§ 2255. Federal custody; remedies on motion attacking sentence
Summary
Section 2255 of Title 28 of the United States Code lets a prisoner in custody under a sentence of a federal court move that court to vacate, set aside or correct the sentence on the ground that it was imposed in violation of the Constitution or laws of the United States, or exceeded the maximum authorized by law. A 1-year period of limitation applies, running from the latest of several dates, the first being the date on which the judgment of conviction becomes final. A second or successive motion must be certified by a panel of the court of appeals to contain newly discovered evidence or a new rule of constitutional law. Pages 556 to 582 of Title 28 also carry the Rules Governing Section 2255 Proceedings for the United States District Courts, advisory committee notes and model forms.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
§ 2255 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 556
IN FORMA PAUPERIS DECLARATION institution where he is confined. I further certify that
petitioner likewise has the following securities to his
lllllllllllllllllllllllll credit according to the records of said llll institu-
[Insert appropriate court] tion:
llllllllllllll DECLARATION IN lllllllllllllllllllllllll
(Petitioner) SUPPORT
OF REQUEST
lllllllllllllllllllllllll
v. TO PROCEED lllllllllllllllllllllllll
llllllllllllll IN FORMA
(Respondent(s)) PAUPERIS lllllllllllllllllllllllll
llllllllllllll
I, llllllllllllll, declare that I am the
Authorized Officer of
petitioner in the above entitled case; that in support of
Institution
my motion to proceed without being required to prepay
fees, costs or give security therefor, I state that be- (As amended Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 26, 2004,
cause of my poverty I am unable to pay the costs of eff. Dec. 1, 2004.)
said proceeding or to give security therefor; that I be-
lieve I am entitled to relief. MODEL FORM FOR USE IN 28 U.S.C. § 2254 CASES
1. Are you presently employed? Yes b No b INVOLVING A RULE 9 ISSUE
a. If the answer is ‘‘yes,’’ state the amount of your Form No. 9
salary or wages per month, and give the name
and address of your employer. [Abrogated Apr. 30, 2007, eff. Dec. 1, 2007.]
lllllllllllllllllllllllll Changes Made After Publication and Comments—Forms
lllllllllllllllllllllllll Accompanying Rules Governing § 2254 and § 2255 Pro-
b. If the answer is ‘‘no,’’ state the date of last em- ceedings. Responding to a number of comments from
ployment and the amount of the salary and the public, the Committee deleted from both sets of of-
wages per month which you received. ficial forms the list of possible grounds of relief. The
lllllllllllllllllllllllll Committee made additional minor style corrections to
lllllllllllllllllllllllll the forms.
2. Have you received within the past twelve months any
money from any of the following sources? § 2255. Federal custody; remedies on motion at-
a. Business, profession or form of self-employment?
Yes b No b
tacking sentence
b. Rent payments, interest or dividends? Yes b No b (a) A prisoner in custody under sentence of a
c. Pensions, annuities or life insurance payments? court established by Act of Congress claiming
Yes b No b
d. Gifts or inheritances? Yes b No b
the right to be released upon the ground that
e. Any other sources? Yes b No b the sentence was imposed in violation of the
If the answer to any of the above is ‘‘yes,’’ de- Constitution or laws of the United States, or
scribe each source of money and state the amount that the court was without jurisdiction to im-
received from each during the past twelve months. pose such sentence, or that the sentence was in
lllllllllllllllllllllllllll excess of the maximum authorized by law, or is
lllllllllllllllllllllllllll otherwise subject to collateral attack, may
lllllllllllllllllllllllllll move the court which imposed the sentence to
lllllllllllllllllllllllllll
3. Do you own cash, or do you have money in a check-
vacate, set aside or correct the sentence.
ing or savings account? (b) Unless the motion and the files and records
Yes b No b (Include any funds in prison accounts.) of the case conclusively show that the prisoner
If the answer is ‘‘yes,’’ state the total value of the is entitled to no relief, the court shall cause no-
items owned. tice thereof to be served upon the United States
lllllllllllllllllllllllllll attorney, grant a prompt hearing thereon, deter-
lllllllllllllllllllllllllll mine the issues and make findings of fact and
lllllllllllllllllllllllllll conclusions of law with respect thereto. If the
4. Do you own any real estate, stocks, bonds, notes,
automobiles, or other valuable property (excluding
court finds that the judgment was rendered
ordinary household furnishings and clothing)? without jurisdiction, or that the sentence im-
Yes b No b posed was not authorized by law or otherwise
If the answer is ‘‘yes,’’ describe the property and open to collateral attack, or that there has been
state its approximate value. such a denial or infringement of the constitu-
lllllllllllllllllllllllllll tional rights of the prisoner as to render the
lllllllllllllllllllllllllll judgment vulnerable to collateral attack, the
lllllllllllllllllllllllllll court shall vacate and set the judgment aside
5. List the persons who are dependent upon you for sup-
port, state your relationship to those persons, and
and shall discharge the prisoner or resentence
indicate how much you contribute toward their him or grant a new trial or correct the sentence
support. as may appear appropriate.
lllllllllllllllllllllllllll (c) A court may entertain and determine such
lllllllllllllllllllllllllll motion without requiring the production of the
lllllllllllllllllllllllllll prisoner at the hearing.
I declare (or certify, verify, or state) under penalty of (d) An appeal may be taken to the court of ap-
perjury that the foregoing is true and correct. Executed peals from the order entered on the motion as
on lllll.
(date)
from a final judgment on application for a writ
of habeas corpus.
llllllllllllll
Signature of Petitioner
(e) An application for a writ of habeas corpus
in behalf of a prisoner who is authorized to
Certificate apply for relief by motion pursuant to this sec-
I hereby certify that the petitioner herein has the tion, shall not be entertained if it appears that
sum of $llll on account to his credit at the llll the applicant has failed to apply for relief, by
Page 557 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2255
motion, to the court which sentenced him, or AMENDMENTS
that such court has denied him relief, unless it 2008—Pub. L. 110–177 designated first through eighth
also appears that the remedy by motion is inad- undesignated pars. as subsecs. (a) to (h), respectively.
equate or ineffective to test the legality of his 1996—Pub. L. 104–132 inserted at end three new undes-
detention. ignated paragraphs beginning ‘‘A 1-year period of limi-
(f) A 1-year period of limitation shall apply to tation’’, ‘‘Except as provided in section 408 of the Con-
a motion under this section. The limitation pe- trolled Substances Act’’, and ‘‘A second or successive
riod shall run from the latest of— motion must be certified’’ and struck out second and
(1) the date on which the judgment of con- fifth undesignated pars. providing, respectively, that
viction becomes final; ‘‘A motion for such relief may be made at any time.’’
(2) the date on which the impediment to and ‘‘The sentencing court shall not be required to en-
tertain a second or successive motion for similar relief
making a motion created by governmental ac- on behalf of the same prisoner.’’
tion in violation of the Constitution or laws of 1949—Act May 24, 1949, substituted ‘‘court established
the United States is removed, if the movant by Act of Congress’’ for ‘‘court of the United States’’ in
was prevented from making a motion by such first par.
governmental action;
(3) the date on which the right asserted was Statutory Notes and Related Subsidiaries
initially recognized by the Supreme Court, if
APPROVAL AND EFFECTIVE DATE OF RULES GOVERNING
that right has been newly recognized by the SECTION 2254 CASES AND SECTION 2255 PROCEEDINGS
Supreme Court and made retroactively appli- FOR UNITED STATES DISTRICT COURTS
cable to cases on collateral review; or
(4) the date on which the facts supporting For approval and effective date of rules governing pe-
the claim or claims presented could have been titions under section 2254 and motions under section
2255 of this title filed on or after Feb. 1, 1977, see sec-
discovered through the exercise of due dili-
tion 1 of Pub. L. 94–426, set out as a note under section
gence. 2074 of this title.
(g) Except as provided in section 408 of the POSTPONEMENT OF EFFECTIVE DATE OF PROPOSED
Controlled Substances Act, in all proceedings RULES AND FORMS GOVERNING PROCEEDINGS UNDER
brought under this section, and any subsequent SECTIONS 2254 AND 2255 OF THIS TITLE
proceedings on review, the court may appoint
Rules and forms governing proceedings under sec-
counsel, except as provided by a rule promul-
tions 2254 and 2255 of this title proposed by Supreme
gated by the Supreme Court pursuant to statu- Court order of Apr. 26, 1976, effective 30 days after ad-
tory authority. Appointment of counsel under journment sine die of 94th Congress, or until and to the
this section shall be governed by section 3006A extent approved by Act of Congress, whichever is ear-
of title 18. lier, see section 2 of Pub. L. 94–349, set out as a note
(h) A second or successive motion must be cer- under section 2074 of this title.
tified as provided in section 2244 by a panel of
the appropriate court of appeals to contain— RULES GOVERNING SECTION 2255 PRO-
(1) newly discovered evidence that, if proven CEEDINGS FOR THE UNITED STATES DIS-
and viewed in light of the evidence as a whole, TRICT COURTS
would be sufficient to establish by clear and (Effective Feb. 1, 1977, as amended to Jan. 2, 2024)
convincing evidence that no reasonable
Rule
factfinder would have found the movant guilty
1. Scope.
of the offense; or 2. The Motion.
