RULES GOVERNING SECTION 2254 CASES ... - …

1 RULES GOVERNING SECTION 2254 CASES INTHE UNITED STATES DISTRICT COURTS(EFFECTIVE FEBRUARY 1, 1977, AS AMENDED TOFEBRUARY 1, 2010) the Petition; Inmate Review; Serving the Petition andOrder. Answer and the the or Successive of a Magistrate of Appealability; Time to of the Federal RULES of (a) CASES Involving a Petition under 28 RULES govern a petition for a writ of habeas corpus filed2in a United States district court under 28 2254 by:3(1) a person in custody under a state-court4judgment who seeks a determination that the custody violates5the Constitution, laws, or treaties of the United States; and62 RULES GOVERNING SECTION 2254 AND 2255 CASES (2) a person in custody under a state- court or1federal- court judgment who seeks a determination that future2custody under a state- court judgment would violate the3 Constitution, laws, or treaties of the United (b) Other CASES .

2 The district court may apply any or all5of these RULES to a habeas corpus petition not covered by Rule61(a).7 Rule Petition(a) Current Custody; Naming the Respondent. If1the petitioner is currently in custody under a state-court2judgment, the petition must name as respondent the state3officer who has (b) Future Custody; Naming the Respondents and5 Specifying the Judgment. If the petitioner is not yet in6custody - but may be subject to future custody - under the7state- court judgment being contested, the petition must8name as respondents both the officer who has current9 RULES GOVERNING SECTION 2254 AND 2255 CASES 3custody and the attorney general of the state where the1judgment was entered. The petition must ask for relief from2the state- court judgment being (c) Form. The petition must:4(1) specify all the grounds for relief available to5the petitioner;6(2) state the facts supporting each ground;7(3) state the relief requested;8(4) be printed, typewritten, or legibly9handwritten; and10(5) be signed under penalty of perjury by the11petitioner or by a person authorized to sign it for the12petitioner under 28 (d) Standard Form.

3 The petition must substantially14follow either the form appended to these RULES or a form15prescribed by a local district- court rule. The clerk must16make forms available to petitioners without RULES GOVERNING SECTION 2254 AND 2255 CASES (e) Separate Petitions for Judgments of Separate1 Courts. A petitioner who seeks relief from judgments of2more than one state court must file a separate petition3covering the judgment or judgments of each the Petition; Inmate Filing(a) Where to File; Copies; Filing Fee. An original1and two copies of the petition must be filed with the clerk2and must be accompanied by:3(1) the applicable filing fee, or4(2) a motion for leave to proceed in forma5pauperis, the affidavit required by 28 1915, and a6certificate from the warden or other appropriate officer of7the place of confinement showing the amount of money or8securities that the petitioner has in any account in (b) Filing.

4 The clerk must file the petition and enter it11on the RULES GOVERNING SECTION 2254 AND 2255 CASES 5(c) Time to File. The time for filing a petition is1governed by 28 2244(d).2(d) Inmate Filing. A paper filed by an inmate3confined in an institution is timely if deposited in the4institution's internal mailing system on or before the last5day for filing. If an institution has a system designed for6legal mail, the inmate must use that system to receive the7benefit of this rule. Timely filing may be shown by a8declaration in compliance with 28 1746 or by a9notarized statement, either of which must set forth the date10of deposit and state that first-class postage has been11prepaid. 12 Rule 4. Preliminary Review; Serving the Petition andOrderThe clerk must promptly forward the petition to a1judge under the court 's assignment procedure, and the2judge must promptly examine it.

5 If it plainly appears from3the petition and any attached exhibits that the petitioner is46 RULES GOVERNING SECTION 2254 AND 2255 CASESnot entitled to relief in the district court , the judge must1dismiss the petition and direct the clerk to notify the2petitioner. If the petition is not dismissed, the judge must3order the respondent to file an answer, motion, or other4response within a fixed time, or to take other action the5judge may order. In every case , the clerk must serve a copy6of the petition and any order on the respondent and on the7attorney general or other appropriate officer of the state8involved. 9 Rule Answer and the Reply(a) When Required. The respondent is not required1to answer the petition unless a judge so (b) Contents: Addressing the Allegations; Stating a3 Bar. The answer must address the allegations in the4petition. In addition, it must state whether any claim in the5petition is barred by a failure to exhaust state remedies, a6 RULES GOVERNING SECTION 2254 AND 2255 CASES 7procedural bar, non- retroactivity, or a statute (c) Contents: Transcripts.

