28 U.S.C. § 152 (2024) — Title 28: JUDICIARY AND JUDICIAL PROCEDURE / Chapter 6 / Section 152: Appointment of bankruptcy judges
Appointment of bankruptcy judges
Status: in_force

(a)(1) Each bankruptcy judge to be appointed for a judicial district, as provided in paragraph (2), shall be appointed by the court of appeals of the United States for the circuit in which such district is located. Such appointments shall be made after considering the recommendations of the Judicial Conference submitted pursuant to subsection (b). Each bankruptcy judge shall be appointed for a term of fourteen years, subject to the provisions of subsection (e). However, upon the expiration of the term, a bankruptcy judge may, with the approval of the judicial council of the circuit, continue to perform the duties of the office until the earlier of the date which is 180 days after the expiration of the term or the date of the appointment of a successor. Bankruptcy judges shall serve as judicial officers of the United States district court established under Article III of the Constitution.

(2) The bankruptcy judges appointed pursuant to this section shall be appointed for the several judicial districts as follows:

 

DistrictsJudges

Alabama:

Northern 
5

Middle 
2

Southern 
2

Alaska 
2

Arizona 
7

Arkansas:

Eastern and Western 
3

California:

Northern 
9

Eastern 
6

Central 
21

Southern 
4

Colorado 
5

Connecticut 
3

Delaware 
1

District of Columbia 
1

Florida:

Northern 
1

Middle 
8

Southern 
5

Georgia:

Northern 
8

Middle 
3

Southern 
2

Hawaii 
1

Idaho 
2

Illinois:

Northern 
10

Central 
3

Southern 
1

Indiana:

Northern 
3

Southern 
4

Iowa:

Northern 
2

Southern 
2

Kansas 
4

Kentucky:

Eastern 
2

Western 
3

Louisiana:

Eastern 
2

Middle 
1

Western 
3

Maine 
2

Maryland 
4

Massachusetts 
5

Michigan:

Eastern 
4

Western 
3

Minnesota 
4

Mississippi:

Northern 
1

Southern 
2

Missouri:

Eastern 
3

Western 
3

Montana 
1

Nebraska 
2

Nevada 
3

New Hampshire 
1

New Jersey 
8

New Mexico 
2

New York:

Northern 
2

Southern 
9

Eastern 
6

Western 
3

North Carolina:

Eastern 
2

Middle 
2

Western 
2

North Dakota 
1

Ohio:

Northern 
8

Southern 
7

Oklahoma:

Northern 
2

Eastern 
1

Western 
3

Oregon 
5

Pennsylvania:

Eastern 
5

Middle 
2

Western 
4

Puerto Rico 
2

Rhode Island 
1

South Carolina 
2

South Dakota 
2

Tennessee:

Eastern 
3

Middle 
3

Western 
4

Texas:

Northern 
6

Eastern 
2

Southern 
6

Western 
4

Utah 
3

Vermont 
1

Virginia:

Eastern 
5

Western 
3

Washington:

Eastern 
2

Western 
5

West Virginia:

Northern 
1

Southern 
1

Wisconsin:

Eastern 
4

Western 
2

Wyoming 
1.

(3) Whenever a majority of the judges of any court of appeals cannot agree upon the appointment of a bankruptcy judge, the chief judge of such court shall make such appointment.

(4) The judges of the district courts for the territories shall serve as the bankruptcy judges for such courts. The United States court of appeals for the circuit within which such a territorial district court is located may appoint bankruptcy judges under this chapter for such district if authorized to do so by the Congress of the United States under this section.

(b)(1) The Judicial Conference of the United States shall, from time to time, and after considering the recommendations submitted by the Director of the Administrative Office of the United States Courts after such Director has consulted with the judicial council of the circuit involved, determine the official duty stations of bankruptcy judges and places of holding court.

(2) The Judicial Conference shall, from time to time, submit recommendations to the Congress regarding the number of bankruptcy judges needed and the districts in which such judges are needed.

(3) Not later than December 31, 1994, and not later than the end of each 2-year period thereafter, the Judicial Conference of the United States shall conduct a comprehensive review of all judicial districts to assess the continuing need for the bankruptcy judges authorized by this section, and shall report to the Congress its findings and any recommendations for the elimination of any authorized position which can be eliminated when a vacancy exists by reason of resignation, retirement, removal, or death.

(c)(1) Each bankruptcy judge may hold court at such places within the judicial district, in addition to the official duty station of such judge, as the business of the court may require.

(2)(A) Bankruptcy judges may hold court at such places within the United States outside the judicial district as the nature of the business of the court may require, and upon such notice as the court orders, upon a finding by either the chief judge of the bankruptcy court (or, if the chief judge is unavailable, the most senior available bankruptcy judge) or by the judicial council of the circuit that, because of emergency conditions, no location within the district is reasonably available where the bankruptcy judges could hold court.

(B) Bankruptcy judges may transact any business at special sessions of court held outside the district pursuant to this paragraph that might be transacted at a regular session.

(C) If a bankruptcy court issues an order exercising its authority under subparagraph (A), the court—

(i) through the Administrative Office of the United States Courts, shall—

(I) send notice of such order, including the reasons for the issuance of such order, to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives; and

(II) not later than 180 days after the expiration of such court order submit a brief report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives describing the impact of such order, including—

(aa) the reasons for the issuance of such order;

(bb) the duration of such order;

(cc) the impact of such order on litigants; and

(dd) the costs to the judiciary resulting from such order; and

(ii) shall provide reasonable notice to the United States Marshals Service before the commencement of any special session held pursuant to such order.

(d) With the approval of the Judicial Conference and of each of the judicial councils involved, a bankruptcy judge may be designated to serve in any district adjacent to or near the district for which such bankruptcy judge was appointed.

(e) A bankruptcy judge may be removed during the term for which such bankruptcy judge is appointed, only for incompetence, misconduct, neglect of duty, or physical or mental disability and only by the judicial council of the circuit in which the judge's official duty station is located. Removal may not occur unless a majority of all of the judges of such council concur in the order of removal. Before any order of removal may be entered, a full specification of charges shall be furnished to such bankruptcy judge who shall be accorded an opportunity to be heard on such charges.

(Added Pub. L. 98–353, title I, §104(a), July 10, 1984, 98 Stat. 336; amended Pub. L. 99–554, title I, §101, Oct. 27, 1986, 100 Stat. 3088; Pub. L. 100–587, Nov. 3, 1988, 102 Stat. 2982; Pub. L. 101–650, title III, §304, Dec. 1, 1990, 104 Stat. 5105; Pub. L. 102–361, §§2, 4, Aug. 26, 1992, 106 Stat. 965, 966; Pub. L. 109–8, title XII, §1223(d), Apr. 20, 2005, 119 Stat. 198; Pub. L. 109–63, §2(c), Sept. 9, 2005, 119 Stat. 1994.)

Editorial Notes

Amendments

2005—Subsec. (a)(1). Pub. L. 109–8, §1223(d)(1), substituted "Each bankruptcy judge to be appointed for a judicial district, as provided in paragraph (2), shall be appointed by the court of appeals of the United States for the circuit in which such district is located." for "The United States court of appeals for the circuit shall appoint bankruptcy judges for the judicial districts established in paragraph (2) in such numbers as are established in such paragraph."

Subsec. (a)(2). Pub. L. 109–8, §1223(d)(2), substituted "3" for "2" in item relating to middle district of Georgia and struck out item relating to middle and southern districts of Georgia.

Subsec. (c). Pub. L. 109–63 designated existing provisions as par. (1) and added par. (2).

1992—Subsec. (a)(2). Pub. L. 102–361, §2, in item relating to district of Arizona substituted "7" for "5", in item relating to central district of California substituted "21" for "19", in item relating to district of Connecticut substituted "3" for "2", in item relating to middle district of Florida substituted "8" for "4", in item relating to southern district of Florida substituted "5" for "3", in item relating to northern district of Georgia substituted "8" for "6", inserted item relating to middle and southern districts of Georgia, in item relating to district of Maryland substituted "4" for "3", in item relating to district of Massachusetts substituted "5" for "4", in item relating to district of New Jersey substituted "8" for "7", in item relating to southern district of New York substituted "9" for "7", in item relating to eastern district of Pennsylvania substituted "5" for "3", in item relating to middle district of Tennessee substituted "3" for "2", in item relating to western district of Tennessee substituted "4" for "3", in item relating to northern district of Texas substituted "6" for "5", and in item relating to eastern district of Virginia substituted "5" for "4".

Subsec. (b)(3). Pub. L. 102–361, §4, added par. (3).

1990—Subsec. (a)(1). Pub. L. 101–650 inserted after third sentence "However, upon the expiration of the term, a bankruptcy judge may, with the approval of the judicial council of the circuit, continue to perform the duties of the office until the earlier of the date which is 180 days after the expiration of the term or the date of the appointment of a successor."

1988—Subsec. (a)(2). Pub. L. 100–587 in item relating to district of Alaska substituted "2" for "1", in item relating to district of Colorado substituted "5" for "4", in item relating to district of Kansas substituted "4" for "3", in item relating to eastern district of Kentucky substituted "2" for "1", in item relating to eastern district of Texas substituted "2" for "1", in item relating to western district of Texas substituted "4" for "3", and in item relating to district of Arizona substituted "5" for "4".

1986—Subsec. (a)(2). Pub. L. 99–554 in item relating to eastern district and western district of Arkansas substituted "3" for "2", in item relating to northern district of California substituted "9" for "7", in item relating to eastern district of California substituted "6" for "4", in item relating to central district of California substituted "19" for "12", in item relating to southern district of California substituted "4" for "3", in item relating to middle district of Florida substituted "4" for "2", in item relating to northern district of Georgia substituted "6" for "4", in item relating to southern district of Georgia substituted "2" for "1", in item relating to district of Idaho substituted "2" for "1", in item relating to northern district of Illinois substituted "10" for "8", in item relating to central district of Illinois substituted "3" for "2", in item relating to northern district of Indiana substituted "3" for "2", in item relating to northern district of Iowa substituted "2" for "1", in item relating to southern district of Iowa substituted "2" for "1", in item relating to western district of Kentucky substituted "3" for "2", in item relating to western district of Louisiana substituted "3" for "2", in item relating to district of Maryland substituted "3" for "2", in item relating to western district of Michigan substituted "3" for "2", in item relating to district of Nebraska substituted "2" for "1", in item relating to district of Nevada substituted "3" for "2", in item relating to district of New Jersey substituted "7" for "5", in item relating to western district of North Carolina substituted "2" for "1", in item relating to northern district of Oklahoma substituted "2" for "1", in item relating to western district of Oklahoma substituted "3" for "2", in item relating to district of Oregon substituted "5" for "4", in item relating to western district of Pennsylvania substituted "4" for "3", in item relating to district of South Carolina substituted "2" for "1", in item relating to district of South Dakota substituted "2" for "1", in item relating to eastern district of Tennessee substituted "3" for "2", in item relating to western district of Tennessee substituted "3" for "2", in item relating to northern district of Texas substituted "5" for "4", in item relating to southern district of Texas substituted "6" for "3", in item relating to western district of Texas substituted "3" for "2", in item relating to district of Utah substituted "3" for "2", in item relating to eastern district of Virginia substituted "4" for "3", in item relating to eastern district of Washington substituted "2" for "1", in item relating to western district of Washington substituted "5" for "4", and in item relating to eastern district of Wisconsin substituted "4" for "3".

Statutory Notes and Related Subsidiaries

Effective Date of 2005 Amendment

Pub. L. 109–8, title XII, §1223(e), Apr. 20, 2005, 119 Stat. 198, provided that: "The amendments made by this section [amending this section] shall take effect on the date of the enactment of this Act [Apr. 20, 2005]."

Effective Date of 1986 Amendment

Amendment by Pub. L. 99–554 effective Oct. 27, 1986, see section 302(b) of Pub. L. 99–554, set out as a note under section 581 of this title.

