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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DARIUS GAINES,

Petitioner, No. CIV S-04-0018 FCD GGH P

vs.

DARREL WARDEN, et al.,

Respondents. ORDER (AMENDED)

 /

Petitioner has requested ex parte, pursuant to Fed. R. Crim. P. 17, to subpoena a

non-party witness for evidentiary hearing to be held in the Eastern District of California where

the witness is located outside of California and far more distant than 100 miles from the Eastern

District courthouse. The request has been made ex parte, presumably pursuant to the provision in

18 U.S.C. § 3006A(e) – “other services.” Because neither the criminal rule cited nor § 3006A(e)

is applicable to this subpoena request made in a habeas corpus proceeding, and because civil trial

subpoenas do not have nationwide reach, petitioner’s request is denied. However, should the

witness voluntarily travel to California, the court will permit the provisions of § 3006A to be

used to reimburse the witness. 

Habeas corpus proceedings possess a curious blend of civil and criminal

attributes, as well as possessing their own special procedures (Rules Governing § 2254 cases). 

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 18 U.S.C. § 3006A(e) “other services” provisions do not provide that subpoena practice

is to be governed by criminal rules. The general “other services” mentioned in subsection (e) are

those akin to the specific services referenced therein, i.e., investigative or expert services. This

conclusion is buttressed by the fact that the acquisition of such “out of court” services are to be

provided “ex parte” with the requests sealed, a procedure that is the antithesis of subpoenas in

civil actions. 

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 The court views an evidentiary hearing in habeas corpus the same as trial for purposes

of Rule 45.

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However, for the most part, habeas corpus is a civil proceeding. See Bean v. Calderon, 166

F.R.D. 452, 453 (E.D. Cal. 1996); Blum v. Housewright, 113 F.R.D. 676 (D. Nev. 1987)

(involving subpoenas in a habeas corpus action). Civil practice rules generally apply; Fed. R.

Civ. P. 81(a)(2) provides: “These rules are applicable to proceedings for . . . habeas corpus . . . to

the extent that the practice in such proceedings is not set forth in the statutes of the United States,

The Rules Governing Section 2254 Cases . . . and has heretofore conformed to the practice in

civil actions.” The Rules Governing § 2254 cases do not discuss subpoena practice; thus, one

must look elsewhere for the appropriate procedure. Title 28 U.S.C. § 1825 governs the payment

of fees associated with the service of habeas corpus subpoenas, but does not apply to their

issuance. No rule reflects that habeas corpus subpoenas are issued pursuant to Fed. R. Crim. P.

17. See Fed. R. Crim. P. 1(a): “These rules govern the proceedings in all criminal proceedings

in the United States district courts . . . .” Ultimately, because the default procedures in habeas

corpus proceedings are the Federal Rules of Civil Procedure, Rule 45 is the rule applicable to

petitioner’s request. Blum v. Housewright, 113 F.R.D. at 676.

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The court would have no difficulty in interpreting the present request as one made

pursuant to Fed. R. Civ. P. 45 except for the fact that a subpoena for trial2 in the district courts

are limited to the locations set forth in Rule 45(b)(2) and 45(c)(3)(A)(ii). In general, civil

subpoenas are limited to locations within 100 miles from the site of the deposition, hearing, etc.,

and additionally, at any location within the state where the trial (or evidentiary hearing) will be

held if a state statute or rule exists permitting state-wide service. However, even for a trial

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 There is no doubt that if a specific statute of the United States permits nationwide

service of a subpoena, this federal court would have the authority to issue the subpoena

compelling attendance of out-of-state witnesses.

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subpoena served within the state where the trial will take place, subject to one exception,

subpoenas “shall” be quashed if the witness will be required to travel more than 100 miles from

the witness’ residence or place of business to the trial, hearing, etc.

On timely motion, the court by which a subpoena was issued shall

quash or modify the subpoena if it

(i) . . .

(ii) requires a person who is not a party or an officer of a party to

travel to a place more than 100 miles from the place where that

person resides, is employed or regularly transacts business in

person, except that, subject to the provisions of clause (c)(3)(B)(iii)

of this rule, such a person may in order to attend trial be

commanded to travel from any such place within the state in which

the trial is held, . . . .