(2) a new rule of constitutional law, made 3. Filing the Motion; Inmate Filing.
retroactive to cases on collateral review by 4. Preliminary Review.
the Supreme Court, that was previously un- 5. The Answer and the Reply.
available. 6. Discovery.
7. Expanding the Record.
(June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949,
8. Evidentiary Hearing.
ch. 139, § 114, 63 Stat. 105; Pub. L. 104–132, title I, 9. Second or Successive Motions.
§ 105, Apr. 24, 1996, 110 Stat. 1220; Pub. L. 110–177, 10. Powers of a Magistrate Judge.
title V, § 511, Jan. 7, 2008, 121 Stat. 2545.) 11. Certificate of Appealability; Time to Appeal.
HISTORICAL AND REVISION NOTES 12. Applicability of the Federal Rules of Civil
Procedure and the Federal Rules of Crimi-
1948 ACT nal Procedure.
This section restates, clarifies and simplifies the pro- APPENDIX OF FORMS
cedure in the nature of the ancient writ of error coram
nobis. It provides an expeditious remedy for correcting Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
erroneous sentences without resort to habeas corpus. It Correct Sentence By a Person in Federal Custody.
has the approval of the Judicial Conference of the EFFECTIVE DATE OF RULES; EFFECTIVE DATE OF 1975
United States. Its principal provisions are incorporated
AMENDMENT
in H.R. 4233, Seventy-ninth Congress.
Rules, and the amendments thereto by Pub. L. 94–426,
1949 ACT Sept. 28, 1976, 90 Stat. 1334, effective with respect to pe-
This amendment conforms language of section 2255 of titions under section 2254 of this title and motions
title 28, U.S.C., with that of section 1651 of such title under section 2255 of this title filed on or after Feb. 1,
and makes it clear that the section is applicable in the 1977, see section 1 of Pub. L. 94–426, set out as a note
district courts in the Territories and possessions. under section 2074 of this title.
Editorial Notes Rule 1. Scope
REFERENCES IN TEXT These rules govern a motion filed in a United
Section 408 of the Controlled Substances Act, referred States district court under 28 U.S.C. § 2255 by:
to in subsec. (g), is classified to section 848 of Title 21, (a) a person in custody under a judgment of
Food and Drugs. that court who seeks a determination that:
§ 2255 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 558
(1) the judgment violates the Constitution or civil action has significance at several points in these
laws of the United States; rules. See, e.g., advisory committee note to rule 3 (re no
(2) the court lacked jurisdiction to enter the filing fee), advisory committee note to rule 4 (re avail-
judgment; ability of files, etc., relating to the judgment), advisory
(3) the sentence exceeded the maximum al- committee note to rule 6 (re availability of discovery
under criminal procedure rules), advisory committee
lowed by law; or note to rule 11 (re no extension of time for appeal), and
(4) the judgment or sentence is otherwise advisory committee not to rule 12 (re applicability of
subject to collateral review; and federal criminal rules). However, the fact that Congress
(b) a person in custody under a judgment of a has characterized the motion as a further step in the
state court or another federal court, and subject criminal proceedings does not mean that proceedings
upon such a motion are of necessity governed by the
to future custody under a judgment of the dis-
legal principles which are applicable at a criminal trial
trict court, who seeks a determination that: regarding such matters as counsel, presence, confronta-
(1) future custody under a judgment of the tion, self-incrimination, and burden of proof.
district court would violate the Constitution The challenge of decisions such as the revocation of
or laws of the United States; probation or parole are not appropriately dealt with
(2) the district court lacked jurisdiction to under 28 U.S.C. § 2255, which is a continuation of the
enter the judgment; original criminal action. Other remedies, such as ha-
(3) the district court’s sentence exceeded the beas corpus, are available in such situations.
maximum allowed by law; or Although rule 1 indicates that these rules apply to a
(4) the district court’s judgment or sentence motion for a determination that the judgment was im-
is otherwise subject to collateral review. posed ‘‘in violation of the . . . laws of the United
States,’’ the language of 28 U.S.C. § 2255, it is not the in-
(As amended Apr. 26, 2004, eff. Dec. 1, 2004.) tent of these rules to define or limit what is encom-
ADVISORY COMMITTEE NOTE passed within that phrase. See Davis v. United States,
417 U.S. 333 (1974), holding that it is not true ‘‘that
The basic scope of this postconviction remedy is pre- every asserted error of law can be raised on a § 2255 mo-
scribed by 28 U.S.C. § 2255. Under these rules the person tion,’’ and that the appropriate inquiry is ‘‘whether the
seeking relief from federal custody files a motion to va- claimed error of law was a fundamental defect which
cate, set aside, or correct sentence, rather than a peti- inherently results in a complete miscarriage of justice,’
tion for habeas corpus. This is consistent with the ter- and whether [i]t . . . present[s] exceptional cir-
minology used in section 2255 and indicates the dif- cumstances where the need for the remedy afforded by
ference between this remedy and federal habeas for a the writ of habeas corpus is apparent.’ ’’
state prisoner. Also, habeas corpus is available to the For a discussion of the ‘‘custody’’ requirement and
person in federal custody if his ‘‘remedy by motion is the intended limited scope of this remedy, see advisory
inadequate or ineffective to test the legality of his de- committee note to § 2254 rule 1.
tention.’’
Whereas sections 2241–2254 (dealing with federal ha- COMMITTEE NOTES ON RULES—2004 AMENDMENT
beas corpus for those in state custody) speak of the dis-
trict court judge ‘‘issuing the writ’’ as the operative The language of Rule 1 has been amended as part of
remedy, section 2255 provides that, if the judge finds general restyling of the rules to make them more eas-
the movant’s assertions to be meritorious, he ‘‘shall ily understood and to make style and terminology con-
discharge the prisoner or resentence him or grant a sistent throughout the rules. These changes are in-
new trial or correct the sentence as may appear appro- tended to be stylistic and no substantive change is in-
priate.’’ This is possible because a motion under § 2255 tended.
is a further step in the movant’s criminal case and not Changes Made After Publication and Comments. The
a separate civil action, as appears from the legislative Committee made no changes to Rule 1.
history of section 2 of S. 20, 80th Congress, the provi-
sions of which were incorporated by the same Congress Rule 2. The Motion
in title 28 U.S.C. as § 2255. In reporting S. 20 favorably
the Senate Judiciary Committee said (Sen. Rep. 1526, (a) APPLYING FOR RELIEF. The application
80th Cong. 2d Sess., p. 2): must be in the form of a motion to vacate, set
The two main advantages of such motion remedy aside, or correct the sentence.
over the present habeas corpus are as follows: (b) FORM. The motion must:
First, habeas corpus is a separate civil action and not (1) specify all the grounds for relief available
a further step in the criminal case in which petitioner
is sentenced (Ex parte Tom Tong, 108 U.S. 556, 559 (1883)).
to the moving party;
It is not a determination of guilt or innocence of the (2) state the facts supporting each ground;
charge upon which petitioner was sentenced. Where a (3) state the relief requested;
prisoner sustains his right to discharge in habeas cor- (4) be printed, typewritten, or legibly hand-
pus, it is usually because some right—such as lack of written; and
counsel—has been denied which reflects no determina- (5) be signed under penalty of perjury by the
tion of his guilt or innocence but affects solely the fair- movant or by a person authorized to sign it for
ness of his earlier criminal trial. Even under the broad the movant.
power in the statute ‘‘to dispose of the party as law and
justice require’’ (28 U.S.C.A., sec. 461), the court or (c) STANDARD FORM. The motion must substan-
judge is by no means in the same advantageous posi- tially follow either the form appended to these
tion in habeas corpus to do justice as would be so if the rules or a form prescribed by a local district-
matter were determined in the criminal proceeding (see court rule. The clerk must make forms available
Medley, petitioner, 134 U.S. 160, 174 (1890)). For instance,
the judge (by habeas corpus) cannot grant a new trial
to moving parties without charge.
in the criminal case. Since the motion remedy is in the (d) SEPARATE MOTIONS FOR SEPARATE JUDG-
criminal proceeding, this section 2 affords the oppor- MENTS. A moving party who seeks relief from
tunity and expressly gives the broad powers to set aside more than one judgment must file a separate
the judgment and to ‘‘discharge the prisoner or resen- motion covering each judgment.
tence him or grant a new trial or correct the sentence
as may appear appropriate.’’ (As amended Pub. L. 94–426, § 2(3), (4), Sept. 28,
The fact that a motion under § 2255 is a further step 1976, 90 Stat. 1334; Apr. 28, 1982, eff. Aug. 1, 1982;
in the movant’s criminal case rather than a separate Apr. 26, 2004, eff. Dec. 1, 2004.)