Subsequent Reauthorization

Pub. L. 112–121, §4, May 25, 2012, 126 Stat. 349, provided that: "Prior to further reauthorization of any judgeship authorized by this Act [See Short Title of 2012 Amendment note set out under section 1 of this title], the Committee on the Judiciary of the Senate and House of Representatives shall conduct a review of the bankruptcy judgeships authorized by this Act to determine the need, if any, for continued reauthorization of each judgeship, to evaluate any changes in all bankruptcy case filings and their effect, if any, on filing fee revenue, and to require the Administrative Office of the Courts to submit a report to the Committee on the Judiciary of the Senate and House of Representatives on bankruptcy case workload, bankruptcy judgeship costs, and filing fee revenue."

Temporary Appointment of Additional Judges

Pub. L. 116–325, §4, Jan. 12, 2021, 134 Stat. 5089, provided that:

"(a) Temporary Office of Bankruptcy Judges Authorized by the Bankruptcy Judgeship Act of 2017.—

"(1) Extensions.—The temporary office of bankruptcy judges authorized by section 1003(a) of the Bankruptcy Judgeship Act of 2017 [Pub. L. 115–72] (28 U.S.C. 152 note) for the district of Delaware and the eastern district of Michigan are extended until the applicable vacancy specified in paragraph (2) in the office of a bankruptcy judge for the respective district occurs.

"(2) Vacancies.—

"(A) District of delaware.—The 1st and 2d vacancies in the office of a bankruptcy judge for the district of Delaware—

"(i) occurring 5 years or more after the date established by section 1003(b)(1) of the Bankruptcy Judgeship Act of 2017 (28 U.S.C. 152 note), and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(B) Eastern district of michigan.—The 1st vacancy in the office of a bankruptcy judge for the eastern district of Michigan—

"(i) occurring 5 years or more after the date established by section 1003(b)(3) of the Bankruptcy Judgeship Act of 2017 (28 U.S.C. 152 note), and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(3) Applicability of other provisions.—Except as provided in paragraphs (1) and (2), all other provisions of section 1003 of the Bankruptcy Judgeship Act of 2017 (28 U.S.C. 152 note) remain applicable to the temporary office of bankruptcy judges referred to in paragraph (1).

"(b) Temporary Office of Bankruptcy Judges Authorized by the Bankruptcy Judgeship Act of 2005 and Extended by the Temporary Bankruptcy Judgeships Extension Act of 2012 and the Bankruptcy Judgeship Act of 2017.—

"(1) Extensions.—The temporary office of bankruptcy judges authorized for the following districts by section 1223(b) of the Bankruptcy Judgeship Act of 2005 [Pub. L. 109–8] (28 U.S.C. 152 note), extended by section 2(a) of the Temporary Bankruptcy Judgeships Extension Act of 2012 [Pub. L. 112–121] (28 U.S.C. 152 note), and further extended by section 1002(a) of the Bankruptcy Judgeship Act of 2017 [Pub. L. 115–72] (28 U.S.C. 152 note) are extended until the applicable vacancy specified in paragraph (2) in the office of a bankruptcy judge for the respective district occurs:

"(A) The district of Delaware.

"(B) The southern district of Florida.

"(C) The district of Maryland.

"(D) The eastern district of Michigan.

"(E) The district of Nevada.

"(F) The eastern district of North Carolina.

"(G) The district of Puerto Rico.

"(H) The eastern district of Virginia.

"(2) Vacancies.—

"(A) Single vacancies.—Except as provided in subparagraphs (B), (C), (D), (E), and (F), the 1st vacancy in the office of a bankruptcy judge for each district specified in paragraph (1)—

"(i) occurring 5 years or more after the date established by section 1002(a)(2) of the Bankruptcy Judgeship Act of 2017 (28 U.S.C. 152 note), and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(B) District of delaware.—The 3d, 4th, 5th, and 6th vacancies in the office of a bankruptcy judge for the district of Delaware—

"(i) occurring 5 years or more after the date established by section 1002(a)(2) of Bankruptcy Judgeship Act of 2017 (28 U.S.C. 152 note), and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(C) Southern district of florida.—The 1st and 2d vacancies in the office of a bankruptcy judge for the southern district of Florida—

"(i) occurring 5 years or more after the date established by section 1002(a)(2) of the Bankruptcy Judgeship Act of 2017 (28 U.S.C. 152 note), and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(D) District of maryland.—The 1st vacancy in the office of a bankruptcy judge for the district of Maryland—

"(i) occurring 5 years or more after the date established by section 1002(a)(2) of the Bankruptcy Judgeship Act of 2017 (28 U.S.C. 152 note), and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(E) Eastern district of michigan.—The 2d vacancy in the office of a bankruptcy judge for the eastern district of Michigan—

"(i) occurring 5 years or more after the date established by section 1002(a)(2) of the Bankruptcy Judgeship Act of 2017 (28 U.S.C. 152 note), and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(F) District of puerto rico.—The 1st vacancy in the office of a bankruptcy judge for the district of Puerto Rico—

"(i) occurring 5 years or more after the date established by section 1002(a)(2) of the Bankruptcy Judgeship Act of 2017 (28 U.S.C. 152 note), and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(3) Applicability of other provisions.—Except as provided in paragraphs (1) and (2), all other provisions of section 1223 of the Bankruptcy Judgeship Act of 2005 (28 U.S.C. 152 note), section 2 of the Temporary Bankruptcy Judgeships Extension Act of 2012 (28 U.S.C. 152 note), and section 1002 of the Bankruptcy Judgeship Act of 2017 (28 U.S.C. 152 note) remain applicable to the temporary office of bankruptcy judges referred to in paragraph (1).

"(c) Temporary Office of Bankruptcy Judges Authorized by the Bankruptcy Judgeship Act of 2005 and Extended by the Temporary Bankruptcy Judgeships Extension Act of 2012.—

"(1) Extensions.—The temporary office of bankruptcy judges authorized for the following districts by section 1223(b) of the Bankruptcy Judgeship Act of 2005 [Pub. L. 109–8] (28 U.S.C. 152 note) and extended by section 2(a) of the Temporary Bankruptcy Judgeships Extension Act of 2012 [Pub. L. 112–121] (28 U.S.C. 152 note) are extended until the applicable vacancy specified in paragraph (2) in the office of a bankruptcy judge for the respective district occurs:

"(A) The southern district of Georgia.

"(B) The district of Maryland.

"(C) The district of New Jersey.

"(D) The northern district of New York.

"(E) The district of South Carolina.

"(2) Vacancies.—

"(A) Single vacancies.—Except as provided in subparagraph (B), the 1st vacancy in the office of a bankruptcy judge for each district specified in paragraph (1)—

"(i) occurring 5 years or more after the date of the enactment of this Act [Jan. 12, 2021], and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(B) District of maryland.—The 2d and 3d vacancies in the office of a bankruptcy judge for the district of Maryland—

"(i) occurring 5 years or more after the date of the enactment of this Act, and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(3) Applicability of other provisions.—Except as provided in paragraphs (1) and (2), all other provisions of section 1223 of the Bankruptcy Judgeship Act of 2005 (28 U.S.C. 152 note) and section 2 of the Temporary Bankruptcy Judgeships Extension Act of 2012 (28 U.S.C. 152 note) remain applicable to the temporary office of bankruptcy judges referred to in paragraph (1).

"(d) Temporary Office of Bankruptcy Judges Authorized by the Bankruptcy Judgeship Act of 1992 and Extended by the Bankruptcy Judgeship Act of 2005, the Temporary Bankruptcy Judgeships Extension Act of 2012, and the Bankruptcy Judgeship Act of 2017.—

"(1) Extensions.—The temporary office of bankruptcy judges authorized by section 3(a) of the Bankruptcy Judgeship Act of 1992 [Pub. L. 102–361] (28 U.S.C. 152 note), extended by section 1223(c) of Bankruptcy Judgeship Act of 2005 [Pub. L. 109–8] (28 U.S.C. 152 note), extended by section 2(b) of the Temporary Bankruptcy Judgeships Extension Act of 2012 [Pub. L. 112–121] (28 U.S.C. 152 note), and further extended by section 1002(b) of the Bankruptcy Judgeship Act of 2017 [Pub. L. 115–72] (28 U.S.C. 152 note) for the district of Delaware and the district of Puerto Rico are extended until the applicable vacancy specified in paragraph (2) in the office of a bankruptcy judge for the respective district occurs.

"(2) Vacancies.—

"(A) District of delaware.—The 7th vacancy in the office of a bankruptcy judge for the district of Delaware—

"(i) occurring 5 years or more after the date established by section 1002(b)(2) of the Bankruptcy Judgeship Act of 2017 (28 U.S.C. 152 note), and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(B) District of puerto rico.—The 2d vacancy in the office of a bankruptcy judge for the district of Puerto Rico—

"(i) occurring 5 years or more after the date established by section 1002(b)(2) of the Bankruptcy Judgeship Act of 2017 (28 U.S.C. 152 note), and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(3) Applicability of other provisions.—Except as provided in paragraphs (1) and (2), all other provisions of section 3 of the Bankruptcy Judgeship Act of 1992 (28 U.S.C. 152 note), section 1223 of Bankruptcy Judgeship Act of 2005 (28 U.S.C. 152 note), section 2 of the Temporary Bankruptcy Judgeships Extension Act of 2012 (28 U.S.C. 152 note), and section 1002 of the Bankruptcy Judgeship Act of 2017 (28 U.S.C. 152 note) remain applicable to the temporary office of bankruptcy judges referred to in paragraph (1).

"(e) Temporary Office of Bankruptcy Judge Authorized by the Bankruptcy Judgeship Act of 1992 and Extended by the Bankruptcy Judgeship Act of 2005 and the Temporary Bankruptcy Judgeships Extension Act of 2012.—

"(1) Extensions.—The temporary office of bankruptcy judge authorized by section 3(a) of the Bankruptcy Judgeship Act of 1992 [Pub. L. 102–361] (28 U.S.C. 152 note), extended by section 1223(c) of the Bankruptcy Judgeship Act of 2005 [Pub. L. 109–8] (28 U.S.C. 152 note), and further extended by section 2(b) of the Temporary Bankruptcy Judgeships Extension Act of 2012 [Pub. L. 112–121] (28 U.S.C. 152 note) for the eastern district of Tennessee is extended until the applicable vacancy specified in paragraph (2) in the office of a bankruptcy judge for the district occurs.

"(2) Vacancy.—The 1st vacancy in the office of a bankruptcy judge for the eastern district of Tennessee—

"(A) occurring 5 years or more after the date of the enactment of this Act [Jan. 12, 2021], and

"(B) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(3) Applicability of other provisions.—Except as provided in paragraphs (1) and (2), all other provisions of section 3 of the Bankruptcy Judgeship Act of 1992 (28 U.S.C. 152 note), section 1223 of the Bankruptcy Judgeship Act of 2005 (28 U.S.C. 152 note), and section 2 of the Temporary Bankruptcy Judgeships Extension Act of 2012 (28 U.S.C. 152 note) remain applicable to the temporary office of bankruptcy judge referred to in paragraph (1).

"(f) Temporary Office of Bankruptcy Judge Authorized by the Bankruptcy Judgeship Act of 1992 and Extended by the Temporary Bankruptcy Judgeships Extension Act of 2012.—

"(1) Extensions.—The temporary office of bankruptcy judge authorized by section 3(a) of the Bankruptcy Judgeship Act of 1992 [Pub. L. 102–361] (28 U.S.C. 152 note) and extended by section 2(c) of the Temporary Bankruptcy Judgeships Extension Act of 2012 [Pub. L. 112–121] (28 U.S.C. 152 note) for the middle district of North Carolina is extended until the applicable vacancy specified in paragraph (2) in the office of a bankruptcy judge for the district occurs.

"(2) Vacancy.—The 1st vacancy in the office of a bankruptcy judge for the middle district of North Carolina—

"(A) occurring 5 years or more after the date of the enactment of this Act [Jan. 12, 2021], and

"(B) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(3) Applicability of other provisions.—Except as provided in paragraphs (1) and (2), all other provisions of section 3 of the Bankruptcy Judgeship Act of 1992 (28 U.S.C. 152 note) and section 2 of the Temporary Bankruptcy Judgeships Extension Act of 2012 (28 U.S.C. 152 note) (28 U.S.C. 152 note) remain applicable to the temporary office of bankruptcy judge referred to in paragraph (1)."

