State to its
      proof. [Emphasis added.]
                              397 U.S. AT 773                          
      The court refused to allow this, intimating its dislike of
    collateral attacks on sentences long since imposed which disrupt
    the state's interest in finality of convictions which were
    constitutionally valid when obtained.
      Subdivision (a) is not a statute of limitations. Rather, the
    limitation is based on the equitable doctrine of laches. "Laches is
    such delay in enforcing one's rights as works disadvantage to
    another." 30A C.J.S. Equity Sec. 112, p. 19. Also, the language of
    the subdivision, "a petition may be dismissed" [emphasis added], is
    permissive rather than mandatory. This clearly allows the court
    which is considering the petition to use discretion in assessing
    the equities of the particular situation.
      The use of a flexible rule analogous to laches to bar the
    assertion of stale claims is suggested in ABA Standards Relating to
    Post-Conviction Remedies Sec. 2.4, commentary at 48 (Approved
    Draft, 1968). Additionally, in Fay v. Noia, 372 U.S. 391 (1963),
    the Supreme Court noted:
      Furthermore, habeas corpus has traditionally been regarded as
      governed by equitable principles. United States ex rel. Smith v.
      Baldi, 344 U.S. 561, 573 (dissenting opinion). Among them is the
      principle that a suitor's conduct in relation to the matter at
      hand may disentitle him to the relief he seeks.
                              372 U.S. AT 438                          
      Finally, the doctrine of laches has been applied with reference
    to another postconviction remedy, the writ of coram nobis. See 24
    C.J.S. Criminal Law Sec. 1606(25), p. 779.
      The standard used for determining if the petitioner shall be
    barred from asserting his claim is consistent with that used in
    laches provisions generally. The petitioner is held to a standard
    of reasonable diligence. Any inference or presumption arising by
    reason of the failure to attack collaterally a conviction may be
    disregarded where (1) there has been a change of law or fact (new
    evidence) or (2) where the court, in the interest of justice, feels
    that the collateral attack should be entertained and the prisoner
    makes a proper showing as to why he has not asserted a particular
    ground for relief.
      Subdivision (a) establishes the presumption that the passage of
    more than five years from the time of the judgment of conviction to
    the time of filing a habeas petition is prejudicial to the state.
    "Presumption" has the meaning given it by Fed.R.Evid. 301. The
    prisoner has "the burden of going forward with evidence to rebut or
    meet the presumption" that the state has not been prejudiced by the
    passage of a substantial period of time. This does not impose too
    heavy a burden on the petitioner. He usually knows what persons are
    important to the issue of whether the state has been prejudiced.
    Rule 6 can be used by the court to allow petitioner liberal
    discovery to learn whether witnesses have died or whether other
    circumstances prejudicial to the state have occurred. Even if the
    petitioner should fail to overcome the presumption of prejudice to
    the state, he is not automatically barred from asserting his claim.
    As discussed previously, he may proceed if he neither knew nor, by
    the exercise of reasonable diligence, could have known of the
    grounds for relief.
      The presumption of prejudice does not come into play if the time
    lag is not more than five years.
      The time limitation should have a positive effect in encouraging
    petitioners who have knowledge of it to assert all their claims as
    soon after conviction as possible. The implementation of this rule
    can be substantially furthered by the development of greater legal
    resources for prisoners. See ABA Standards Relating to Post-
    Conviction Remedies Sec. 3.1, pp. 49-50 (Approved Draft, 1968).
      Subdivision (a) does not constitute an abridgement or
    modification of a substantive right under 28 U.S.C. Sec. 2072.
    There are safeguards for the hardship case. The rule provides a
    flexible standard for determining when a petition will be barred.
      Subdivision (b) deals with the problem of successive habeas
    petitions. It provides that the judge may dismiss a second or
    successive petition (1) if it fails to allege new or different
    grounds for relief or (2) if new or different grounds for relief
    are alleged and the judge finds the failure of the petitioner to
    assert those grounds in a prior petition is inexcusable.
      In Sanders v. United States, 373 U.S. 1 (1963), the court, in
    dealing with the problem of successive applications, stated:
        Controlling weight may be given to denial of a prior
      application for federal habeas corpus or Sec. 2255 relief only if
      (1) the same ground presented in the subsequent application was
      determined adversely to the applicant on the prior application,
      (2) the prior determination was on the merits, and (3) the ends
      of justice would not be served by reaching the merits of the
      subsequent application. [Emphasis added.]
                              373 U.S. AT 15                          
      The requirement is that the prior determination of the same
    ground has been on the merits. This requirement is in 28 U.S.C.
    Sec. 2244(b) and has been reiterated in many cases since Sanders.
    See Gains v. Allgood, 391 F.2d 692 (5th Cir. 1968); Hutchinson v.
    Craven, 415 F.2d 278 (9th Cir. 1969); Brown v. Peyton, 435 F.2d
    1352 (4th Cir. 1970).
      With reference to a successive application asserting a new ground
    or one not previously decided on the merits, the court in Sanders
    noted:
      In either case, full consideration of the merits of the new
      application can be avoided only if there has been an abuse of the
      writ * * * and this the Government has the burden of pleading. *
      * *
        Thus, for example, if a prisoner deliberately withholds one of
      two grounds for federal collateral relief at the time of filing
      his first application, * * * he may be deemed to have waived his
      right to a hearing on a second application presenting the
      withheld ground.
                             373 U.S. AT 17-18                         
    Subdivision (b) has incorporated this principle and requires that
    the judge find petitioner's failure to have asserted the new
    grounds in the prior petition to be inexcusable.
      Sanders, 18 U.S.C. Sec. 2244, and subdivision (b) make it clear
    that the court has discretion to entertain a successive
    application.
      The burden is on the government to plead abuse of the writ. See
    Sanders v. United States, 373 U.S. 1, 10 (1963); Dixon v. Jacobs,
    427 F.2d 589, 596 (D.C.Cir. 1970); cf. Johnson v. Copinger, 420
    F.2d 395 (4th Cir. 1969). Once the government has done this, the
    petitioner has the burden of proving that he has not abused the
    writ. In Price v. Johnston, 334 U.S. 266, 292 (1948), the court
    said:
      [I]f the Government chooses * * * to claim that the prisoner has
      abused the writ of habeas corpus, it rests with the Government to
      make that claim with clarity and particularity in its return to
      the order to show cause. That is not an intolerable burden. The
      Government is usually well acquainted with the facts that are
      necessary to make such a claim. Once a particular abuse has been
      alleged, the prisoner has the burden of answering that allegation
      and of proving that he has not abused the writ.
      Subdivision (b) is consistent with the important and well
    established purpose of habeas corpus. It does not eliminate a
    remedy to which the petitioner is rightfully entitled. However, in
    Sanders, the court pointed out:
      Nothing in the traditions of habeas corpus requires the federal
      courts to tolerate needless piecemeal litigation, or to entertain
      collateral proceedings whose only purpose is to vex, harass, or
      delay.
                              373 U.S. AT 18                          
    There are instances in which petitioner's failure to assert a
    ground in a prior petition is excusable. A retroactive change in
    the law and newly discovered evidence are examples. In rare
    instances, the court may feel a need to entertain a petition
    alleging grounds that have already been decided on the merits.
    Sanders, 373 U.S. at 1, 16. However, abusive use of the writ should
    be discouraged, and instances of abuse are frequent enough to
    require a means of dealing with them. For example, a successive
    application, already decided on the merits, may be submitted in the
    hope of getting before a different judge in multijudge courts. A
    known ground may be deliberately withheld in the hope of getting
    two or more hearings or in the hope that delay will result in
    witnesses and records being lost. There are instances in which a
    petitioner will have three or four petitions pending at the same
    time in the same court. There are many hundreds of cases where the
    application is at least the second one by the petitioner. This
    subdivision is aimed at screening out the abusive petitions from
    this large volume, so that the more meritorious petitions can get
    quicker and fuller consideration.
      The form petition, supplied in accordance with rule 2(c),
    encourages the petitioner to raise all of his available grounds in
    one petition. It sets out the most common grounds asserted so that
    these may be brought to his attention.
      Some commentators contend that the problem of abuse of the writ
    of habeas corpus is greatly overstated:
        Most prisoners, of course, are interested in being released as
      soon as possible; only rarely will one inexcusably neglect to
      raise all available issues in his first federal application. The
      purpose of the "abuse" bar is apparently to deter repetitious
      applications from those few bored or vindictive prisoners * * *.
                        83 HARV.L.REV. AT 1153-1154                    
    See also ABA Standards Relating to Post-Conviction Remedies Sec.
    6.2, commentary at 92 (Approved Draft, 1968), which states: "The
    occasional, highly litigious prisoner stands out as the rarest
    exception." While no recent systematic study of repetitious
    applications exists, there is no reason to believe that the problem
    has decreased in significance in relation to the total number of
    Sec. 2254 petitions filed. That number has increased from 584 in
    1949 to 12,088 in 1971. See Director of the Administrative Office
    of the United States Courts, Annual Report, table 16 (1971). It is
    appropriate that action be taken by rule to allow the courts to
    deal with this problem, whatever its specific magnitude. The bar
    set up by subdivision (b) is not one of rigid application, but
    rather is within the discretion of the courts on a case-by-case
    basis.
      If it appears to the court after examining the petition and
    answer (where appropriate) that there is a high probability that
    the petition will be barred under either subdivision of rule 9, the
    court ought to afford petitioner an opportunity to explain his
    apparent abuse. One way of doing this is by the use of the form
    annexed hereto. The use of a form will ensure a full airing of the
    issue so that the court is in a better position to decide whether
    the petition should be barred. This conforms with Johnson v.
    Copinger, 420 F.2d 395 (4th Cir. 1969), where the court stated:
      [T]he petitioner is obligated to present facts demonstrating that
      his earlier failure to raise his claims is excusable and does not
      amount to an abuse of the writ. However, it is inherent in this
      obligation placed upon the petitioner that he must be given an
      opportunity to make his explanation, if he has one. If he is not
      afforded such an opportunity, the requirement that he satisfy the
      court that he has not abused the writ is meaningless. Nor do we
      think that a procedure which allows the imposition of a
      forfeiture for abuse of the writ, without allowing the petitioner
      an opportunity to be heard on the issue, comports with the
      minimum requirements of fairness.
                              420 F.2D AT 399                          
    Use of the recommended form will contribute to an orderly handling
    of habeas petitions and will contribute to the ability of the court
    to distinguish the excusable from the inexcusable delay or failure
    to assert a ground for relief in a prior petition.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 9 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended, except as noted below.
      First, current Rule 9(a) has been deleted as unnecessary in light
    of the applicable one-year statute of limitations for Sec. 2254
    petitions, added as part of the Antiterrorism and Effective Death
    Penalty Act of 1996, 28 U.S.C. Sec. 2244(d).
      Second, current Rule 9(b), now Rule 9, has been changed to also
    reflect provisions in the Antiterrorism and Effective Death Penalty
    Act of 1996, 28 U.S.C. Sec. 2244(b)(3) and (4), which now require a
    petitioner to obtain approval from the appropriate court of appeals
    before filing a second or successive petition.
      Finally, the title of Rule 9 has been changed to reflect the fact
    that the only topic now addressed in the rules is that of second or
    successive petitions.
      Changes Made After Publication and Comments. The Committee made
    no changes to Rule 9.
                         AMENDMENTS BY PUBLIC LAW                     
      1976 - Subd. (a). Pub. L. 94-426, Sec. 2(7), struck out provision
    which established a rebuttable presumption of prejudice to the
    state if the petition was filed more than five years after
    conviction and started the running of the five year period, where a
    petition challenged the validity of an action after conviction,
    from the time of the order of such action.
      Subd. (b). Pub. L. 94-426, Sec. 2(8), substituted "constituted an
    abuse of the writ" for "is not excusable".
                   RULE 10. POWERS OF A MAGISTRATE JUDGE               
      A magistrate judge may perform the duties of a district judge
    under these rules, as authorized under 28 U.S.C. Sec. 636.