Page 559 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2255
ADVISORY COMMITTEE NOTE moved under rule 35 and § 2255 to invalidate the sen-
tence he was serving on the grounds of his failure to
Under these rules the application for relief is in the
understand the charge to which he pleaded guilty. The
form of a motion rather than a petition (see rule 1 and
court said:
advisory committee note). Therefore, there is no re-
As regards Defendant’s Motion under Rule 35, said
quirement that the movant name a respondent. This is
Motion must be denied as its presupposes a valid con-
consistent with 28 U.S.C. § 2255. The United States At-
viction of the offense with which he was charged and
torney for the district in which the judgment under at-
may be used only to attack the sentence. It may not
tack was entered is the proper party to oppose the mo-
be used to examine errors occurring prior to the im-
tion since the federal government is the movant’s ad-
position of sentence.
versary of record.
If the movant is attacking a federal judgment which 295 F.Supp. at 1085
will subject him to future custody, he must be in
present custody (see rule 1 and advisory committee See also: Moss v. United States, 263 F.2d at 616; Duggins
note) as the result of a state or federal governmental v. United States, 240 F. 2d at 484; Migdal v. United States,
action. He need not alter the nature of the motion by 298 F.2d 513, 514 (9th Cir. 1961); Jones v. United States, 400
trying to include the government officer who presently F.2d at 894; United States v. Coke, 404 F.2d at 847; and
has official custody of him as a psuedo-respondent, or United States v. Brown, 413 F.2d at 879.
third-party plaintiff, or other fabrication. The court A major difficulty in deciding whether rule 35 or § 2255
hearing his motion attacking the future custody can is the proper remedy is the uncertainty as to what is
exercise jurisdiction over those having him in present meant by an ‘‘illegal sentence.’’ The Supreme Court
custody without the use of artificial pleading devices. dealt with this issue in Hill v. United States, 368 U.S. 424
There is presently a split among the courts as to (1962). The prisoner brought a § 2255 motion to vacate
whether a person currently in state custody may use a sentence on the ground that he had not been given a
§ 2255 motion to obtain relief from a federal judgment Fed.R.Crim. P. 32(a) opportunity to make a statement
under which he will be subjected to custody in the fu- in his own behalf at the time of sentencing. The major-
ture. Negative, see Newton v. United States, 329 F.Supp. ity held this was not an error subject to collateral at-
90 (S.D. Texas 1971); affirmative, see Desmond v. The tack under § 2255. The five-member majority considered
United States Board of Parole, 397 F.2d 386 (1st Cir. 1968), the motion as one brought pursuant to rule 35, but de-
cert. denied, 393 U.S. 919 (1968); and Paalino v. United nied relief, stating:
States, 314 F.Supp. 875 (C.D.Cal. 1970). It is intended that [T]he narrow function of Rule 35 is to permit correc-
these rules settle the matter in favor of the prisoner’s tion at any time of an illegal sentence, not to re-ex-
being able to file a § 2255 motion for relief under those amine errors occurring at the trial or other pro-
circumstances. The proper district in which to file such ceedings prior to the imposition of sentence. The sen-
a motion is the one in which is situated the court tence in this case was not illegal. The punishment
which rendered the sentence under attack. meted out was not in excess of that prescribed by the
Under rule 35, Federal Rules of Criminal Procedure, relevant statutes, multiple terms were not imposed
the court may correct an illegal sentence or a sentence for the same offense, nor were the terms of the sen-
imposed in an illegal manner, or may reduce the sen- tence itself legally or constitutionally invalid in any
tence. This remedy should be used, rather than a mo- other respect.
tion under these § 2255 rules, whenever applicable, but 368 U.S. at 430
there is some overlap between the two proceedings
which has caused the courts difficulty. The four dissenters felt the majority definition of ‘‘ille-
The movant should not be barred from an appropriate gal’’ was too narrow.
remedy because he has misstyled his motion. See [Rule 35] provides for the correction of an ‘‘illegal
United States v. Morgan, 346 U.S. 502, 505 (1954). The sentence’’ without regard to the reasons why that
court should construe it as whichever one is proper sentence is illegal and contains not a single word to
under the circumstances and decide it on its merits. support the Court’s conclusion that only a sentence
For a § 2255 motion construed as a rule 35 motion, see illegal by reason of the punishment it imposes is ‘‘il-
Heflin v. United States, 358 U.S. 415 (1959); and United legal’’ within the meaning of the Rule. I would have
States v. Coke, 404 F.2d 836 (2d Cir. 1968). For writ of thought that a sentence imposed in an illegal man-
error coram nobis treated as a rule 35 motion, see Haw- ner—whether the amount or form of the punishment
kins v. United States, 324 F.Supp. 223 (E.D.Texas, Tyler meted out constitutes an additional violation of law
Division 1971). For a rule 35 motion treated as a § 2255 or not—would be recognized as an ‘‘illegal sentence’’
motion, see Moss v. United States, 263 F.2d 615 (5th Cir. under any normal reading of the English language.
1959); Jones v. United States, 400 F.2d 892 (8th Cir. 1968),
368 U.S. at 431–432
cert. denied 394 U.S. 991 (1969); and United States v.
Brown, 413 F.2d 878 (9th Cir. 1969), cert. denied, 397 U.S. The 1966 amendment of rule 35 added language permit-
947 (1970). ting correction of a sentence imposed in an ‘‘illegal
One area of difference between § 2255 and rule 35 mo- manner.’’ However, there is a 120-day time limit on a
tions is that for the latter there is no requirement that motion to do this, and the added language does not
the movant be ‘‘in custody.’’ Heflin v. United States, 358 clarify the intent of the rule or its relation to § 2255.
U.S. 415, 418, 422 (1959); Duggins v. United States, 240 F.2d The courts have been flexible in considering motions
479, 483 (6th Cir. 1957). Compare with rule 1 and advisory under circumstances in which relief might appear to be
committee note for § 2255 motions. The importance of precluded by Hill v. United States. In Peterson v. United
this distinction has decreased since Peyton v. Rowe, 391 States, 432 F.2d 545 (8th Cir. 1970), the court was con-
U.S. 54 (1968), but it might still make a difference in fronted with a motion for reduction of sentence by a
particular situations. prisoner claiming to have received a harsher sentence
A rule 35 motion is used to attack the sentence im- than his codefendants because he stood trial rather
posed, not the basis for the sentence. The court in than plead guilty. He alleged that this violated his con-
Gilinsky v. United States, 335 F.2d 914, 916 (9th Cir. 1964), stitutional right to a jury trial. The court ruled that,
stated, ‘‘a Rule 35 motion presupposes a valid convic- even though it was past the 120-day time period for a
tion. * * * [C]ollateral attack on errors allegedly com- motion to reduce sentence, the claim was still cog-
mitted at trial is not permissible under Rule 35.’’ By il- nizable under rule 35 as a motion to correct an illegal
lustration the court noted at page 917: ‘‘a Rule 35 pro- sentence.
ceeding contemplates the correction of a sentence of a The courts have made even greater use of § 2255 in
court having jurisdiction. * * * [J]urisdictional defects these types of situations. In United States v. Lewis, 392
* * * involve a collateral attack, they must ordinarily F.2d 440 (4th Cir. 1968), the prisoner moved under § 2255
be presented under 28 U.S.C. § 2255.’’ In United States v. and rule 35 for relief from a sentence he claimed was
Semet, 295 F.Supp. 1084 (E.D. Okla. 1968), the prisoner the result of the judge’s misunderstanding of the rel-
§ 2255 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 560
evant sentencing law. The court held that he could not The language in new Rule 2(c) has been changed to re-
get relief under rule 35 because it was past the 120 days flect that a moving party must substantially follow the
for correction of a sentence imposed in an illegal man- standard form, which is appended to the rules, or a
ner and under Hill v. United States it was not an illegal form provided by the court. The current rule, Rule 2(c),
sentence. However, § 2255 was applicable because of its seems to indicate a preference for the standard ‘‘na-
‘‘otherwise subject to collateral attack’’ language. The tional’’ form. Under the amended rule, there is no stat-
flaw was not a mere trial error relating to the finding ed preference. The Committee understood that the cur-
of guilt, but a rare and unusual error which amounted rent practice in some courts is that if the moving party
to ‘‘exceptional circumstances’’ embraced in § 2255’s first files a motion using the national form, that courts
words ‘‘collateral attack.’’ See 368 U.S. at 444 for dis- may ask the moving party to supplement it with the
cussion of other cases allowing use of § 2255 to attack local form.