Pub. L. 115–72, div. B, §1002, Oct. 26, 2017, 131 Stat. 1229, provided that:

"(a) Temporary Office of Bankruptcy Judges Authorized by the Bankruptcy Judgeship Act of 2005.—

"(1) Extensions.—The temporary office of bankruptcy judges authorized for the following districts by subsection (b) of the Bankruptcy Judgeship Act of 2005 [section 1223 of Pub. L. 109–8] (28 U.S.C. 152 note) are extended until the applicable vacancy specified in paragraph (2) in the office of a bankruptcy judge for the respective district occurs:

"(A) The district of Delaware.

"(B) The southern district of Florida.

"(C) The district of Maryland.

"(D) The eastern district of Michigan.

"(E) The district of Nevada.

"(F) The eastern district of North Carolina.

"(G) The district of Puerto Rico.

"(H) The eastern district of Virginia.

"(2) Vacancies.—

"(A) Single vacancies.—Except as provided in subparagraphs (B), (C), and (D), the 1st vacancy in the office of a bankruptcy judge for each district specified in paragraph (1)—

"(i) occurring more than 5 years after the date of the enactment of this Act [Oct. 26, 2017]; and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(B) District of delaware.—The 1st, 2d, 3d, and 4th vacancies in the office of a bankruptcy judge for the district of Delaware—

"(i) occurring 5 years or more after the date of the enactment of this Act; and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(C) District of maryland.—

"(i) The 1st vacancy in the office of a bankruptcy judge for the district of Maryland—

     "(I) occurring more than 5 years after the date of the enactment of this Act; and

     "(II) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

 shall not be filled.

"(ii) The 2d and 3d vacancies in the office of a bankruptcy judge for the district of Maryland resulting from the death, retirement, resignation, or removal of a bankruptcy judge, shall not be filled.

"(D) Southern district of florida.—The 1st and 2d vacancies in the office of a bankruptcy judge for the southern district of Florida—

"(i) occurring more than 5 years after the date of the enactment of this Act; and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(3) Applicability of provisions.—Except as provided in paragraphs (1) and (2), all other provisions of subsection (b) of the Bankruptcy Judgeship Act of 2005 (28 U.S.C. 152 note) and section 2 of the Temporary Bankruptcy Judgeships Extension Act of 2012 [Pub. L. 112–121] (28 U.S.C. 152 note) remain applicable to the temporary office of bankruptcy judges referred to in paragraph (1).

"(b) Temporary Office of Bankruptcy Judges Extended by the Bankruptcy Judgeship Act of 2005 and the Temporary Bankruptcy Judgeships Extension Act of 2012.—

"(1) Extensions.—The temporary office of bankruptcy judges authorized by section 3 of the Bankruptcy Judgeship Act of 1992 [Pub. L. 102–361] (28 U.S.C. 152 note) and extended by subsection (c) of the Bankruptcy Judgeship Act of 2005 (28 U.S.C. 152 note) and further extended by section 2 of the Temporary Bankruptcy Judgeships Extension Act of 2012 (28 U.S.C. 152 note) for the district of Delaware and the district of Puerto Rico are extended until the applicable vacancy specified in paragraph (2) in the office of a bankruptcy judge for the respective district occurs.

"(2) Vacancies.—

"(A) District of delaware.—The 5th vacancy in the office of a bankruptcy judge for the district of Delaware—

"(i) occurring more than 5 years after the date of the enactment of this Act [Oct. 26, 2017]; and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(B) District of puerto rico.—The 2d vacancy in the office of a bankruptcy judge for the district of Puerto Rico—

"(i) occurring more than 5 years after the date of the enactment of this Act; and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(3) Applicability of other provisions.—Except as provided in paragraphs (1) and (2), all other provisions of section 3 of the Bankruptcy Judgeship Act of 1992 (28 U.S.C. 152 note), subsection (c) of the Bankruptcy Judgeship Act of 2005 (28 U.S.C. 152 note), and section 2 of the Temporary Bankruptcy Judgeships Extension Act of 2012 (28 U.S.C. 152 note) remain applicable to the temporary office of bankruptcy judges referred to in paragraph (1)."

Pub. L. 115–72, div. B, §1003, Oct. 26, 2017, 131 Stat. 1231, provided that:

"(a) Appointments.—The following bankruptcy judges shall be appointed in the manner prescribed in section 152(a)(1) of title 28, United States Code, for the appointment of bankruptcy judges provided for in section 152(a)(2) of that title:

"(1) Two additional bankruptcy judges for the district of Delaware.

"(2) One additional bankruptcy judge for the middle district of Florida.

"(3) One additional bankruptcy judge for the eastern district of Michigan.

"(b) Vacancies.—

"(1) District of delaware.—The 6th and 7th vacancies in the office of a bankruptcy judge for the district of Delaware—

"(A) occurring 5 years or more after the appointment date of the bankruptcy judge appointed under subsection (a)(1) to such office; and

"(B) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

shall not be filled.

"(2) Middle district of florida.—The 1st vacancy in the office of a bankruptcy judge for the middle district of Florida—

"(A) occurring 5 years or more after the appointment date of the bankruptcy judge appointed under subsection (a)(2) to such office; and

"(B) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

shall not be filled.

"(3) Eastern district of michigan.—The 2d vacancy in the office of a bankruptcy judge for the eastern district of Michigan—

"(A) occurring 5 years or more after the appointment date of the bankruptcy judge appointed under subsection (a)(3) to such office; and

"(B) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

shall not be filled."

Pub. L. 112–121, §2, May 25, 2012, 126 Stat. 346, as amended by Pub. L. 115–31, div. E, title III, §307, May 5, 2017, 131 Stat. 347; Pub. L. 116–159, div. A, §139, Oct. 1, 2020, 134 Stat. 717, provided that:

"(a) Temporary Office of Bankruptcy Judges Authorized by Public Law 109–8.—

"(1) Extensions.—The temporary office of bankruptcy judges authorized for the following districts by section 1223(b) of Public Law 109–8 (28 U.S.C. 152 note) are extended until the applicable vacancy specified in paragraph (2) in the office of a bankruptcy judge for the respective district occurs:

"(A) The central district of California.

"(B) The eastern district of California.

"(C) The district of Delaware.

"(D) The southern district of Florida.

"(E) The southern district of Georgia.

"(F) The district of Maryland.

"(G) The eastern district of Michigan.

"(H) The district of New Jersey.

"(I) The northern district of New York.

"(J) The eastern district of North Carolina.

"(K) The eastern district of Pennsylvania.

"(L) The middle district of Pennsylvania.

"(M) The district of Puerto Rico.

"(N) The district of South Carolina.

"(O) The western district of Tennessee.

"(P) The eastern district of Virginia.

"(Q) The district of Nevada.

"(2) Vacancies.—

"(A) Single vacancies.—Except as provided in subparagraphs (B), (C), (D), (E), (F), (G), and (H), the 1st vacancy in the office of a bankruptcy judge for each district specified in paragraph (1)—

"(i) occurring more than 5 years after the date of the enactment of this Act [May 25, 2012], and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(B) Central district of california.—The 1st, 2d, and 3d vacancies in the office of a bankruptcy judge for the central district of California—

"(i) occurring 5 years or more after the date of the enactment of this Act, and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(C) District of delaware.—The 1st, 2d, 3d, and 4th vacancies in the office of a bankruptcy judge for the district of Delaware—

"(i) in the case of the 1st and 2d vacancies, occurring more than 6 years after the date of the enactment of this Act,

"(ii) in the case of the 3d and 4th vacancies, occurring more than 5 years after the date of the enactment of this Act, and

"(iii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(D) Southern district of florida.—The 1st and 2d vacancies in the office of a bankruptcy judge for the southern district of Florida—

"(i) occurring more than 6 years after the date of the enactment of this Act, and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(E) District of maryland.—The 1st, 2d, and 3d vacancies in the office of a bankruptcy judge for the district of Maryland—

"(i) occurring more than 5 years after the date of the enactment of this Act, and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(F) Eastern district of michigan.—The 1st vacancy in the office of a bankruptcy judge for the eastern district of Michigan—

"(i) occurring 6 years or more after the date of the enactment of this Act, and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge, shall not be filled.

"(G) District of puerto rico.—The 1st vacancy in the office of a bankruptcy judge for the district of Puerto Rico—

"(i) occurring 6 years or more after the date of the enactment of this Act, and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge, shall not be filled.

"(H) Eastern district of virginia.—The 1st vacancy in the office of a bankruptcy judge for the eastern district of Virginia—

"(i) occurring 6 years or more after the date of the enactment of this Act, and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge, shall not be filled.

"(3) Applicability of other provisions.—Except as provided in paragraphs (1) and (2), all other provisions of section 1223(b) of Public Law 109–8 (28 U.S.C. 152 note) remain applicable to the temporary office of bankruptcy judges referred to in paragraph (1).

"(b) Temporary Office of Bankruptcy Judges Extended by Public Law 109–8.—

"(1) Extensions.—The temporary office of bankruptcy judges authorized by section 3 of the Bankruptcy Judgeship Act of 1992 [Pub. L. 102–361] (28 U.S.C. 152 note) and extended by section 1223(c) of Public Law 109–8 (28 U.S.C. 152 note) for the district of Delaware, the district of Puerto Rico, and the eastern district of Tennessee are extended until the applicable vacancy specified in paragraph (2) in the office of a bankruptcy judge for the respective district occurs.

"(2) Vacancies.—

"(A) District of delaware.—The 5th vacancy in the office of a bankruptcy judge for the district of Delaware—

"(i) occurring more than 5 years after the date of the enactment of this Act [May 25, 2012], and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(B) District of puerto rico.—The 2d vacancy in the office of a bankruptcy judge for the district of Puerto Rico—

"(i) occurring more than 5 years after the date of the enactment of this Act, and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(C) Eastern district of tennessee.—The 1st vacancy in the office of a bankruptcy judge for the eastern district of Tennessee—

"(i) occurring more than 9 years after the date of the enactment of this Act, and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(3) Applicability of other provisions.—Except as provided in paragraphs (1) and (2), all other provisions of section 3 of the Bankruptcy Judgeship Act of 1992 (28 U.S.C. 152 note) and section 1223(c) of Public Law 109–8 (28 U.S.C. 152 note) remain applicable to the temporary office of bankruptcy judges referred to in paragraph (1).

"(c) Temporary Office of the Bankruptcy Judge Authorized by Public Law 102–361 for the Middle District of North Carolina.—

"(1) Extension.—The temporary office of the bankruptcy judge authorized by section 3 of the Bankruptcy Judgeship Act of 1992 [Pub. L. 102–361] (28 U.S.C. 152 note) for the middle district of North Carolina is extended until the vacancy specified in paragraph (2) occurs.

"(2) Vacancy.—The 1st vacancy in the office of a bankruptcy judge for the middle district of North Carolina—

"(A) occurring more than 5 years after the date of the enactment of this Act [May 25, 2012], and

"(B) resulting from the death, retirement, resignation, or removal of a bankruptcy judge,

  shall not be filled.

"(3) Applicability of other provisions.—Except as provided in paragraphs (1) and (2), all other provisions of section 3 of the Bankruptcy Judgeship Act of 1992 (28 U.S.C. 152 note) remain applicable to the temporary office of the bankruptcy judge referred to in paragraph (1)."

Pub. L. 109–8, title XII, §1223(b), (c), Apr. 20, 2005, 119 Stat. 196, 198, provided that:

"(b) Temporary Judgeships.—

"(1) Appointments.—The following bankruptcy judges shall be appointed in the manner prescribed in section 152(a)(1) of title 28, United States Code, for the appointment of bankruptcy judges provided for in section 152(a)(2) of such title:

"(A) One additional bankruptcy judge for the eastern district of California.

"(B) Three additional bankruptcy judges for the central district of California.

"(C) Four additional bankruptcy judges for the district of Delaware.

"(D) Two additional bankruptcy judges for the southern district of Florida.

"(E) One additional bankruptcy judge for the southern district of Georgia.

"(F) Three additional bankruptcy judges for the district of Maryland.

"(G) One additional bankruptcy judge for the eastern district of Michigan.

"(H) One additional bankruptcy judge for the southern district of Mississippi.

