[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC2255]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART VI--PARTICULAR PROCEEDINGS
CHAPTER 153--HABEAS CORPUS
Sec. 2255. Federal custody; remedies on motion attacking
sentence
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized
by law, or is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct the sentence.
Unless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief, the court shall cause
notice thereof to be served upon the United States attorney, grant a
prompt hearing thereon, determine the issues and make findings of fact
and conclusions of law with respect thereto. If the court finds that the
judgment was rendered without jurisdiction, or that the sentence imposed
was not authorized by law or otherwise open to collateral attack, or
that there has been such a denial or infringement of the constitutional
rights of the prisoner as to render the judgment vulnerable to
collateral attack, the court shall vacate and set the judgment aside and
shall discharge the prisoner or resentence him or grant a new trial or
correct the sentence as may appear appropriate.
A court may entertain and determine such motion without requiring
the production of the prisoner at the hearing.
An appeal may be taken to the court of appeals from the order
entered on the motion as from a final judgment on application for a writ
of habeas corpus.
An application for a writ of habeas corpus in behalf of a prisoner
who is authorized to apply for relief by motion pursuant to this
section, shall not be entertained if it appears that the applicant has
failed to apply for relief, by motion, to the court which sentenced him,
or that such court has denied him relief, unless it also appears that
the remedy by motion is inadequate or ineffective to test the legality
of his detention.
A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of--
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created
by governmental action in violation of the Constitution or laws of
the United States is removed, if the movant was prevented from
making a motion by such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable to
cases on collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
Except as provided in section 408 of the Controlled Substances Act,
in all proceedings brought under this section, and any subsequent
proceedings on review, the court may appoint counsel, except as provided
by a rule promulgated by the Supreme Court pursuant to statutory
authority. Appointment of counsel under this section shall be governed
by section 3006A of title 18.
A second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals to contain--
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to establish
by clear and convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable.
(June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139, Sec. 114,
63 Stat. 105; Pub. L. 104-132, title I, Sec. 105, Apr. 24, 1996, 110
Stat. 1220.)
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.
References in Text
Section 408 of the Controlled Substances Act, referred to in text,
is classified to section 848 of Title 21, Food and Drugs.
Amendments
1996--Pub. L. 104-132 inserted at end three new undesignated
paragraphs beginning ``A 1-year period of limitation'', ``Except as
provided in section 408 of the Controlled Substances Act'', and ``A
second or successive motion must be certified'' and struck out second
and fifth undesignated pars. providing, respectively, that ``A motion
for such relief may be made at any time.'' and ``The sentencing court
shall not be required to entertain a second or successive motion for
similar relief on behalf of the same prisoner.''
1949--Act May 24, 1949, substituted ``court established by Act of
Congress'' for ``court of the United States'' in first par.
Section Referred to in Other Sections
This section is referred to in sections 753, 1825, 2244, 2253, 2266
of this title; title 18 section 3006A; title 21 section 848.
Approval and Effective Date of Rules Governing Section 2254 Cases and
Section 2255 Proceedings For United States District Courts
Pub. L. 94-426, Sec. 1, Sept. 28, 1976, 90 Stat. 1334, provided:
``That the rules governing section 2254 cases in the United States
district courts and the rules governing section 2255 proceedings for the
United States district courts, as proposed by the United States Supreme
Court, which were delayed by the Act entitled `An Act to delay the
effective date of certain proposed amendments to the Federal Rules of
Criminal Procedure and certain other rules promulgated by the United
States Supreme Court' (Public Law 94-349), are approved with the
amendments set forth in section 2 of this Act and shall take effect as
so amended, with respect to petitions under section 2254 and motions
under section 2255 of title 28 of the United States Code filed on or
after February 1, 1977.''
Postponement of Effective Date of Proposed Rules and Forms Governing
Proceedings Under Sections 2254 and 2255 of this Title
Rules and forms governing proceedings under sections 2254 and 2255
of this title proposed by Supreme Court order of Apr. 26, 1976,
effective 30 days after adjournment sine die of 94th Congress, or until
and to the extent approved by Act of Congress, whichever is earlier, see
section 2 of Pub. L. 94-349, set out as a note under section 2074 of
this title.
RULES GOVERNING SECTION 2255 PROCEEDINGS FOR THE UNITED STATES DISTRICT
COURTS
(Effective February 1, 1977, as amended to January 22, 2002)
Rule
1. Scope of rules.
2. Motion.
3. Filing motion.
4. Preliminary consideration by judge.
5. Answers; contents.
6. Discovery.
7. Expansion of record.
8. Evidentiary hearing.
9. Delayed or successive motions.
10. Powers of magistrates.
11. Time for appeal.
12. Federal Rules of Criminal and Civil Procedure; extent of
applicability.
APPENDIX OF FORMS
Model form for motions under 28 U.S.C. Sec. 2255.
Model form for use in 28 U.S.C. Sec. 2255 cases involving a Rule 9
issue.
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
above.
Rule 1. Scope of Rules
These rules govern the procedure in the district court on a motion
under 28 U.S.C. Sec. 2255:
(1) by a person in custody pursuant to a judgment of that court
for a determination that the judgment was imposed in violation of
the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such judgment, or that the sentence
was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack; and
(2) by a person in custody pursuant to a judgment of a state or
other federal court and subject to future custody under a judgment
of the district court for a determination that such future custody
will be in violation of the Constitution or laws of the United
States, or that the district court was without jurisdiction to
impose such judgment, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack.
Advisory Committee Note
The basic scope of this postconviction remedy is prescribed by 28
U.S.C. Sec. 2255. Under these rules the person seeking relief from
federal custody files a motion to vacate, set aside, or correct
sentence, rather than a petition for habeas corpus. This is consistent
with the terminology used in section 2255 and indicates the difference
between this remedy and federal habeas for a state prisoner. Also,
habeas corpus is available to the person in federal custody if his
``remedy by motion is inadequate or ineffective to test the legality of
his detention.''
Whereas sections 2241-2254 (dealing with federal habeas corpus for
those in state custody) speak of the district court judge ``issuing the
writ'' as the operative remedy, section 2255 provides that, if the judge
finds the movant's assertions to be meritorious, he ``shall discharge
the prisoner or resentence him or grant a new trial or correct the
sentence as may appear appropriate.'' This is possible because a motion
under Sec. 2255 is a further step in the movant's criminal case and not
a separate civil action, as appears from the legislative history of
section 2 of S. 20, 80th Congress, the provisions of which were
incorporated by the same Congress in title 28 U.S.C. as Sec. 2255. In
reporting S. 20 favorably the Senate Judiciary Committee said (Sen. Rep.
1526, 80th Cong. 2d Sess., p. 2):
The two main advantages of such motion remedy over the present
habeas corpus are as follows:
First, habeas corpus is a separate civil action and not a further
step in the criminal case in which petitioner is sentenced (Ex parte Tom
Tong, 108 U.S. 556, 559 (1883)). It is not a determination of guilt or
innocence of the charge upon which petitioner was sentenced. Where a
prisoner sustains his right to discharge in habeas corpus, it is usually
because some right--such as lack of counsel--has been denied which
reflects no determination of his guilt or innocence but affects solely
the fairness of his earlier criminal trial. Even under the broad power
in the statute ``to dispose of the party as law and justice require''
(28 U.S.C.A., sec. 461), the court or judge is by no means in the same
advantageous position in habeas corpus to do justice as would be so if
the matter were determined in the criminal proceeding (see Medley,
petitioner, 134 U.S. 160, 174 (1890)). For instance, the judge (by
habeas corpus) cannot grant a new trial in the criminal case. Since the
motion remedy is in the criminal proceeding, this section 2 affords the
opportunity and expressly gives the broad powers to set aside the
judgment and to ``discharge the prisoner or resentence him or grant a
new trial or correct the sentence as may appear appropriate.''
