GOVERNING SECTION 2254 CASES

AND SECTION 2255 PROCEEDINGS

IN THE UNITED STATES DISTRICT COURTS

Rule 1. Scope of Rules

(a) Applicable to Cases Involving Custody Pursuant to a Judgment of a State Court. These rules govern the procedure in the United States district courts on applications under 28 U.S.C. s. 2254;

(1)	by a person in custody pursuant to a judgment of a state court, for a determination that such custody is in violation of the Constitution, laws, or treaties of the United States; and

(2)	by a person in custody pursuant to a judgment of either a state or a federal court, who makes application for a determination that custody to which he may be subject in the future under a judgment of a state court will be in violation of the Constitution, laws, or treaties of the United States.

(b)	Other Situations. In applications for habeas corpus in cases not covered by subdivision (a), these rules may be applied at the discretion of the United States district court.

Rule 2. Petition

(a) Applicants in Present Custody. If the applicant is presently in custody pursuant to the state judgment in question, the application shall be in the form of a petition for a writ of habeas corpus in which the state officer having custody of the applicant shall be named as respondent.

(b)	Applicants Subject to Future Custody. If the applicant is not presently in custody pursuant to the state judgment against which he seeks relief but may be subject to such custody in the future, the application shall be in the form of a petition for a writ of habeas corpus with an added prayer for appropriate relief against the judgment which he seeks to attack. In such a case the officer having present custody of the applicant and the attorney general of the state in which the judgment which he seeks to attack was entered shall each be named as respondents.

(c)	Form of Petition. The petition shall be in substantially the form annexed to these rules, except that any district court may by local rule require that petitions filed with it shall be in a form prescribed by the local rule. Blank petitions 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 petitioner 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 petition shall be typewritten or legibly handwritten and shall be signed under penalty of perjury by the petitioner.

(d) Petition to be Directed to Judgments of One Court Only. A petition shall be limited to the assertion of a claim for relief against the judgment or judgments of a single state court (sitting in a county or other appropriate political subdivision). If a petitioner desires to attack the validity of the judgments of two or more state courts under which he is in custody or may be subject to future custody, as the case may be, he shall do so by separate petitions.

(e)	Return of Insufficient Petition. If a petition 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 petitioner, 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 petition.

Rule 3. Filing Petition

(a)	Place of Filing; Copies; Filing Fee. A petition shall be filed in the office of the clerk of the district court. It shall be accompanied by two conformed copies thereof. It shall also be accompanied by the filing fee prescribed by law unless the petitioner applies for and is given leave to prosecute the petition in forma pauperis. If the petitioner desires to prosecute the petition in forma pauperis, he shall file the affidavit required by 28 USC s. 1915. In all such cases the petition shall also be accompanied by a certificate of the warden or other appropriate office of the institution in which the petitioner is confined as to the amount of money or securities on deposit to the petitioner's credit in any account in the institution, which certificate may be considered by the court in acting upon his application for leave to proceed in forma pauperis.

/* One of the efforts to limit prisoner petitions is through the careful scrutiny of the prisoner's ability to pay filing fees from their "cigarette and canteen" money. */

(b)	Filing and Service. Upon receipt of the petition and the filing fee, or an order granting leave to the petitioner to proceed in forma pauperis, and having ascertained that the petition appears on its fact to comply with rules 2 and 3, the clerk of the district court shall file the petition and enter it on the docket in his office. The filing of the petition shall not require the respondent to answer the petition or otherwise move with respect to it unless so ordered by the court.

Rule 4. Preliminary Consideration by Judge

The original petition shall be presented promptly to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified. Otherwise the judge shall order the respondent 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. In every case a copy of the petition and any order shall be served by certified mail on the respondent and the attorney general of the state involved.