"(I) One additional bankruptcy judge for the district of New Jersey.

"(J) One additional bankruptcy judge for the eastern district of New York.

"(K) One additional bankruptcy judge for the northern district of New York.

"(L) One additional bankruptcy judge for the southern district of New York.

"(M) One additional bankruptcy judge for the eastern district of North Carolina.

"(N) One additional bankruptcy judge for the eastern district of Pennsylvania.

"(O) One additional bankruptcy judge for the middle district of Pennsylvania.

"(P) One additional bankruptcy judge for the district of Puerto Rico.

"(Q) One additional bankruptcy judge for the western district of Tennessee.

"(R) One additional bankruptcy judge for the eastern district of Virginia.

"(S) One additional bankruptcy judge for the district of South Carolina.

"(T) One additional bankruptcy judge for the district of Nevada.

"(2) Vacancies.—

"(A) Districts with single appointments.—Except as provided in subparagraphs (B), (C), (D), and (E), the first vacancy occurring in the office of bankruptcy judge in each of the judicial districts set forth in paragraph (1)—

"(i) occurring 5 years or more after the appointment date of the bankruptcy judge appointed under paragraph (1) to such office; and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge;

  shall not be filled.

"(B) Central district of california.—The 1st, 2d, and 3d vacancies in the office of bankruptcy judge in the central district of California—

"(i) occurring 5 years or more after the respective 1st, 2d, and 3d appointment dates of the bankruptcy judges appointed under paragraph (1)(B); and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge;

  shall not be filled.

"(C) District of delaware.—The 1st, 2d, 3d, and 4th vacancies in the office of bankruptcy judge in the district of Delaware—

"(i) occurring 5 years or more after the respective 1st, 2d, 3d, and 4th appointment dates of the bankruptcy judges appointed under paragraph (1)(F); and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge;

  shall not be filled.

"(D) Southern district of florida.—The 1st and 2d vacancies in the office of bankruptcy judge in the southern district of Florida—

"(i) occurring 5 years or more after the respective 1st and 2d appointment dates of the bankruptcy judges appointed under paragraph (1)(D); and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge;

  shall not be filled.

"(E) District of maryland.—The 1st, 2d, and 3d vacancies in the office of bankruptcy judge in the district of Maryland—

"(i) occurring 5 years or more after the respective 1st, 2d, and 3d appointment dates of the bankruptcy judges appointed under paragraph (1)(F); and

"(ii) resulting from the death, retirement, resignation, or removal of a bankruptcy judge;

  shall not be filled.

"(c) Extensions.—

"(1) In general.—The temporary office of bankruptcy judges authorized for the northern district of Alabama, the district of Delaware, the district of Puerto Rico, and the eastern district of Tennessee under paragraphs (1), (3), (7), and (9) of section 3(a) of the Bankruptcy Judgeship Act of 1992 [Pub. L. 102–361] (28 U.S.C. 152 note) are extended until the first vacancy occurring in the office of a bankruptcy judge in the applicable district resulting from the death, retirement, resignation, or removal of a bankruptcy judge and occurring 5 years after the date of the enactment of this Act [Apr. 20, 2005].

"(2) Applicability of other provisions.—All other provisions of section 3 of the Bankruptcy Judgeship Act of 1992 (28 U.S.C. 152 note) remain applicable to the temporary office of bankruptcy judges referred to in this subsection."

Pub. L. 102–361, §3, Aug. 26, 1992, 106 Stat. 965, as amended by Pub. L. 104–317, title III, §307, Oct. 19, 1996, 110 Stat. 3852, provided that:

"(a) Appointments.—The following bankruptcy judges shall be appointed in the manner prescribed in section 152(a)(1) of title 28, United States Code:

"(1) 1 additional bankruptcy judge for the northern district of Alabama.

"(2) 1 additional bankruptcy judge for the district of Colorado.

"(3) 1 additional bankruptcy judge for the district of Delaware.

"(4) 1 additional bankruptcy judge for the southern district of Illinois.

"(5) 1 additional bankruptcy judge for the district of New Hampshire.

"(6) 1 additional bankruptcy judge for the middle district of North Carolina.

"(7) 1 additional bankruptcy judge for the district of Puerto Rico.

"(8) 1 additional bankruptcy judge for the district of South Carolina.

"(9) 1 additional bankruptcy judge for the eastern district of Tennessee.

"(10) 1 additional bankruptcy judge for the western district of Texas.

"(b) Vacancies.—The first vacancy in the office of bankruptcy judge in each of the judicial districts set forth in subsection (a), resulting from the death, retirement, resignation, or removal of a bankruptcy judge, and occurring 5 years or more after the appointment date of the judge named to fill the temporary judgeship position, shall not be filled. In the case of a vacancy resulting from the expiration of the term of a bankruptcy judge not described in the preceding sentence, that judge shall be eligible for reappointment as a bankruptcy judge in that district."

Extension and Termination of Term of Office of Part-Time Bankruptcy Judge Serving on July 2, 1986, in District of Oregon, Western District of Michigan, and Eastern District of Oklahoma

Pub. L. 99–349, title I, July 2, 1986, 100 Stat. 718, provided that: "Notwithstanding the provisions of section 106(b)(1) of the Bankruptcy Amendments and Federal Judgeship Act of 1984 [section 106(b)(1) of Pub. L. 98–353, set out below], a bankruptcy judge serving on a part-time basis on the date of enactment of this Act [July 2, 1986] may continue to serve as a part-time judge for such district until December 31, 1986, or until such time as a full-time bankruptcy judge for such district is appointed, whichever is earlier: Provided, That these provisions shall apply only to part-time bankruptcy judges serving in the district of Oregon, the western district of Michigan, and the eastern district of Oklahoma."

Extension and Termination of Term of Office of Bankruptcy Judge and Part-Time Bankruptcy Judge Serving on July 10, 1984; Practice of Law by Part-Time Bankruptcy Judge

Pub. L. 98–353, title I, §106, July 10, 1984, 98 Stat. 342, provided that:

"(a) Notwithstanding section 152 of title 28, United States Code, as added by this Act, the term of office of a bankruptcy judge who is serving on the date of enactment of this Act [July 10, 1984] is extended to and expires four years after the date such bankruptcy judge was last appointed to such office or on October 1, 1986, whichever is later.

"(b)(1) Notwithstanding section 153(a) of title 28, United States Code, as added by this Act, and notwithstanding subsection (a) of this section, a bankruptcy judge serving on a part-time basis on the date of enactment of this Act [July 10, 1984] may continue to serve on such basis for a period not to exceed two years from the date of enactment of this Act [July 10, 1984].

"(2) Notwithstanding the provisions of section 153(b) of title 28, United States Code, a bankruptcy judge serving on a part-time basis may engage in the practice of law but may not engage in any other practice, business, occupation, or employment inconsistent with the expeditious, proper, and impartial performance of such bankruptcy judge's duties as a judicial officer. The Judicial Conference of the United States may promulgate appropriate rules and regulations to implement this paragraph."

Appointment To Fill Vacancies; Nominations; Qualifications

Pub. L. 98–353, title I, §120, July 10, 1984, 98 Stat. 344, as amended by Pub. L. 99–554, title I, §102, Oct. 27, 1986, 100 Stat. 3089; Pub. L. 104–317, title III, §303, Oct. 19, 1996, 110 Stat. 3852, provided that:

"(a)(1) Whenever a court of appeals is authorized to fill a vacancy that occurs on a bankruptcy court of the United States, such court of appeals shall appoint to fill that vacancy a person whose character, experience, ability, and impartiality qualify such person to serve in the Federal judiciary.

"(2) It is the sense of the Congress that the courts of appeals should consider for appointment under section 152 of title 28, United States Code, to the first vacancy which arises after the date of the enactment of this Act [July 10, 1984] in the office of each bankruptcy judge, the bankruptcy judge who holds such office immediately before such vacancy arises, if such bankruptcy judge requests to be considered for such appointment.

"(3) When filling vacancies, the court of appeals may consider reappointing incumbent bankruptcy judges under procedures prescribed by regulations issued by the Judicial Conference of the United States.

"(b) The judicial council of the circuit involved shall assist the court of appeals by evaluating potential nominees and by recommending to such court for consideration for appointment to each vacancy on the bankruptcy court persons who are qualified to be bankruptcy judges under regulations prescribed by the Judicial Conference of the United States. In the case of the first vacancy which arises after the date of the enactment of this Act [July 10, 1984] in the office of each bankruptcy judge, such potential nominees shall include the bankruptcy judge who holds such office immediately before such vacancy arises, if such bankruptcy judge requests to be considered for such appointment and the judicial council determines that such judge is qualified under subsection (c) of this section to continue to serve. Such potential nominees shall receive consideration equal to that given all other potential nominees for such position. All incumbent nominees seeking reappointment thereafter may be considered for such a reappointment, pursuant to a majority vote of the judges of the appointing court of appeals, under procedures authorized under subsection (a)(3).

"(c) Before transmitting to the court of appeals the names of the persons the judicial council for the circuit deems best qualified to fill any existing vacancy, the judicial council shall have determined that—

"(1) public notice of such vacancy has been given and an effort has been made, in the case of each such vacancy, to identify qualified candidates, without regard to race, color, sex, religion, or national origin,

"(2) such persons are members in good standing of at least one State bar, the District of Columbia bar, or the bar of the Commonwealth of Puerto Rico, and members in good standing of every other bar of which they are members,

"(3) such persons possess, and have a reputation for, integrity and good character,

"(4) such persons are of sound physical and mental health,

"(5) such persons possess and have demonstrated commitment to equal justice under law,

"(6) such persons possess and have demonstrated outstanding legal ability and competence, as evidenced by substantial legal experience, ability to deal with complex legal problems, aptitude for legal scholarship and writing, and familiarity with courts and court processes, and

"(7) such persons demeanor, character, and personality indicate that they would exhibit judicial temperament if appointed to the position of United States bankruptcy judge."
28 U.S.C. § 589b (2024) — Title 28: JUDICIARY AND JUDICIAL PROCEDURE / Chapter 39 / Section 589b: Bankruptcy data
Bankruptcy data
Status: in_force

(a) Rules.—The Attorney General shall, within a reasonable time after the effective date of this section, issue rules requiring uniform forms for (and from time to time thereafter to appropriately modify and approve)—

(1) final reports by trustees in cases under subchapter V of chapter 11 and chapters 7, 12, and 13 of title 11; and

(2) periodic reports by debtors in possession or trustees in cases under chapter 11 of title 11.

(b) Reports.—Each report referred to in subsection (a) shall be designed (and the requirements as to place and manner of filing shall be established) so as to facilitate compilation of data and maximum possible access of the public, both by physical inspection at one or more central filing locations, and by electronic access through the Internet or other appropriate media.

(c) Required Information.—The information required to be filed in the reports referred to in subsection (b) shall be that which is in the best interests of debtors and creditors, and in the public interest in reasonable and adequate information to evaluate the efficiency and practicality of the Federal bankruptcy system. In issuing rules proposing the forms referred to in subsection (a), the Attorney General shall strike the best achievable practical balance between—

(1) the reasonable needs of the public for information about the operational results of the Federal bankruptcy system;

(2) economy, simplicity, and lack of undue burden on persons with a duty to file reports; and

(3) appropriate privacy concerns and safeguards.

(d) Final Reports.—The uniform forms for final reports required under subsection (a) for use by trustees under subchapter V of chapter 11 and chapters 7, 12, and 13 of title 11 shall, in addition to such other matters as are required by law or as the Attorney General in the discretion of the Attorney General shall propose, include with respect to a case under such title—

(1) information about the length of time the case was pending;

(2) assets abandoned;

(3) assets exempted;

(4) receipts and disbursements of the estate;

(5) expenses of administration, including for use under section 707(b), actual costs of administering cases under chapter 13 of title 11;

(6) claims asserted;

(7) claims allowed; and

(8) distributions to claimants and claims discharged without payment,

in each case by appropriate category and, in cases under subchapter V of chapter 11 and chapters 12 and 13 of title 11, date of confirmation of the plan, each modification thereto, and defaults by the debtor in performance under the plan.