6 The answer must also3indicate what transcripts (of pretrial, trial, sentencing, or4post-conviction proceedings) are available, when they can5be furnished, and what proceedings have been recorded but6not transcribed. The respondent must attach to the answer7parts of the transcript that the respondent considers8relevant. The judge may order that the respondent furnish9other parts of existing transcripts or that parts of10untranscribed recordings be transcribed and furnished. If a11transcript cannot be obtained, the respondent may submit a12narrative summary of the (d) Contents: Briefs on Appeal and Opinions. The14respondent must also file with the answer a copy of:15(1) any brief that the petitioner submitted in an16appellate court contesting the conviction or sentence, or178 RULES GOVERNING SECTION 2254 AND 2255 CASES contesting an adverse judgment or order in a post-1conviction proceeding;2(2) any brief that the prosecution submitted in an3appellate court relating to the conviction or sentence; and4(3) the opinions and dispositive orders of the5appellate court relating to the conviction or the (e) Reply.

7 The petitioner may submit a reply to the7respondent's answer or other pleading within a time fixed8by the (a) Leave of court Required. A judge may, for good1cause, authorize a party to conduct discovery under the2 Federal RULES of Civil Procedure and may limit the extent3of discovery. If necessary for effective discovery, the judge4must appoint an attorney for a petitioner who qualifies to5have counsel appointed under 18 RULES GOVERNING SECTION 2254 AND 2255 CASES 9(b) Requesting Discovery. A party requesting1discovery must provide reasons for the request. The request2must also include any proposed interrogatories and requests3for admission, and must specify any requested (c) Deposition Expenses. If the respondent is granted5leave to take a deposition, the judge may require the6respondent to pay the travel expenses, subsistence7expenses, and fees of the petitioner's attorney to attend the Record(a) In General.

8 If the petition is not dismissed, the1judge may direct the parties to expand the record by2submitting additional materials relating to the petition. The3judge may require that these materials be (b) Types of Materials. The materials that may be5required include letters predating the filing of the petition,610 RULES GOVERNING SECTION 2254 AND 2255 CASES documents, exhibits, and answers under oath to written1interrogatories propounded by the judge. Affidavits may2also be submitted and considered as part of the (c) Review by the Opposing Party. The judge must4give the party against whom the additional materials are5offered an opportunity to admit or deny their Hearing(a) Determining Whether to Hold a Hearing. If the1petition is not dismissed, the judge must review the answer,2any transcripts and records of state- court proceedings, and3any materials submitted under Rule 7 to determine whether4an evidentiary hearing is (b) Reference to a Magistrate Judge.

9 A judge may,6under 28 636(b), refer the petition to a magistrate7judge to conduct hearings and to file proposed findings of8fact and recommendations for disposition. When they are9filed, the clerk must promptly serve copies of the proposed10 RULES GOVERNING SECTION 2254 AND 2255 CASES 11findings and recommendations on all parties. Within 141days after being served, a party may file objections as2provided by local court rule. The judge must determine de3novo any proposed finding or recommendation to which4objection is made. The judge may accept, reject, or modify5any proposed finding or (c) Appointing Counsel; Time of Hearing. If an7evidentiary hearing is warranted, the judge must appoint an8attorney to represent a petitioner who qualifies to have9counsel appointed under 18 3006A. The judge10must conduct the hearing as soon as practicable after giving11the attorneys adequate time to investigate and RULES do not limit the appointment of counsel under13 Sec.

10 3006A at any stage of the or Successive PetitionsBefore presenting a second or successive petition, the1petitioner must obtain an order from the appropriate court212 RULES GOVERNING SECTION 2254 AND 2255 CASESof appeals authorizing the district court to consider the1petition as required by 28 2244(b)(3) and (4).2 Rule 10. Powers of a Magistrate JudgeA magistrate judge may perform the duties of a1district judge under these RULES , as authorized under 11. Certificate of Appealability; Time to Appeal(a) Certificate of Appealability. The district court1must issue or deny a certificate of appealability when it2enters a final order adverse to the applicant. Before3entering the final order, the court may direct the parties to4submit arguments on whether a certificate should issue. If5the court issues a certificate, the court must state the6specific issue or issues that satisfy the showing required by728 2253(c)(2).