    (As amended Pub. L. 94-426, Sec. 2(11), Sept. 28, 1976, 90 Stat.
    1335; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 26, 2004, eff. Dec. 1,
    2004.)
                          ADVISORY COMMITTEE NOTE                      
      Under this rule the duties imposed upon the judge of the district
    court by rules 2, 3, 4, 6, and 7 may be performed by a magistrate
    if and to the extent he is empowered to do so by a rule of the
    district court. However, when such duties involve the making of an
    order under rule 4 disposing of the petition, that order must be
    made by the court. The magistrate in such instances must submit to
    the court his report as to the facts and his recommendation with
    respect to the order.
      The Federal Magistrates Act allows magistrates, when empowered by
    local rule, to perform certain functions in proceedings for post-
    trial relief. See 28 U.S.C. Sec. 636(b)(3). The performance of
    such functions, when authorized, is intended to "afford some degree
    of relief to district judges and their law clerks, who are
    presently burdened with burgeoning numbers of habeas corpus
    petitions and applications under 28 U.S.C. Sec. 2255." Committee on
    the Judiciary, The Federal Magistrates Act, S.Rep. No. 371, 90th
    Cong., 1st sess., 26 (1967).
      Under 28 U.S.C. Sec. 636(b), any district court,
      by the concurrence of a majority of all the judges of such
      district court, may establish rules pursuant to which any full-
      time United States magistrate * * * may be assigned within the
      territorial jurisdiction of such court such additional duties as
      are not inconsistent with the Constitution and laws of the United
      States.
    The proposed rule recognizes the limitations imposed by 28 U.S.C.
    Sec. 636(b) upon the powers of magistrates to act in federal
    postconviction proceedings. These limitations are: (1) that the
    magistrate may act only pursuant to a rule passed by the majority
    of the judges in the district court in which the magistrate serves,
    and (2) that the duties performed by the magistrate pursuant to
    such rule be consistent with the Constitution and laws of the
    United States.
      It has been suggested that magistrates be empowered by law to
    hold hearings and make final decisions in habeas proceedings. See
    Proposed Reformation of Federal Habeas Corpus Procedure: Use of
    Federal Magistrates, 54 Iowa L.Rev. 1147, 1158 (1969). However, the
    Federal Magistrates Act does not authorize such use of magistrates.
    Wingo v. Wedding, 418 U.S. 461 (1974). See advisory committee note
    to rule 8. While the use of magistrates can help alleviate the
    strain imposed on the district courts by the large number of
    unmeritorious habeas petitions, neither 28 U.S.C. Sec. 636(b) nor
    this rule contemplate the abdication by the court of its decision-
    making responsibility. See also Developments in the Law - Federal
    Habeas Corpus, 83 Harv. L.Rev. 1038, 1188 (1970)
      Where a full-time magistrate is not available, the duties
    contemplated by this rule may be assigned to a part-time
    magistrate.
                              1979 AMENDMENT                          
      This amendment conforms the rule to subsequently enacted
    legislation clarifying and further defining the duties which may be
    assigned to a magistrate, 18 U.S.C. Sec. 636, as amended in 1976 by
    Pub. L. 94-577. To the extent that rule 10 is more restrictive than
    Sec. 636, the limitations are of no effect, for the statute
    expressly governs "[n]otwithstanding any provision of law to the
    contrary."
      The reference to particular rules is stricken, as under Sec.
    636(b)(1)(A) a judge may designate a magistrate to perform duties
    under other rules as well (e.g., order that further transcripts be
    furnished under rule 5; appoint counsel under rule 8). The
    reference to "established standards and criteria" is stricken, as
    Sec. 636(4) requires each district court to "establish rules
    pursuant to which the magistrates shall discharge their duties."
    The exception with respect to a rule 4 order dismissing a petition
    is stricken, as that limitation appears in Sec. 636(b)(1)(B) and is
    thereby applicable to certain other actions under these rules as
    well (e.g., determination of a need for an evidentiary hearing
    under rule 8; dismissal of a delayed or successive petition under
    rule 9).
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 10 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended.
      Changes Made After Publication and Comments. The Committee
    restyled the proposed rule.
                         AMENDMENTS BY PUBLIC LAW                     
      1976 - Pub. L. 94-426 inserted ", and to the extent the district
    court has established standards and criteria for the performance of
    such duties" after "rule of the district court".
      RULE 11. APPLICABILITY OF THE FEDERAL RULES OF CIVIL PROCEDURE  
      The Federal Rules of Civil Procedure, to the extent that they are
    not inconsistent with any statutory provisions or these rules, may
    be applied to a proceeding under these rules.
    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      Habeas corpus proceedings are characterized as civil in nature.
    See e.g., Fisher v. Baker, 203 U.S. 174, 181 (1906). However, under
    Fed.R.Civ.P. 81(a)(2), the applicability of the civil rules to
    habeas corpus actions has been limited, although the various courts
    which have considered this problem have had difficulty in setting
    out the boundaries of this limitation. See Harris v. Nelson, 394
    U.S. 286 (1969) at 289, footnote 1. Rule 11 is intended to conform
    with the Supreme Court's approach in the Harris case. There the
    court was dealing with the petitioner's contention that Civil Rule
    33 granting the right to discovery via written interrogatories is
    wholly applicable to habeas corpus proceedings. The court held:
      We agree with the Ninth Circuit that Rule 33 of the Federal Rules
      of Civil Procedure is not applicable to habeas corpus proceedings
      and that 28 U.S.C. Sec. 2246 does not authorize interrogatories
      except in limited circumstances not applicable to this case; but
      we conclude that, in appropriate circumstances, a district court,
      confronted by a petition for habeas corpus which establishes a
      prima facie case for relief, may use or authorize the use of
      suitable discovery procedures, including interrogatories,
      reasonably fashioned to elicit facts necessary to help the court
      to "dispose of the matter as law and justice require" 28 U.S.C.
      Sec. 2243.
                              394 U.S. AT 290                          
    The court then went on to consider the contention that the
    "conformity" provision of Rule 81(a)(2) should be rigidly applied
    so that the civil rules would be applicable only to the extent that
    habeas corpus practice had conformed to the practice in civil
    actions at the time of the adoption of the Federal Rules of Civil
    Procedure on September 16, 1938. The court said:
      Although there is little direct evidence, relevant to the present
      problem, of the purpose of the "conformity" provision of Rule
      81(a)(2), the concern of the draftsmen, as a general matter,
      seems to have been to provide for the continuing applicability of
      the "civil" rules in their new form to those areas of practice in
      habeas corpus and other enumerated proceedings in which the
      "specified" proceedings had theretofore utilized the modes of
      civil practice. Otherwise, those proceedings were to be
      considered outside of the scope of the rules without prejudice,
      of course, to the use of particular rules by analogy or
      otherwise, where appropriate.
                              394 U.S. AT 294                          
    The court then reiterated its commitment to judicial discretion in
    formulating rules and procedures for habeas corpus proceedings by
    stating:
      [T]he habeas corpus jurisdiction and the duty to exercise it
      being present, the courts may fashion appropriate modes of
      procedure, by analogy to existing rules or otherwise in
      conformity with judicial usage.
    Where their duties require it, this is the inescapable obligation
    of the courts. Their authority is expressly confirmed in the All
    Writs Act, 28 U.S.C. Sec. 1651.
                              394 U.S. AT 299                          
      Rule 6 of these proposed rules deals specifically with the issue
    of discovery in habeas actions in a manner consistent with Harris.
    Rule 11 extends this approach to allow the court considering the
    petition to use any of the rules of civil procedure (unless
    inconsistent with these rules of habeas corpus) when in its
    discretion the court decides they are appropriate under the
    circumstances of the particular case. The court does not have to
    rigidly apply rules which would be inconsistent or inequitable in
    the overall framework of habeas corpus. Rule 11 merely recognizes
    and affirms their discretionary power to use their judgment in
    promoting the ends of justice.
      Rule 11 permits application of the civil rules only when it would
    be appropriate to do so. Illustrative of an inappropriate
    application is that rejected by the Supreme Court in Pitchess v.
    Davis, 95 S.Ct. 1748 (1975), holding that Fed.R.Civ.P. 60(b) should
    not be applied in a habeas case when it would have the effect of
    altering the statutory exhaustion requirement of 28 U.S.C. Sec.
    2254.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 11 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended.
      Changes Made After Publication and Comments. The Committee made
    no changes to Rule 11.
-REFTEXT-
                            REFERENCES IN TEXT                        
      The Federal Rules of Civil Procedure, referred to in heading and
    text, are set out in the Appendix to this title.
-MISC5-
                             APPENDIX OF FORMS                         
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                       IN FORMA PAUPERIS DECLARATION                   
    _________________________
              [Insert appropriate court]
          ______________
    DECLARATION IN
          (Petitioner)
    SUPPORT
          
    OF REQUEST
          v.
    TO PROCEED
          ______________
    IN FORMA
          (Respondent(s))
    PAUPERIS
      I, ______________, declare that I am the petitioner in the above
    entitled case; that in support of my motion to proceed without
    being required to prepay fees, costs or give security therefor, I
    state that because of my poverty I am unable to pay the costs of
    said proceeding or to give security therefor; that I believe I am
    entitled to relief.
    1. Are you presently employed? Yes [] No []
      a. If the answer is "yes," state the amount of your salary or
          wages per month, and give the name and address of your
          employer.
        _________________________ 
        _________________________ 
      b. If the answer is "no," state the date of last employment and
          the amount of the salary and wages per month which you
          received.
        _________________________ 
        _________________________ 
    2. Have you received within the past twelve months any money from
      any of the following sources?
      a. Business, profession or form of self-employment? Yes [] No []
      b. Rent payments, interest or dividends? Yes [] No []
      c. Pensions, annuities or life insurance payments? Yes [] No []
      d. Gifts or inheritances? Yes [] No []
      e. Any other sources? Yes [] No []
          If the answer to any of the above is "yes," describe each
        source of money and state the amount received from each during
        the past twelve months.
        ___________________________ 
        ___________________________ 
        ___________________________ 
        ___________________________ 
    3. Do you own cash, or do you have money in a checking or savings
      account?
        Yes [] No [] (Include any funds in prison accounts.)
          If the answer is "yes," state the total value of the items
        owned.
        ___________________________ 
        ___________________________ 
        ___________________________ 
    4. Do you own any real estate, stocks, bonds, notes, automobiles,
      or other valuable property (excluding ordinary household
      furnishings and clothing)?
        Yes [] No []
          If the answer is "yes," describe the property and state   
        its    approximate    value.
        ___________________________ 
        ___________________________ 
        ___________________________ 
    5. List the persons who are dependent upon you for support, state
      your relationship to those persons, and indicate how much you
      contribute toward their support.
        ___________________________ 
        ___________________________ 
        ___________________________ 
      I declare (or certify, verify, or state) under penalty of perjury
    that the foregoing is true and correct. Executed on _____.
          (date)
                                                          ______________
                                               Signature of Petitioner  
                                CERTIFICATE                            
      I hereby certify that the petitioner herein has the sum of $____
    on account to his credit at the ____ institution where he is
    confined. I further certify that petitioner likewise has the
    following securities to his credit according to the records of said
    ____ institution:
    _________________________
    _________________________
    _________________________
    _________________________
                                                          ______________
                                                  Authorized Officer of 
                                                         Institution    
    (As amended Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 26, 2004, eff.
    Dec. 1, 2004.)
    MODEL FORM FOR USE IN 28 U.S.C. SEC. 2254 CASES INVOLVING A RULE 9
                                   ISSUE
                                FORM NO. 9                            
                           [OMITTED AS OBSOLETE]                       
      Changes Made After Publication and Comments - Forms Accompanying
    Rules Governing Sec. 2254 and Sec. 2255 Proceedings. Responding to
    a number of comments from the public, the Committee deleted from
    both sets of official forms the list of possible grounds of relief.
    The Committee made additional minor style corrections to the forms.