(e) Periodic Reports.—The uniform forms for periodic reports required under subsection (a) for use by trustees or debtors in possession under chapter 11 of title 11 shall, in addition to such other matters as are required by law or as the Attorney General in the discretion of the Attorney General shall propose, include—

(1) information about the industry classification, published by the Department of Commerce, for the businesses conducted by the debtor;

(2) length of time the case has been pending;

(3) number of full-time employees as of the date of the order for relief and at the end of each reporting period since the case was filed;

(4) cash receipts, cash disbursements and profitability of the debtor for the most recent period and cumulatively since the date of the order for relief;

(5) compliance with title 11, whether or not tax returns and tax payments since the date of the order for relief have been timely filed and made;

(6) all professional fees approved by the court in the case for the most recent period and cumulatively since the date of the order for relief (separately reported, for the professional fees incurred by or on behalf of the debtor, between those that would have been incurred absent a bankruptcy case and those not); and

(7) plans of reorganization filed and confirmed and, with respect thereto, by class, the recoveries of the holders, expressed in aggregate dollar values and, in the case of claims, as a percentage of total claims of the class allowed.

(Added Pub. L. 109–8, title VI, §602(a), Apr. 20, 2005, 119 Stat. 120; amended Pub. L. 116–54, §4(b)(2), Aug. 23, 2019, 133 Stat. 1086.)

Editorial Notes

References in Text

For the effective date of this section, referred to in subsec. (a), see Effective Date note set out below.

Amendments

2019—Subsec. (a)(1). Pub. L. 116–54, §4(b)(2)(A), inserted "subchapter V of chapter 11 and" after "cases under".

Subsec. (d). Pub. L. 116–54, §4(b)(2)(B), inserted "subchapter V of chapter 11 and" after "trustees under" in introductory provisions and "subchapter V of chapter 11 and" after "cases under" in concluding provisions.

Statutory Notes and Related Subsidiaries

Effective Date of 2019 Amendment

Amendment by Pub. L. 116–54 effective 180 days after Aug. 23, 2019, see section 5 of Pub. L. 116–54, set out as a note under section 101 of Title 11, Bankruptcy.

Effective Date

Section effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under Title 11, Bankruptcy, before such effective date, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as an Effective Date of 2005 Amendment note under section 101 of Title 11.
28 U.S.C. § 1876 (2024) — Title 28: JUDICIARY AND JUDICIAL PROCEDURE / Chapter 121 / Section 1876: Trial by jury in the Court of International Trade
Trial by jury in the Court of International Trade
Status: in_force

(a) In any civil action in the Court of International Trade which is to be tried before a jury, the jury shall be selected in accordance with the provisions of this chapter and under the procedures set forth in the jury selection plan of the district court for the judicial district in which the case is to be tried.

(b) Whenever the Court of International Trade conducts a jury trial—

(1) the clerk of the district court for the judicial district in which the Court of International Trade is sitting, or an authorized deputy clerk, shall act as clerk of the Court of International Trade for the purposes of selecting and summoning the jury;

(2) the qualifications for jurors shall be the same as those established by section 1865(b) of this title for jurors in the district courts of the United States;

(3) each party shall be entitled to challenge jurors in accordance with section 1870 of this title; and

(4) jurors shall be compensated in accordance with section 1871 of this title.

(Added Pub. L. 96–417, title III, §302(a), Oct. 10, 1980, 94 Stat. 1739.)

Statutory Notes and Related Subsidiaries

Effective Date

Section applicable with respect to civil actions commenced on or after Nov. 1, 1980, see section 701(b)(1)(C) of Pub. L. 96–417, set out as an Effective Date of 1980 Amendment note under section 251 of this title.
28 U.S.C. § 2255 (2024) — Title 28: JUDICIARY AND JUDICIAL PROCEDURE / Chapter 153 / Section 2255: Federal custody; remedies on motion attacking sentence
Federal custody; remedies on motion attacking sentence
Status: in_force

(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

(b) Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

(c) A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.

(d) An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.

(e) An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of—

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

(g) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.

(h) A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

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

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.

Editorial Notes

References in Text

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

Amendments

2008—Pub. L. 110–177 designated first through eighth undesignated pars. as subsecs. (a) to (h), respectively.

1996—Pub. L. 104–132 inserted at end three new undesignated paragraphs beginning "A 1-year period of limitation", "Except as provided in section 408 of the Controlled Substances Act", and "A second or successive motion must be certified" and struck out second and fifth undesignated pars. providing, respectively, that "A motion for such relief may be made at any time." and "The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner."

1949—Act May 24, 1949, substituted "court established by Act of Congress" for "court of the United States" in first par.

Statutory Notes and Related Subsidiaries

Approval and Effective Date of Rules Governing Section 2254 Cases and Section 2255 Proceedings For United States District Courts

For approval and effective date of rules governing petitions under section 2254 and motions under section 2255 of this title filed on or after Feb. 1, 1977, see section 1 of Pub. L. 94–426, set out as a note under section 2074 of this title.

Postponement of Effective Date of Proposed Rules and Forms Governing Proceedings Under Sections 2254 and 2255 of this Title

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

RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED STATES DISTRICT COURTS

(Effective Feb. 1, 1977, as amended to Jan. 6, 2025)

Rule

1.

Scope.

2.

The Motion.

3.

Filing the Motion; Inmate Filing.

4.

Preliminary Review.

5.

The Answer and the Reply.

6.

Discovery.

7.

Expanding the Record.

8.

Evidentiary Hearing.

9.

Second or Successive Motions.

10.

Powers of a Magistrate Judge.

11.

Certificate of Appealability; Time to Appeal.

12.

Applicability of the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure.

        

APPENDIX OF FORMS

Motion Under 28 U.S.C. §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. §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. §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 §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 §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 §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. §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. §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 §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 §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, §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. §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 §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 §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 §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 §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 §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 §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 §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. §2255." In United States v. Semet, 295 F.Supp. 1084 (E.D. Okla. 1968), the prisoner moved under rule 35 and §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 §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 §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 §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 §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 §2255 in these types of situations. In United States v. Lewis, 392 F.2d 440 (4th Cir. 1968), the prisoner moved under §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, §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 §2255's words "collateral attack." See 368 U.S. at 444 for discussion of other cases allowing use of §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 §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 §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 §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 §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 §2255 appear to overlap. For a further discussion of this problem, see C. Wright, Federal Practice and Procedure; Criminal §§581–587 (1969, Supp. 1975).

See the advisory committee note to rule 2 of the §2254 rules for further discussion of the purposes and intent of rule 2 of these §2255 rules.

1982 Amendment

Subdivision (b). The amendment takes into account 28 U.S.C. §1746, enacted after adoption of the §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 §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. §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 §2255, see 28 U.S.C. §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, §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, §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. §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. §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 §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. §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 §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. §1914 that in habeas corpus the fee is $5. This reads into §1914 language which is not there. While an application under §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 §1914 must come from Congress.

273 F.2d at 778

Although for most situations §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 §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 §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 §2255 motion as a new action and charging a $15 filing fee be remedied by the rule when the whole question of §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 §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 §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 §2255, see 28 U.S.C. §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. §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 §2255 has been for the trial judge to determine the merits of the motion. In cases where the §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 §2255 (rather than 28 U.S.C. §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 §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 §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 §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 file a reply to the respondent's answer or other pleading. The judge must set the time to file unless the time is already set by local rule.

(As amended Apr. 26, 2004, eff. Dec. 1, 2004; Apr. 25, 2019, eff. Dec. 1, 2019.)

Advisory Committee Note

Unlike the habeas corpus statutes (see 28 U.S.C. §§2243, 2248) §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 §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 §2255 which corresponds to the §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 §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 §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. §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.

Committee Notes on Rules—2019 Amendment

The moving party has a right to file a reply. Subsection (d), added in 2004, removed the discretion of the court to determine whether or not to allow the moving party to file a reply in a case under §2255. The current amendment was prompted by decisions holding that courts nevertheless retained the authority to bar a reply.

As amended, the first sentence of subsection (d) makes it even clearer that the moving party has a right to file a reply to the respondent's answer or pleading. It retains the word "may," which is used throughout the federal rules to mean "is permitted to" or "has a right to." No change in meaning is intended by the substitution of "file" for "submit."

As amended, the second sentence of the rule retains the court's discretion to decide when the reply must be filed (but not whether it may be filed). To avoid uncertainty, the amended rule requires the court to set a time for filing if that time is not already set by local rule. Adding a reference to the time for the filing of any reply to the order requiring the government to file an answer or other pleading provides notice of that deadline to both parties.

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. §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 §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 §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 §2254 rules. The discussion there is fully applicable to discovery under these rules for §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 §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 §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. §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 14 days after being served, a party may file objections as provided by local court rule. The judge must determine de novo any proposed finding or recommendation to which objection is made. The judge may accept, reject, or modify any proposed finding or recommendation.

(c) Appointing Counsel; Time of Hearing. If an evidentiary hearing is warranted, the judge must appoint an attorney to represent a moving party who qualifies to have counsel appointed under 18 U.S.C. §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 §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, §2(6), Sept. 28, 1976, 90 Stat. 1335; Pub. L. 94–577, §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; Mar. 26, 2009, eff. Dec. 1, 2009.)

Advisory Committee Note

The standards for §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 §2255 does not set specific time limits for holding the hearing, as does §2243 for a habeas action. With these minor differences in mind, see the advisory committee note to rule 8 of §2254 rules, which is applicable to rule 8 of these §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.

Committee Notes on Rules—2009 Amendment

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

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, §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, §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. §2255, para. 8.

(As amended Pub. L. 94–426, §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. §§2241–2254), §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 §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. §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 §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 §2255 motion does not bar the movant because of lack of reasonable diligence in pressing the claim.

The statute [28 U.S.C. §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. §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 §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. §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 §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 §2255 motion is that such delay is highly prejudicial to the prosecution. In Desmond v. United States, writing of a §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 §2255 and relevant case law.

The annexed form is intended to serve the same purpose as the comparable one included in the §2254 rules.

For further discussion applicable to this rule, see the advisory committee note to rule 9 of the §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 §2255 motions, added as part of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §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. §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, §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, §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. §636.

(As amended Pub. L. 94–426, §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 §2254 rules for a discussion fully applicable here as well.

1979 Amendment

This amendment conforms the rule to 18 U.S.C. §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. Certificate of Appealability; Time to Appeal

(a) Certificate of Appealability. The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue. If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. §2253(c)(2). If the court denies a certificate, a party may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. A motion to reconsider a denial does not extend the time to appeal.

(b) Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to appeal an order entered under these rules. A timely notice of appeal must be filed even if the district court issues a certificate of appealability. 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; Mar. 26, 2009, eff. Dec. 1, 2009.)

Advisory Committee Note

Rule 11 is intended to make clear that, although a §2255 action is a continuation of the criminal case, the bringing of a §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 §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 §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. §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 §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.

Committee Notes on Rules—2009 Amendment

Subdivision (a). As provided in 28 U.S.C. §2253(c), an applicant may not appeal to the court of appeals from a final order in a proceeding under §2255 unless a judge issues a COA, identifying the specific issues for which the applicant has made a substantial showing of a denial of constitutional right. New Rule 11(a) makes the requirements concerning certificates of appealability more prominent by adding and consolidating them in the appropriate rule of the Rules Governing §2255 Proceedings for the United States District Courts. Rule 11(a) also requires the district judge to grant or deny the certificate at the time a final order is issued. See 3d Cir. R. 22.2, 111.3. This will ensure prompt decision making when the issues are fresh, rather than postponing consideration of the certificate until after a notice of appeal is filed. These changes will expedite proceedings, avoid unnecessary remands, and help to inform the applicant's decision whether to file a notice of appeal.

Subdivision (b). The amendment is designed to make it clear that the district court's grant of a COA does not eliminate the need to file a notice of appeal.

Changes Made to Proposed Amendment Released for Public Comment. In response to public comments, a sentence was added stating that prior to the entry of the final order the district court may direct the parties to submit arguments on whether or not a certificate should issue. This allows a court in complex cases (such as death penalty cases with numerous claims) to solicit briefing that might narrow the issues for appeal. For purposes of clarification, two sentences were added at the end of subdivision (a) stating that (1) although the district court's denial of a certificate is not appealable, a certificate may be sought in the court of appeals, and (2) a motion for reconsideration of a denial of a certificate does not extend the time to appeal. Finally, a sentence indicating that notice of appeal must be filed even if a COA is issued was added to subdivision (b).