The fact that a motion under Sec. 2255 is a further step in the
movant's criminal case rather than a separate civil action has
significance at several points in these rules. See, e.g., advisory
committee note to rule 3 (re no filing fee), advisory committee note to
rule 4 (re availability of files, etc., relating to the judgment),
advisory committee note to rule 6 (re availability of discovery under
criminal procedure rules), advisory committee note to rule 11 (re no
extension of time for appeal), and advisory committee not to rule 12 (re
applicability of federal criminal rules). However, the fact that
Congress has characterized the motion as a further step in the criminal
proceedings does not mean that proceedings upon such a motion are of
necessity governed by the legal principles which are applicable at a
criminal trial regarding such matters as counsel, presence,
confrontation, self-incrimination, and burden of proof.
The challenge of decisions such as the revocation of probation or
parole are not appropriately dealt with under 28 U.S.C. Sec. 2255, which
is a continuation of the original criminal action. Other remedies, such
as habeas corpus, are available in such situations.
Although rule 1 indicates that these rules apply to a motion for a
determination that the judgment was imposed ``in violation of the . . .
laws of the United States,'' the language of 28 U.S.C. Sec. 2255, it is
not the intent of these rules to define or limit what is encompassed
within that phrase. See Davis v. United States, 417 U.S. 333 (1974),
holding that it is not true ``that every asserted error of law can be
raised on a Sec. 2255 motion,'' and that the appropriate inquiry is
``whether the claimed error of law was a fundamental defect which
inherently results in a complete miscarriage of justice,' and whether
[i]t . . . present[s] exceptional circumstances where the need for the
remedy afforded by the writ of habeas corpus is apparent.' ''
For a discussion of the ``custody'' requirement and the intended
limited scope of this remedy, see advisory committee note to Sec. 2254
rule 1.
Rule 2. Motion
(a) Nature of application for relief. If the person is presently in
custody pursuant to the federal judgment in question, or if not
presently in custody may be subject to such custody in the future
pursuant to such judgment, the application for relief shall be in the
form of a motion to vacate, set aside, or correct the sentence.
(b) Form of motion. The motion shall be in substantially the form
annexed to these rules, except that any district court may by local rule
require that motions filed with it shall be in a form prescribed by the
local rule. Blank motions in the prescribed form shall be made available
without charge by the clerk of the district court to applicants upon
their request. It shall specify all the grounds for relief which are
available to the movant and of which he has or, by the exercise of
reasonable diligence, should have knowledge and shall set forth in
summary form the facts supporting each of the grounds thus specified. It
shall also state the relief requested. The motion shall be typewritten
or legibly handwritten and shall be signed under penalty of perjury by
the petitioner.
(c) Motion to be directed to one judgment only. A motion shall be
limited to the assertion of a claim for relief against one judgment only
of the district court. If a movant desires to attack the validity of
other judgments of that or any other district court under which he is in
custody or may be subject to future custody, as the case may be, he
shall do so by separate motions.
(d) Return of insufficient motion. If a motion received by the clerk
of a district court does not substantially comply with the requirements
of rule 2 or rule 3, it may be returned to the movant, if a judge of the
court so directs, together with a statement of the reason for its
return. The clerk shall retain a copy of the motion.
(As amended Pub. L. 94-426, Sec. 2(3), (4), Sept. 28, 1976, 90 Stat.
1334; Apr. 28, 1982, eff. Aug. 1, 1982.)
Advisory Committee Note
Under these rules the application for relief is in the form of a
motion rather than a petition (see rule 1 and advisory committee note).
Therefore, there is no requirement that the movant name a respondent.
This is consistent with 28 U.S.C. Sec. 2255. The United States Attorney
for the district in which the judgment under attack was entered is the
proper party to oppose the motion since the federal government is the
movant's adversary of record.
If the movant is attacking a federal judgment which will subject him
to future custody, he must be in present custody (see rule 1 and
advisory committee note) as the result of a state or federal
governmental action. He need not alter the nature of the motion by
trying to include the government officer who presently has official
custody of him as a psuedo-respondent, or third-party plaintiff, or
other fabrication. The court hearing his motion attacking the future
custody can exercise jurisdiction over those having him in present
custody without the use of artificial pleading devices.
There is presently a split among the courts as to whether a person
currently in state custody may use a Sec. 2255 motion to obtain relief
from a federal judgment under which he will be subjected to custody in
the future. Negative, see Newton v. United States, 329 F.Supp. 90 (S.D.
Texas 1971); affirmative, see Desmond v. The United States Board of
Parole, 397 F.2d 386 (1st Cir. 1968), cert. denied, 393 U.S. 919 (1968);
and Paalino v. United States, 314 F.Supp. 875 (C.D.Cal. 1970). It is
intended that these rules settle the matter in favor of the prisoner's
being able to file a Sec. 2255 motion for relief under those
circumstances. The proper district in which to file such a motion is the
one in which is situated the court which rendered the sentence under
attack.
Under rule 35, Federal Rules of Criminal Procedure, the court may
correct an illegal sentence or a sentence imposed in an illegal manner,
or may reduce the sentence. This remedy should be used, rather than a
motion under these Sec. 2255 rules, whenever applicable, but there is
some overlap between the two proceedings which has caused the courts
difficulty.
The movant should not be barred from an appropriate remedy because
he has misstyled his motion. See United States v. Morgan, 346 U.S. 502,
505 (1954). The court should construe it as whichever one is proper
under the circumstances and decide it on its merits. For a Sec. 2255
motion construed as a rule 35 motion, see Heflin v. United States, 358
U.S. 415 (1959); and United States v. Coke, 404 F.2d 836 (2d Cir. 1968).
For writ of error coram nobis treated as a rule 35 motion, see Hawkins
v. United States, 324 F.Supp. 223 (E.D.Texas, Tyler Division 1971). For
a rule 35 motion treated as a Sec. 2255 motion, see Moss v. United
States, 263 F.2d 615 (5th Cir. 1959); Jones v. United States, 400 F.2d
892 (8th Cir. 1968), cert. denied 394 U.S. 991 (1969); and United States
v. Brown, 413 F.2d 878 (9th Cir. 1969), cert. denied, 397 U.S. 947
(1970).
One area of difference between Sec. 2255 and rule 35 motions is that
for the latter there is no requirement that the movant be ``in
custody.'' Heflin v. United States, 358 U.S. 415, 418, 422 (1959);
Duggins v. United States, 240 F.2d 479, 483 (6th Cir. 1957). Compare
with rule 1 and advisory committee note for Sec. 2255 motions. The
importance of this distinction has decreased since Peyton v. Rowe, 391
U.S. 54 (1968), but it might still make a difference in particular
situations.
A rule 35 motion is used to attack the sentence imposed, not the
basis for the sentence. The court in Gilinsky v. United States, 335 F.2d
914, 916 (9th Cir. 1964), stated, ``a Rule 35 motion presupposes a valid
conviction. * * * [C]ollateral attack on errors allegedly committed at
trial is not permissible under Rule 35.'' By illustration the court
noted at page 917: ``a Rule 35 proceeding contemplates the correction of
a sentence of a court having jurisdiction. * * * [J]urisdictional
defects * * * involve a collateral attack, they must ordinarily be
presented under 28 U.S.C. Sec. 2255.'' In United States v. Semet, 295
F.Supp. 1084 (E.D. Okla. 1968), the prisoner moved under rule 35 and
Sec. 2255 to invalidate the sentence he was serving on the grounds of
his failure to understand the charge to which he pleaded guilty. The
court said:
As regards Defendant's Motion under Rule 35, said Motion must be
denied as its presupposes a valid conviction of the offense with
which he was charged and may be used only to attack the sentence. It
may not be used to examine errors occurring prior to the imposition
of sentence.
295 F.Supp. at 1085
See also: Moss v. United States, 263 F.2d at 616; Duggins v. United
States, 240 F. 2d at 484; Migdal v. United States, 298 F.2d 513, 514
(9th Cir. 1961); Jones v. United States, 400 F.2d at 894; United States
v. Coke, 404 F.2d at 847; and United States v. Brown, 413 F.2d at 879.