the sentence itself in similar circumstances, especially Current Rule 2(d), which provided for returning an in-
where the judge has sentenced out of a misapprehen- sufficient motion[,] has been deleted. The Committee
sion of the law. believed that the approach in Federal Rule of Civil Pro-
In United States v. McCarthy, 433 F.2d 591, 592 (1st Cir. cedure 5(e) was more appropriate for dealing with mo-
1970), the court allowed a prisoner who was past the tions that do not conform to the form requirements of
time limit for a proper rule 35 motion to use § 2255 to the rule. That Rule provides that the clerk may not
attack the sentence which he received upon a plea of refuse to accept a filing solely for the reason that it
guilty on the ground that it was induced by an fails to comply with these rules or local rules. Before
unfulfilled promise of the prosecutor to recommend le- the adoption of a one-year statute of limitations in the
niency. The court specifically noted that under § 2255 Antiterrorism and Effective Death Penalty Act of 1996,
this was a proper collateral attack on the sentence and 110 Stat. 1214, the moving party suffered no penalty,
there was no need to attack the conviction as well. other than delay, if the motion was deemed insuffi-
The court in United States v. Malcolm, 432 F.2d 809, 814, cient. Now that a one-year statute of limitations ap-
818 (2d Cir. 1970), allowed a prisoner to challenge his plies to motions filed under § 2255, see 28 U.S.C.
sentence under § 2255 without attacking the conviction. § 2244(d)(1), the court’s dismissal of a motion because it
It held rule 35 inapplicable because the sentence was is not in proper form may pose a significant penalty for
not illegal on its face, but the manner in which the sen- a moving party, who may not be able to file another
tence was imposed raised a question of the denial of due motion within the one-year limitations period. Now,
process in the sentencing itself which was cognizable under revised Rule 3(b), the clerk is required to file a
under § 2255. motion, even though it may otherwise fail to comply
The flexible approach taken by the courts in the with the provisions in revised Rule 2(b). The Com-
above cases seems to be the reasonable way to handle mittee believed that the better procedure was to accept
these situations in which rule 35 and § 2255 appear to the defective motion and require the moving party to
overlap. For a further discussion of this problem, see C. submit a corrected motion that conforms to Rule 2(b).
Wright, Federal Practice and Procedure; Criminal Changes Made After Publication and Comments. The
§§ 581–587 (1969, Supp. 1975). Committee changed Rule 2(b)(2) to read ‘‘state the
See the advisory committee note to rule 2 of the § 2254 facts’’ rather then [sic] ‘‘briefly summarize the facts.’’
rules for further discussion of the purposes and intent One commentator had written that the current lan-
of rule 2 of these § 2255 rules. guage may actually mislead the petitioner and is also
1982 AMENDMENT redundant.
Rule 2(b)(4) was also modified to reflect that some
Subdivision (b). The amendment takes into account motions may be printed using a word processing pro-
28 U.S.C. § 1746, enacted after adoption of the § 2255 gram.
rules. Section 1746 provides that in lieu of an affidavit Finally, Rule 2(b)(5) was changed to emphasize that
an unsworn statement may be given under penalty of any person, other than the petitioner, who signs the pe-
perjury in substantially the following form if executed tition must be authorized to do so.
within the United States, its territories, possessions or
commonwealths: ‘‘I declare (or certify, verify, or state) AMENDMENTS
under penalty of perjury that the foregoing is true and 1976—Subd. (b). Pub. L. 94–426, § 2(3), inserted ‘‘sub-
correct. Executed on (date). (Signature).’’ The statute stantially’’ after ‘‘The motion shall be in’’, and struck
is ‘‘intended to encompass prisoner litigation,’’ and the out requirement that the motion follow the prescribed
statutory alternative is especially appropriate in such form.
cases because a notary might not be readily available. Subd. (d). Pub. L. 94–426, § 2(4), inserted ‘‘substan-
Carter v. Clark, 616 F.2d 228 (5th Cir. 1980). The § 2255 tially’’ after ‘‘district court does not’’, and struck out
forms have been revised accordingly. provision which permitted the clerk to return a motion
COMMITTEE NOTES ON RULES—2004 AMENDMENT for noncompliance without a judge so directing.
The language of Rule 2 has been amended as part of Rule 3. Filing the Motion; Inmate Filing
general restyling of the rules to make them more eas-
ily understood and to make style and terminology con- (a) WHERE TO FILE; COPIES. An original and
sistent throughout the rules. These changes are in- two copies of the motion must be filed with the
tended to be stylistic and no substantive change is in- clerk.
tended, except as described below. (b) FILING AND SERVICE. The clerk must file
Revised Rule 2(b)(5) has been amended by removing the motion and enter it on the criminal docket
the requirement that the motion be signed personally
by the moving party. Thus, under the amended rule the
of the case in which the challenged judgment
motion may be signed by [the] movant personally or by was entered. The clerk must then deliver or
someone acting on behalf of the movant, assuming that serve a copy of the motion on the United States
the person is authorized to do so, for example, an attor- attorney in that district, together with a notice
ney for the movant. The Committee envisions that the of its filing.
courts would apply third-party, or ‘‘next-friend,’’ (c) TIME TO FILE. The time for filing a motion
standing analysis in deciding whether the signer was is governed by 28 U.S.C. § 2255 para. 6.
actually authorized to sign the motion on behalf of the (d) INMATE FILING. A paper filed by an inmate
movant. See generally Whitmore v. Arkansas, 495 U.S. 149
confined in an institution is timely if deposited
(1990) (discussion of requisites for ‘‘next friend’’ stand-
ing in habeas petitions). See also 28 U.S.C. § 2242 (appli- in the institution’s internal mailing system on
cation for state habeas corpus relief may be filed by the or before the last day for filing. If an institution
person who is seeking relief, or by someone acting on has a system designed for legal mail, the inmate
behalf of that person). must use that system to receive the benefit of
Page 561 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2255
this rule. Timely filing may be shown by a dec- COMMITTEE NOTES ON RULES—2004 AMENDMENT
laration in compliance with 28 U.S.C. § 1746 or by The language of Rule 3 has been amended as part of
a notarized statement, either of which must set general restyling of the rules to make them more eas-
forth the date of deposit and state that first- ily understood and to make style and terminology con-
class postage has been prepaid. sistent throughout the rules. These changes are in-
tended to be stylistic and no substantive change is in-
(As amended Apr. 26, 2004, eff. Dec. 1, 2004.) tended, except as indicated below.
Revised Rule 3(b) is new and is intended to parallel
ADVISORY COMMITTEE NOTE Federal Rule of Civil Procedure 5(e), which provides
There is no filing fee required of a movant under that the clerk may not refuse to accept a filing solely
these rules. This is a change from the practice of charg- for the reason that it fails to comply with these rules
ing $15 and is done to recognize specifically the nature or local rules. Before the adoption of a one-year statute
of a § 2255 motion as being a continuation of the crimi- of limitations in the Antiterrorism and Effective Death
nal case whose judgment is under attack. Penalty Act of 1996, 110 Stat. 1214, the moving party
The long-standing practice of requiring a $15 filing suffered no penalty, other than delay, if the petition
fee has followed from 28 U.S.C. § 1914(a) whereby ‘‘par- was deemed insufficient. That Act, however, added a
ties instituting any civil action * * * pay a filing fee of one-year statute of limitations to motions filed under
$15, except that on an application for a writ of habeas § 2255, see 28 U.S.C. § 2244(d)(1). Thus, a court’s dismissal
corpus the filing fee shall be $5.’’ This has been held to of a defective motion may pose a significant penalty
apply to a proceeding under § 2255 despite the rationale for a moving party who may not be able to file a cor-
that such a proceeding is a motion and thus a continu- rected motion within the one-year limitation period.
ation of the criminal action. (See note to rule 1.) The Committee believed that the better procedure was
A motion under Section 2255 is a civil action and to accept the defective motion and require the moving
the clerk has no choice but to charge a $15.00 filing party to submit a corrected motion that conforms to
fee unless by leave of court it is filed in forma Rule 2. Thus, revised Rule 3(b) requires the clerk to file
pauperis. a motion, even though it may otherwise fail to comply
McCune v. United States, 406 F.2d 417, 419 (6th Cir. with Rule 2.