Fed. R. Civ. P. 45(c)(3)(A).

The one exception to the distance limitations is set forth in Subsection B of 45(c)(3):

If a subpoena

(i) . . .

(ii) . . .

(iii) requires a person who is not a party or an officer of a party to

incur substantial expense to travel more than 100 miles to attend

trial, the court may . . ., if the party in whose behalf the subpoena is

issued shows a substantial need for the testimony . . . and assures

that the person to whom the subpoena is addressed will be

reasonably compensated, the court may order appearance or

production only upon specified conditions.

Fed. R. Civ. P. 45(c)(3)(B)(iii).

There is some dispute whether this last related exception permits a court to

dispense with the “in-state” limitation. See Siegel, Practice Commentaries, which is set forth in

the West Publishing Co. version of United States Code Annotated, Title 28, Rule 45 at section

C45-16. Siegel believes an argument can be made for de facto nationwide service of garden

variety civil subpoenas

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 because the exception clause quoted above does not itself limit the

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exception to “within a state.” On the other hand, a noted treatise has stated: “A non-party who is

not within the state in which the district court sits and not within 100 miles of the court may not

be compelled to attend a hearing or trial.” Wright and Miller, 9th Federal Practice and

Procedure Civil 2d § 2461 (Rule 45) at 62 (West 1995). See also 9 Moore’s Federal Practice,

§§ 45.03[4][c], 45.04[3][b], [c] (3d ed. 1997). 

Case authority on the issue, post the 1991 amendments to Rule 45, is sparse, and

for the most part, tangential. For example, in Arnett v. Lewis, 870 F. Supp. 1514, 1519 (D. Ariz.

1994), where the potential of calling California witnesses to a Phoenix, Arizona evidentiary

hearing was at issue, the court stated that it had reviewed Rule 45(c)(3)(B)(iii) with the inference

that the court might well have subpoenaed the witnesses if depositions had not been an easier or 

better way to go. But, the court never analyzed its subpoena authority within the opinion. The

court in Sargent v. Sun Trust Bank, 2004 WL 1630081 (N.D. Tex. 2004) intimated in a forum

non conveniens context that it might have the authority to compel Florida witnesses to appear in

Texas, but again, there was no analysis of the rule. See also Chung v. Chrysler Corp., 903 F.

Supp. 160, 164-65 (D.D.C. 1995) (forum non conveniens case in which the court found that

witnesses in New York were “far beyond” the subpoena power of the D.C. court).

However, the court finds the literal reading and organization of Rule 45 to weigh

against giving the federal courts, in essence, a backdoor way of asserting nationwide jurisdiction

to serve subpoenas. If, as in this case, the state would permit state-wide service of subpoenas for

trial, and California does, Cal. Code Civ. Proc. § 1989, the Eastern District subpoena could be

served anywhere in California. Rule 45(b)(2). However, the subpoena shall still be quashed on

objection if the subpoenaed person would have to travel more than 100 miles to the courthouse

from her residence or business, clause (c)(3)(A) (ii), except where clause (c)(3)(B)(iii), upon a

finding of substantial need, would permit an order compelling attendance upon payment of

expenses regardless of the distance to be traveled. As organized, the exception clearly relates

only to the geographical limits of the court’s service jurisdiction in the first place; the exception

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clause is not a stand alone provision which trumps or expands the initially stated geographical

limitations. If such expansion were intended, there would have been many better and clearer

ways of expanding the geographical limitations. In other words, clause (b)(2) sets the limitation,

including statewide service jurisdiction, clause (c)(3)(A)(ii) is an exception to the statewide

service jurisdiction, and clause (c)(3)(B)(iii) is an exception to the exception. All of the clauses

are related. 

Finally, if clause (c)(3)(B)(iii) really did permit nationwide service of subpoenas

as a general rule, there would be little need for those infrequent statutes which expressly provide

for nationwide service.

 ACCORDINGLY, petitioner’s request to subpoena an out-of-state witness, who

resides in Indiana, much further than 100 miles from this courthouse, is denied. Nevertheless,

petitioner’s counsel has represented that the witness is willing to travel to California as long as

she is compensated. If this is indeed the fact, and a subpoena is not required, the court views

such a request as an “other services needed for representation” request under 18 U.S.C. § 3006A. 