A major difficulty in deciding whether rule 35 or Sec. 2255 is the
proper remedy is the uncertainty as to what is meant by an ``illegal
sentence.'' The Supreme Court dealt with this issue in Hill v. United
States, 368 U.S. 424 (1962). The prisoner brought a Sec. 2255 motion to
vacate sentence on the ground that he had not been given a Fed.R.Crim.
P. 32(a) opportunity to make a statement in his own behalf at the time
of sentencing. The majority held this was not an error subject to
collateral attack under Sec. 2255. The five-member majority considered
the motion as one brought pursuant to rule 35, but denied relief,
stating:
[T]he narrow function of Rule 35 is to permit correction at any time
of an illegal sentence, not to re-examine errors occurring at the
trial or other proceedings prior to the imposition of sentence. The
sentence in this case was not illegal. The punishment meted out was
not in excess of that prescribed by the relevant statutes, multiple
terms were not imposed for the same offense, nor were the terms of
the sentence itself legally or constitutionally invalid in any other
respect.
368 U.S. at 430
The four dissenters felt the majority definition of ``illegal'' was too
narrow.
[Rule 35] provides for the correction of an ``illegal sentence''
without regard to the reasons why that sentence is illegal and
contains not a single word to support the Court's conclusion that
only a sentence illegal by reason of the punishment it imposes is
``illegal'' within the meaning of the Rule. I would have thought
that a sentence imposed in an illegal manner--whether the amount or
form of the punishment meted out constitutes an additional violation
of law or not--would be recognized as an ``illegal sentence'' under
any normal reading of the English language.
368 U.S. at 431-432
The 1966 amendment of rule 35 added language permitting correction of a
sentence imposed in an ``illegal manner.'' However, there is a 120-day
time limit on a motion to do this, and the added language does not
clarify the intent of the rule or its relation to Sec. 2255.
The courts have been flexible in considering motions under
circumstances in which relief might appear to be precluded by Hill v.
United States. In Peterson v. United States, 432 F.2d 545 (8th Cir.
1970), the court was confronted with a motion for reduction of sentence
by a prisoner claiming to have received a harsher sentence than his
codefendants because he stood trial rather than plead guilty. He alleged
that this violated his constitutional right to a jury trial. The court
ruled that, even though it was past the 120-day time period for a motion
to reduce sentence, the claim was still cognizable under rule 35 as a
motion to correct an illegal sentence.
The courts have made even greater use of Sec. 2255 in these types of
situations. In United States v. Lewis, 392 F.2d 440 (4th Cir. 1968), the
prisoner moved under Sec. 2255 and rule 35 for relief from a sentence he
claimed was the result of the judge's misunderstanding of the relevant
sentencing law. The court held that he could not get relief under rule
35 because it was past the 120 days for correction of a sentence imposed
in an illegal manner and under Hill v. United States it was not an
illegal sentence. However, Sec. 2255 was applicable because of its
``otherwise subject to collateral attack'' language. The flaw was not a
mere trial error relating to the finding of guilt, but a rare and
unusual error which amounted to ``exceptional circumstances'' embraced
in Sec. 2255's words ``collateral attack.'' See 368 U.S. at 444 for
discussion of other cases allowing use of Sec. 2255 to attack the
sentence itself in similar circumstances, especially where the judge has
sentenced out of a misapprehension of the law.
In United States v. McCarthy, 433 F.2d 591, 592 (1st Cir. 1970), the
court allowed a prisoner who was past the time limit for a proper rule
35 motion to use Sec. 2255 to attack the sentence which he received upon
a plea of guilty on the ground that it was induced by an unfulfilled
promise of the prosecutor to recommend leniency. The court specifically
noted that under Sec. 2255 this was a proper collateral attack on the
sentence and there was no need to attack the conviction as well.
The court in United States v. Malcolm, 432 F.2d 809, 814, 818 (2d
Cir. 1970), allowed a prisoner to challenge his sentence under Sec. 2255
without attacking the conviction. It held rule 35 inapplicable because
the sentence was not illegal on its face, but the manner in which the
sentence was imposed raised a question of the denial of due process in
the sentencing itself which was cognizable under Sec. 2255.
The flexible approach taken by the courts in the above cases seems
to be the reasonable way to handle these situations in which rule 35 and
Sec. 2255 appear to overlap. For a further discussion of this problem,
see C. Wright, Federal Practice and Procedure; Criminal Secs. 581-587
(1969, Supp. 1975).
See the advisory committee note to rule 2 of the Sec. 2254 rules for
further discussion of the purposes and intent of rule 2 of these
Sec. 2255 rules.
1982 Amendment
Subdivision (b). The amendment takes into account 28 U.S.C.
Sec. 1746, enacted after adoption of the Sec. 2255 rules. Section 1746
provides that in lieu of an affidavit an unsworn statement may be given
under penalty of perjury in substantially the following form if executed
within the United States, its territories, possessions or commonwealths:
``I declare (or certify, verify, or state) under penalty of perjury that
the foregoing is true and correct. Executed on (date). (Signature).''
The statute is ``intended to encompass prisoner litigation,'' and the
statutory alternative is especially appropriate in such cases because a
notary might not be readily available. Carter v. Clark, 616 F.2d 228
(5th Cir. 1980). The Sec. 2255 forms have been revised accordingly.
Amendments
1976--Subd. (b). Pub. L. 94-426, Sec. 2(3), inserted
``substantially'' after ``The motion shall be in'', and struck out
requirement that the motion follow the prescribed form.
Subd. (d). Pub. L. 94-426, Sec. 2(4), inserted ``substantially''
after ``district court does not'', and struck out provision which
permitted the clerk to return a motion for noncompliance without a judge
so directing.
Rule 3. Filing Motion
(a) Place of filing; copies. A motion under these rules shall be
filed in the office of the clerk of the district court. It shall be
accompanied by two conformed copies thereof.
(b) Filing and service. Upon receipt of the motion and having
ascertained that it appears on its face to comply with rules 2 and 3,
the clerk of the district court shall file the motion and enter it on
the docket in his office in the criminal action in which was entered the
judgment to which it is directed. He shall thereupon deliver or serve a
copy of the motion together with a notice of its filing on the United
States Attorney of the district in which the judgment under attack was
entered. The filing of the motion shall not require said United States
Attorney to answer the motion or otherwise move with respect to it
unless so ordered by the court.
Advisory Committee Note
There is no filing fee required of a movant under these rules. This
is a change from the practice of charging $15 and is done to recognize
specifically the nature of a Sec. 2255 motion as being a continuation of
the criminal case whose judgment is under attack.
The long-standing practice of requiring a $15 filing fee has
followed from 28 U.S.C. Sec. 1914(a) whereby ``parties instituting any
civil action * * * pay a filing fee of $15, except that on an
application for a writ of habeas corpus the filing fee shall be $5.''
This has been held to apply to a proceeding under Sec. 2255 despite the
rationale that such a proceeding is a motion and thus a continuation of
the criminal action. (See note to rule 1.)
A motion under Section 2255 is a civil action and the clerk has
no choice but to charge a $15.00 filing fee unless by leave of court
it is filed in forma pauperis.
McCune v. United States, 406 F.2d 417, 419 (6th Cir. 1969).
Although the motion has been considered to be a new civil action in
the nature of habeas corpus for filing purposes, the reduced fee for
habeas has been held not applicable. The Tenth Circuit considered the
specific issue in Martin v. United States, 273 F.2d 775 (10th Cir.
1960), cert. denied, 365 U.S. 853 (1961), holding that the reduced fee
was exclusive to habeas petitions.
Counsel for Martin insists that, if a docket fee must be paid,
the amount is $5 rather than $15 and bases his contention on the
exception contained in 28 U.S.C. Sec. 1914 that in habeas corpus the
fee is $5. This reads into Sec. 1914 language which is not there.
While an application under Sec. 2255 may afford the same relief as
that previously obtainable by habeas corpus, it is not a petition
for a writ of habeas corpus. A change in Sec. 1914 must come from
Congress.