1969). Revised Rule 3(c), which sets out a specific reference
Although the motion has been considered to be a new to 28 U.S.C. § 2255, paragraph 6, is new and has been
civil action in the nature of habeas corpus for filing added to put moving parties on notice that a one-year
purposes, the reduced fee for habeas has been held not statute of limitations applies to motions filed under
applicable. The Tenth Circuit considered the specific these Rules. Although the rule does not address the
issue in Martin v. United States, 273 F.2d 775 (10th Cir. issue, every circuit that has addressed the issue has
1960), cert. denied, 365 U.S. 853 (1961), holding that the taken the position that equitable tolling of the statute
reduced fee was exclusive to habeas petitions. of limitations is available in appropriate cir-
Counsel for Martin insists that, if a docket fee must cumstances. See, e.g., Dunlap v. United States, 250 F.3d
be paid, the amount is $5 rather than $15 and bases 1001, 1004–07 (6th Cir. 2001); Moore v. United States, 173
his contention on the exception contained in 28 F.3d 1131, 1133–35 (8th Cir. 1999); Sandvik v. United States,
U.S.C. § 1914 that in habeas corpus the fee is $5. This 177 F.3d 1269, 1270–72 (11th Cir. 1999). The Supreme Court
reads into § 1914 language which is not there. While an has not addressed the question directly. See Duncan v.
application under § 2255 may afford the same relief as Walker, 533 U.S. 167, 181 (2001) (‘‘We . . . have no occa-
that previously obtainable by habeas corpus, it is not sion to address the question that Justice Stevens raises
a petition for a writ of habeas corpus. A change in concerning the availability of equitable tolling.’’).
§ 1914 must come from Congress. Rule 3(d) is new and provides guidance on deter-
mining whether a motion from an inmate is considered
273 F.2d at 778 to have been filed in a timely fashion. The new provi-
sion parallels Federal Rule of Appellate Procedure
Although for most situations § 2255 is intended to pro- 25(a)(2)(C).
vide to the federal prisoner a remedy equivalent to ha- Changes Made After Publication and Comments. The
beas corpus as used by state prisoners, there is a major Committee modified the Committee Note to reflect
distinction between the two. Calling a § 2255 request for that the clerk must file a motion, even in those in-
relief a motion rather than a petition militates toward stances where the necessary filing fee or in forma
charging no new filing fee, not an increased one. In the pauperis form is not attached. The Note also includes
absence of convincing evidence to the contrary, there is new language concerning the equitable tolling of the
no reason to suppose that Congress did not mean what statute of limitations.
it said in making a § 2255 action a motion. Therefore, as
in other motions filed in a criminal action, there is no Rule 4. Preliminary Review
requirement of a filing fee. It is appropriate that the
present situation of docketing a § 2255 motion as a new (a) REFERRAL TO A JUDGE. The clerk must
action and charging a $15 filing fee be remedied by the promptly forward the motion to the judge who
rule when the whole question of § 2255 motions is thor- conducted the trial and imposed sentence or, if
oughly thought through and organized. the judge who imposed sentence was not the
Even though there is no need to have a forma trial judge, to the judge who conducted the pro-
pauperis affidavit to proceed with the action since ceedings being challenged. If the appropriate
there is no requirement of a fee for filing the motion
judge is not available, the clerk must forward
the affidavit remains attached to the form to be sup-
plied potential movants. Most such movants are indi- the motion to a judge under the court’s assign-
gent, and this is a convenient way of getting this into ment procedure.
the official record so that the judge may appoint coun- (b) INITIAL CONSIDERATION BY THE JUDGE. The
sel, order the government to pay witness fees, allow judge who receives the motion must promptly
docketing of an appeal, and grant any other rights to examine it. If it plainly appears from the mo-
which an indigent is entitled in the course of a § 2255 tion, any attached exhibits, and the record of
motion, when appropriate to the particular situation, prior proceedings that the moving party is not
without the need for an indigency petition and adju-
entitled to relief, the judge must dismiss the
dication at such later point in the proceeding. This
should result in a streamlining of the process to allow motion and direct the clerk to notify the mov-
quicker disposition of these motions. ing party. If the motion is not dismissed, the
For further discussion of this rule, see the advisory judge must order the United States attorney to
committee note to rule 3 of the § 2254 rules. file an answer, motion, or other response within
§ 2255 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 562
a fixed time, or to take other action the judge under some circumstances, he may want to disqualify
may order. himself. A movant is not without remedy if he feels
this is unfair to him. He can file an affidavit of bias.
(As amended Apr. 26, 2004, eff. Dec. 1, 2004.) And there is the right to appellate review if the trial
judge refuses to grant his motion. Because the trial
ADVISORY COMMITTEE NOTE judge is thoroughly familiar with the case, there is ob-
Rule 4 outlines the procedure for assigning the mo- vious administrative advantage in giving him the first
tion to a specific judge of the district court and the op- opportunity to decide whether there are grounds for
tions available to the judge and the government after granting the motion.
the motion is properly filed. Since the motion is part of the criminal action in
which was entered the judgment to which it is directed,
The long-standing majority practice in assigning mo-
the files, records, transcripts, and correspondence re-
tions made pursuant to § 2255 has been for the trial
lating to that judgment are automatically available to
judge to determine the merits of the motion. In cases
the judge in his consideration of the motion. He no
where the § 2255 motion is directed against the sen-
longer need order them incorporated for that purpose.
tence, the merits have traditionally been decided by Rule 4 has its basis in § 2255 (rather than 28 U.S.C.
the judge who imposed sentence. The reasoning for this § 2243 in the corresponding habeas corpus rule) which
was first noted in Currell v. United States, 173 F.2d 348, does not have a specific time limitation as to when the
348–349 (4th Cir. 1949): answer must be made. Also, under § 2255, the United
Complaint is made that the judge who tried the States Attorney for the district is the party served
case passed upon the motion. Not only was there no with the notice and a copy of the motion and required
impropriety in this, but it is highly desirable in such to answer (when appropriate). Subdivision (b) continues
cases that the motions be passed on by the judge who this practice since there is no respondent involved in
is familiar with the facts and circumstances sur- the motion (unlike habeas) and the United States At-
rounding the trial, and is consequently not likely to torney, as prosecutor in the case in question, is the
be misled by false allegations as to what occurred. most appropriate one to defend the judgment and op-
This case, and its reasoning, has been almost unani- pose the motion.
mously endorsed by other courts dealing with the issue. The judge has discretion to require an answer or
Commentators have been critical of having the mo- other appropriate response from the United States At-
tion decided by the trial judge. See Developments in torney. See advisory committee note to rule 4 of the
the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, § 2254 rules.
1206–1208 (1970).
COMMITTEE NOTES ON RULES—2004 AMENDMENT
[T]he trial judge may have become so involved with
the decision that it will be difficult for him to review The language of Rule 4 has been amended as part of
it objectively. Nothing in the legislative history sug- general restyling of the rules to make them more eas-
gests that ‘‘court’’ refers to a specific judge, and the ily understood and to make style and terminology con-
procedural advantages of section 2255 are available sistent throughout the rules. These changes are in-
whether or not the trial judge presides at the hear- tended to be stylistic and no substantive change is in-
ing. tended.
The theory that Congress intended the trial judge The amended rule reflects that the response to a Sec-
to preside at a section 2255 hearing apparently origi- tion 2255 motion may be a motion to dismiss or some
nated in Carvell v. United States, 173 F.2d 348 (4th Cir. other response.