Minor changes were also made to conform to style conventions.

References in Text

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

Rule 12. Applicability of the Federal Rules of Civil Procedure 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 §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 §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 §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 §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
 
 
 
 
 
 
 
 
 
 
 
 
 
 

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. §2255 CASES INVOLVING A RULE 9 ISSUE

Form No. 9

[Omitted as obsolete]

Changes Made After Publication and Comments—Forms Accompanying Rules Governing §2254 and §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.
28 U.S.C. § 610 (2024) — Title 28: JUDICIARY AND JUDICIAL PROCEDURE / Chapter 41 / Section 610: Courts defined
Courts defined
Status: in_force

As used in this chapter the word "courts" includes the courts of appeals and district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, the District Court of the Virgin Islands, the United States Court of Federal Claims, and the Court of International Trade.

(June 25, 1948, ch. 646, 62 Stat. 915; Oct. 31, 1951, ch. 655, §44, 65 Stat. 725; Pub. L. 85–508, §12(e), July 7, 1958, 72 Stat. 348; Pub. L. 95–598, title II, §226, Nov. 6, 1978, 92 Stat. 2665; Pub. L. 96–417, title V, §501(15), Oct. 10, 1980, 94 Stat. 1742; Pub. L. 97–164, title I, §120(a), Apr. 2, 1982, 96 Stat. 33; Pub. L. 102–572, title IX, §902(b)(1), Oct. 29, 1992, 106 Stat. 4516.)

Historical and Revision Notes

Based on title 28, U.S.C., 1940 ed., §450 (Mar. 3, 1911, ch. 231, §308, as added Aug. 7, 1939, ch. 501, §1, 53 Stat. 1223).

Words "and the United States Court for China" were omitted. See reviser's note under section 411 of this title.

Provisions making this chapter and sections 332 and 333 of this title expressly applicable to the Court of Appeals for the District of Columbia were omitted as covered by "courts of appeals." (See section 41 of this title and reviser's notes under such section and section 44 of this title.)

A definition of "continental United States" as "the States of the Union and the District of Columbia" is omitted as unnecessary. (See reviser's note under section 333 of this title.)

The term "district courts in the United States" in this section includes the District Court for the District of Columbia. (See section 88 of this title.)

Other provisions of section 450 of title 28, U.S.C., 1940 ed., are incorporated in sections 333 and 604 of this title.

The phrase "all other courts of the United States established by Act of Congress" was added to provide for future growth of the Federal judicial system. [See Senate Revision Amendment below.]

Changes in arrangement and phraseology were made.

Senate Revision Amendment

Those provisions of this section which related to the Tax Court were eliminated by Senate amendment. See 80th Congress Senate Report No. 1559.

Editorial Notes

Amendments

1992—Pub. L. 102–572 substituted "United States Court of Federal Claims" for "United States Claims Court".

1982—Pub. L. 97–164 substituted "the United States Claims Court" for "the Court of Claims, the Court of Customs and Patent Appeals".

1980—Pub. L. 96–417 redesignated the Customs Court as the Court of International Trade.

1978—Pub. L. 95–598 directed the amendment of section by substituting ", district courts, and bankruptcy courts" for "and district 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.

1958—Pub. L. 85–508 struck out provisions which included District Court for Territory of Alaska within definition of court. See section 81A of this title which establishes a United States District Court for the State of Alaska.

1951—Act Oct. 31, 1951, inserted reference to the District Court of Guam.

Statutory Notes and Related Subsidiaries

Effective Date of 1992 Amendment

Amendment by Pub. L. 102–572 effective Oct. 29, 1992, see section 911 of Pub. L. 102–572, set out as a note under section 171 of this title.

Effective Date of 1982 Amendment

Amendment by Pub. L. 97–164 effective Oct. 1, 1982, see section 402 of Pub. L. 97–164, set out as a note under section 171 of this title.

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96–417, set out as a note under section 251 of this title.

Effective Date of 1958 Amendment

Amendment by Pub. L. 85–508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85–508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions.

Termination of United States District Court for the District of the Canal Zone

For termination of the United States District Court for the District of the Canal Zone at end of the "transition period", being the 30-month period beginning Oct. 1, 1979, and ending midnight Mar. 31, 1982, see Paragraph 5 of Article XI of the Panama Canal Treaty of 1977 and sections 2101 and 2201 to 2203 of Pub. L. 96–70, title II, Sept. 27, 1979, 93 Stat. 493, formerly classified to sections 3831 and 3841 to 3843, respectively, of Title 22, Foreign Relations and Intercourse.
28 U.S.C. § 2244 (2024) — Title 28: JUDICIARY AND JUDICIAL PROCEDURE / Chapter 153 / Section 2244: Finality of determination
Finality of determination
Status: in_force

(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.

(June 25, 1948, ch. 646, 62 Stat. 965; Pub. L. 89–711, §1, Nov. 2, 1966, 80 Stat. 1104; Pub. L. 104–132, title I, §§101, 106, Apr. 24, 1996, 110 Stat. 1217, 1220.)

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.

Editorial Notes

Amendments

1996—Subsec. (a). Pub. L. 104–132, §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, §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, §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).
28 U.S.C. § 2647 (2024) — Title 28: JUDICIARY AND JUDICIAL PROCEDURE / Chapter 169 / Section 2647: Repealed. Pub. L. 98-620, title IV, §402(29)(G), Nov. 8, 1984, 98 Stat. 3359
Repealed. Pub. L. 98-620, title IV, §402(29)(G), Nov. 8, 1984, 98 Stat. 3359
Status: repealed

[§2647. Repealed. Pub. L. 98–620, title IV, §402(29)(G), Nov. 8, 1984, 98 Stat. 3359]

Section, added Pub. L. 96–417, title III, §301, Oct. 10, 1980, 94 Stat. 1739; amended Pub. L. 98–573, title VI, §623(b)(2), Oct. 30, 1984, 98 Stat. 3041, related to precedence of cases.

Statutory Notes and Related Subsidiaries

Effective Date of Repeal

Repeal not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98–620, set out as an Effective Date note under section 1657 of this title.
28 U.S.C. § 2201 (2024) — Title 28: JUDICIARY AND JUDICIAL PROCEDURE / Chapter 151 / Section 2201: Creation of remedy
Creation of remedy
Status: in_force

(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986, a proceeding under section 505 or 1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of merchandise of a free trade area country (as defined in section 516A(f)(9) of the Tariff Act of 1930), as determined by the administering authority, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

(b) For limitations on actions brought with respect to drug patents see section 505 or 512 of the Federal Food, Drug, and Cosmetic Act, or section 351 of the Public Health Service Act.

(June 25, 1948, ch. 646, 62 Stat. 964; May 24, 1949, ch. 139, §111, 63 Stat. 105; Aug. 28, 1954, ch. 1033, 68 Stat. 890; Pub. L. 85–508, §12(p), July 7, 1958, 72 Stat. 349; Pub. L. 94–455, title XIII, §1306(b)(8), Oct. 4, 1976, 90 Stat. 1719; Pub. L. 95–598, title II, §249, Nov. 6, 1978, 92 Stat. 2672; Pub. L. 98–417, title I, §106, Sept. 24, 1984, 98 Stat. 1597; Pub. L. 100–449, title IV, §402(c), Sept. 28, 1988, 102 Stat. 1884; Pub. L. 100–670, title I, §107(b), Nov. 16, 1988, 102 Stat. 3984; Pub. L. 103–182, title IV, §414(b), Dec. 8, 1993, 107 Stat. 2147; Pub. L. 111–148, title VII, §7002(c)(2), Mar. 23, 2010, 124 Stat. 816; Pub. L. 116–113, title IV, §423(b), Jan. 29, 2020, 134 Stat. 66.)

Amendment of Section

For termination of amendment by section 501(c) of Pub. L. 100–449, see Effective and Termination Dates of 1988 Amendment note below.

Historical and Revision Notes

1948 Act

Based on title 28, U.S.C., 1940 ed., §400 (Mar. 3, 1911, ch. 231, §274d, as added June 14, 1934, ch. 512, 48 Stat. 955; Aug. 30, 1935, ch. 829, §405, 49 Stat. 1027).

This section is based on the first paragraph of section 400 of title 28, U.S.C., 1940 ed. Other provisions of such section are incorporated in section 2202 of this title.

While this section does not exclude declaratory judgments with respect to State taxes, such suits will not ordinarily be entertained in the courts of the United States where State law makes provision for payment under protest and recovery back or otherwise affords adequate remedy in the State courts. See Great Lakes Dredge & Dock Co. v. Huffman, La. 1943, 63 S.Ct. 1070, 319 U.S. 293, 87 L.Ed. 1407. See also Spector Motor Service v. McLaughlin, Conn. 1944, 65 S.Ct. 152, 323 U.S. 101, 89 L.Ed. 101. See also section 1341 of this title forbidding district courts to restrain enforcements of State taxes where State courts afford plain, speedy, and efficient remedy.

Changes were made in phraseology.

1949 Act

Section corrects a typographical error in section 2201 of title 28, U.S.C.

Editorial Notes

References in Text

Section 7428 of the Internal Revenue Code of 1986, referred to in subsec. (a), is classified to section 7428 of Title 26, Internal Revenue Code.

Section 516A(f)(9) of the Tariff Act of 1930, referred to in subsec. (a), is classified to section 1516a(f)(9) of Title 19, Customs Duties.

Sections 505 and 512 of the Federal Food, Drug, and Cosmetic Act, referred to in subsec. (b), are classified to sections 355 and 360b, respectively, of Title 21, Food and Drugs.

Section 351 of the Public Health Service Act, referred to in subsec. (b), is classified to section 262 of Title 42, The Public Health and Welfare.

Amendments

2020—Subsec. (a). Pub. L. 116–113 substituted "section 516A(f)(9)" for "section 516A(f)(10)".

2010—Subsec. (b). Pub. L. 111–148 inserted ", or section 351 of the Public Health Service Act" before period.

1993—Subsec. (a). Pub. L. 103–182 substituted "merchandise of a free trade area country (as defined in section 516A(f)(10) of the Tariff Act of 1930)," for "Canadian merchandise,".

1988—Subsec. (a). Pub. L. 100–449 temporarily substituted "1986," for "1954 or" and inserted "or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of Canadian merchandise, as determined by the administering authority," after "title 11,". See Effective and Termination Dates of 1988 Amendment note below.

Subsec. (b). Pub. L. 100–670 inserted "or 512" after "505".

1984—Pub. L. 98–417 designated existing provisions as subsec. (a) and added subsec. (b).

1978—Pub. L. 95–598 inserted reference to proceedings under section 505 or 1146 of title 11.

1976—Pub. L. 94–455 substituted "taxes other than actions brought under section 7428 of the Internal Revenue Code of 1954" for "taxes".

1958—Pub. L. 85–508 struck out provisions which related to District Court for Territory of Alaska. See section 81A of this title which establishes a United States District Court for the State of Alaska.

1954—Act Aug. 28, 1954, extended provisions to Alaska.

1949—Act May 24, 1949, corrected spelling of "or" in second sentence.

Statutory Notes and Related Subsidiaries

Effective Date of 2020 Amendment

Amendment by Pub. L. 116–113 effective on the date on which the USMCA enters into force (July 1, 2020), but not applicable to certain determinations under section 1516a of Title 19, Customs Duties, or binational panel reviews under NAFTA, see section 432 of Pub. L. 116–113, set out as a note under section 1516a of Title 19.

Effective Date of 1993 Amendment

Amendment by Pub. L. 103–182 effective on the date the North American Free Trade Agreement enters into force with respect to the United States [Jan. 1, 1994], but not applicable to any final determination described in section 1516a(a)(1)(B) or (2)(B)(i), (ii), or (iii) of Title 19, Customs Duties, notice of which is published in the Federal Register before such date, or to a determination described in section 1516a(a)(2)(B)(vi) of Title 19, notice of which is received by the Government of Canada or Mexico before such date, or to any binational panel review under the United States-Canada Free-Trade Agreement, or to any extraordinary challenge arising out of any such review that was commenced before such date, see section 416 of Pub. L. 103–182, formerly set out as an Effective Date note under former section 3431 of Title 19.