273 F.2d at 778
Although for most situations Sec. 2255 is intended to provide to the
federal prisoner a remedy equivalent to habeas corpus as used by state
prisoners, there is a major distinction between the two. Calling a
Sec. 2255 request for relief a motion rather than a petition militates
toward charging no new filing fee, not an increased one. In the absence
of convincing evidence to the contrary, there is no reason to suppose
that Congress did not mean what it said in making a Sec. 2255 action a
motion. Therefore, as in other motions filed in a criminal action, there
is no requirement of a filing fee. It is appropriate that the present
situation of docketing a Sec. 2255 motion as a new action and charging a
$15 filing fee be remedied by the rule when the whole question of
Sec. 2255 motions is thoroughly thought through and organized.
Even though there is no need to have a forma pauperis affidavit to
proceed with the action since there is no requirement of a fee for
filing the motion the affidavit remains attached to the form to be
supplied potential movants. Most such movants are indigent, and this is
a convenient way of getting this into the official record so that the
judge may appoint counsel, order the government to pay witness fees,
allow docketing of an appeal, and grant any other rights to which an
indigent is entitled in the course of a Sec. 2255 motion, when
appropriate to the particular situation, without the need for an
indigency petition and adjudication at such later point in the
proceeding. This should result in a streamlining of the process to allow
quicker disposition of these motions.
For further discussion of this rule, see the advisory committee note
to rule 3 of the Sec. 2254 rules.
Rule 4. Preliminary Consideration by Judge
(a) Reference to judge; dismissal or order to answer. The original
motion shall be presented promptly to the judge of the district court
who presided at the movant's trial and sentenced him, or, if the judge
who imposed sentence was not the trial judge, then it shall go to the
judge who was in charge of that part of the proceedings being attacked
by the movant. If the appropriate judge is unavailable to consider the
motion, it shall be presented to another judge of the district in
accordance with the procedure of the court for the assignment of its
business.
(b) Initial consideration by judge. The motion, together with all
the files, records, transcripts, and correspondence relating to the
judgment under attack, shall be examined promptly by the judge to whom
it is assigned. If it plainly appears from the face of the motion and
any annexed exhibits and the prior proceedings in the case that the
movant is not entitled to relief in the district court, the judge shall
make an order for its summary dismissal and cause the movant to be
notified. Otherwise, the judge shall order the United States Attorney to
file an answer or other pleading within the period of time fixed by the
court or to take such other action as the judge deems appropriate.
Advisory Committee Note
Rule 4 outlines the procedure for assigning the motion to a specific
judge of the district court and the options available to the judge and
the government after the motion is properly filed.
The long-standing majority practice in assigning motions made
pursuant to Sec. 2255 has been for the trial judge to determine the
merits of the motion. In cases where the Sec. 2255 motion is directed
against the sentence, the merits have traditionally been decided by the
judge who imposed sentence. The reasoning for this was first noted in
Currell v. United States, 173 F.2d 348, 348-349 (4th Cir. 1949):
Complaint is made that the judge who tried the case passed upon
the motion. Not only was there no impropriety in this, but it is
highly desirable in such cases that the motions be passed on by the
judge who is familiar with the facts and circumstances surrounding
the trial, and is consequently not likely to be misled by false
allegations as to what occurred.
This case, and its reasoning, has been almost unanimously endorsed by
other courts dealing with the issue.
Commentators have been critical of having the motion decided by the
trial judge. See Developments in the Law--Federal Habeas Corpus, 83
Harv.L.Rev. 1038, 1206-1208 (1970).
[T]he trial judge may have become so involved with the decision that
it will be difficult for him to review it objectively. Nothing in
the legislative history suggests that ``court'' refers to a specific
judge, and the procedural advantages of section 2255 are available
whether or not the trial judge presides at the hearing.
The theory that Congress intended the trial judge to preside at
a section 2255 hearing apparently originated in Carvell v. United
States, 173 F.2d 348 (4th Cir. 1949) (per curiam), where the panel
of judges included Chief Judge Parker of the Fourth Circuit,
chairman of the Judicial Conference committee which drafted section
2255. But the legislative history does not indicate that Congress
wanted the trial judge to preside. Indeed the advantages of section
2255 can all be achieved if the case is heard in the sentencing
district, regardless of which judge hears it. According to the
Senate committee report the purpose of the bill was to make the
proceeding a part of the criminal action so the court could
resentence the applicant, or grant him a new trial. (A judge
presiding over a habeas corpus action does not have these powers.)
In addition, Congress did not want the cases heard in the district
of confinement because that tended to concentrate the burden on a
few districts, and made it difficult for witnesses and records to be
produced.
83 Harv.L.Rev. at 1207-1208
The Court of Appeals for the First Circuit has held that a judge
other than the trial judge should rule on the 2255 motion. See Halliday
v. United States, 380 F.2d 270 (1st Cir. 1967).
There is a procedure by which the movant can have a judge other than
the trial judge decide his motion in courts adhering to the majority
rule. He can file an affidavit alleging bias in order to disqualify the
trial judge. And there are circumstances in which the trial judge will,
on his own, disqualify himself. See, e.g., Webster v. United States, 330
F.Supp. 1080 (1972). However, there has been some questioning of the
effectiveness of this procedure. See Developments in the Law--Federal
Habeas Corpus, 83 Harv.L.Rev. 1038, 1200-1207 (1970).
Subdivision (a) adopts the majority rule and provides that the trial
judge, or sentencing judge if different and appropriate for the
particular motion, will decide the motion made pursuant to these rules,
recognizing that, under some circumstances, he may want to disqualify
himself. A movant is not without remedy if he feels this is unfair to
him. He can file an affidavit of bias. And there is the right to
appellate review if the trial judge refuses to grant his motion. Because
the trial judge is thoroughly familiar with the case, there is obvious
administrative advantage in giving him the first opportunity to decide
whether there are grounds for granting the motion.
Since the motion is part of the criminal action in which was entered
the judgment to which it is directed, the files, records, transcripts,
and correspondence relating to that judgment are automatically available
to the judge in his consideration of the motion. He no longer need order
them incorporated for that purpose.
Rule 4 has its basis in Sec. 2255 (rather than 28 U.S.C. Sec. 2243
in the corresponding habeas corpus rule) which does not have a specific
time limitation as to when the answer must be made. Also, under
Sec. 2255, the United States Attorney for the district is the party
served with the notice and a copy of the motion and required to answer
(when appropriate). Subdivision (b) continues this practice since there
is no respondent involved in the motion (unlike habeas) and the United
States Attorney, as prosecutor in the case in question, is the most
appropriate one to defend the judgment and oppose the motion.
The judge has discretion to require an answer or other appropriate
response from the United States Attorney. See advisory committee note to
rule 4 of the Sec. 2254 rules.
Rule 5. Answer; Contents
(a) Contents of answer. The answer shall respond to the allegations
of the motion. In addition it shall state whether the movant has used
any other available federal remedies including any prior post-conviction
motions under these rules or those existing previous to the adoption of
the present rules. The answer shall also state whether an evidentiary
hearing was accorded the movant in a federal court.
(b) Supplementing the answer. The court shall examine its files and
records to determine whether it has available copies of transcripts and
briefs whose existence the answer has indicated. If any of these items
should be absent, the government shall be ordered to supplement its
answer by filing the needed records. The court shall allow the
government an appropriate period of time in which to do so, without
unduly delaying the consideration of the motion.
Advisory Committee Note
Unlike the habeas corpus statutes (see 28 U.S.C. Secs. 2243, 2248)
Sec. 2255 does not specifically call for a return or answer by the
United States Attorney or set any time limits as to when one must be
submitted. The general practice, however, if the motion is not summarily
dismissed, is for the government to file an answer to the motion as well
as counter-affidavits, when appropriate. Rule 4 provides for an answer
to the motion by the United States Attorney, and rule 5 indicates what
its contents should be.
There is no requirement that the movant exhaust his remedies prior
to seeking relief under Sec. 2255. However, the courts have held that
such a motion is inappropriate if the movant is simultaneously appealing
the decision.
We are of the view that there is no jurisdictional bar to the
District Court's entertaining a Section 2255 motion during the
pendency of a direct appeal but that the orderly administration of
criminal law precludes considering such a motion absent
extraordinary circumstances.