Changes Made After Publication and Comments. The
1949) (per curiam), where the panel of judges included
Committee modified Rule 4 to reflect the view of some
Chief Judge Parker of the Fourth Circuit, chairman commentators that it is common practice in some dis-
of the Judicial Conference committee which drafted tricts for the government to file a pre-answer motion
section 2255. But the legislative history does not indi- to dismiss the § 2255 motion. The Committee agreed
cate that Congress wanted the trial judge to preside. with that recommendation and changed the word
Indeed the advantages of section 2255 can all be ‘‘pleading’’ in the rule to ‘‘response.’’ It also made sev-
achieved if the case is heard in the sentencing dis- eral minor changes to the Committee Note.
trict, regardless of which judge hears it. According to
the Senate committee report the purpose of the bill Rule 5. The Answer and the Reply
was to make the proceeding a part of the criminal ac-
tion so the court could resentence the applicant, or (a) WHEN REQUIRED. The respondent is not re-
grant him a new trial. (A judge presiding over a ha- quired to answer the motion unless a judge so
beas corpus action does not have these powers.) In ad- orders.
dition, Congress did not want the cases heard in the (b) CONTENTS. The answer must address the al-
district of confinement because that tended to con- legations in the motion. In addition, it must
centrate the burden on a few districts, and made it state whether the moving party has used any
difficult for witnesses and records to be produced. other federal remedies, including any prior post-
83 Harv.L.Rev. at 1207–1208 conviction motions under these rules or any pre-
vious rules, and whether the moving party re-
The Court of Appeals for the First Circuit has held
ceived an evidentiary hearing.
that a judge other than the trial judge should rule on
(c) RECORDS OF PRIOR PROCEEDINGS. If the an-
the 2255 motion. See Halliday v. United States, 380 F.2d
270 (1st Cir. 1967). swer refers to briefs or transcripts of the prior
There is a procedure by which the movant can have proceedings that are not available in the court’s
a judge other than the trial judge decide his motion in records, the judge must order the government to
courts adhering to the majority rule. He can file an af- furnish them within a reasonable time that will
fidavit alleging bias in order to disqualify the trial not unduly delay the proceedings.
judge. And there are circumstances in which the trial (d) REPLY. The moving party may file a reply
judge will, on his own, disqualify himself. See, e.g., to the respondent’s answer or other pleading.
Webster v. United States, 330 F.Supp. 1080 (1972). How- The judge must set the time to file unless the
ever, there has been some questioning of the effective- time is already set by local rule.
ness of this procedure. See Developments in the Law—
Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1200–1207 (As amended Apr. 26, 2004, eff. Dec. 1, 2004; Apr.
(1970). 25, 2019, eff. Dec. 1, 2019.)
Subdivision (a) adopts the majority rule and provides
that the trial judge, or sentencing judge if different and ADVISORY COMMITTEE NOTE
appropriate for the particular motion, will decide the Unlike the habeas corpus statutes (see 28 U.S.C.
motion made pursuant to these rules, recognizing that, §§ 2243, 2248) § 2255 does not specifically call for a return
Page 563 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2255
or answer by the United States Attorney or set any the court set the time for such responses, and in lieu of
time limits as to when one must be submitted. The gen- setting specific time limits in each case, the court may
eral practice, however, if the motion is not summarily decide to include such time limits in its local rules.
dismissed, is for the government to file an answer to Changes Made After Publication and Comments. Rule
the motion as well as counter-affidavits, when appro- 5(a) was modified to read that the government is not
priate. Rule 4 provides for an answer to the motion by required to ‘‘respond’’ to the motion unless the court so
the United States Attorney, and rule 5 indicates what orders; the term ‘‘respond’’ was used because it leaves
its contents should be. open the possibility that the government’s first re-
There is no requirement that the movant exhaust his sponse (as it is in some districts) is in the form of a pre-
remedies prior to seeking relief under § 2255. However, answer motion to dismiss the petition. The Note has
the courts have held that such a motion is inappro- been changed to reflect the fact that although the rule
priate if the movant is simultaneously appealing the itself does not reflect that particular motion, it is used
decision. in some districts and refers the reader to Rule 4.
We are of the view that there is no jurisdictional Finally, the Committee changed the Note to address
bar to the District Court’s entertaining a Section 2255 the use of the term ‘‘traverse,’’ a point raised by one of
motion during the pendency of a direct appeal but the commentators on the proposed rule.
that the orderly administration of criminal law pre-
COMMITTEE NOTES ON RULES—2019 AMENDMENT
cludes considering such a motion absent extraor-
dinary circumstances. The moving party has a right to file a reply. Sub-
section (d), added in 2004, removed the discretion of the
Womack v. United States, 395 F.2d 630, 631 (D.C.Cir. court to determine whether or not to allow the moving
1968) party to file a reply in a case under § 2255. The current
Also see Masters v. Eide, 353 F.2d 517 (8th Cir. 1965). The amendment was prompted by decisions holding that
answer may thus cut short consideration of the motion courts nevertheless retained the authority to bar a
if it discloses the taking of an appeal which was omit- reply.
ted from the form motion filed by the movant. As amended, the first sentence of subsection (d)
There is nothing in § 2255 which corresponds to the makes it even clearer that the moving party has a
§ 2248 requirement of a traverse to the answer. Numer- right to file a reply to the respondent’s answer or
ous cases have held that the government’s answer and pleading. It retains the word ‘‘may,’’ which is used
affidavits are not conclusive against the movant, and if throughout the federal rules to mean ‘‘is permitted to’’
they raise disputed issues of fact a hearing must be or ‘‘has a right to.’’ No change in meaning is intended
held. Machibroda v. United States, 368 U.S. 487, 494, 495 by the substitution of ‘‘file’’ for ‘‘submit.’’
(1962); United States v. Salerno, 290 F.2d 105, 106 (2d Cir. As amended, the second sentence of the rule retains
1961); Romero v. United States, 327 F.2d 711, 712 (5th Cir. the court’s discretion to decide when the reply must be
1964); Scott v. United States, 349 F.2d 641, 642, 643 (6th Cir. filed (but not whether it may be filed). To avoid uncer-
1965); Schiebelhut v. United States, 357 F.2d 743, 745 (6th tainty, the amended rule requires the court to set a
Cir. 1966); and Del Piano v. United States, 362 F.2d 931, time for filing if that time is not already set by local
932, 933 (3d Cir. 1966). None of these cases make any rule. Adding a reference to the time for the filing of
mention of a traverse by the movant to the govern- any reply to the order requiring the government to file
ment’s answer. As under rule 5 of the § 2254 rules, there an answer or other pleading provides notice of that
is no intention here that such a traverse be required, deadline to both parties.
except under special circumstances. See advisory com-
mittee note to rule 9. Rule 6. Discovery
Subdivision (b) provides for the government to sup- (a) LEAVE OF COURT REQUIRED. A judge may,
plement its answers with appropriate copies of tran-
for good cause, authorize a party to conduct dis-
scripts or briefs if for some reason the judge does not
already have them under his control. This is because covery under the Federal Rules of Criminal Pro-
the government will in all probability have easier ac- cedure or Civil Procedure, or in accordance with
cess to such papers than the movant, and it will con- the practices and principles of law. If necessary
serve the court’s time to have the government produce for effective discovery, the judge must appoint
them rather than the movant, who would in most in- an attorney for a moving party who qualifies to
stances have to apply in forma pauperis for the govern- have counsel appointed under 18 U.S.C. § 3006A.
ment to supply them for him anyway. (b) REQUESTING DISCOVERY. A party requesting
For further discussion, see the advisory committee discovery must provide reasons for the request.
note to rule 5 of the § 2254 rules.
The request must also include any proposed in-
COMMITTEE NOTES ON RULES—2004 AMENDMENT terrogatories and requests for admission, and
The language of Rule 5 has been amended as part of must specify any requested documents.
general restyling of the rules to make them more eas- (c) DEPOSITION EXPENSES. If the government is
ily understood and to make style and terminology con- granted leave to take a deposition, the judge
sistent throughout the rules. These changes are in- may require the government to pay the travel
tended to be stylistic and no substantive change is in- expenses, subsistence expenses, and fees of the
tended. moving party’s attorney to attend the deposi-
Revised Rule 5(a), which provides that the respondent tion.
is not required to file an answer to the motion, unless
a judge so orders, is taken from current Rule 3(b). The (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
revised rule does not address the practice in some dis-
ADVISORY COMMITTEE NOTE
tricts, where the respondent files a pre-answer motion
to dismiss the motion. But revised Rule 4(b) con- This rule differs from the corresponding discovery
templates that practice and has been changed to reflect rule under the § 2254 rules in that it includes the proc-
the view that if the court does not dismiss the motion, esses of discovery available under the Federal Rules of
it may require (or permit) the respondent to file a mo- Criminal Procedure as well as the civil. This is because
tion. of the nature of a § 2255 motion as a continuing part of
Finally, revised Rule 5(d) adopts the practice in some the criminal proceeding (see advisory committee note
jurisdictions giving the movant an opportunity to file to rule 1) as well as a remedy analogous to habeas cor-
a reply to the respondent’s answer. Rather than using pus by state prisoners.
terms such as ‘‘traverse,’’ see 28 U.S.C. § 2248, to identify See the advisory committee note to rule 6 of the § 2254
the movant’s response to the answer, the rule uses the rules. The discussion there is fully applicable to dis-
more general term ‘‘reply.’’ The Rule prescribes that covery under these rules for § 2255 motions.