Petitioner’s counsel has set forth good cause for the appearance of this witness at the evidentiary

hearing, i.e., she was personally present when petitioner’s attorney represented the terms of the

plea agreement. Therefore, petitioner may request reimbursement from the Federal Defender’s

office (the entity which administers § 3006A in this district), or may secure advance travel

authorization from that office.

Motion for Reconsideration

Petitioner moves for reconsideration of the court’s order entered on May 9, 2005

based on his discussions with the CJA Panel Attorney Administrator of this district. According

to the CJA Panel administrator, but without citation to authority, the issuance of Fed.Crim.P. 17

subpoenas in habeas corpus cases is the “normal procedure in this district.” The CJA

Administrator also suggests that in any event, an order to the U.S. Marshal pursuant to 28 U.S.C.

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§ 1825 will rectify the problem. The CJA Administrator avers that she has no authority under 18

U.S.C. § 3006A (the Criminal Justice Act) to pay for the travel and subsistence of the witness

(Lawanda Jordan) who resides in Indiana because her administrative superiors inform her that the

CJA does not authorize payments if the payment is other wise authorized under § 1825.

Insofar as reconsideration is requested to have the subpoena issued pursuant to the

“normal procedures in this district,” the request for reconsideration is denied. “Normal

procedures” do not trump the law, not do they give authority where the law does not give such

authority. The road to legal error is paved with orders based on unanalyzed “normal procedures.”

 While nothing in § 3006A would seemingly preclude the payment of otherwise

unavailable witness fees under the “services other than counsel” section of § 3006A (e), the

undersigned will afford deference to the administrators of the CJA, and assume payment is

unavailable from this source pursuant to their ipse dixit. However, upon close inspection of the

pertinent statute, the court agrees that the U.S. Marshal may be ordered to pay the fees (including

travel and subsistence) for non-expert witnesses who cannot be otherwise subpoenaed. 

Title 28 U.S.C. § 1825(b) provides:

(b) In proceedings in forma pauperis for a writ of habeas corpus, and in

proceedings in forma pauperis under section 2255 of this title, the United States

marshal for the district shall pay, on the certificate of the district judge, all fees of

witnesses for the party authorized to proceed in forma pauperis, except that any

fees of witnesses for such party, other than experts, appearing pursuant to

subpoenas issued upon approval of the court, shall be paid by the United States

marshal for the district--

(1) on the certificate of a Federal public defender or assistant

Federal public defender, in any such proceedings in which a party

is represented by such Federal public defender or assistant Federal

public defender, and

(2) on the certificate of the clerk of the court upon the affidavit of

such witnesses' attendance given by other counsel appointed

pursuant to section 3006A of title 18, in any such proceedings in

which a party is represented by such other counsel.

Thus, although payment may be only authorized on subpoenas (validly) issued by counsel and the

clerk, the court is not so constrained. The first four lines of § 1825(b) are not limited to witness

fees incurred pursuant to a subpoena. The court must assume that Congress purposefully

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In this district, the district judge duties authorized by this statute have been delegated to

magistrate judges pursuant to 28 U.S.C. 636 (b)(1)(B) and (b)(3), and Eastern District, CA Local

Rule 72-302 (c)(17).

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differentiated between fees authorized by the judge4 (not limited to fees issued upon subpoena)

and those fees which were only authorized upon issuance of subpoenas as requested by counsel.

Accordingly, 

IT IS HEREBY ORDERED that the United States Marshal shall pay the travel,

subsistence and witness fees authorized by 28 U.S.C. § 1821 for the appearance of Lawanda

Jordan at evidentiary hearing before the undersigned to be held on July 26, 2005. Petitioner’s

counsel is directed to coordinate the logistics of travel of his witness with the United States

Marshal.

The Clerk shall serve the United States Marshal with this order and Cynthia Compton of the

Office of the Federal Defender.

DATED: 7/15/05

/s/ Gregory G. Hollows

 

 UNITED STATES MAGISTRATE JUDGE

GGH:gh:035 - gain0018.sub

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