Womack v. United States, 395 F.2d 630, 631 (D.C.Cir. 1968)
Also see Masters v. Eide, 353 F.2d 517 (8th Cir. 1965). The answer may
thus cut short consideration of the motion if it discloses the taking of
an appeal which was omitted from the form motion filed by the movant.
There is nothing in Sec. 2255 which corresponds to the Sec. 2248
requirement of a traverse to the answer. Numerous cases have held that
the government's answer and affidavits are not conclusive against the
movant, and if they raise disputed issues of fact a hearing must be
held. Machibroda v. United States, 368 U.S. 487, 494, 495 (1962); United
States v. Salerno, 290 F.2d 105, 106 (2d Cir. 1961); Romero v. United
States, 327 F.2d 711, 712 (5th Cir. 1964); Scott v. United States, 349
F.2d 641, 642, 643 (6th Cir. 1965); Schiebelhut v. United States, 357
F.2d 743, 745 (6th Cir. 1966); and Del Piano v. United States, 362 F.2d
931, 932, 933 (3d Cir. 1966). None of these cases make any mention of a
traverse by the movant to the government's answer. As under rule 5 of
the Sec. 2254 rules, there is no intention here that such a traverse be
required, except under special circumstances. See advisory committee
note to rule 9.
Subdivision (b) provides for the government to supplement its
answers with appropriate copies of transcripts or briefs if for some
reason the judge does not already have them under his control. This is
because the government will in all probability have easier access to
such papers than the movant, and it will conserve the court's time to
have the government produce them rather than the movant, who would in
most instances have to apply in forma pauperis for the government to
supply them for him anyway.
For further discussion, see the advisory committee note to rule 5 of
the Sec. 2254 rules.
Rule 6. Discovery
(a) Leave of court required. A party may invoke the processes of
discovery available under the Federal Rules of Criminal Procedure or the
Federal Rules of Civil Procedure or elsewhere in the usages and
principles of law if, and to the extent that, the judge in the exercise
of his discretion and for good cause shown grants leave to do so, but
not otherwise. If necessary for effective utilization of discovery
procedures, counsel shall be appointed by the judge for a movant who
qualifies for appointment of counsel under 18 U.S.C. Sec. 3006A(g).
(b) Requests for discovery. Requests for discovery shall be
accompanied by a statement of the interrogatories or requests for
admission and a list of the documents, if any, sought to be produced.
(c) Expenses. If the government is granted leave to take the
deposition of the movant or any other person, the judge may as a
condition of taking it direct that the government pay the expenses of
travel and subsistence and fees of counsel for the movant to attend the
taking of the deposition.
Advisory Committee Note
This rule differs from the corresponding discovery rule under the
Sec. 2254 rules in that it includes the processes of discovery available
under the Federal Rules of Criminal Procedure as well as the civil. This
is because of the nature of a Sec. 2255 motion as a continuing part of
the criminal proceeding (see advisory committee note to rule 1) as well
as a remedy analogous to habeas corpus by state prisoners.
See the advisory committee note to rule 6 of the Sec. 2254 rules.
The discussion there is fully applicable to discovery under these rules
for Sec. 2255 motions.
Rule 7. Expansion of Record
(a) Direction for expansion. If the motion is not dismissed
summarily, the judge may direct that the record be expanded by the
parties by the inclusion of additional materials relevant to the
determination of the merits of the motion.
(b) Materials to be added. The expanded record may include, without
limitation, letters predating the filing of the motion in the district
court, documents, exhibits, and answers under oath, if so directed, to
written interrogatories propounded by the judge. Affidavits may be
submitted and considered as a part of the record.
(c) Submission to opposing party. In any case in which an expanded
record is directed, copies of the letters, documents, exhibits, and
affidavits proposed to be included shall be submitted to the party
against whom they are to be offered, and he shall be afforded an
opportunity to admit or deny their correctness.
(d) Authentication. The court may require the authentication of any
material under subdivision (b) or (c).
Advisory Committee Note
It is less likely that the court will feel the need to expand the
record in a Sec. 2255 proceeding than in a habeas corpus proceeding,
because the trial (or sentencing) judge is the one hearing the motion
(see rule 4) and should already have a complete file on the case in his
possession. However, rule 7 provides a convenient method for
supplementing his file if the case warrants it.
See the advisory committee note to rule 7 of the Sec. 2254 rules for
a full discussion of reasons and procedures for expanding the record.
Rule 8. Evidentiary Hearing
(a) Determination by court. If the motion has not been dismissed at
a previous stage in the proceeding, the judge, after the answer is filed
and any transcripts or records of prior court actions in the matter are
in his possession, shall, upon a review of those proceedings and of the
expanded record, if any, determine whether an evidentiary hearing is
required. If it appears that an evidentiary hearing is not required, the
judge shall make such disposition of the motion as justice dictates.
(b) Function of the magistrate.
(1) When designated to do so in accordance with 28 U.S.C.
Sec. 636(b), a magistrate may conduct hearings, including
evidentiary hearings, on the motion, and submit to a judge of the
court proposed findings and recommendations for disposition.
(2) The magistrate shall file proposed findings and
recommendations with the court and a copy shall forthwith be mailed
to all parties.
(3) Within ten days after being served with a copy, any party
may serve and file written objections to such proposed findings and
recommendations as provided by rules of court.
(4) A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the court may
accept, reject, or modify in whole or in part any findings or
recommendations made by the magistrate.
(c) Appointment of counsel; time for hearing. If an evidentiary
hearing is required, the judge shall appoint counsel for a movant who
qualifies for the appointment of counsel under 18 U.S.C. Sec. 3006A(g)
and the hearing shall be conducted as promptly as practicable, having
regard for the need of counsel for both parties for adequate time for
investigation and preparation. These rules do not limit the appointment
of counsel under 18 U.S.C. Sec. 3006A at any stage of the proceeding if
the interest of justice so requires.
(d) Production of statements at evidentiary hearing.
(1) In general. Federal Rule of Criminal Procedure 26.2(a)-(d),
and (f) applies at an evidentiary hearing under these rules.
(2) Sanctions for failure to produce statement. If a party
elects not to comply with an order under Federal Rule of Criminal
Procedure 26.2(a) to deliver a statement to the moving party, at the
evidentiary hearing the court may not consider the testimony of the
witness whose statement is withheld.
(As amended Pub. L. 94-426, Sec. 2(6), Sept. 28, 1976, 90 Stat. 1335;
Pub. L. 94-577, Sec. 2(a)(2), (b)(2), Oct. 21, 1976, 90 Stat. 2730,
2731; Apr. 22, 1993, eff. Dec. 1, 1993.)
Advisory Committee Note
The standards for Sec. 2255 hearings are essentially the same as for
evidentiary hearings under a habeas petition, except that the previous
federal fact-finding proceeding is in issue rather than the state's.
Also Sec. 2255 does not set specific time limits for holding the
hearing, as does Sec. 2243 for a habeas action. With these minor
differences in mind, see the advisory committee note to rule 8 of
Sec. 2254 rules, which is applicable to rule 8 of these Sec. 2255 rules.
1993 Amendment
The amendment to Rule 8 is one of a series of parallel amendments to
Federal Rules of Criminal Procedure 32, 32.1, and 46 which extend the
scope of Rule 26.2 (Production of Witness Statements) to proceedings
other than the trial itself. The amendments are grounded on the
compelling need for accurate and credible information in making
decisions concerning the defendant's liberty. See the Advisory Committee
Note to Rule 26.2(g). A few courts have recognized the authority of a
judicial officer to order production of prior statements by a witness at
a Section 2255 hearing, see, e.g., United States v. White, 342 F.2d 379,
382, n.4 (4th Cir. 1959). The amendment to Rule 8 grants explicit
authority to do so. The amendment is not intended to require production
of a witness's statement before the witness actually presents oral
testimony.