§ 2255 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 564
COMMITTEE NOTES ON RULES—2004 AMENDMENT ‘‘merits’’ of the motion. One commentator had stated
that the court may wish to expand the record for pur-
The language of Rule 6 has been amended as part of
poses other than the merits of the case. The Committee
general restyling of the rules to make them more eas-
agreed and also changed the rule to reflect that some-
ily understood and to make style and terminology con-
one other than a party may authenticate the materials.
sistent throughout the rules. These changes are in-
tended to be stylistic and no substantive change is in- Rule 8. Evidentiary Hearing
tended, except as indicated below.
Although current Rule 6(b) contains no requirement (a) DETERMINING WHETHER TO HOLD A HEARING.
that the parties provide reasons for the requested dis- If the motion is not dismissed, the judge must
covery, the revised rule does so and also includes a re- review the answer, any transcripts and records
quirement that the request be accompanied by any pro-
posed interrogatories and requests for admission, and
of prior proceedings, and any materials sub-
must specify any requested documents. The Committee mitted under Rule 7 to determine whether an
believes that the revised rule makes explicit what has evidentiary hearing is warranted.
been implicit in current practice. (b) REFERENCE TO A MAGISTRATE JUDGE. A
Changes Made After Publication and Comments. The judge may, under 28 U.S.C. § 636(b), refer the mo-
Committee modified Rule 6(b), to require that dis- tion to a magistrate judge to conduct hearings
covery requests be supported by reasons, to assist the and to file proposed findings of fact and rec-
court in deciding what, if any, discovery should take ommendations for disposition. When they are
place. The Committee amended the Note to reflect the
view that it believed that the change made explicit
filed, the clerk must promptly serve copies of
what has been implicit in current practice. the proposed findings and recommendations on
all parties. Within 14 days after being served, a
REFERENCES IN TEXT party may file objections as provided by local
The Federal Rules of Criminal Procedure, referred to court rule. The judge must determine de novo
in subd. (a), are set out in the Appendix to Title 18, any proposed finding or recommendation to
Crimes and Criminal Procedure. which objection is made. The judge may accept,
The Federal Rules of Civil Procedure, referred to in reject, or modify any proposed finding or rec-
subd. (a), are set out in the Appendix to this title.
ommendation.
Rule 7. Expanding the Record (c) APPOINTING COUNSEL; TIME OF HEARING. If
an evidentiary hearing is warranted, the judge
(a) IN GENERAL. If the motion is not dismissed, must appoint an attorney to represent a moving
the judge may direct the parties to expand the party who qualifies to have counsel appointed
record by submitting additional materials relat- under 18 U.S.C. § 3006A. The judge must conduct
ing to the motion. The judge may require that the hearing as soon as practicable after giving
these materials be authenticated. the attorneys adequate time to investigate and
(b) TYPES OF MATERIALS. The materials that prepare. These rules do not limit the appoint-
may be required include letters predating the ment of counsel under § 3006A at any stage of the
filing of the motion, documents, exhibits, and proceeding.
answers under oath to written interrogatories (d) PRODUCING A STATEMENT. Federal Rule of
propounded by the judge. Affidavits also may be Criminal Procedure 26.2(a)–(d) and (f) applies at
submitted and considered as part of the record. a hearing under this rule. If a party does not
(c) REVIEW BY THE OPPOSING PARTY. The judge comply with a Rule 26.2(a) order to produce a
must give the party against whom the addi- witness’s statement, the court must not con-
tional materials are offered an opportunity to sider that witness’s testimony.
admit or deny their correctness.
(As amended Pub. L. 94–426, § 2(6), Sept. 28, 1976,
(As amended Apr. 26, 2004, eff. Dec. 1, 2004.) 90 Stat. 1335; Pub. L. 94–577, § 2(a)(2), (b)(2), Oct.
ADVISORY COMMITTEE NOTE 21, 1976, 90 Stat. 2730, 2731; Apr. 22, 1993, eff. Dec.
It is less likely that the court will feel the need to ex- 1, 1993; Apr. 26, 2004, eff. Dec. 1, 2004; Mar. 26,
pand the record in a § 2255 proceeding than in a habeas 2009, eff. Dec. 1, 2009.)
corpus proceeding, because the trial (or sentencing) ADVISORY COMMITTEE NOTE
judge is the one hearing the motion (see rule 4) and
should already have a complete file on the case in his The standards for § 2255 hearings are essentially the
possession. However, rule 7 provides a convenient meth- same as for evidentiary hearings under a habeas peti-
od for supplementing his file if the case warrants it. tion, except that the previous federal fact-finding pro-
See the advisory committee note to rule 7 of the § 2254 ceeding is in issue rather than the state’s. Also § 2255
rules for a full discussion of reasons and procedures for does not set specific time limits for holding the hear-
expanding the record. ing, as does § 2243 for a habeas action. With these minor
differences in mind, see the advisory committee note to
COMMITTEE NOTES ON RULES—2004 AMENDMENT rule 8 of § 2254 rules, which is applicable to rule 8 of
The language of Rule 7 has been amended as part of these § 2255 rules.
general restyling of the rules to make them more eas-
1993 AMENDMENT
ily understood and to make style and terminology con-
sistent throughout the rules. These changes are in- The amendment to Rule 8 is one of a series of parallel
tended to be stylistic and no substantive change is in- amendments to Federal Rules of Criminal Procedure 32,
tended. 32.1, and 46 which extend the scope of Rule 26.2 (Produc-
Revised Rule 7(a) is not intended to restrict the tion of Witness Statements) to proceedings other than
court’s authority to expand the record through means the trial itself. The amendments are grounded on the
other than requiring the parties themselves to provide compelling need for accurate and credible information
the information. in making decisions concerning the defendant’s liberty.
The language in current Rule 7(d), which deals with See the Advisory Committee Note to Rule 26.2(g). A few
authentication of materials in the expanded record, has courts have recognized the authority of a judicial offi-
been moved to revised Rule 7(a). cer to order production of prior statements by a wit-
Changes Made After Publication and Comments. Rule ness at a Section 2255 hearing, see, e.g., United States v.
7(a) was changed by removing the reference to the White, 342 F.2d 379, 382, n.4 (4th Cir. 1959). The amend-
Page 565 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2255
ment to Rule 8 grants explicit authority to do so. The motion for such relief may be made at any time.’’ [Em-
amendment is not intended to require production of a phasis added.] Subdivision (a) provides that delayed
witness’s statement before the witness actually pre- motions may be barred from consideration if the gov-
sents oral testimony. ernment has been prejudiced in its ability to respond to
the motion by the delay and the movant’s failure to
COMMITTEE NOTES ON RULES—2004 AMENDMENT seek relief earlier is not excusable within the terms of
The language of Rule 8 has been amended as part of the rule. Case law, dealing with this issue, is in con-
general restyling of the rules to make them more eas- flict.
ily understood and to make style and terminology con- Some courts have held that the literal language of
sistent throughout the rules. These changes are in- § 2255 precludes any possible time bar to a motion
tended to be stylistic and no substantive change is in- brought under it. In Heflin v. United States, 358 U.S. 415
tended, except as described below. (1959), the concurring opinion noted:
The requirement in current Rule 8(b)(2) that a copy of The statute [28 U.S.C. § 2255] further provides; ‘‘A mo-
the magistrate judge’s findings must be promptly tion * * * may be made at any time.’’ This * * * sim-
mailed to all parties has been changed in revised Rule ply means that, as in habeas corpus, there is no stat-
8(b) to require that copies of those findings be served on ute of limitations, no res judicata, and that the doc-
all parties. As used in this rule, ‘‘service’’ means serv- trine of laches is inapplicable.
ice consistent with Federal Rule of Civil Procedure
358 U.S. at 420
5(b), which allows mailing the copies.
Changes Made After Publication and Comments. The McKinney v. United States, 208 F.2d 844 (D.C.Cir. 1953) re-
Committee made no changes to Rule 8, as published for versed the district court’s dismissal of a § 2255 motion
public comment. for being too late, the court stating:
McKinney’s present application for relief comes
COMMITTEE NOTES ON RULES—2009 AMENDMENT late in the day: he has served some fifteen years in
The time set in the former rule at 10 days has been prison. But tardiness is irrelevant where a constitu-
revised to 14 days. See the Committee Note to Federal tional issue is raised and where the prisoner is still
Rules of Criminal Procedure 45(a). confined.