Rule 5. Answer; Contents

The answer shall respond to the allegations of the petition. In addition it shall state whether the petitioner has exhausted his state remedies including any post-conviction remedies available to him under the statutes or procedural rules of the state and including also his right of appeal both from the judgment of conviction and from any adverse judgment or order in the post-conviction proceeding. The answer shall indicate what transcripts (of pretrial, trial, sentencing, and post-conviction proceedings) are available, when they can be furnished, and also what proceedings have been recorded and not transcribed. There shall be attached to the answer such portions of the transcripts as the answering party deems relevant. The court on its own motion or upon request of the petitioner may order that further portions of the existing transcripts be furnished or that certain portions of the non-transcribed proceedings be transcribed and furnished. If a transcript is neither available nor procurable, a narrative summary of the evidence may be submitted. If the petitioner appealed from the judgment of conviction or from an adverse judgment or order in a post-conviction proceeding, a copy of the petitioner's brief on appeal and of the opinion of the appellate court, if any, shall also be filed by the respondent with the answer.

/* The authors are advised by U.S. Magistrate Judges that this portion of the rule is often not strictly complied with by responding attorney's general or other prosecutors' offices. */

Rule 6. Discovery

(a)	Leave of Court Required. A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure 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 petitioner who qualifies for the appointment of counsel under 18 USC s. 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.

/* Unusual in that even attorneys must obtain leave to complete discovery. */

(c)	Expenses. If the respondent is granted leave to take the deposition of the petitioner or any other person the judge may as a condition of taking it direct that the respondent pay the expenses of travel and subsistence and fees of counsel for the petitioner to attend the taking of the deposition.

Rule 7. Expansion of Record

(a)	Direction for Expansion. If the petition 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 petition.

(b)	Materials to be Added. The expanded record may include, without limitation, letters predating the filing of the petition 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).

Rule 8. Evidentiary Hearing

(a)	Determination by Court. If the petition is not dismissed at a previous stage in the proceeding, the judge, after the answer and the transcript and record of state court proceedings are filed, 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 petition as justice shall require.

(b)	Function of the Magistrate.

(1)	When designated to do so in accordance with 28 USC s. 636(b) [28 USCS s. 636(b)], a magistrate may conduct hearings, including evidentiary hearings, on the petition, and submit to a judge of the court proposed findings of fact 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 petitioner who qualifies for the appointment of counsel under 18 USC s. 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. s. 3006A at any stage of the case if the interest of justice so requires.

Rule 9. Delayed or Successive Petitions

(a)	Delayed Petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner 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 state occurred.

(b)	Successive Petitions. A second or successive petition 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 petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

/* An entirely different standard than a usual test of issue preclusion. */

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. s. 636.

Rule 11. Federal Rules of Civil Procedure; Extent of Applicability

The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules.

APPENDIX OF FORMS

MODEL FORM FOR USE IN APPLICATIONS FOR HABEAS

CORPUS UNDER 28 U.S.C. s. 2254

Name________________________________________________________

Prison number_______________________________________________

Place of confinement________________________________________

United States District Court ____________ District of_______

Case No.____________________________________________________

(To be supplied by Clerk of U.S. District Court)

______________________, PETITIONER

(Full name)

v.

______________________, RESPONDENT

(Name of Warden, Superintendent, Jailor, or authorized person having custody of petitioner)

and

THE ATTORNEY GENERAL OF THE STATE OF ______________________,

ADDITIONAL RESPONDENT.

(If petitioner is attacking a judgment which imposed a sentence to be served in the future, petitioner must fill in the name of the state where the judgment was entered. If petitioner has a sentence to be served in the future under a federal judgment which he wishes to attack, he should file a motion under 28 U.S.C. s. 2255, in the federal court which entered the judgment.)

PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN

STATE CUSTODY

Instructions. Read Carefully

(1)	This petition must be legibly handwritten or typewritten, and signed by the petitioner 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 of a fee of $5 your petition will be filed if it is in proper order.

(4)	If you do not have the necessary filing fee, you may request permission to proceed in forma pauperis, in which event you must execute the declaration of the last page, setting forth information establishing your inability to prepay the fees and costs or give security therefor. 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. If your prison account exceeds $________, you must pay the filing fee as required by the rule of the district court.

(5)	Only judgments entered by one court may be challenged in a single petition. If you seek to challenge judgments entered by different courts either in the same state or in different states, you must file separate petitions as to each court.

(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 petition you file seeking relief from any judgment of conviction.

(7)	When the petition is fully completed, the original and two copies must be mailed to the Clerk of the United States District Court whose address is_____________________________

_______________________________________________________________

(8) Petitions which do not conform to these instructions will be returned with a notation as to the deficiency.