-End-
-CITE-
    28 USC Sec. 2255                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    Sec. 2255. Federal custody; remedies on motion attacking sentence
-STATUTE-
      A prisoner in custody under sentence of a court established by
    Act of Congress claiming the right to be released upon the ground
    that the sentence was imposed in violation of the Constitution or
    laws of the United States, or that the court was without
    jurisdiction to impose such sentence, or that the sentence was in
    excess of the maximum authorized by law, or is otherwise subject to
    collateral attack, may move the court which imposed the sentence to
    vacate, set aside or correct the sentence.
      Unless the motion and the files and records of the case
    conclusively show that the prisoner is entitled to no relief, the
    court shall cause notice thereof to be served upon the United
    States attorney, grant a prompt hearing thereon, determine the
    issues and make findings of fact and conclusions of law with
    respect thereto. If the court finds that the judgment was rendered
    without jurisdiction, or that the sentence imposed was not
    authorized by law or otherwise open to collateral attack, or that
    there has been such a denial or infringement of the constitutional
    rights of the prisoner as to render the judgment vulnerable to
    collateral attack, the court shall vacate and set the judgment
    aside and shall discharge the prisoner or resentence him or grant a
    new trial or correct the sentence as may appear appropriate.
      A court may entertain and determine such motion without requiring
    the production of the prisoner at the hearing.
      An appeal may be taken to the court of appeals from the order
    entered on the motion as from a final judgment on application for a
    writ of habeas corpus.
      An application for a writ of habeas corpus in behalf of a
    prisoner who is authorized to apply for relief by motion pursuant
    to this section, shall not be entertained if it appears that the
    applicant has failed to apply for relief, by motion, to the court
    which sentenced him, or that such court has denied him relief,
    unless it also appears that the remedy by motion is inadequate or
    ineffective to test the legality of his detention.
      A 1-year period of limitation shall apply to a motion under this
    section. The limitation period shall run from the latest of - 
        (1) the date on which the judgment of conviction becomes final;
        (2) the date on which the impediment to making a motion created
      by governmental action in violation of the Constitution or laws
      of the United States is removed, if the movant was prevented from
      making a motion by such governmental action;
        (3) the date on which the right asserted was initially
      recognized by the Supreme Court, if that right has been newly
      recognized by the Supreme Court and made retroactively applicable
      to cases on collateral review; or
        (4) the date on which the facts supporting the claim or claims
      presented could have been discovered through the exercise of due
      diligence.
      Except as provided in section 408 of the Controlled Substances
    Act, in all proceedings brought under this section, and any
    subsequent proceedings on review, the court may appoint counsel,
    except as provided by a rule promulgated by the Supreme Court
    pursuant to statutory authority. Appointment of counsel under this
    section shall be governed by section 3006A of title 18.
      A second or successive motion must be certified as provided in
    section 2244 by a panel of the appropriate court of appeals to
    contain - 
        (1) newly discovered evidence that, if proven and viewed in
      light of the evidence as a whole, would be sufficient to
      establish by clear and convincing evidence that no reasonable
      factfinder would have found the movant guilty of the offense; or
        (2) a new rule of constitutional law, made retroactive to cases
      on collateral review by the Supreme Court, that was previously
      unavailable.
-SOURCE-
    (June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139, Sec.
    114, 63 Stat. 105; Pub. L. 104-132, title I, Sec. 105, Apr. 24,
    1996, 110 Stat. 1220.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                                 1948 ACT                             
      This section restates, clarifies and simplifies the procedure in
    the nature of the ancient writ of error coram nobis. It provides an
    expeditious remedy for correcting erroneous sentences without
    resort to habeas corpus. It has the approval of the Judicial
    Conference of the United States. Its principal provisions are
    incorporated in H.R. 4233, Seventy-ninth Congress.
                                 1949 ACT                             
      This amendment conforms language of section 2255 of title 28,
    U.S.C., with that of section 1651 of such title and makes it clear
    that the section is applicable in the district courts in the
    Territories and possessions.
-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 408 of the Controlled Substances Act, referred to in
    text, is classified to section 848 of Title 21, Food and Drugs.
-MISC2-
                                AMENDMENTS                            
      1996 - Pub. L. 104-132 inserted at end three new undesignated
    paragraphs beginning "A 1-year period of limitation", "Except as
    provided in section 408 of the Controlled Substances Act", and "A
    second or successive motion must be certified" and struck out
    second and fifth undesignated pars. providing, respectively, that
    "A motion for such relief may be made at any time." and "The
    sentencing court shall not be required to entertain a second or
    successive motion for similar relief on behalf of the same
    prisoner."
      1949 - Act May 24, 1949, substituted "court established by Act of
    Congress" for "court of the United States" in first par.
     APPROVAL AND EFFECTIVE DATE OF RULES GOVERNING SECTION 2254 CASES
      AND SECTION 2255 PROCEEDINGS FOR UNITED STATES DISTRICT COURTS
      For approval and effective date of rules governing petitions
    under section 2254 and motions under section 2255 of this title
    filed on or after Feb. 1, 1977, see section 1 of Pub. L. 94-426,
    set out as a note under section 2074 of this title.
        POSTPONEMENT OF EFFECTIVE DATE OF PROPOSED RULES AND FORMS
     GOVERNING PROCEEDINGS UNDER SECTIONS 2254 AND 2255 OF THIS TITLE
      Rules and forms governing proceedings under sections 2254 and
    2255 of this title proposed by Supreme Court order of Apr. 26,
    1976, effective 30 days after adjournment sine die of 94th
    Congress, or until and to the extent approved by Act of Congress,
    whichever is earlier, see section 2 of Pub. L. 94-349, set out as a
    note under section 2074 of this title.
      RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED STATES
                              DISTRICT COURTS
        (EFFECTIVE FEBRUARY 1, 1977, AS AMENDED TO JANUARY 3, 2007)    
    Rule                                                     
    1.          Scope.                                                
    2.          The Motion.                                           
    3.          Filing the Motion; Inmate Filing.                     
    4.          Preliminary Review.                                   
    5.          The Answer and the Reply.                             
    6.          Discovery.                                            
    7.          Expanding the Record.                                 
    8.          Evidentiary Hearing.                                  
    9.          Second or Successive Motions.                         
    10.         Powers of a Magistrate Judge.                         
    11.         Time to Appeal.                                       
    12.         Applicability of the Federal Rules of Civil Procedure
                 and the Federal Rules of Criminal Procedure.         
                             APPENDIX OF FORMS                         
      Motion Under 28 U.S.C. Sec. 2255 to Vacate, Set Aside, or Correct
    Sentence By a Person in Federal Custody.
         EFFECTIVE DATE OF RULES; EFFECTIVE DATE OF 1975 AMENDMENT     
      Rules, and the amendments thereto by Pub. L. 94-426, Sept. 28,
    1976, 90 Stat. 1334, effective with respect to petitions under
    section 2254 of this title and motions under section 2255 of this
    title filed on or after Feb. 1, 1977, see section 1 of Pub. L. 94-
    426, set out as a note under section 2074 of this title.
                               RULE 1. SCOPE                           
      These rules govern a motion filed in a United States district
    court under 28 U.S.C. Sec. 2255 by:
      (a) a person in custody under a judgment of that court who seeks
    a determination that:
        (1) the judgment violates the Constitution or laws of the
      United States;
        (2) the court lacked jurisdiction to enter the judgment;
        (3) the sentence exceeded the maximum allowed by law; or
        (4) the judgment or sentence is otherwise subject to collateral
      review; and
      (b) a person in custody under a judgment of a state court or
    another federal court, and subject to future custody under a
    judgment of the district court, who seeks a determination that:
        (1) future custody under a judgment of the district court would
      violate the Constitution or laws of the United States;
        (2) the district court lacked jurisdiction to enter the
      judgment;
        (3) the district court's sentence exceeded the maximum allowed
      by law; or
        (4) the district court's judgment or sentence is otherwise
      subject to collateral review.
    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      The basic scope of this postconviction remedy is prescribed by 28
    U.S.C. Sec. 2255. Under these rules the person seeking relief from
    federal custody files a motion to vacate, set aside, or correct
    sentence, rather than a petition for habeas corpus. This is
    consistent with the terminology used in section 2255 and indicates
    the difference between this remedy and federal habeas for a state
    prisoner. Also, habeas corpus is available to the person in federal
    custody if his "remedy by motion is inadequate or ineffective to
    test the legality of his detention."
      Whereas sections 2241-2254 (dealing with federal habeas corpus
    for those in state custody) speak of the district court judge
    "issuing the writ" as the operative remedy, section 2255 provides
    that, if the judge finds the movant's assertions to be meritorious,
    he "shall discharge the prisoner or resentence him or grant a new
    trial or correct the sentence as may appear appropriate." This is
    possible because a motion under Sec. 2255 is a further step in the
    movant's criminal case and not a separate civil action, as appears
    from the legislative history of section 2 of S. 20, 80th Congress,
    the provisions of which were incorporated by the same Congress in
    title 28 U.S.C. as Sec. 2255. In reporting S. 20 favorably the
    Senate Judiciary Committee said (Sen. Rep. 1526, 80th Cong. 2d
    Sess., p. 2):
      The two main advantages of such motion remedy over the present
    habeas corpus are as follows:
      First, habeas corpus is a separate civil action and not a further
    step in the criminal case in which petitioner is sentenced (Ex
    parte Tom Tong, 108 U.S. 556, 559 (1883)). It is not a
    determination of guilt or innocence of the charge upon which
    petitioner was sentenced. Where a prisoner sustains his right to
    discharge in habeas corpus, it is usually because some right - such
    as lack of counsel - has been denied which reflects no
    determination of his guilt or innocence but affects solely the
    fairness of his earlier criminal trial. Even under the broad power
    in the statute "to dispose of the party as law and justice require"
    (28 U.S.C.A., sec. 461), the court or judge is by no means in the
    same advantageous position in habeas corpus to do justice as would
    be so if the matter were determined in the criminal proceeding (see
    Medley, petitioner, 134 U.S. 160, 174 (1890)). For instance, the
    judge (by habeas corpus) cannot grant a new trial in the criminal
    case. Since the motion remedy is in the criminal proceeding, this
    section 2 affords the opportunity and expressly gives the broad
    powers to set aside the judgment and to "discharge the prisoner or
    resentence him or grant a new trial or correct the sentence as may
    appear appropriate."
      The fact that a motion under Sec. 2255 is a further step in the
    movant's criminal case rather than a separate civil action has
    significance at several points in these rules. See, e.g., advisory
    committee note to rule 3 (re no filing fee), advisory committee
    note to rule 4 (re availability of files, etc., relating to the
    judgment), advisory committee note to rule 6 (re availability of
    discovery under criminal procedure rules), advisory committee note
    to rule 11 (re no extension of time for appeal), and advisory
    committee not to rule 12 (re applicability of federal criminal
    rules). However, the fact that Congress has characterized the
    motion as a further step in the criminal proceedings does not mean
    that proceedings upon such a motion are of necessity governed by
    the legal principles which are applicable at a criminal trial
    regarding such matters as counsel, presence, confrontation, self-
    incrimination, and burden of proof.
      The challenge of decisions such as the revocation of probation or
    parole are not appropriately dealt with under 28 U.S.C. Sec. 2255,
    which is a continuation of the original criminal action. Other
    remedies, such as habeas corpus, are available in such situations.
      Although rule 1 indicates that these rules apply to a motion for
    a determination that the judgment was imposed "in violation of the
    . . . laws of the United States," the language of 28 U.S.C. Sec.
    2255, it is not the intent of these rules to define or limit what
    is encompassed within that phrase. See Davis v. United States, 417
    U.S. 333 (1974), holding that it is not true "that every asserted
    error of law can be raised on a Sec. 2255 motion," and that the
    appropriate inquiry is "whether the claimed error of law was a
    fundamental defect which inherently results in a complete
    miscarriage of justice,' and whether [i]t . . . present[s]
    exceptional circumstances where the need for the remedy afforded by
    the writ of habeas corpus is apparent.' "
      For a discussion of the "custody" requirement and the intended
    limited scope of this remedy, see advisory committee note to Sec.