Amendments
1976--Subd. (b). Pub. L. 94-577, Sec. 2(a)(2), substituted
provisions which authorized magistrates, when designated to do so in
accordance with section 636(b) of this title, to conduct hearings,
including evidentiary hearings, on the petition and to submit to a judge
of the court proposed findings of fact and recommendations for
disposition, which directed the magistrate to file proposed findings and
recommendations with the court with copies furnished to all parties,
which allowed parties thus served 10 days to file written objections
thereto, and which directed a judge of the court to make de novo
determinations of the objected-to portions and to accept, reject, or
modify the findings or recommendations for provisions under which the
magistrate had been empowered only to recommend to the district judge
that an evidentiary hearing be held or that the petition be dismissed.
Subd. (c). Pub. L. 94-577, Sec. 2(b)(2), substituted ``and the
hearing shall be conducted'' for ``and shall conduct the hearing.''
Pub. L. 94-426 provided that these rules not limit the appointment
of counsel under section 3006A of title 18, if the interest of justice
so require.
Effective Date of 1976 Amendment
Amendments made by Pub. L. 94-577 effective with respect to motions
under section 2255 of this title filed on or after Feb. 1, 1977, see
section 2(c) of Pub. L. 94-577, set out as a note under Rule 8 of the
Rules Governing Cases Under Section 2254 of this title.
Rule 9. Delayed or Successive Motions
(a) Delayed motions. A motion for relief made pursuant to these
rules may be dismissed if it appears that the government has been
prejudiced in its ability to respond to the motion by delay in its
filing unless the movant shows that it is based on grounds of which he
could not have had knowledge by the exercise of reasonable diligence
before the circumstances prejudicial to the government occurred.
(b) Successive motions. A second or successive motion may be
dismissed if the judge finds that it fails to allege new or different
grounds for relief and the prior determination was on the merits or, if
new and different grounds are alleged, the judge finds that the failure
of the movant to assert those grounds in a prior motion constituted an
abuse of the procedure governed by these rules.
(As amended Pub. L. 94-426, Sec. 2(9), (10), Sept. 28, 1976, 90 Stat.
1335.)
Advisory Committee Note
Unlike the statutory provisions on habeas corpus (28 U.S.C.
Secs. 2241-2254), Sec. 2255 specifically provides that ``a motion for
such relief may be made at any time.'' [Emphasis added.] Subdivision (a)
provides that delayed motions may be barred from consideration if the
government has been prejudiced in its ability to respond to the motion
by the delay and the movant's failure to seek relief earlier is not
excusable within the terms of the rule. Case law, dealing with this
issue, is in conflict.
Some courts have held that the literal language of Sec. 2255
precludes any possible time bar to a motion brought under it. In Heflin
v. United States, 358 U.S. 415 (1959), the concurring opinion noted:
The statute [28 U.S.C. Sec. 2255] further provides; ``A motion * * *
may be made at any time.'' This * * * simply means that, as in
habeas corpus, there is no statute of limitations, no res judicata,
and that the doctrine of laches is inapplicable.
358 U.S. at 420
McKinney v. United States, 208 F.2d 844 (D.C.Cir. 1953) reversed the
district court's dismissal of a Sec. 2255 motion for being too late, the
court stating:
McKinney's present application for relief comes late in the day:
he has served some fifteen years in prison. But tardiness is
irrelevant where a constitutional issue is raised and where the
prisoner is still confined.
208 F.2d at 846, 847
In accord, see: Juelich v. United States, 300 F.2d 381, 383 (5th Cir.
1962); Conners v. United States, 431 F.2d 1207, 1208 (9th Cir. 1970);
Sturrup v. United States, 218 F.Supp. 279, 281 (E.D.N.Car. 1963); and
Banks v. United States, 319 F.Supp. 649, 652 (S.D.N.Y. 1970).
It has also been held that delay in filing a Sec. 2255 motion does
not bar the movant because of lack of reasonable diligence in pressing
the claim.
The statute [28 U.S.C. Sec. 2255], when it states that the motion
may be made at any time, excludes the addition of a showing of
diligence in delayed filings. A number of courts have considered
contentions similar to those made here and have concluded that there
are no time limitations. This result excludes the requirement of
diligence which is in reality a time limitation.
Haier v. United States, 334 F.2d 441, 442 (10th Cir. 1964)
Other courts have recognized that delay may have a negative effect
on the movant. In Raines v. United States, 423 F.2d 526 (4th Cir. 1970),
the court stated:
[B]oth petitioners' silence for extended periods, one for 28 months
and the other for nine years, serves to render their allegations
less believable. ``Although a delay in filing a section 2255 motion
is not a controlling element * * * it may merit some consideration *
* *.''
423 F.2d at 531
In Aiken v. United States, 191 F.Supp. 43, 50 (M.D.N.Car. 1961),
aff'd 296 F.2d 604 (4th Cir. 1961), the court said: ``While motions
under 28 U.S.C. Sec. 2255 may be made at any time, the lapse of time
affects the good faith and credibility of the moving party.'' For
similar conclusions, see: Parker v. United States, 358 F.2d 50, 54 n. 4
(7th Cir. 1965), cert. denied, 386 U.S. 916 (1967); Le Clair v. United
States, 241 F.Supp. 819, 824 (N.D. Ind. 1965); Malone v. United States,
299 F.2d 254, 256 (6th Cir. 1962), cert. denied, 371 U.S. 863 (1962);
Howell v. United States, 442 F.2d 265, 274 (7th Cir. 1971); and United
States v. Wiggins, 184 F. Supp. 673, 676 (D.C.Cir. 1960).
There have been holdings by some courts that a delay in filing a
Sec. 2255 motion operates to increase the burden of proof which the
movant must meet to obtain relief. The reasons for this, as expressed in
United States v. Bostic, 206 F.Supp. 855 (D.C.Cir. 1962), are equitable
in nature.
Obviously, the burden of proof on a motion to vacate a sentence
under 28 U.S.C. Sec. 2255 is on the moving party. . . . The burden
is particularly heavy if the issue is one of fact and a long time
has elapsed since the trial of the case. While neither the statute
of limitations nor laches can bar the assertion of a constitutional
right, nevertheless, the passage of time may make it impracticable
to retry a case if the motion is granted and a new trial is ordered.
No doubt, at times such a motion is a product of an afterthought.
Long delay may raise a question of good faith.
206 F.Supp. at 856-857
See also United States v. Wiggins, 184 F.Supp. at 676.
A requirement that the movant display reasonable diligence in filing
a Sec. 2255 motion has been adopted by some courts dealing with delayed
motions. The court in United States v. Moore, 166 F.2d 102 (7th Cir.
1948), cert. denied, 334 U.S. 849 (1948), did this, again for equitable
reasons.
[W]e agree with the District Court that the petitioner has too
long slept upon his rights. * * * [A]pparently there is no
limitation of time within which * * * a motion to vacate may be
filed, except that an applicant must show reasonable diligence in
presenting his claim. * * *
The reasons which support the rule requiring diligence seem
obvious. * * * Law enforcement officials change, witnesses die,
memories grow dim. The prosecuting tribunal is put to a disadvantage
if an unexpected retrial should be necessary after long passage of
time.
166 F.2d at 105
In accord see Desmond v. United States, 333 F.2d 378, 381 (1st Cir.
1964), on remand, 345 F.2d 225 (1st Cir. 1965).
One of the major arguments advanced by the courts which would
penalize a movant who waits an unduly long time before filing a
Sec. 2255 motion is that such delay is highly prejudicial to the
prosecution. In Desmond v. United States, writing of a Sec. 2255 motion
alleging denial of effective appeal because of deception by movant's own
counsel, the court said:
[A]pplications for relief such as this must be made promptly. It
will not do for a prisoner to wait until government witnesses have
become unavailable as by death, serious illness or absence from the
country, or until the memory of available government witnesses has
faded. It will not even do for a prisoner to wait any longer than is
reasonably necessary to prepare appropriate moving papers, however
inartistic, after discovery of the deception practiced upon him by
his attorney.
333 F.2d at 381
In a similar vein are United States v. Moore and United States v.
Bostic, supra, and United States v. Wiggins, 184 F. Supp. at 676.