Effective and Termination Dates of 1988 Amendment

Amendment by Pub. L. 100–449 effective on date United States-Canada Free-Trade Agreement enters into force (Jan. 1, 1989), and to cease to have effect on date Agreement ceases to be in force, see section 501(a), (c) of Pub. L. 100–449, set out in a note under section 2112 of Title 19, Customs Duties.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–598 effective Oct. 1, 1979, see section 402(c) of Pub. L. 95–598, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy.

Effective Date of 1976 Amendment

Amendment by Pub. L. 94–455 applicable with respect to pleadings filed with the United States Tax Court, the District Court of the United States for the District of Columbia, or the United States Court of Claims more than 6 months after Oct. 4, 1976, but only with respect to determinations (or requests for determinations) made after Jan. 1, 1976, see section 1306(c) of Pub. L. 94–455, set out as an Effective Date note under section 7428 of Title 26, Internal Revenue Code.

Effective Date of 1958 Amendment

Amendment by Pub. L. 85–508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85–508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions.

Effect of Termination of USMCA Country Status

For provisions relating to effect of termination of USMCA country status on sections 401 to 432 of Pub. L. 116–113, see section 4601 of Title 19, Customs Duties.

Amount in Controversy

Jurisdictional amount in diversity of citizenship cases, see section 1332 of this title.
28 U.S.C. § 2074 (2024) — Title 28: JUDICIARY AND JUDICIAL PROCEDURE / Chapter 131 / Section 2074: Rules of procedure and evidence; submission to Congress; effective date
Rules of procedure and evidence; submission to Congress; effective date
Status: in_force

(a) The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. The Supreme Court may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies.

(b) Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.

(Added Pub. L. 100–702, title IV, §401(a), Nov. 19, 1988, 102 Stat. 4649.)

Editorial Notes

Prior Provisions

A prior section 2074, act July 27, 1954, ch. 583, §1, 68 Stat. 567, empowered the Supreme Court to prescribe rules for review of decisions of the Tax Court of the United States, prior to repeal by Pub. L. 89–773, §2, Nov. 6, 1966, 80 Stat. 1323.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective Dec. 1, 1988, see section 407 of Pub. L. 100–702, set out as an Effective Date of 1988 Amendment note under section 2071 of this title.

Amendment to Rule 23 of Federal Rules of Civil Procedure; Effective Date

Pub. L. 109–2, §7, Feb. 18, 2005, 119 Stat. 13, provided that: "Notwithstanding any other provision of law, the amendments to rule 23 of the Federal Rules of Civil Procedure, which are set forth in the order entered by the Supreme Court of the United States on March 27, 2003, shall take effect on the date of enactment of this Act [Feb. 18, 2005] or on December 1, 2003 (as specified in that order), whichever occurs first."

Modification of Amendments to Federal Rules of Criminal Procedure Proposed April 29, 2002; Effective Date

Pub. L. 107–273, div. C, title I, §11019(a), Nov. 2, 2002, 116 Stat. 1825, provided that: "The proposed amendments to the Federal Rules of Criminal Procedure that are embraced by an order entered by the Supreme Court of the United States on April 29, 2002, shall take effect on December 1, 2002, as otherwise provided by law, but with the amendments made in subsection (b) [amending Rule 16 of the Federal Rules of Criminal Procedure]."

Modification of Amendments to Federal Rules of Evidence Proposed April 29, 1994; Effective Date

Pub. L. 103–322, title IV, §40141, Sept. 13, 1994, 108 Stat. 1918, provided that:

"(a) Modification of Proposed Amendment.—The proposed amendments to the Federal Rules of Evidence that are embraced by an order entered by the Supreme Court of the United States on April 29, 1994, shall take effect on December 1, 1994, as otherwise provided by law, but with the amendment made by subsection (b).

"(b) Rule.—[Amended Rule 412 of the Federal Rules of Evidence.]

"(c) Technical Amendment.—[Amended table of contents for the Federal Rules of Evidence.]"

Modification of Amendments to Federal Rules of Criminal Procedure Proposed April 29, 1994; Effective Date

Pub. L. 103–322, title XXIII, §230101, Sept. 13, 1994, 108 Stat. 2077, provided that:

"(a) Modification of Proposed Amendments.—The proposed amendments to the Federal Rules of Criminal Procedure which are embraced by an order entered by the Supreme Court of the United States on April 29, 1994, shall take effect on December 1, 1994, as otherwise provided by law, but with the following amendments:

"(b) In General.—[Amended Rule 32 of the Federal Rules of Criminal Procedure.]

"(c) Effective Date.—The amendments made by subsection (b) shall become effective on December 1, 1994."

Amendments to Civil Rules Proposed April 30, 1991

Pub. L. 102–198, §11, Dec. 9, 1991, 105 Stat. 1626, provided that:

"(a) Technical Amendment.—Rule 15(c)(3) of the Federal Rules of Civil Procedure for the United States Courts, as transmitted to the Congress by the Supreme Court pursuant to section 2074 of title 28, United States Code, to become effective on December 1, 1991, is amended by striking 'Rule 4(m)' and inserting 'Rule 4(j)'.

"(b) Amendment to Forms.—Form 1–A, Notice of Lawsuit and Request for Waiver of Service of Summons, and Form 1–B, Waiver of Service of Summons, included in the transmittal by the Supreme Court described in subsection (a), shall not be effective and Form 18–A, Notice and Acknowledgment for Service by Mail, abrogated by the Supreme Court in such transmittal, effective December 1, 1991, shall continue in effect on or after that date."

Amendments to Civil Rules Proposed April 28, 1982

Pub. L. 97–462, §5, Jan. 12, 1983, 96 Stat. 2530, provided that: "The amendments to the Federal Rules of Civil Procedure [Rule 4], the effective date of which was delayed by the Act entitled 'An Act to delay the effective date of proposed amendments to rule 4 of the Federal Rules of Civil Procedure', approved August 2, 1982 (96 Stat. 246) [Pub. L. 97–227, see below], shall not take effect."

Pub. L. 97–227, Aug. 2, 1982, 96 Stat. 246, provided: "That notwithstanding the provisions of section 2072 of title 28, United States Code, the amendments to rule 4 of the Federal Rules of Civil Procedure as proposed by the Supreme Court of the United States and transmitted to the Congress by the Chief Justice on April 28, 1982, shall take effect on October 1, 1983, unless previously approved, disapproved, or modified by Act of Congress.

"Sec. 2. This Act shall be effective as of August 1, 1982, but shall not apply to the service of process that takes place between August 1, 1982, and the date of enactment of this Act [Aug. 2, 1982]."

Amendments to Criminal Rules and Rules of Evidence Proposed April 30, 1979; Postponement of Effective Date

Pub. L. 96–42, July 31, 1979, 93 Stat. 326, provided: "That notwithstanding any provision of section 3771 or 3772 of title 18 of the United States Code or of section 2072, 2075, or 2076 of title 28 of the United States Code to the contrary—

"(1) the amendments proposed by the United States Supreme Court and transmitted by the Chief Justice on April 30, 1979, to the Federal Rules of Criminal Procedure affecting rules 11(e)(6), 17(h), 32(f), and 44(c), and adding new rules 26.2 and 32.1, and the amendment so proposed and transmitted to the Federal Rules of Evidence affecting rule 410, shall not take effect until December 1, 1980, or until and then only to the extent approved by Act of Congress, whichever is earlier; and

"(2) the amendment proposed by the United States Supreme Court and transmitted by the Chief Justice on April 30, 1979, affecting rule 40 of the Federal Rules of Criminal Procedure shall take effect on August 1, 1979, with the following amendments:

"(A) In the matter designated as paragraph (1) of subdivision (d), strike out 'in accordance with Rule 32.1(a)'.

"(B) In the matter designated as paragraph (2) of subdivision (d), strike out 'in accordance with Rule 32.1(a)(1)'."

Approval and Effective Date of Amendments Proposed April 26, 1976

Pub. L. 95–78, §1, July 30, 1977, 91 Stat. 319, provided: "That notwithstanding the first section of the Act entitled 'An Act to delay the effective date of certain proposed amendments to the Federal Rules of Criminal Procedure and certain other rules promulgated by the United States Supreme Court' (Public Law 94–349, approved July 8, 1976) [90 Stat. 822] the amendments to rules 6(e), 23, 24, 40.1, and 41(c)(2) of the Rules of Criminal Procedure for the United States district courts [set out in the Appendix to Title 18, Crimes and Criminal Procedure] which are embraced by the order entered by the United States Supreme Court on April 26, 1976, shall take effect only as provided in this Act [see section 4 of Pub. L. 95–78, set out below]."

Effective Date of Pub. L. 95–78

Pub. L. 95–78, §4, July 30, 1977, 91 Stat. 322, provided that:

"(a) The first section of this Act [set out as a note above] shall take effect on the date of the enactment of this Act [July 30, 1977].

"(b) Sections 2 and 3 of this Act [which amended section 1446 of this title, approved proposed amendment of rule 23 of the Federal Rules of Criminal Procedure, modified and approved proposed amendment of rules 6 and 41 of the Federal Rules of Criminal Procedure, and disapproved the proposed amendment of rule 24 of the Federal Rules of Criminal Procedure and the proposed addition of rule 40.1 of the Federal Rules of Criminal Procedure] shall take effect October 1, 1977."

Approval and Effective Date of Rules Governing Section 2254 Cases and Section 2255 Proceedings for United States District Courts

Pub. L. 94–426, §1, Sept. 28, 1976, 90 Stat. 1334, provided: "That the rules governing section 2254 cases in the United States district courts and the rules governing section 2255 proceedings for the United States district courts, as proposed by the United States Supreme Court, which were delayed by the Act entitled 'An Act to delay the effective date of certain proposed amendments to the Federal Rules of Criminal Procedure and certain other rules promulgated by the United States Supreme Court' (Public Law 94–349), are approved with the amendments set forth in section 2 of this Act and shall take effect as so amended, with respect to petitions under section 2254 and motions under section 2255 of title 28 of the United States Code filed on or after February 1, 1977."

Amendments to Criminal Rules Under Supreme Court Order of April 26, 1976; Postponement of Effective Date

Pub. L. 94–349, §1, July 8, 1976, 90 Stat. 822, provided: "That, notwithstanding the provisions of sections 3771 and 3772 of title 18 of the United States Code the amendments to rules 6(e), 23, 24, 40.1 and 41(c)(2) of the Rules of Criminal Procedure for the United States district courts which are embraced by the order entered by the United States Supreme Court on April 26, 1976, and which were transmitted to the Congress on or about April 26, 1976, shall not take effect until August 1, 1977, or until and to the extent approved by Act of Congress, whichever is earlier. The remainder of the proposed amendments to the Federal Rules of Criminal Procedure [rules 6(f), 41(a), (c)(1), and 50(b)] shall become effective August 1, 1976, pursuant to law."

Postponement of Effective Date of Proposed Rules and Forms Governing Proceedings Under Sections 2254 and 2255 of this Title

Pub. L. 94–349, §2, July 8, 1976, 90 Stat. 822, provided: "That, notwithstanding the provisions of section 2072 of title 28 of the United States Code, the rules and forms governing section 2254 [section 2254 of this title] cases in the United States district courts and the rules and forms governing section 2255 [section 2255 of this title] proceedings in the United States district courts which are embraced by the order entered by the United States Supreme Court on April 26, 1976, and which were transmitted to the Congress on or about April 26, 1976, shall not take effect until thirty days after the adjournment sine die of the 94th Congress, or until and to the extent approved by Act of Congress, whichever is earlier."