    2254 rule 1.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 1 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended.
      Changes Made After Publication and Comments. The Committee made
    no changes to Rule 1.
                            RULE 2. THE MOTION                        
      (a) Applying for Relief. The application must be in the form of a
    motion to vacate, set aside, or correct the sentence.
      (b) Form. The motion must:
        (1) specify all the grounds for relief available to the moving
      party;
        (2) state the facts supporting each ground;
        (3) state the relief requested;
        (4) be printed, typewritten, or legibly handwritten; and
        (5) be signed under penalty of perjury by the movant or by a
      person authorized to sign it for the movant.
      (c) Standard Form. The motion must substantially follow either
    the form appended to these rules or a form prescribed by a local
    district-court rule. The clerk must make forms available to moving
    parties without charge.
      (d) Separate Motions for Separate Judgments. A moving party who
    seeks relief from more than one judgment must file a separate
    motion covering each judgment.
    (As amended Pub. L. 94-426, Sec. 2(3), (4), Sept. 28, 1976, 90
    Stat. 1334; Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 26, 2004, eff.
    Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      Under these rules the application for relief is in the form of a
    motion rather than a petition (see rule 1 and advisory committee
    note). Therefore, there is no requirement that the movant name a
    respondent. This is consistent with 28 U.S.C. Sec. 2255. The United
    States Attorney for the district in which the judgment under attack
    was entered is the proper party to oppose the motion since the
    federal government is the movant's adversary of record.
      If the movant is attacking a federal judgment which will subject
    him to future custody, he must be in present custody (see rule 1
    and advisory committee note) as the result of a state or federal
    governmental action. He need not alter the nature of the motion by
    trying to include the government officer who presently has official
    custody of him as a psuedo-respondent, or third-party plaintiff, or
    other fabrication. The court hearing his motion attacking the
    future custody can exercise jurisdiction over those having him in
    present custody without the use of artificial pleading devices.
      There is presently a split among the courts as to whether a
    person currently in state custody may use a Sec. 2255 motion to
    obtain relief from a federal judgment under which he will be
    subjected to custody in the future. Negative, see Newton v. United
    States, 329 F.Supp. 90 (S.D. Texas 1971); affirmative, see Desmond
    v. The United States Board of Parole, 397 F.2d 386 (1st Cir. 1968),
    cert. denied, 393 U.S. 919 (1968); and Paalino v. United States,
    314 F.Supp. 875 (C.D.Cal. 1970). It is intended that these rules
    settle the matter in favor of the prisoner's being able to file a
    Sec. 2255 motion for relief under those circumstances. The proper
    district in which to file such a motion is the one in which is
    situated the court which rendered the sentence under attack.
      Under rule 35, Federal Rules of Criminal Procedure, the court may
    correct an illegal sentence or a sentence imposed in an illegal
    manner, or may reduce the sentence. This remedy should be used,
    rather than a motion under these Sec. 2255 rules, whenever
    applicable, but there is some overlap between the two proceedings
    which has caused the courts difficulty.
      The movant should not be barred from an appropriate remedy
    because he has misstyled his motion. See United States v. Morgan,
    346 U.S. 502, 505 (1954). The court should construe it as whichever
    one is proper under the circumstances and decide it on its merits.
    For a Sec. 2255 motion construed as a rule 35 motion, see Heflin v.
    United States, 358 U.S. 415 (1959); and United States v. Coke, 404
    F.2d 836 (2d Cir. 1968). For writ of error coram nobis treated as a
    rule 35 motion, see Hawkins v. United States, 324 F.Supp. 223
    (E.D.Texas, Tyler Division 1971). For a rule 35 motion treated as a
    Sec. 2255 motion, see Moss v. United States, 263 F.2d 615 (5th Cir.
    1959); Jones v. United States, 400 F.2d 892 (8th Cir. 1968), cert.
    denied 394 U.S. 991 (1969); and United States v. Brown, 413 F.2d
    878 (9th Cir. 1969), cert. denied, 397 U.S. 947 (1970).
      One area of difference between Sec. 2255 and rule 35 motions is
    that for the latter there is no requirement that the movant be "in
    custody." Heflin v. United States, 358 U.S. 415, 418, 422 (1959);
    Duggins v. United States, 240 F.2d 479, 483 (6th Cir. 1957).
    Compare with rule 1 and advisory committee note for Sec. 2255
    motions. The importance of this distinction has decreased since
    Peyton v. Rowe, 391 U.S. 54 (1968), but it might still make a
    difference in particular situations.
      A rule 35 motion is used to attack the sentence imposed, not the
    basis for the sentence. The court in Gilinsky v. United States, 335
    F.2d 914, 916 (9th Cir. 1964), stated, "a Rule 35 motion
    presupposes a valid conviction. * * * [C]ollateral attack on errors
    allegedly committed at trial is not permissible under Rule 35." By
    illustration the court noted at page 917: "a Rule 35 proceeding
    contemplates the correction of a sentence of a court having
    jurisdiction. * * * [J]urisdictional defects * * * involve a
    collateral attack, they must ordinarily be presented under 28
    U.S.C. Sec. 2255." In United States v. Semet, 295 F.Supp. 1084
    (E.D. Okla. 1968), the prisoner moved under rule 35 and Sec. 2255
    to invalidate the sentence he was serving on the grounds of his
    failure to understand the charge to which he pleaded guilty. The
    court said:
        As regards Defendant's Motion under Rule 35, said Motion must
      be denied as its presupposes a valid conviction of the offense
      with which he was charged and may be used only to attack the
      sentence. It may not be used to examine errors occurring prior to
      the imposition of sentence.
                            295 F.SUPP. AT 1085                        
    See also: Moss v. United States, 263 F.2d at 616; Duggins v. United
    States, 240 F. 2d at 484; Migdal v. United States, 298 F.2d 513,
    514 (9th Cir. 1961); Jones v. United States, 400 F.2d at 894;
    United States v. Coke, 404 F.2d at 847; and United States v. Brown,
    413 F.2d at 879.
      A major difficulty in deciding whether rule 35 or Sec. 2255 is
    the proper remedy is the uncertainty as to what is meant by an
    "illegal sentence." The Supreme Court dealt with this issue in Hill
    v. United States, 368 U.S. 424 (1962). The prisoner brought a Sec.
    2255 motion to vacate sentence on the ground that he had not been
    given a Fed.R.Crim. P. 32(a) opportunity to make a statement in his
    own behalf at the time of sentencing. The majority held this was
    not an error subject to collateral attack under Sec. 2255. The five-
    member majority considered the motion as one brought pursuant to
    rule 35, but denied relief, stating:
      [T]he narrow function of Rule 35 is to permit correction at any
      time of an illegal sentence, not to re-examine errors occurring
      at the trial or other proceedings prior to the imposition of
      sentence. The sentence in this case was not illegal. The
      punishment meted out was not in excess of that prescribed by the
      relevant statutes, multiple terms were not imposed for the same
      offense, nor were the terms of the sentence itself legally or
      constitutionally invalid in any other respect.
                              368 U.S. AT 430                          
    The four dissenters felt the majority definition of "illegal" was
    too narrow.
      [Rule 35] provides for the correction of an "illegal sentence"
      without regard to the reasons why that sentence is illegal and
      contains not a single word to support the Court's conclusion that
      only a sentence illegal by reason of the punishment it imposes is
      "illegal" within the meaning of the Rule. I would have thought
      that a sentence imposed in an illegal manner - whether the amount
      or form of the punishment meted out constitutes an additional
      violation of law or not - would be recognized as an "illegal
      sentence" under any normal reading of the English language.
                            368 U.S. AT 431-432                        
    The 1966 amendment of rule 35 added language permitting correction
    of a sentence imposed in an "illegal manner." However, there is a
    120-day time limit on a motion to do this, and the added language
    does not clarify the intent of the rule or its relation to Sec.
    2255.
      The courts have been flexible in considering motions under
    circumstances in which relief might appear to be precluded by Hill
    v. United States. In Peterson v. United States, 432 F.2d 545 (8th
    Cir. 1970), the court was confronted with a motion for reduction of
    sentence by a prisoner claiming to have received a harsher sentence
    than his codefendants because he stood trial rather than plead
    guilty. He alleged that this violated his constitutional right to a
    jury trial. The court ruled that, even though it was past the 120-
    day time period for a motion to reduce sentence, the claim was
    still cognizable under rule 35 as a motion to correct an illegal
    sentence.
      The courts have made even greater use of Sec. 2255 in these types
    of situations. In United States v. Lewis, 392 F.2d 440 (4th Cir.
    1968), the prisoner moved under Sec. 2255 and rule 35 for relief
    from a sentence he claimed was the result of the judge's
    misunderstanding of the relevant sentencing law. The court held
    that he could not get relief under rule 35 because it was past the
    120 days for correction of a sentence imposed in an illegal manner
    and under Hill v. United States it was not an illegal sentence.
    However, Sec. 2255 was applicable because of its "otherwise subject
    to collateral attack" language. The flaw was not a mere trial error
    relating to the finding of guilt, but a rare and unusual error
    which amounted to "exceptional circumstances" embraced in Sec.
    2255's words "collateral attack." See 368 U.S. at 444 for
    discussion of other cases allowing use of Sec. 2255 to attack the
    sentence itself in similar circumstances, especially where the
    judge has sentenced out of a misapprehension of the law.
      In United States v. McCarthy, 433 F.2d 591, 592 (1st Cir. 1970),
    the court allowed a prisoner who was past the time limit for a
    proper rule 35 motion to use Sec. 2255 to attack the sentence which
    he received upon a plea of guilty on the ground that it was induced
    by an unfulfilled promise of the prosecutor to recommend leniency.
    The court specifically noted that under Sec. 2255 this was a proper
    collateral attack on the sentence and there was no need to attack
    the conviction as well.
      The court in United States v. Malcolm, 432 F.2d 809, 814, 818 (2d
    Cir. 1970), allowed a prisoner to challenge his sentence under Sec.
    2255 without attacking the conviction. It held rule 35 inapplicable
    because the sentence was not illegal on its face, but the manner in
    which the sentence was imposed raised a question of the denial of
    due process in the sentencing itself which was cognizable under
    Sec. 2255.
      The flexible approach taken by the courts in the above cases
    seems to be the reasonable way to handle these situations in which
    rule 35 and Sec. 2255 appear to overlap. For a further discussion
    of this problem, see C. Wright, Federal Practice and Procedure;
    Criminal Secs. 581-587 (1969, Supp. 1975).
      See the advisory committee note to rule 2 of the Sec. 2254 rules
    for further discussion of the purposes and intent of rule 2 of
    these Sec. 2255 rules.
                              1982 AMENDMENT                          
      Subdivision (b). The amendment takes into account 28 U.S.C. Sec.
    1746, enacted after adoption of the Sec. 2255 rules. Section 1746
    provides that in lieu of an affidavit an unsworn statement may be
    given under penalty of perjury in substantially the following form
    if executed within the United States, its territories, possessions
    or commonwealths: "I declare (or certify, verify, or state) under
    penalty of perjury that the foregoing is true and correct. Executed
    on (date). (Signature)." The statute is "intended to encompass
    prisoner litigation," and the statutory alternative is especially
    appropriate in such cases because a notary might not be readily
    available. Carter v. Clark, 616 F.2d 228 (5th Cir. 1980). The Sec.
    2255 forms have been revised accordingly.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 2 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended, except as described below.
      Revised Rule 2(b)(5) has been amended by removing the requirement
    that the motion be signed personally by the moving party. Thus,
    under the amended rule the motion may be signed by [the] movant
    personally or by someone acting on behalf of the movant, assuming
    that the person is authorized to do so, for example, an attorney
    for the movant. The Committee envisions that the courts would apply
    third-party, or "next-friend," standing analysis in deciding
    whether the signer was actually authorized to sign the motion on
    behalf of the movant. See generally Whitmore v. Arkansas, 495 U.S.