PETITION

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)________________

____________________________________________________________

____________________________________________________________

____________________________________________________________

(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 court, state or federal?

Yes___	No___

11.	If you 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 ___

(5) Result_________________________________________

(6) Date of result_________________________________

(d) Did you appeal to the highest state 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: In order to proceed in the federal court, you must ordinarily first exhaust your state court remedies as to each ground on which you request action by the federal court. If you fail to set forth all grounds in this petition, 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 habeas corpus proceedings. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds which you may have other those listed if you have exhausted your state court remedies with respect to them. However, you should raise in this petition all available grounds (relating to this conviction) on which you base 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 petition will be returned to you if you merely check (a) and (j) or any of one of these grounds.

(a)	Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily 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 impaneled.

(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 in any other court, state or federal, 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, either state or federal, 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 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, petitioner prays that the Court grant petitioner 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 Petitioner

IN FORMA PAUPERIS DECLARATION

_______________________________

[Insert appropriate court]

_________________________ DECLARATION IN SUPPORT

(Petitioner) OF REQUEST

v.	TO PROCEED

________________________	IN FORMA PAUPERIS

(Respondent(s))

I, _____________, declare that I am the petitioner in the above entitled case; that in support of my motion to proceed without being required to prepay fees, costs or give security therefor, I state that because of my poverty I am unable to pay the costs of said proceeding or to give security therefor; that I believe I am entitled to relief.

1.	Are you presently employed? Yes ____	No ____

a.	If the answer is "yes," state the amount of your salary or wages per month, and give the name and address of your employer.

_______________________________________________________________

b.	If the answer is "no," state the date of last employment and the amount of the salary and wages per month which you received.

__________________________________________________________________

2.	Have you received within the past twelve months any money from any of the following sources?

a.	Business, profession or form of self-employment?

Yes ____	No ____

b.	Rent payments, interest or dividends?

Yes ____	No ____

c.	Pensions, annuities or life insurance

payments Yes ___	No ___

d.	Gifts or inheritances? Yes ____	No ____

e.	Any other sources?	Yes ____	No ____

If the answer to any of the above is "yes," describe each source of money and state the amount received from each during the past twelve months.______________________________

____________________________________________________________

3.	Do you own cash, or do you have money in checking or savings account?

Yes___	No___ (Include any funds in prison accounts.)

If the answer is "yes," state the total value of items owned.________________________________________________________________________________ __________________________________

4.	Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)?

Yes___	No___

If the answer is "yes," describe the property and state its approximate value.________________________________

____________________________________________________________

5.	List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how much you contribute toward their support.______

________________________________________________________________________________________________________________________

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on ______________(date).

___________________________________

Signature of Petitioner

Certificate

I hereby certify that the petitioner herein has the sum of $_____ on account to his credit at the _____________________

institution where he is confined. I further certify that the petitioner likewise has the following securities to his credit according to the records of said ____________________ institution:___________________________________________________

___________________________________

Authorized Officer of Institution

MODEL FORM FOR USE IN 28 U.S.C. s. 2254

CASES INVOLVING A RULE 9 ISSUE

Form No. 9

United States District Court,

_____________ District of ___________________

Case No. ___________________

______________________, PETITIONER

v.

______________________, RESPONDENT

and

___________________, ADDITIONAL RESPONDENT

Petitioner's Response as to Why His Petition Should

Not Be Barred Under Rule 9

Explanation and Instructions -- Read Carefully

(I)	Rule 9. Delayed or successive petitions.

(a)	Delayed petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner 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 state occurred.

(b)	Successive Petitions. A second or successive petition 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 petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

(II)	Your petition for habeas corpus 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 petition contains the defent(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 petition.

(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 petitioner 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 below, 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 petition 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 petition is in jeopardy because of delay prejudicial to the state 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.____

________________________________________________________________

5.	If your petition is in jeopardy under rule 9(b) because it asserts the same grounds as a previous petition, explain why you feel it deserves a reconsideration. If its fault under rule 9(b) is that it asserts new grounds which should have been included in a prior petition, explain why you are raising these grounds now rather than previously. Your explanation should rely on FACTS, not your opinions or conclusions. ________________________________________________________________

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on __________________(date).

___________________________________

Signature of Petitioner