Approval and Effective Date of Amendments Proposed April 22, 1974

Pub. L. 94–64, §2, July 31, 1975, 89 Stat. 370, provided that: "The amendments proposed by the United States Supreme Court to the Federal Rules of Criminal Procedure [adding rules 12.1, 12.2, and 29.1 and amending rules 4, 9(a), 11, 12, 15, 16, 17(f), 20, 32(a), (c), and (e), and 43] which are embraced in the order of that Court on April 22, 1974, are approved except as otherwise provided in this Act [making further amendments to rules 4, 9(a), 11, 12, 12.1, 12.2, 15, 16, 17(f), 20, 32(a), (c), and (e), and 43] and shall take effect on December 1, 1975. Except with respect to the amendment to Rule 11, insofar as it adds Rule 11(e)(6), which shall take effect on August 1, 1975, the amendments made by section 3 of this Act shall also take effect on December 1, 1975."

Approval and Effective Date of Amendments Proposed November 20, 1972 and December 18, 1972

Pub. L. 93–595, §3, Jan. 2, 1975, 88 Stat. 1949, provided that: "The Congress expressly approves the amendments to the Federal Rules of Civil Procedure [Rules 30(c), 32(c), 43, and 44.1] and the amendments to the Federal Rules of Criminal Procedure [Rules 26, 26.1, and 28], which are embraced by the orders entered by the Supreme Court of the United States on November 20, 1972, and December 18, 1972, and such amendments shall take effect on the one hundred and eightieth day beginning after the date of the enactment of this Act [Jan. 2, 1975]."

Amendments to Criminal Rules Under Supreme Court Order of April 22, 1974; Postponement of Effective Date Until August 1, 1975

Pub. L. 93–361, July 30, 1974, 88 Stat. 397, provided: "That, notwithstanding the provisions of sections 3771 and 3772 of title 18 of the United States Code, the effective date of the proposed amendments to the Federal Rules of Criminal Procedure which are embraced by the order entered by the United States Supreme Court on April 22, 1974, and which were transmitted to the Congress by the Chief Justice on April 22, 1974, is postponed until August 1, 1975."

Congressional Approval Requirement for Proposed Rules of Evidence for United States Courts and Amendments to Federal Rules of Civil Procedure and Criminal Procedure; Suspension of Effectiveness of Such Rules

Pub. L. 93–12, Mar. 30, 1973, 87 Stat. 9, provided: "That notwithstanding any other provisions of law, the Rules of Evidence for United States Courts and Magistrates, the Amendments to the Federal Rules of Civil Procedure, and the Amendments to the Federal Rules of Criminal Procedure, which are embraced by the orders entered by the Supreme Court of the United States on Monday, November 20, 1972, and Monday, December 18, 1972, shall have no force or effect except to the extent, and with such amendments, as they may be expressly approved by the Act of Congress."
28 U.S.C. § 374 (2024) — Title 28: JUDICIARY AND JUDICIAL PROCEDURE / Chapter 17 / Section 374: Residence of retired judges; official station
Residence of retired judges; official station
Status: in_force

Retired judges of the United States are not subject to restrictions as to residence. The place where a retired judge maintains the actual abode in which he customarily lives shall be deemed to be his official station for the purposes of section 456 of this title. The place where a judge or magistrate judge recalled under section 155, 375, 636, or 797 of this title maintains the actual abode in which the judge or magistrate judge customarily lives shall be deemed to be the official station of such judge or magistrate judge for purposes of section 604(a)(7) of this title.

(June 25, 1948, ch. 646, 62 Stat. 904; Pub. L. 86–312, §1, Sept. 21, 1959, 73 Stat. 587; Pub. L. 99–651, title II, §202(b), Nov. 14, 1986, 100 Stat. 3648; Pub. L. 101–650, title III, §321, Dec. 1, 1990, 104 Stat. 5117.)

Historical and Revision Notes

Based on title 28, U.S.C., 1940 ed., §402 (Feb. 11, 1938, ch. 23, 52 Stat. 28).

Sections 44 and 133 of this title require that active circuit and district judges shall reside in the circuit or district to which appointed.

Changes were made in phraseology.

Editorial Notes

Amendments

1986—Pub. L. 99–651 inserted last sentence.

1959—Pub. L. 86–312 inserted sentence to provide that place where retired judge maintains actual abode shall be deemed to be his official station and inserted "; official station" in section catchline.

Statutory Notes and Related Subsidiaries

Change of Name

Words "magistrate judge" substituted for "magistrate" wherever appearing in text pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of this title.

Effective Date of 1986 Amendment

Amendment by Pub. L. 99–651 effective Jan. 1, 1987, see section 203 of Pub. L. 99–651, set out as a note under section 155 of this title.
28 U.S.C. § 121 (2024) — Title 28: JUDICIARY AND JUDICIAL PROCEDURE / Chapter 5 / Section 121: South Carolina
South Carolina
Status: in_force

South Carolina constitutes one judicial district comprising eleven divisions.

(1) The Charleston Division comprises the counties of Berkeley, Charleston, Clarendon, Colleton, Dorchester, and Georgetown.

Court for the Charleston Division shall be held at Charleston.

(2) The Columbia Division comprises the counties of Kershaw, Lee, Lexington, Richland, and Sumter.

Court for the Columbia Division shall be held at Columbia.

(3) The Florence Division comprises the counties of Chesterfield, Darlington, Dillon, Florence, Horry, Marion, Marlboro, and Williamsburg.

Court for the Florence Division shall be held at Florence.

(4) The Aiken Division comprises the counties of Aiken, Allendale, and Barnwell.

Court for the Aiken Division shall be held at Aiken.

(5) The Orangeburg Division comprises the counties of Bamberg, Calhoun, and Orangeburg.

Court for the Orangeburg Division shall be held at Orangeburg.

(6) The Greenville Division comprises the counties of Greenville and Laurens.

Court for the Greenville Division shall be held at Greenville.

(7) The Rock Hill Division comprises the counties of Chester, Fairfield, Lancaster, and York.

Court for the Rock Hill Division shall be held at Rock Hill.

(8) The Greenwood Division comprises the counties of Abbeville, Edgefield, Greenwood, McCormick, Newberry, and Saluda.

Court for the Greenwood Division shall be held at Greenwood.

(9) The Anderson Division comprises the counties of Anderson, Oconee, and Pickens.

Court for the Anderson Division shall be held at Anderson.

(10) The Spartanburg Division comprises the counties of Cherokee, Spartanburg, and Union.

Court for the Spartanburg Division shall be held at Spartanburg.

(11) The Beaufort Division comprises the counties of Beaufort, Hampton, and Jasper.

Court for the Beaufort Division shall be held at Beaufort.

(June 25, 1948, ch. 646, 62 Stat. 889; Pub. L. 89–242, §1(a), Oct. 7, 1965, 79 Stat. 951; Pub. L. 99–657, §2, Nov. 14, 1986, 100 Stat. 3670; Pub. L. 102–140, title III, §304, Oct. 28, 1991, 105 Stat. 810.)

Historical and Revision Notes

Based on title 28, U.S.C., 1940 ed., §186 (Mar. 3, 1911, ch. 231, §105, 36 Stat. 1123; Feb. 5, 1912, ch. 28, 37 Stat. 60; Mar. 3, 1915, ch. 100, §5, 38 Stat. 961; Sept. 1, 1916, ch. 434, 39 Stat. 721; Mar. 4, 1923, ch. 261, 42 Stat. 1486; Jan. 30, 1925, ch. 118, 43 Stat. 800; June 26, 1926, ch. 696, §§1–3, 44 Stat. 773; June 20, 1936, ch. 637, §§1–3, 49 Stat. 1558, 1559; June 12, 1940, ch. 335, 54 Stat. 344; June 28, 1943, ch. 173, title II, §204, 57 Stat. 244; Dec. 13, 1944, ch. 556, 58 Stat. 801).

The last sentence of section 186 of title 28, U.S.C., 1940 ed., relating to trial of criminal cases in the division in which the offense was committed, was omitted as fully covered by Rules 18–22 of the Federal Rules of Criminal Procedure.

A provision relating to the places of the clerks' offices was omitted as covered by section 751 of this title.

The provision respecting court accommodations at Orangeburg was omitted as covered by section 142 of this title.

Changes in arrangement and phraseology were made.

Editorial Notes

Amendments

1991—Par. (4). Pub. L. 102–140, §304(1), struck out reference to Hampton County.

Par. (11). Pub. L. 102–140, §304(2), inserted reference to Hampton County.

1986—Pub. L. 99–657, §2(1), substituted "eleven divisions" for "ten divisions" in introductory text.

Par. (1). Pub. L. 99–657, §2(2), struck out "Beaufort," after "counties of" and substituted "and Georgetown" for "Georgetown, and Jasper".

Par. (11). Pub. L. 99–657, §2(3), added par. (11).

1965—Pub. L. 89–242 consolidated into a single district the 10 divisions of the state which had formerly been divided into an Eastern and a Western District.

Statutory Notes and Related Subsidiaries

Effective Date of 1986 Amendment

Pub. L. 99–657, §4, Nov. 14, 1986, 100 Stat. 3670, provided that:

"(a) Effective Date.—(1) The amendments made by sections 2 and 3 [amending this section and section 90 of this title] take effect 90 days after the date of the enactment of this Act [Nov. 14, 1986].

"(2) The amendment made by section 4 [enacting this note] takes effect on the date of the enactment of this Act.

"(b) Pending Actions.—The amendments made by this Act [amending this section and section 90 of this title] shall not affect any action commenced before the effective date of such amendments and pending on such date.

"(c) Juries.—The amendments made by this Act [amending this section and section 90 of this title] shall not affect the composition, or preclude the service, of any grand or petit jury summoned, empaneled, or actually serving on the effective date of such amendments."

Effective Date of 1965 Amendment

Pub. L. 89–242, §6, Oct. 7, 1965, 79 Stat. 953, provided that: "The provisions of this Act [amending this section and section 133 of this title and enacting provisions set out as a note below] shall become effective on the first day of the month following the date of enactment of this Act [Oct. 7, 1965]."

Consolidation of South Carolina Into a Single Judicial District

Pub. L. 89–242, §§2–5, Oct. 7, 1965, 79 Stat. 952, 953, provided for the consolidation, in compliance with section 132 of this title, of the Eastern and Western Districts of South Carolina into a single district with continuing jurisdiction over civil cases and criminal acts pending or committed prior to Nov. 1, 1965, and appropriate provisions for the appointment or transfer of United States attorneys, marshals, and other court personnel, then serving, from the two districts to the consolidated district.
28 U.S.C. § 3704 (2024) — Title 28: JUDICIARY AND JUDICIAL PROCEDURE / Chapter 178 / Section 3704: Applicability
Applicability
Status: in_force

(a) Section 3702 shall not apply to—

(1) a lottery, sweepstakes, or other betting, gambling, or wagering scheme in operation in a State or other governmental entity, to the extent that the scheme was conducted by that State or other governmental entity at any time during the period beginning January 1, 1976, and ending August 31, 1990;

(2) a lottery, sweepstakes, or other betting, gambling, or wagering scheme in operation in a State or other governmental entity where both—

(A) such scheme was authorized by a statute as in effect on October 2, 1991; and

(B) a scheme described in section 3702 (other than one based on parimutuel animal racing or jai-alai games) actually was conducted in that State or other governmental entity at any time during the period beginning September 1, 1989, and ending October 2, 1991, pursuant to the law of that State or other governmental entity;

(3) a betting, gambling, or wagering scheme, other than a lottery described in paragraph (1), conducted exclusively in casinos located in a municipality, but only to the extent that—

(A) such scheme or a similar scheme was authorized, not later than one year after the effective date of this chapter, to be operated in that municipality; and

(B) any commercial casino gaming scheme was in operation in such municipality throughout the 10-year period ending on such effective date pursuant to a comprehensive system of State regulation authorized by that State's constitution and applicable solely to such municipality; or

(4) parimutuel animal racing or jai-alai games.

(b) Except as provided in subsection (a), section 3702 shall apply on lands described in section 4(4) of the Indian Gaming Regulatory Act (25 U.S.C. 2703(4)).

(Added Pub. L. 102–559, §2(a), Oct. 28, 1992, 106 Stat. 4228.)

Editorial Notes

References in Text

The effective date of this chapter, referred to in subsec. (a)(3)(A), is Jan. 1, 1993, see section 3 of Pub. L. 102–559, set out as an Effective Date note under section 3701 of this title.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective Jan. 1, 1993, see section 3 of Pub. L. 102–559, set out as a note under section 3701 of this title.