    149 (1990) (discussion of requisites for "next friend" standing in
    habeas petitions). See also 28 U.S.C. Sec. 2242 (application for
    state habeas corpus relief may be filed by the person who is
    seeking relief, or by someone acting on behalf of that person).
      The language in new Rule 2(c) has been changed to reflect that a
    moving party must substantially follow the standard form, which is
    appended to the rules, or a form provided by the court. The current
    rule, Rule 2(c), seems to indicate a preference for the standard
    "national" form. Under the amended rule, there is no stated
    preference. The Committee understood that the current practice in
    some courts is that if the moving party first files a motion using
    the national form, that courts may ask the moving party to
    supplement it with the local form.
      Current Rule 2(d), which provided for returning an insufficient
    motion[,] has been deleted. The Committee believed that the
    approach in Federal Rule of Civil Procedure 5(e) was more
    appropriate for dealing with motions that do not conform to the
    form requirements of the rule. That Rule provides that the clerk
    may not refuse to accept a filing solely for the reason that it
    fails to comply with these rules or local rules. Before the
    adoption of a one-year statute of limitations in the Antiterrorism
    and Effective Death Penalty Act of 1996, 110 Stat. 1214, the moving
    party suffered no penalty, other than delay, if the motion was
    deemed insufficient. Now that a one-year statute of limitations
    applies to motions filed under Sec. 2255, see 28 U.S.C. Sec.
    2244(d)(1), the court's dismissal of a motion because it is not in
    proper form may pose a significant penalty for a moving party, who
    may not be able to file another motion within the one-year
    limitations period. Now, under revised Rule 3(b), the clerk is
    required to file a motion, even though it may otherwise fail to
    comply with the provisions in revised Rule 2(b). The Committee
    believed that the better procedure was to accept the defective
    motion and require the moving party to submit a corrected motion
    that conforms to Rule 2(b).
      Changes Made After Publication and Comments. The Committee
    changed Rule 2(b)(2) to read "state the facts" rather then [sic]
    "briefly summarize the facts." One commentator had written that the
    current language may actually mislead the petitioner and is also
    redundant.
      Rule 2(b)(4) was also modified to reflect that some motions may
    be printed using a word processing program.
      Finally, Rule 2(b)(5) was changed to emphasize that any person,
    other than the petitioner, who signs the petition must be
    authorized to do so.
                                AMENDMENTS                            
      1976 - Subd. (b). Pub. L. 94-426, Sec. 2(3), inserted
    "substantially" after "The motion shall be in", and struck out
    requirement that the motion follow the prescribed form.
      Subd. (d). Pub. L. 94-426, Sec. 2(4), inserted "substantially"
    after "district court does not", and struck out provision which
    permitted the clerk to return a motion for noncompliance without a
    judge so directing.
                 RULE 3. FILING THE MOTION; INMATE FILING             
      (a) Where to File; Copies. An original and two copies of the
    motion must be filed with the clerk.
      (b) Filing and Service. The clerk must file the motion and enter
    it on the criminal docket of the case in which the challenged
    judgment was entered. The clerk must then deliver or serve a copy
    of the motion on the United States attorney in that district,
    together with a notice of its filing.
      (c) Time to File. The time for filing a motion is governed by 28
    U.S.C. Sec. 2255 para. 6.
      (d) Inmate Filing. A paper filed by an inmate confined in an
    institution is timely if deposited in the institution's internal
    mailing system on or before the last day for filing. If an
    institution has a system designed for legal mail, the inmate must
    use that system to receive the benefit of this rule. Timely filing
    may be shown by a declaration in compliance with 28 U.S.C. Sec.
    1746 or by a notarized statement, either of which must set forth
    the date of deposit and state that first-class postage has been
    prepaid.
    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      There is no filing fee required of a movant under these rules.
    This is a change from the practice of charging $15 and is done to
    recognize specifically the nature of a Sec. 2255 motion as being a
    continuation of the criminal case whose judgment is under attack.
      The long-standing practice of requiring a $15 filing fee has
    followed from 28 U.S.C. Sec. 1914(a) whereby "parties instituting
    any civil action * * * pay a filing fee of $15, except that on an
    application for a writ of habeas corpus the filing fee shall be
    $5." This has been held to apply to a proceeding under Sec. 2255
    despite the rationale that such a proceeding is a motion and thus a
    continuation of the criminal action. (See note to rule 1.)
        A motion under Section 2255 is a civil action and the clerk has
      no choice but to charge a $15.00 filing fee unless by leave of
      court it is filed in forma pauperis.
      McCune v. United States, 406 F.2d 417, 419 (6th Cir. 1969).
      Although the motion has been considered to be a new civil action
    in the nature of habeas corpus for filing purposes, the reduced fee
    for habeas has been held not applicable. The Tenth Circuit
    considered the specific issue in Martin v. United States, 273 F.2d
    775 (10th Cir. 1960), cert. denied, 365 U.S. 853 (1961), holding
    that the reduced fee was exclusive to habeas petitions.
        Counsel for Martin insists that, if a docket fee must be paid,
      the amount is $5 rather than $15 and bases his contention on the
      exception contained in 28 U.S.C. Sec. 1914 that in habeas corpus
      the fee is $5. This reads into Sec. 1914 language which is not
      there. While an application under Sec. 2255 may afford the same
      relief as that previously obtainable by habeas corpus, it is not
      a petition for a writ of habeas corpus. A change in Sec. 1914
      must come from Congress.
                              273 F.2D AT 778                          
      Although for most situations Sec. 2255 is intended to provide to
    the federal prisoner a remedy equivalent to habeas corpus as used
    by state prisoners, there is a major distinction between the two.
    Calling a Sec. 2255 request for relief a motion rather than a
    petition militates toward charging no new filing fee, not an
    increased one. In the absence of convincing evidence to the
    contrary, there is no reason to suppose that Congress did not mean
    what it said in making a Sec. 2255 action a motion. Therefore, as
    in other motions filed in a criminal action, there is no
    requirement of a filing fee. It is appropriate that the present
    situation of docketing a Sec. 2255 motion as a new action and
    charging a $15 filing fee be remedied by the rule when the whole
    question of Sec. 2255 motions is thoroughly thought through and
    organized.
      Even though there is no need to have a forma pauperis affidavit
    to proceed with the action since there is no requirement of a fee
    for filing the motion the affidavit remains attached to the form to
    be supplied potential movants. Most such movants are indigent, and
    this is a convenient way of getting this into the official record
    so that the judge may appoint counsel, order the government to pay
    witness fees, allow docketing of an appeal, and grant any other
    rights to which an indigent is entitled in the course of a Sec.
    2255 motion, when appropriate to the particular situation, without
    the need for an indigency petition and adjudication at such later
    point in the proceeding. This should result in a streamlining of
    the process to allow quicker disposition of these motions.
      For further discussion of this rule, see the advisory committee
    note to rule 3 of the Sec. 2254 rules.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 3 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended, except as indicated below.
      Revised Rule 3(b) is new and is intended to parallel Federal Rule
    of Civil Procedure 5(e), which provides that the clerk may not
    refuse to accept a filing solely for the reason that it fails to
    comply with these rules or local rules. Before the adoption of a
    one-year statute of limitations in the Antiterrorism and Effective
    Death Penalty Act of 1996, 110 Stat. 1214, the moving party
    suffered no penalty, other than delay, if the petition was deemed
    insufficient. That Act, however, added a one-year statute of
    limitations to motions filed under Sec. 2255, see 28 U.S.C. Sec.
    2244(d)(1). Thus, a court's dismissal of a defective motion may
    pose a significant penalty for a moving party who may not be able
    to file a corrected motion within the one-year limitation period.
    The Committee believed that the better procedure was to accept the
    defective motion and require the moving party to submit a corrected
    motion that conforms to Rule 2. Thus, revised Rule 3(b) requires
    the clerk to file a motion, even though it may otherwise fail to
    comply with Rule 2.
      Revised Rule 3(c), which sets out a specific reference to 28
    U.S.C. Sec. 2255, paragraph 6, is new and has been added to put
    moving parties on notice that a one-year statute of limitations
    applies to motions filed under these Rules. Although the rule does
    not address the issue, every circuit that has addressed the issue
    has taken the position that equitable tolling of the statute of
    limitations is available in appropriate circumstances. See, e.g.,
    Dunlap v. United States, 250 F.3d 1001, 1004-07 (6th Cir. 2001);
    Moore v. United States, 173 F.3d 1131, 1133-35 (8th Cir. 1999);
    Sandvik v. United States, 177 F.3d 1269, 1270-72 (11th Cir. 1999).
    The Supreme Court has not addressed the question directly. See
    Duncan v. Walker, 533 U.S. 167, 181 (2001) ("We . . . have no
    occasion to address the question that Justice Stevens raises
    concerning the availability of equitable tolling.").
      Rule 3(d) is new and provides guidance on determining whether a
    motion from an inmate is considered to have been filed in a timely
    fashion. The new provision parallels Federal Rule of Appellate
    Procedure 25(a)(2)(C).
      Changes Made After Publication and Comments. The Committee
    modified the Committee Note to reflect that the clerk must file a
    motion, even in those instances where the necessary filing fee or
    in forma pauperis form is not attached. The Note also includes new
    language concerning the equitable tolling of the statute of
    limitations.
                        RULE 4. PRELIMINARY REVIEW                    
      (a) Referral to a Judge. The clerk must promptly forward the
    motion to the judge who conducted the trial and imposed sentence
    or, if the judge who imposed sentence was not the trial judge, to
    the judge who conducted the proceedings being challenged. If the
    appropriate judge is not available, the clerk must forward the
    motion to a judge under the court's assignment procedure.
      (b) Initial Consideration by the Judge. The judge who receives
    the motion must promptly examine it. If it plainly appears from the
    motion, any attached exhibits, and the record of prior proceedings
    that the moving party is not entitled to relief, the judge must
    dismiss the motion and direct the clerk to notify the moving party.
    If the motion is not dismissed, the judge must order the United
    States attorney to file an answer, motion, or other response within
    a fixed time, or to take other action the judge may order.
    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      Rule 4 outlines the procedure for assigning the motion to a
    specific judge of the district court and the options available to
    the judge and the government after the motion is properly filed.
      The long-standing majority practice in assigning motions made
    pursuant to Sec. 2255 has been for the trial judge to determine the
    merits of the motion. In cases where the Sec. 2255 motion is
    directed against the sentence, the merits have traditionally been
    decided by the judge who imposed sentence. The reasoning for this
    was first noted in Currell v. United States, 173 F.2d 348, 348-349
    (4th Cir. 1949):
        Complaint is made that the judge who tried the case passed upon
      the motion. Not only was there no impropriety in this, but it is
      highly desirable in such cases that the motions be passed on by
      the judge who is familiar with the facts and circumstances
      surrounding the trial, and is consequently not likely to be
      misled by false allegations as to what occurred.
    This case, and its reasoning, has been almost unanimously endorsed
    by other courts dealing with the issue.
      Commentators have been critical of having the motion decided by
    the trial judge. See Developments in the Law - Federal Habeas
    Corpus, 83 Harv.L.Rev. 1038, 1206-1208 (1970).
      [T]he trial judge may have become so involved with the decision
      that it will be difficult for him to review it objectively.
      Nothing in the legislative history suggests that "court" refers
      to a specific judge, and the procedural advantages of section
      2255 are available whether or not the trial judge presides at the
      hearing.
        The theory that Congress intended the trial judge to preside at
      a section 2255 hearing apparently originated in Carvell v. United
      States, 173 F.2d 348 (4th Cir. 1949) (per curiam), where the
      panel of judges included Chief Judge Parker of the Fourth
      Circuit, chairman of the Judicial Conference committee which
      drafted section 2255. But the legislative history does not
      indicate that Congress wanted the trial judge to preside. Indeed
      the advantages of section 2255 can all be achieved if the case is
      heard in the sentencing district, regardless of which judge hears
      it. According to the Senate committee report the purpose of the
      bill was to make the proceeding a part of the criminal action so
      the court could resentence the applicant, or grant him a new
      trial. (A judge presiding over a habeas corpus action does not
      have these powers.) In addition, Congress did not want the cases
      heard in the district of confinement because that tended to
      concentrate the burden on a few districts, and made it difficult
      for witnesses and records to be produced.