Subdivision (a) provides a flexible, equitable time limitation based
on laches to prevent movants from withholding their claims so as to
prejudice the government both in meeting the allegations of the motion
and in any possible retrial. It includes a reasonable diligence
requirement for ascertaining possible grounds for relief. If the delay
is found to be excusable, or nonprejudicial to the government, the time
bar is inoperative.
Subdivision (b) is consistent with the language of Sec. 2255 and
relevant case law.
The annexed form is intended to serve the same purpose as the
comparable one included in the Sec. 2254 rules.
For further discussion applicable to this rule, see the advisory
committee note to rule 9 of the Sec. 2254 rules.
Amendments
1976--Subd. (a). Pub. L. 94-426, Sec. 2(9), struck out provision
which established a rebuttable presumption of prejudice to government if
the petition was filed more than five years after conviction.
Subd. (b). Pub. L. 94-426, Sec. 2(10), substituted ``constituted an
abuse of the procedure governed by these rules'' for ``is not
excusable''.
Rule 10. Powers of Magistrates
The duties imposed upon the judge of the district court by these
rules may be performed by a United States magistrate pursuant to 28
U.S.C. Sec. 636.
(As amended Pub. L. 94-426, Sec. 2(12), Sept. 28, 1976, 90 Stat. 1335;
Apr. 30, 1979, eff. Aug. 1, 1979.)
Advisory Committee Note
See the advisory committee note to rule 10 of the Sec. 2254 rules
for a discussion fully applicable here as well.
1979 Amendment
This amendment conforms the rule to 18 U.S.C. Sec. 636. See Advisory
Committee Note to rule 10 of the Rules Governing Section 2254 Cases in
the United States District Courts.
Amendments
1976--Pub. L. 94-426 inserted ``, and to the extent the district
court has established standards and criteria for the performance of such
duties,'' after ``rule of the district court''.
Change of Name
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of Pub.
L. 101-650, set out as a note under section 631 of this title.
Rule 11. Time for Appeal
The time for appeal from an order entered on a motion for relief
made pursuant to these rules is as provided in Rule 4(a) of the Federal
Rules of Appellate Procedure. Nothing in these rules shall be construed
as extending the time to appeal from the original judgment of conviction
in the district court.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979.)
Advisory Committee Note
Rule 11 is intended to make clear that, although a Sec. 2255 action
is a continuation of the criminal case, the bringing of a Sec. 2255
action does not extend the time.
1979 Amendment
Prior to the promulgation of the Rules Governing Section 2255
Proceedings, the courts consistently held that the time for appeal in a
section 2255 case is as provided in Fed.R.App.P. 4(a), that is, 60 days
when the government is a party, rather than as provided in appellate
rule 4(b), which says that the time is 10 days in criminal cases. This
result has often been explained on the ground that rule 4(a) has to do
with civil cases and that ``proceedings under section 2255 are civil in
nature.'' E.g., Rothman v. United States, 508 F.2d 648 (3d Cir. 1975).
Because the new section 2255 rules are based upon the premise ``that a
motion under Sec. 2255 is a further step in the movant's criminal case
rather than a separate civil action,'' see Advisory Committee Note to
rule 1, the question has arisen whether the new rules have the effect of
shortening the time for appeal to that provided in appellate rule 4(b).
A sentence has been added to rule 11 in order to make it clear that this
is not the case.
Even though section 2255 proceedings are a further step in the
criminal case, the added sentence correctly states current law. In
United States v. Hayman, 342 U.S. 205 (1952), the Supreme Court noted
that such appeals ``are governed by the civil rules applicable to
appeals from final judgments in habeas corpus actions.'' In support, the
Court cited Mercado v. United States, 183 F.2d 486 (1st Cir. 1950), a
case rejecting the argument that because Sec. 2255 proceedings are
criminal in nature the time for appeal is only 10 days. The Mercado
court concluded that the situation was governed by that part of 28
U.S.C. Sec. 2255 which reads: ``An appeal may be taken to the court of
appeals from the order entered on the motion as from a final judgment on
application for a writ of habeas corpus.'' Thus, because appellate rule
4(a) is applicable in habeas cases, it likewise governs in Sec. 2255
cases even though they are criminal in nature.
Rule 12. Federal Rules of Criminal and Civil Procedure; Extent of
Applicability
If no procedure is specifically prescribed by these rules, the
district court may proceed in any lawful manner not inconsistent with
these rules, or any applicable statute, and may apply the Federal Rules
of Criminal Procedure or the Federal Rules of Civil Procedure, whichever
it deems most appropriate, to motions filed under these rules.
Advisory Committee Note
This rule differs from rule 11 of the Sec. 2254 rules in that it
includes the Federal Rules of Criminal Procedure as well as the civil.
This is because of the nature of a Sec. 2255 motion as a continuing part
of the criminal proceeding (see advisory committee note to rule 1) as
well as a remedy analogous to habeas corpus by state prisoners.
Since Sec. 2255 has been considered analogous to habeas as respects
the restrictions in Fed.R.Civ.P. 81(a)(2) (see Sullivan v. United
States, 198 F.Supp. 624 (S.D.N.Y. 1961)), rule 12 is needed. For
discussion, see the advisory committee note to rule 11 of the Sec. 2254
rules.
References in Text
The Federal Rules of Criminal Procedure, referred to in text, are
classified generally to the Appendix to Title 18, Crimes and Criminal
Procedure.
The Federal Rules of Civil Procedure, referred to in text, are
classified generally to the Appendix to this title.
APPENDIX OF FORMS
MODEL FORM FOR MOTIONS UNDER 28 U.S.C. Sec. 2255
Name __________________________
Prison Number _____________________
Place of Confinement _________________
United States District Court ___ District of ____
Case No. ____ (to be supplied by Clerk of U.S. District Court)
United States,
v.
_________________________
(full name of movant)
(If movant has a sentence to be served in the future under a federal
judgment which he wishes to attack, he should file a motion in the
federal court which entered the judgment.)
MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN
FEDERAL CUSTODY
(1) This motion must be legibly handwritten or typewritten, and signed
by the movant under penalty of perjury. Any false statement of a
material fact may serve as the basis for prosecution and
conviction for perjury. All questions must be answered concisely
in the proper space on the form.
(2) Additional pages are not permitted except with respect to the facts
which you rely upon to support your grounds for relief. No
citation of authorities need be furnished. If briefs or
arguments are submitted, they should be submitted in the form of
a separate memorandum.
(3) Upon receipt, your motion will be filed if it is in proper order. No
fee is required with this motion.
(4) If you do not have the necessary funds for transcripts, counsel,
appeal, and other costs connected with a motion of this type,
you may request permission to proceed in forma pauperis, in
which event you must execute the declaration on the last page,
setting forth information establishing your inability to pay the
costs. If you wish to proceed in forma pauperis, you must have
an authorized officer at the penal institution complete the
certificate as to the amount of money and securities on deposit
to your credit in any account in the institution.
(5) Only judgments entered by one court may be challenged in a single
motion. If you seek to challenge judgments entered by different
judges or divisions either in the same district or in different
districts, you must file separate motions as to each such
judgment.
(6) Your attention is directed to the fact that you must include all
grounds for relief and all facts supporting such grounds for
relief in the motion you file seeking relief from any judgment
of conviction.
(7) When the motion is fully completed, the original and two copies must
be mailed to the Clerk of the United States District Court whose
address is___
___________________________
(8) Motions which do not conform to these instructions will be returned
with a notation as to the deficiency.
MOTION
1. Name and location of court which entered the judgment of conviction
under attack _______
2. Date of judgment of conviction __________
3. Length of sentence _________________
4. Nature of offense involved (all counts) ______
___________________________
___________________________
___________________________
5. What was your plea? (Check one)
(a)
Not guilty
(b)
Guilty
(c)
Nolo
contendere
If you entered a guilty plea to one count or indictment, and a not
guilty plea to another count or indictment, give details:
___________________________
___________________________
___________________________
6. Kind of trial: (Check one)
(a)
Jury
(b)
Judge only
7. Did you testify at the trial?
Yes
No
8. Did you appeal from the judgment of conviction?
Yes
No
9. If you did appeal, answer the following:
(a) Name of court ________________
(b) Result ____________________
(c) Date of result _________________
10. Other than a direct appeal from the judgment of conviction and
sentence, have you previously filed any petitions, applications
or motions with respect to this judgment in any federal court?
Yes
No
11. If your answer to 10 was ``yes,'' give the following information:
(a) (1) Name of court ______________
(2) Nature of proceeding __________
______________________
(3) Grounds raised ______________
______________________
______________________
______________________
______________________
(4) Did you receive an evidentiary hearing on
your petition, application or motion?
Yes
No
(5) Result __________________
(6) Date of result ______________
(b) As to any second petition, application or
motion give the same information:
(1) Name of court ______________
(2) Nature of proceeding __________
______________________
(3) Grounds raised ______________
______________________
______________________
______________________
______________________
(4) Did you receive an evidentiary hearing on
your petition, application or motion?
Yes
No
(5) Result __________________
(6) Date of result ______________
(c) As to any third petition, application or
motion, give the same information:
(1) Name of court ______________
(2) Nature of proceeding __________
(3) Grounds raised ______________
______________________
______________________
______________________
______________________
(4) Did you receive an evidentiary hearing on
your petition, application or motion?
Yes
No
(d) Did you appeal, to an appellate federal court
having jurisdiction, the result of action taken
on any petition, application or motion?
(1) First petition, etc. Yes
No
(2) Second petition, etc. Yes
No
(3) Third petition, etc. Yes
No
(e) If you did not appeal from the adverse action on
any petition, application or motion, explain
briefly why you did not:
________________________
________________________
________________________
12. State concisely every ground on which you claim that you are being
held unlawfully. Summarize briefly the facts supporting each
ground. If necessary, you may attach pages stating additional
grounds and facts supporting same.
Caution: If you fail to set forth all grounds in this
motion, you may be barred from presenting additional grounds
at a later date.
For your information, the following is a list of the most
frequently raised grounds for relief in these proceedings. Each
statement preceded by a letter constitutes a separate ground for
possible relief. You may raise any grounds which you have other
than those listed. However, you should raise in this motion all
available grounds (relating to this conviction) on which you
based your allegations that you are being held in custody
unlawfully.
Do not check any of these listed grounds. If you select one or more
of these grounds for relief, you must allege facts. The motion will be
returned to you if you merely check (a) through (j) or any one of the
grounds.
(a) Conviction obtained by plea of guilty which was unlawfully induced
or not made voluntarily or with understanding of the
nature of the charge and the consequences of the plea.
(b) Conviction obtained by use of coerced confession.
(c) Conviction obtained by use of evidence gained pursuant to an
unconstitutional search and seizure.
(d) Conviction obtained by use of evidence obtained pursuant to an
unlawful arrest.
(e) Conviction obtained by a violation of the privilege against self-
incrimination.
(f) Conviction obtained by the unconstitutional failure of the
prosecution to disclose to the defendant evidence
favorable to the defendant.
(g) Conviction obtained by a violation of the protection against
double jeopardy.
(h) Conviction obtained by action of a grand or petit jury which was
unconstitutionally selected and impanelled.
(i) Denial of effective assistance of counsel.
(j) Denial of right of appeal.
A. Ground one: __________________
__________________________
Supporting FACTS (tell your story briefly without citing
cases or law): __________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
B. Ground two: _________________
__________________________
Supporting FACTS (tell your story briefly without citing
cases or law): __________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
C. Ground three: _________________
__________________________
Supporting FACTS (tell your story briefly without citing
cases or law): __________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
D. Ground four: _________________
__________________________
Supporting FACTS (tell your story briefly without citing
cases or law): __________
__________________________
__________________________
__________________________
__________________________
__________________________
__________________________
13. If any of the grounds listed in 12A, B, C, and D were not previously
presented, state briefly what grounds were not so presented, and
give your reasons for not presenting them:
___________________________
___________________________
___________________________
___________________________
14. Do you have any petition or appeal now pending in any court as to
the judgment under attack?
Yes
No
15. Give the name and address, if known, of each attorney who
represented you in the following stages of the judgment attacked
herein:
(a) At preliminary hearing ___________
________________________
(b) At arraignment and plea ___________
________________________
(c) At trial ____________________
________________________
(d) At sentencing ________________
________________________
(e) On appeal __________________
________________________
(f) In any post-conviction proceeding ______
________________________
(g) On appeal from any adverse ruling in a post-
conviction proceeding ____________
________________________
16. Were you sentenced on more than one count of an indictment, or on
more than one indictment, in the same court and at approximately
the same time?
Yes
No
17. Do you have any future sentence to serve after you complete the
sentence imposed by the judgment under attack?
Yes
No
(a) If so, give name and location of court which imposed
sentence to be served in the future:
_______________________
_______________________
(b) And give date and length of sentence to be served in the
future:
_______________________
(c) Have you filed, or do you contemplate filing, any petition
attacking the judgment which imposed the sentence to
be served in the future?
Yes
No
Wherefore, movant prays that the Court grant him all relief to which
he may be entitled in this proceeding.
______________
Signature of Attorney (if any)
I declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. Executed on _____.
(date)
______________
Signature of Movant
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.)
MODEL FORM FOR USE IN 28 U.S.C. Sec. 2255 CASES INVOLVING A RULE
9 ISSUE
Form No. 9
United States District Court
__________ District of __________
Case No. ____
United States
v.
______________
(Name of Movant)
Movant's Response as to Why His Motion Should Not be Barred
Under Rule 9
Explanation and Instructions--Read Carefully
(I) Rule 9. Delayed or Successive Motions.
(a) Delayed motions. A motion for relief made pursuant to these
rules may be dismissed if it appears that the government has been
prejudiced in its ability to respond to the motion by delay in its
filing unless the movant shows that it is based on grounds of which he
could not have had knowledge by the exercise of reasonable diligence
before the circumstances prejudicial to the government occurred.
(b) Successive motions. A second or successive motion may be
dismissed if the judge finds that it fails to allege new or different
grounds for relief and the prior determination was on the merits or, if
new and different grounds are alleged, the judge finds that the failure
of the movant to assert those grounds in a prior motion constituted an
abuse of the procedure governed by these rules.
(II) Your motion to vacate, set aside, or correct sentence has been
found to be subject to dismissal under rule 9( ) for the
following reason(s):
_________________________
_________________________
_________________________
_________________________
(III) This form has been sent so that you may explain why your motion
contains the defect(s) noted in (II) above. It is
required that you fill out this form and send it back to
the court within ____ days. Failure to do so will result
in the automatic dismissal of your motion.
(IV) When you have fully completed this form, the original and two
copies must be mailed to the Clerk of the United States
District Court whose address is ________________
_________________________
(V) This response must be legibly handwritten or typewritten, and
signed by the movant under penalty of perjury. Any false
statement of a material fact may serve as the basis for
prosecution and conviction for perjury. All questions
must be answered concisely in the proper space on the
form.
(VI) Additional pages are not permitted except with respect to the
facts which you rely upon in item 4 or 5 in the
response. Any citation of authorities should be kept to
an absolute minimum and is only appropriate if there has
been a change in the law since the judgment you are
attacking was rendered.
(VII) Respond to 4 or 5, not to both, unless (II) above indicates that
you must answer both sections.
RESPONSE
1. Have you had the assistance of an attorney, other law-trained
personnel, or writ writers since the conviction your motion is
attacking was entered?
Yes
No
2. If you checked ``Yes'' above, specify as precisely as you can the
period(s) of time during which you received such assistance, up
to and including the present.
___________________________
3. Describe the nature of the assistance, including the names of those
who rendered it to you.
___________________________
___________________________
___________________________
___________________________
4. If your motion is in jeopardy because of delay prejudicial to the
government under rule 9(a), explain why you feel the delay has
not been prejudicial and/or why the delay is excusable under the
terms of 9(a). This should be done by relying upon FACTS, not
your opinions or conclusions.
___________________________
___________________________
___________________________
___________________________
________