                        83 HARV.L.REV. AT 1207-1208                    
      The Court of Appeals for the First Circuit has held that a judge
    other than the trial judge should rule on the 2255 motion. See
    Halliday v. United States, 380 F.2d 270 (1st Cir. 1967).
      There is a procedure by which the movant can have a judge other
    than the trial judge decide his motion in courts adhering to the
    majority rule. He can file an affidavit alleging bias in order to
    disqualify the trial judge. And there are circumstances in which
    the trial judge will, on his own, disqualify himself. See, e.g.,
    Webster v. United States, 330 F.Supp. 1080 (1972). However, there
    has been some questioning of the effectiveness of this procedure.
    See Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev.
    1038, 1200-1207 (1970).
      Subdivision (a) adopts the majority rule and provides that the
    trial judge, or sentencing judge if different and appropriate for
    the particular motion, will decide the motion made pursuant to
    these rules, recognizing that, under some circumstances, he may
    want to disqualify himself. A movant is not without remedy if he
    feels this is unfair to him. He can file an affidavit of bias. And
    there is the right to appellate review if the trial judge refuses
    to grant his motion. Because the trial judge is thoroughly familiar
    with the case, there is obvious administrative advantage in giving
    him the first opportunity to decide whether there are grounds for
    granting the motion.
      Since the motion is part of the criminal action in which was
    entered the judgment to which it is directed, the files, records,
    transcripts, and correspondence relating to that judgment are
    automatically available to the judge in his consideration of the
    motion. He no longer need order them incorporated for that purpose.
      Rule 4 has its basis in Sec. 2255 (rather than 28 U.S.C. Sec.
    2243 in the corresponding habeas corpus rule) which does not have a
    specific time limitation as to when the answer must be made. Also,
    under Sec. 2255, the United States Attorney for the district is the
    party served with the notice and a copy of the motion and required
    to answer (when appropriate). Subdivision (b) continues this
    practice since there is no respondent involved in the motion
    (unlike habeas) and the United States Attorney, as prosecutor in
    the case in question, is the most appropriate one to defend the
    judgment and oppose the motion.
      The judge has discretion to require an answer or other
    appropriate response from the United States Attorney. See advisory
    committee note to rule 4 of the Sec. 2254 rules.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 4 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended.
      The amended rule reflects that the response to a Section 2255
    motion may be a motion to dismiss or some other response.
      Changes Made After Publication and Comments. The Committee
    modified Rule 4 to reflect the view of some commentators that it is
    common practice in some districts for the government to file a pre-
    answer motion to dismiss the Sec. 2255 motion. The Committee
    agreed with that recommendation and changed the word "pleading" in
    the rule to "response." It also made several minor changes to the
    Committee Note.
                     RULE 5. THE ANSWER AND THE REPLY                 
      (a) When Required. The respondent is not required to answer the
    motion unless a judge so orders.
      (b) Contents. The answer must address the allegations in the
    motion. In addition, it must state whether the moving party has
    used any other federal remedies, including any prior post-
    conviction motions under these rules or any previous rules, and
    whether the moving party received an evidentiary hearing.
      (c) Records of Prior Proceedings. If the answer refers to briefs
    or transcripts of the prior proceedings that are not available in
    the court's records, the judge must order the government to furnish
    them within a reasonable time that will not unduly delay the
    proceedings.
      (d) Reply. The moving party may submit a reply to the
    respondent's answer or other pleading within a time fixed by the
    judge.
    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      Unlike the habeas corpus statutes (see 28 U.S.C. Secs. 2243,
    2248) Sec. 2255 does not specifically call for a return or answer
    by the United States Attorney or set any time limits as to when one
    must be submitted. The general practice, however, if the motion is
    not summarily dismissed, is for the government to file an answer to
    the motion as well as counter-affidavits, when appropriate. Rule 4
    provides for an answer to the motion by the United States Attorney,
    and rule 5 indicates what its contents should be.
      There is no requirement that the movant exhaust his remedies
    prior to seeking relief under Sec. 2255. However, the courts have
    held that such a motion is inappropriate if the movant is
    simultaneously appealing the decision.
        We are of the view that there is no jurisdictional bar to the
      District Court's entertaining a Section 2255 motion during the
      pendency of a direct appeal but that the orderly administration
      of criminal law precludes considering such a motion absent
      extraordinary circumstances.
        WOMACK V. UNITED STATES, 395 F.2D 630, 631 (D.C.CIR. 1968)    
    Also see Masters v. Eide, 353 F.2d 517 (8th Cir. 1965). The answer
    may thus cut short consideration of the motion if it discloses the
    taking of an appeal which was omitted from the form motion filed by
    the movant.
      There is nothing in Sec. 2255 which corresponds to the Sec. 2248
    requirement of a traverse to the answer. Numerous cases have held
    that the government's answer and affidavits are not conclusive
    against the movant, and if they raise disputed issues of fact a
    hearing must be held. Machibroda v. United States, 368 U.S. 487,
    494, 495 (1962); United States v. Salerno, 290 F.2d 105, 106 (2d
    Cir. 1961); Romero v. United States, 327 F.2d 711, 712 (5th Cir.
    1964); Scott v. United States, 349 F.2d 641, 642, 643 (6th Cir.
    1965); Schiebelhut v. United States, 357 F.2d 743, 745 (6th Cir.
    1966); and Del Piano v. United States, 362 F.2d 931, 932, 933 (3d
    Cir. 1966). None of these cases make any mention of a traverse by
    the movant to the government's answer. As under rule 5 of the Sec.
    2254 rules, there is no intention here that such a traverse be
    required, except under special circumstances. See advisory
    committee note to rule 9.
      Subdivision (b) provides for the government to supplement its
    answers with appropriate copies of transcripts or briefs if for
    some reason the judge does not already have them under his control.
    This is because the government will in all probability have easier
    access to such papers than the movant, and it will conserve the
    court's time to have the government produce them rather than the
    movant, who would in most instances have to apply in forma pauperis
    for the government to supply them for him anyway.
      For further discussion, see the advisory committee note to rule 5
    of the Sec. 2254 rules.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 5 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended.
      Revised Rule 5(a), which provides that the respondent is not
    required to file an answer to the motion, unless a judge so orders,
    is taken from current Rule 3(b). The revised rule does not address
    the practice in some districts, where the respondent files a pre-
    answer motion to dismiss the motion. But revised Rule 4(b)
    contemplates that practice and has been changed to reflect the view
    that if the court does not dismiss the motion, it may require (or
    permit) the respondent to file a motion.
      Finally, revised Rule 5(d) adopts the practice in some
    jurisdictions giving the movant an opportunity to file a reply to
    the respondent's answer. Rather than using terms such as
    "traverse," see 28 U.S.C. Sec. 2248, to identify the movant's
    response to the answer, the rule uses the more general term
    "reply." The Rule prescribes that the court set the time for such
    responses, and in lieu of setting specific time limits in each
    case, the court may decide to include such time limits in its local
    rules.
      Changes Made After Publication and Comments. Rule 5(a) was
    modified to read that the government is not required to "respond"
    to the motion unless the court so orders; the term "respond" was
    used because it leaves open the possibility that the government's
    first response (as it is in some districts) is in the form of a pre-
    answer motion to dismiss the petition. The Note has been changed
    to reflect the fact that although the rule itself does not reflect
    that particular motion, it is used in some districts and refers the
    reader to Rule 4.
      Finally, the Committee changed the Note to address the use of the
    term "traverse," a point raised by one of the commentators on the
    proposed rule.
                             RULE 6. DISCOVERY                         
      (a) Leave of Court Required. A judge may, for good cause,
    authorize a party to conduct discovery under the Federal Rules of
    Criminal Procedure or Civil Procedure, or in accordance with the
    practices and principles of law. If necessary for effective
    discovery, the judge must appoint an attorney for a moving party
    who qualifies to have counsel appointed under 18 U.S.C. Sec. 3006A.
      (b) Requesting Discovery. A party requesting discovery must
    provide reasons for the request. The request must also include any
    proposed interrogatories and requests for admission, and must
    specify any requested documents.
      (c) Deposition Expenses. If the government is granted leave to
    take a deposition, the judge may require the government to pay the
    travel expenses, subsistence expenses, and fees of the moving
    party's attorney to attend the deposition.
    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      This rule differs from the corresponding discovery rule under the
    Sec. 2254 rules in that it includes the processes of discovery
    available under the Federal Rules of Criminal Procedure as well as
    the civil. This is because of the nature of a Sec. 2255 motion as a
    continuing part of the criminal proceeding (see advisory committee
    note to rule 1) as well as a remedy analogous to habeas corpus by
    state prisoners.
      See the advisory committee note to rule 6 of the Sec. 2254 rules.
    The discussion there is fully applicable to discovery under these
    rules for Sec. 2255 motions.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 6 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended, except as indicated below.
      Although current Rule 6(b) contains no requirement that the
    parties provide reasons for the requested discovery, the revised
    rule does so and also includes a requirement that the request be
    accompanied by any proposed interrogatories and requests for
    admission, and must specify any requested documents. The Committee
    believes that the revised rule makes explicit what has been
    implicit in current practice.
      Changes Made After Publication and Comments. The Committee
    modified Rule 6(b), to require that discovery requests be supported
    by reasons, to assist the court in deciding what, if any, discovery
    should take place. The Committee amended the Note to reflect the
    view that it believed that the change made explicit what has been
    implicit in current practice.
                            REFERENCES IN TEXT                        
      The Federal Rules of Criminal Procedure, referred to in subd.
    (a), are set out in the Appendix to Title 18, Crimes and Criminal
    Procedure.
      The Federal Rules of Civil Procedure, referred to in subd. (a),
    are set out in the Appendix to this title.
                       RULE 7. EXPANDING THE RECORD                   
      (a) In General. If the motion is not dismissed, the judge may
    direct the parties to expand the record by submitting additional
    materials relating to the motion. The judge may require that these
    materials be authenticated.
      (b) Types of Materials. The materials that may be required
    include letters predating the filing of the motion, documents,
    exhibits, and answers under oath to written interrogatories
    propounded by the judge. Affidavits also may be submitted and
    considered as part of the record.
      (c) Review by the Opposing Party. The judge must give the party
    against whom the additional materials are offered an opportunity to
    admit or deny their correctness.
    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      It is less likely that the court will feel the need to expand the
    record in a Sec. 2255 proceeding than in a habeas corpus
    proceeding, because the trial (or sentencing) judge is the one
    hearing the motion (see rule 4) and should already have a complete
    file on the case in his possession. However, rule 7 provides a
    convenient method for supplementing his file if the case warrants
    it.
      See the advisory committee note to rule 7 of the Sec. 2254 rules
    for a full discussion of reasons and procedures for expanding the
    record.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 7 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended.
      Revised Rule 7(a) is not intended to restrict the court's
    authority to expand the record through means other than requiring
    the parties themselves to provide the information.
      The language in current Rule 7(d), which deals with
    authentication of materials in the expanded record, has been moved
    to revised Rule 7(a).
      Changes Made After Publication and Comments. Rule 7(a) was
    changed by removing the reference to the "merits" of the motion.
    One commentator had stated that the court may wish to expand the
    record for purposes other than the merits of the case. The
    Committee agreed and also changed the rule to reflect that someone
    other than a party may authenticate the materials.
                        RULE 8. EVIDENTIARY HEARING                    
      (a) Determining Whether to Hold a Hearing. If the motion is not
    dismissed, the judge must review the answer, any transcripts and
    records of prior proceedings, and any materials submitted under
    Rule 7 to determine whether an evidentiary hearing is warranted.
      (b) Reference to a Magistrate Judge. A judge may, under 28 U.S.C.
    Sec. 636(b), refer the motion to a magistrate judge to conduct
    hearings and to file proposed findings of fact and recommendations
    for disposition. When they are filed, the clerk must promptly serve
    copies of the proposed findings and recommendations on all parties.
    Within 10 days after being served, a party may file objections as
    provided by local court rule. The judge must determine de novo any
    proposed finding or recommendation to which objection is made. The
    judge may accept, reject, or modify any proposed finding or
    recommendation.
      (c) Appointing Counsel; Time of Hearing. If an evidentiary
    hearing is warranted, the judge must appoint an attorney to
    represent a moving party who qualifies to have counsel appointed
    under 18 U.S.C. Sec. 3006A. The judge must conduct the hearing as
    soon as practicable after giving the attorneys adequate time to
    investigate and prepare. These rules do not limit the appointment
    of counsel under Sec. 3006A at any stage of the proceeding.
      (d) Producing a Statement. Federal Rule of Criminal Procedure
    26.2(a)-(d) and (f) applies at a hearing under this rule. If a
    party does not comply with a Rule 26.2(a) order to produce a
    witness's statement, the court must not consider that witness's
    testimony.
    (As amended Pub. L. 94-426, Sec. 2(6), Sept. 28, 1976, 90 Stat.
    1335; Pub. L. 94-577, Sec. 2(a)(2), (b)(2), Oct. 21, 1976, 90 Stat.
    2730, 2731; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 26, 2004, eff.
    Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      The standards for Sec. 2255 hearings are essentially the same as
    for evidentiary hearings under a habeas petition, except that the
    previous federal fact-finding proceeding is in issue rather than
    the state's. Also Sec. 2255 does not set specific time limits for
    holding the hearing, as does Sec. 2243 for a habeas action. With
    these minor differences in mind, see the advisory committee note to
    rule 8 of Sec. 2254 rules, which is applicable to rule 8 of these
    Sec. 2255 rules.
                              1993 AMENDMENT                          
      The amendment to Rule 8 is one of a series of parallel amendments
    to Federal Rules of Criminal Procedure 32, 32.1, and 46 which
    extend the scope of Rule 26.2 (Production of Witness Statements) to
    proceedings other than the trial itself. The amendments are
    grounded on the compelling need for accurate and credible
    information in making decisions concerning the defendant's liberty.
    See the Advisory Committee Note to Rule 26.2(g). A few courts have
    recognized the authority of a judicial officer to order production
    of prior statements by a witness at a Section 2255 hearing, see,
    e.g., United States v. White, 342 F.2d 379, 382, n.4 (4th Cir.
    1959). The amendment to Rule 8 grants explicit authority to do so.
    The amendment is not intended to require production of a witness's
    statement before the witness actually presents oral testimony.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 8 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended, except as described below.
      The requirement in current Rule 8(b)(2) that a copy of the
    magistrate judge's findings must be promptly mailed to all parties
    has been changed in revised Rule 8(b) to require that copies of
    those findings be served on all parties. As used in this rule,
    "service" means service consistent with Federal Rule of Civil
    Procedure 5(b), which allows mailing the copies.
      Changes Made After Publication and Comments. The Committee made
    no changes to Rule 8, as published for public comment.
                            REFERENCES IN TEXT                        
      The Federal Rules of Criminal Procedure, referred to in subd.
    (d), are set out in the Appendix to Title 18, Crimes and Criminal
    Procedure.
                         AMENDMENTS BY PUBLIC LAW                     
      1976 - Subd. (b). Pub. L. 94-577, Sec. 2(a)(2), substituted
    provisions which authorized magistrates, when designated to do so
    in accordance with section 636(b) of this title, to conduct
    hearings, including evidentiary hearings, on the petition and to
    submit to a judge of the court proposed findings of fact and
    recommendations for disposition, which directed the magistrate to
    file proposed findings and recommendations with the court with
    copies furnished to all parties, which allowed parties thus served
    10 days to file written objections thereto, and which directed a
    judge of the court to make de novo determinations of the objected-
    to portions and to accept, reject, or modify the findings or
    recommendations for provisions under which the magistrate had been
    empowered only to recommend to the district judge that an
    evidentiary hearing be held or that the petition be dismissed.
      Subd. (c). Pub. L. 94-577, Sec. 2(b)(2), substituted "and the
    hearing shall be conducted" for "and shall conduct the hearing."
      Pub. L. 94-426 provided that these rules not limit the
    appointment of counsel under section 3006A of title 18, if the
    interest of justice so require.
                     EFFECTIVE DATE OF 1976 AMENDMENT                 
      Amendments made by Pub. L. 94-577 effective with respect to
    motions under section 2255 of this title filed on or after Feb. 1,
    1977, see section 2(c) of Pub. L. 94-577, set out as a note under
    Rule 8 of the Rules Governing Cases Under Section 2254 of this
    title.
                   RULE 9. SECOND OR SUCCESSIVE MOTIONS               
      Before presenting a second or successive motion, the moving party
    must obtain an order from the appropriate court of appeals
    authorizing the district court to consider the motion, as required
    by 28 U.S.C. Sec. 2255, para. 8.
    (As amended Pub. L. 94-426, Sec. 2(9), (10), Sept. 28, 1976, 90
    Stat. 1335; Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      Unlike the statutory provisions on habeas corpus (28 U.S.C. Secs.
    2241-2254), Sec. 2255 specifically provides that "a motion for such
    relief may be made at any time." [Emphasis added.] Subdivision (a)
    provides that delayed motions may be barred from consideration if
    the government has been prejudiced in its ability to respond to the
    motion by the delay and the movant's failure to seek relief earlier
    is not excusable within the terms of the rule. Case law, dealing
    with this issue, is in conflict.
      Some courts have held that the literal language of Sec. 2255
    precludes any possible time bar to a motion brought under it. In
    Heflin v. United States, 358 U.S. 415 (1959), the concurring
    opinion noted:
      The statute [28 U.S.C. Sec. 2255] further provides; "A motion * *
      * may be made at any time." This * * * simply means that, as in
      habeas corpus, there is no statute of limitations, no res
      judicata, and that the doctrine of laches is inapplicable.
                              358 U.S. AT 420                          
    McKinney v. United States, 208 F.2d 844 (D.C.Cir. 1953) reversed
    the district court's dismissal of a Sec. 2255 motion for being too
    late, the court stating:
        McKinney's present application for relief comes late in the
      day: he has served some fifteen years in prison. But tardiness is
      irrelevant where a constitutional issue is raised and where the
      prisoner is still confined.
                           208 F.2D AT 846, 847                       
    In accord, see: Juelich v. United States, 300 F.2d 381, 383 (5th
    Cir. 1962); Conners v. United States, 431 F.2d 1207, 1208 (9th Cir.
    1970); Sturrup v. United States, 218 F.Supp. 279, 281 (E.D.N.Car.
    1963); and Banks v. United States, 319 F.Supp. 649, 652 (S.D.N.Y.
    1970).
      It has also been held that delay in filing a Sec. 2255 motion
    does not bar the movant because of lack of reasonable diligence in
    pressing the claim.
      The statute [28 U.S.C. Sec. 2255], when it states that the motion
      may be made at any time, excludes the addition of a showing of
      diligence in delayed filings. A number of courts have considered
      contentions similar to those made here and have concluded that
      there are no time limitations. This result excludes the
      requirement of diligence which is in reality a time limitation.
        HAIER V. UNITED STATES, 334 F.2D 441, 442 (10TH CIR. 1964)    
      Other courts have recognized that delay may have a negative
    effect on the movant. In Raines v. United States, 423 F.2d 526 (4th
    Cir. 1970), the court stated:
      [B]oth petitioners' silence for extended periods, one for 28
      months and the other for nine years, serves to render their
      allegations less believable. "Although a delay in filing a
      section 2255 motion is not a controlling element * * * it may
      merit some consideration * * *."
                              423 F.2D AT 531                          
      In Aiken v. United States, 191 F.Supp. 43, 50 (M.D.N.Car. 1961),
    aff'd 296 F.2d 604 (4th Cir. 1961), the court said: "While motions
    under 28 U.S.C. Sec. 2255 may be made at any time, the lapse of
    time affects the good faith and credibility of the moving party."
    For similar conclusions, see: Parker v. United States, 358 F.2d 50,
    54 n. 4 (7th Cir. 1965), cert. denied, 386 U.S. 916 (1967); Le
    Clair v. United States, 241 F.Supp. 819, 824 (N.D. Ind. 1965);
    Malone v. United States, 299 F.2d 254, 256 (6th Cir. 1962), cert.
    denied, 371 U.S. 863 (1962); Howell v. United States, 442 F.2d 265,
    274 (7th Cir. 1971); and United States v. Wiggins, 184 F. Supp.
    673, 676 (D.C.Cir. 1960).
      There have been holdings by some courts that a delay in filing a
    Sec. 2255 motion operates to increase the burden of proof which the
    movant must meet to obtain relief. The reasons for this, as
    expressed in United States v. Bostic, 206 F.Supp. 855 (D.C.Cir.
    1962), are equitable in nature.
        Obviously, the burden of proof on a motion to vacate a sentence
      under 28 U.S.C. Sec. 2255 is on the moving party. . . . The
      burden is particularly heavy if the issue is one of fact and a
      long time has elapsed since the trial of the case. While neither
      the statute of limitations nor laches can bar the assertion of a
      constitutional right, nevertheless, the passage of time may make
      it impracticable to retry a case if the motion is granted and a
      new trial is ordered. No doubt, at times such a motion is a
      product of an afterthought. Long delay may raise a question of
      good faith.
                          206 F.SUPP. AT 856-857                      
    See also United States v. Wiggins, 184 F.Supp. at 676.
      A requirement that the movant display reasonable diligence in
    filing a Sec. 2255 motion has been adopted by some courts dealing
    with delayed motions. The court in United States v. Moore, 166 F.2d
    102 (7th Cir. 1948), cert. denied, 334 U.S. 849 (1948), did this,
    again for equitable reasons.
        [W]e agree with the District Court that the petitioner has too
      long slept upon his rights. * * * [A]pparently there is no
      limitation of time within which * * * a motion to vacate may be
      filed, except that an applicant must show reasonable diligence in
      presenting his claim. * * *
        The reasons which support the rule requiring diligence seem
      obvious. * * * Law enforcement officials change, witnesses die,
      memories grow dim. The prosecuting tribunal is put to a
      disadvantage if an unexpected retrial should be necessary after
      long passage of time.
                              166 F.2D AT 105                          
    In accord see Desmond v. United States, 333 F.2d 378, 381 (1st Cir.
    1964), on remand, 345 F.2d 225 (1st Cir. 1965).
      One of the major arguments advanced by the courts which would
    penalize a movant who waits an unduly long time before filing a
    Sec. 2255 motion is that such delay is highly prejudicial to the
    prosecution. In Desmond v. United States, writing of a Sec. 2255
    motion alleging denial of effective appeal because of deception by
    movant's own counsel, the court said:
      [A]pplications for relief such as this must be made promptly. It
      will not do for a prisoner to wait until government witnesses
      have become unavailable as by death, serious illness or absence
      from the country, or until the memory of available government
      witnesses has faded. It will not even do for a prisoner to wait
      any longer than is reasonably necessary to prepare appropriate
      moving papers, however inartistic, after discovery of the
      deception practiced upon him by his attorney.
                              333 F.2D AT 381                          
    In a similar vein are United States v. Moore and United States v.
    Bostic, supra, and United States v. Wiggins, 184 F. Supp. at 676.
      Subdivision (a) provides a flexible, equitable time limitation
    based on laches to prevent movants from withholding their claims so
    as to prejudice the government both in meeting the allegations of
    the motion and in any possible retrial. It includes a reasonable
    diligence requirement for ascertaining possible grounds for relief.
    If the delay is found to be excusable, or nonprejudicial to the
    government, the time bar is inoperative.
      Subdivision (b) is consistent with the language of Sec. 2255 and
    relevant case law.
      The annexed form is intended to serve the same purpose as the
    comparable one included in the Sec. 2254 rules.
      For further discussion applicable to this rule, see the advisory
    committee note to rule 9 of the Sec. 2254 rules.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 9 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended, except as indicated below.
      First, current Rule 9(a) has been deleted as unnecessary in light
    of the applicable one-year statute of limitations for Sec. 2255
    motions, added as part of the Antiterrorism and Effective Death
    Penalty Act of 1996, 28 U.S.C. Sec. 2255, para. 6.
      Second, the remainder of revised Rule 9 reflects provisions in
    the Antiterrorism and Effective Death Penalty Act of 1996, 28
    U.S.C. Sec. 2255, parh. [sic] 8, which now require a moving party
    to obtain approval from the appropriate court of appeals before
    filing a second or successive motion.
      Finally, the title of the rule has been changed to reflect the
    fact that the revised version addresses only the topic of second or
    successive motions.
      Changes Made After Publication and Comments. The Committee made
    no changes to Rule 9, as published.
                         AMENDMENTS BY PUBLIC LAW                     
      1976 - Subd. (a). Pub. L. 94-426, Sec. 2(9), struck out provision
    which established a rebuttable presumption of prejudice to
    government if the petition was filed more than five years after
    conviction.
      Subd. (b). Pub. L. 94-426, Sec. 2(10), substituted "constituted
    an abuse of the procedure governed by these rules" for "is not
    excusable".
                   RULE 10. POWERS OF A MAGISTRATE JUDGE               
      A magistrate judge may perform the duties of a district judge
    under these rules, as authorized by 28 U.S.C. Sec. 636.
    (As amended Pub. L. 94-426, Sec. 2(12), Sept. 28, 1976, 90 Stat.
    1335; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 26, 2004, eff. Dec. 1,
    2004.)
                          ADVISORY COMMITTEE NOTE                      
      See the advisory committee note to rule 10 of the Sec. 2254 rules
    for a discussion fully applicable here as well.
                              1979 AMENDMENT                          
      This amendment conforms the rule to 18 U.S.C. Sec. 636. See
    Advisory Committee Note to rule 10 of the Rules Governing Section
    2254 Cases in the United States District Courts.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 10 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended.
      Changes Made After Publication and Comments. The Committee
    restyled the proposed rule.
                         AMENDMENTS BY PUBLIC LAW                     
      1976 - Pub. L. 94-426 inserted ", and to the extent the district
    court has established standards and criteria for the performance of
    such duties," after "rule of the district court".
                          RULE 11. TIME TO APPEAL                      
      Federal Rule of Appellate Procedure 4(a) governs the time to
    appeal an order entered under these rules. These rules do not
    extend the time to appeal the original judgment of conviction.
    (As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 26, 2004, eff.
    Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      Rule 11 is intended to make clear that, although a Sec. 2255
    action is a continuation of the criminal case, the bringing of a
    Sec. 2255 action does not extend the time.
                              1979 AMENDMENT                          
      Prior to the promulgation of the Rules Governing Section 2255
    Proceedings, the courts consistently held that the time for appeal
    in a section 2255 case is as provided in Fed.R.App.P. 4(a), that
    is, 60 days when the government is a party, rather than as provided
    in appellate rule 4(b), which says that the time is 10 days in
    criminal cases. This result has often been explained on the ground
    that rule 4(a) has to do with civil cases and that "proceedings
    under section 2255 are civil in nature." E.g., Rothman v. United
    States, 508 F.2d 648 (3d Cir. 1975). Because the new section 2255
    rules are based upon the premise "that a motion under Sec. 2255 is
    a further step in the movant's criminal case rather than a separate
    civil action," see Advisory Committee Note to rule 1, the question
    has arisen whether the new rules have the effect of shortening the
    time for appeal to that provided in appellate rule 4(b). A sentence
    has been added to rule 11 in order to make it clear that this is
    not the case.
      Even though section 2255 proceedings are a further step in the
    criminal case, the added sentence correctly states current law. In
    United States v. Hayman, 342 U.S. 205 (1952), the Supreme Court
    noted that such appeals "are governed by the civil rules applicable
    to appeals from final judgments in habeas corpus actions." In
    support, the Court cited Mercado v. United States, 183 F.2d 486
    (1st Cir. 1950), a case rejecting the argument that because Sec.
    2255 proceedings are criminal in nature the time for appeal is only
    10 days. The Mercado court concluded that the situation was
    governed by that part of 28 U.S.C. Sec. 2255 which reads: "An
    appeal may be taken to the court of appeals from the order entered
    on the motion as from a final judgment on application for a writ of
    habeas corpus." Thus, because appellate rule 4(a) is applicable in
    habeas cases, it likewise governs in Sec. 2255 cases even though
    they are criminal in nature.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 11 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended.
      Changes Made After Publication and Comments. The Committee made
    no changes to Rule 11, as published.
                            REFERENCES IN TEXT                        
      The Federal Rules of Appellate Procedure, referred to in text,
    are set out in the Appendix to this title.
    RULE 12. APPLICABILITY OF THE FEDERAL RULES OF CIVIL PROCEDURE AND
                  THE FEDERAL RULES OF CRIMINAL PROCEDURE
      The Federal Rules of Civil Procedure and the Federal Rules of
    Criminal Procedure, to the extent that they are not inconsistent
    with any statutory provisions or these rules, may be applied to a
    proceeding under these rules.
    (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
                          ADVISORY COMMITTEE NOTE                      
      This rule differs from rule 11 of the Sec. 2254 rules in that it
    includes the Federal Rules of Criminal Procedure as well as the
    civil. This is because of the nature of a Sec. 2255 motion as a
    continuing part of the criminal proceeding (see advisory committee
    note to rule 1) as well as a remedy analogous to habeas corpus by
    state prisoners.
      Since Sec. 2255 has been considered analogous to habeas as
    respects the restrictions in Fed.R.Civ.P. 81(a)(2) (see Sullivan v.
    United States, 198 F.Supp. 624 (S.D.N.Y. 1961)), rule 12 is needed.
    For discussion, see the advisory committee note to rule 11 of the
    Sec. 2254 rules.
                 COMMITTEE NOTES ON RULES - 2004 AMENDMENT             
      The language of Rule 12 has been amended as part of general
    restyling of the rules to make them more easily understood and to
    make style and terminology consistent throughout the rules. These
    changes are intended to be stylistic and no substantive change is
    intended.
      Changes Made After Publication and Comments. The Committee made
    no changes to Rule 12.
                            REFERENCES IN TEXT                        
      The Federal Rules of Civil Procedure, referred to in heading and
    text, are set out in the Appendix to this title.
      The Federal Rules of Criminal Procedure, referred to in heading
    and text, are set out in the Appendix to Title 18, Crimes and
    Criminal Procedure.
                             APPENDIX OF FORMS                         
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                       IN FORMA PAUPERIS DECLARATION                   
    _________________________
                        [INSERT APPROPRIATE COURT]                    
          United States
    DECLARATION IN
          
    SUPPORT
          v.
    OF REQUEST
          ______________
    TO PROCEED
          (Movant)
    IN FORMA
          
    PAUPERIS
      I, ______________, declare that I am the movant in the above
    entitled case; that in support of my motion to proceed without
    being required to prepay fees, costs or give security therefor, I
    state that because of my poverty, I am unable to pay the costs of
    said proceeding or to give security therefor; that I believe I am
    entitled to relief.
    1. Are you presently employed? Yes [] No []
      a. If the answer is "yes," state the amount of your salary or
          wages per month, and give the name and address of your
          employer.
        _________________________ 
        _________________________ 
      b. If the answer is "no," state the date of last employment and
          the amount of the salary and wages per month which you
          received.
        _________________________ 
        _________________________ 
    2. Have you received within the past twelve months any money from
      any of the following sources?
      a. Business, profession or form of self-employment? Yes [] No []
      b. Rent payments, interest or dividends?
         Yes [] No []
      c. Pensions, annuities or life insurance payments? Yes [] No []
      d. Gifts or inheritances? Yes [] No []
      e. Any other sources? Yes [] No []
          If the answer to any of the above is "yes," describe each
        source of money and state the amount received from each during
        the past twelve months.
      ___________________________ 
      ___________________________ 
      ___________________________ 
    3. Do you own any cash, or do you have money in a checking or
      savings account?
        Yes [] No [] (Include any funds in prison accounts)
          If the answer is "yes," state the total value of the items
        owned.
      ___________________________ 
      ___________________________ 
      ___________________________ 
    4. Do you own real estate, stocks, bonds, notes, automobiles, or
      other valuable property (excluding ordinary household furnishings
      and clothing)?
        Yes [] No []
          If the answer is "yes," describe the property and state its
        approximate value.
      ___________________________ 
      ___________________________ 
    5. List the persons who are dependent upon you for support, state
      your relationship to those persons, and indicate how much you
      contribute toward their support.
      ___________________________ 
      ___________________________ 
      I declare (or certify, verify, or state) under penalty of perjury
    that the foregoing is true and correct. Executed on _____.
       (date)
                                                          ______________
                                                    Signature of Movant 
                                CERTIFICATE                            
      I hereby certify that the movant herein has the sum of $____ on
    account to his credit at the ____ institution where he is confined.
    I further certify that movant likewise has the following securities
    to his credit according to the records of said ____ institution:
    _________________________
    _________________________
    _________________________
    _________________________
                                                          ______________
                                                  Authorized Officer of 
                                                          Institution   
    (As amended Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 26, 2004, eff.
    Dec. 1, 2004.)
    MODEL FORM FOR USE IN 28 U.S.C. SEC. 2255 CASES INVOLVING A RULE 9
                                   ISSUE
                                FORM NO. 9                            
                           [OMITTED AS OBSOLETE]                       
      Changes Made After Publication and Comments - Forms Accompanying
    Rules Governing Sec. 2254 and Sec. 2255 Proceedings. Responding to
    a number of comments from the public, the Committee deleted from
    both sets of official forms the list of possible grounds of relief.
    The Committee made additional minor style corrections to the forms.
-End-
-CITE-
    28 USC Sec. 2256                                            01/03/2007
-EXPCITE-
    TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
    PART VI - PARTICULAR PROCEEDINGS
    CHAPTER 153 - HABEAS CORPUS
-HEAD-
    [Sec. 2256. Omitted]
-COD-
                               CODIFICATION                           
      Section, added Pub. L. 95-598, title II, Sec. 250(a), Nov. 6,
    1978, 92 Stat. 2672, did not become effective pursuant to section
    402(b) of Pub. L. 95-598, as amended, set out as an Effective Date
    note preceding section 101 of Title 11, Bankruptcy. Section read as
    follows:
      Sec. 2256. Habeas corpus from bankruptcy courts
      A bankruptcy court may issue a writ of habeas corpus - 
        (1) when appropriate to bring a person before the court - 
          (A) for examination;
          (B) to testify; or
          (C) to perform a duty imposed on such person under this
        title; or
        (2) ordering the release of a debtor in a case under title 11
      in custody under the judgment of a Federal or State court if - 
          (A) such debtor was arrested or imprisoned on process in any
        civil action;
          (B) such process was issued for the collection of a debt - 
            (i) dischargeable under title 11; or
            (ii) that is or will be provided for in a plan under
          chapter 11 or 13 of title 11; and
          (C) before the issuance of such writ, notice and a hearing
        have been afforded the adverse party of such debtor in custody
        to contest the issuance of such writ.
-MISC1-
                             PRIOR PROVISIONS                         
      A prior section 2256, added Pub. L. 95-144, Sec. 3, Oct. 28,
    1977, 91 Stat. 1220, related to jurisdiction of proceedings
    relating to transferred offenders, prior to transfer to section
    3244 of Title 18, Crimes and Criminal Procedure, by Pub. L. 95-598,
    title III, Sec. 314(j), Nov. 6, 1978, 92 Stat. 2677.
-End-