REFERENCES IN TEXT 208 F.2d at 846, 847
The Federal Rules of Criminal Procedure, referred to In accord, see: Juelich v. United States, 300 F.2d 381, 383
in subd. (d), are set out in the Appendix to Title 18, (5th Cir. 1962); Conners v. United States, 431 F.2d 1207,
Crimes and Criminal Procedure. 1208 (9th Cir. 1970); Sturrup v. United States, 218 F.Supp.
279, 281 (E.D.N.Car. 1963); and Banks v. United States, 319
AMENDMENTS BY PUBLIC LAW F.Supp. 649, 652 (S.D.N.Y. 1970).
1976—Subd. (b). Pub. L. 94–577, § 2(a)(2), substituted It has also been held that delay in filing a § 2255 mo-
provisions which authorized magistrates, when des- tion does not bar the movant because of lack of reason-
ignated to do so in accordance with section 636(b) of able diligence in pressing the claim.
this title, to conduct hearings, including evidentiary The statute [28 U.S.C. § 2255], when it states that the
hearings, on the petition and to submit to a judge of motion may be made at any time, excludes the addi-
the court proposed findings of fact and recommenda- tion of a showing of diligence in delayed filings. A
tions for disposition, which directed the magistrate to number of courts have considered contentions similar
file proposed findings and recommendations with the to those made here and have concluded that there are
court with copies furnished to all parties, which al- no time limitations. This result excludes the require-
lowed parties thus served 10 days to file written objec- ment of diligence which is in reality a time limita-
tions thereto, and which directed a judge of the court tion.
to make de novo determinations of the objected-to por- Haier v. United States, 334 F.2d 441, 442 (10th Cir. 1964)
tions and to accept, reject, or modify the findings or
recommendations for provisions under which the mag- Other courts have recognized that delay may have a
istrate had been empowered only to recommend to the negative effect on the movant. In Raines v. United
district judge that an evidentiary hearing be held or States, 423 F.2d 526 (4th Cir. 1970), the court stated:
that the petition be dismissed. [B]oth petitioners’ silence for extended periods, one
Subd. (c). Pub. L. 94–577, § 2(b)(2), substituted ‘‘and the for 28 months and the other for nine years, serves to
hearing shall be conducted’’ for ‘‘and shall conduct the render their allegations less believable. ‘‘Although a
hearing.’’ delay in filing a section 2255 motion is not a control-
Pub. L. 94–426 provided that these rules not limit the ling element * * * it may merit some consideration
appointment of counsel under section 3006A of title 18, * * *.’’
if the interest of justice so require.
423 F.2d at 531
EFFECTIVE DATE OF 1976 AMENDMENT
In Aiken v. United States, 191 F.Supp. 43, 50
Amendments made by Pub. L. 94–577 effective with re- (M.D.N.Car. 1961), aff’d 296 F.2d 604 (4th Cir. 1961), the
spect to motions under section 2255 of this title filed on court said: ‘‘While motions under 28 U.S.C. § 2255 may
or after Feb. 1, 1977, see section 2(c) of Pub. L. 94–577, be made at any time, the lapse of time affects the good
set out as a note under Rule 8 of the Rules Governing faith and credibility of the moving party.’’ For similar
Cases Under Section 2254 of this title. conclusions, see: Parker v. United States, 358 F.2d 50, 54
n. 4 (7th Cir. 1965), cert. denied, 386 U.S. 916 (1967); Le
Rule 9. Second or Successive Motions Clair v. United States, 241 F.Supp. 819, 824 (N.D. Ind.
1965); Malone v. United States, 299 F.2d 254, 256 (6th Cir.
Before presenting a second or successive mo- 1962), cert. denied, 371 U.S. 863 (1962); Howell v. United
tion, the moving party must obtain an order States, 442 F.2d 265, 274 (7th Cir. 1971); and United States
from the appropriate court of appeals author- v. Wiggins, 184 F. Supp. 673, 676 (D.C.Cir. 1960).
izing the district court to consider the motion, There have been holdings by some courts that a delay
as required by 28 U.S.C. § 2255, para. 8. in filing a § 2255 motion operates to increase the burden
of proof which the movant must meet to obtain relief.
(As amended Pub. L. 94–426, § 2(9), (10), Sept. 28, The reasons for this, as expressed in United States v.
1976, 90 Stat. 1335; Apr. 26, 2004, eff. Dec. 1, 2004.) Bostic, 206 F.Supp. 855 (D.C.Cir. 1962), are equitable in
nature.
ADVISORY COMMITTEE NOTE
Obviously, the burden of proof on a motion to va-
Unlike the statutory provisions on habeas corpus (28 cate a sentence under 28 U.S.C. § 2255 is on the moving
U.S.C. §§ 2241–2254), § 2255 specifically provides that ‘‘a party. . . . The burden is particularly heavy if the
§ 2255 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 566
issue is one of fact and a long time has elapsed since First, current Rule 9(a) has been deleted as unneces-
the trial of the case. While neither the statute of lim- sary in light of the applicable one-year statute of limi-
itations nor laches can bar the assertion of a con- tations for § 2255 motions, added as part of the
stitutional right, nevertheless, the passage of time Antiterrorism and Effective Death Penalty Act of 1996,
may make it impracticable to retry a case if the mo- 28 U.S.C. § 2255, para. 6.
tion is granted and a new trial is ordered. No doubt, Second, the remainder of revised Rule 9 reflects pro-
at times such a motion is a product of an after- visions in the Antiterrorism and Effective Death Pen-
thought. Long delay may raise a question of good alty Act of 1996, 28 U.S.C. § 2255, parh. [sic] 8, which now
faith. require a moving party to obtain approval from the ap-
propriate court of appeals before filing a second or suc-
206 F.Supp. at 856–857 cessive motion.
See also United States v. Wiggins, 184 F.Supp. at 676. Finally, the title of the rule has been changed to re-
A requirement that the movant display reasonable flect the fact that the revised version addresses only
diligence in filing a § 2255 motion has been adopted by the topic of second or successive motions.
some courts dealing with delayed motions. The court in Changes Made After Publication and Comments. The
United States v. Moore, 166 F.2d 102 (7th Cir. 1948), cert. Committee made no changes to Rule 9, as published.
denied, 334 U.S. 849 (1948), did this, again for equitable
reasons. AMENDMENTS BY PUBLIC LAW
[W]e agree with the District Court that the peti- 1976—Subd. (a). Pub. L. 94–426, § 2(9), struck out provi-
tioner has too long slept upon his rights. * * * sion which established a rebuttable presumption of
[A]pparently there is no limitation of time within prejudice to government if the petition was filed more
which * * * a motion to vacate may be filed, except than five years after conviction.
that an applicant must show reasonable diligence in Subd. (b). Pub. L. 94–426, § 2(10), substituted ‘‘con-
presenting his claim. * * * stituted an abuse of the procedure governed by these
The reasons which support the rule requiring dili- rules’’ for ‘‘is not excusable’’.
gence seem obvious. * * * Law enforcement officials
change, witnesses die, memories grow dim. The pros- Rule 10. Powers of a Magistrate Judge
ecuting tribunal is put to a disadvantage if an unex-
pected retrial should be necessary after long passage A magistrate judge may perform the duties of
of time. a district judge under these rules, as authorized
166 F.2d at 105 by 28 U.S.C. § 636.
In accord see Desmond v. United States, 333 F.2d 378, 381 (As amended Pub. L. 94–426, § 2(12), Sept. 28, 1976,
(1st Cir. 1964), on remand, 345 F.2d 225 (1st Cir. 1965). 90 Stat. 1335; Apr. 30, 1979, eff. Aug. 1, 1979; Apr.
One of the major arguments advanced by the courts 26, 2004, eff. Dec. 1, 2004.)
which would penalize a movant who waits an unduly
long time before filing a § 2255 motion is that such ADVISORY COMMITTEE NOTE
delay is highly prejudicial to the prosecution. In See the advisory committee note to rule 10 of the
Desmond v. United States, writing of a § 2255 motion al- § 2254 rules for a discussion fully applicable here as well.
leging denial of effective appeal because of deception
by movant’s own counsel, the court said: 1979 AMENDMENT
[A]pplications for relief such as this must be made
This amendment conforms the rule to 18 U.S.C. § 636.
promptly. It will not do for a prisoner to wait until
See Advisory Committee Note to rule 10 of the Rules
government witnesses have become unavailable as by
Governing Section 2254 Cases in the United States Dis-
death, serious illness or absence from the country, or
trict Courts.
until the memory of available government witnesses
has faded. It will not even do for a prisoner to wait COMMITTEE NOTES ON RULES—2004 AMENDMENT
any longer than is reasonably necessary to prepare
appropriate moving papers, however inartistic, after The language of Rule 10 has been amended as part of
discovery of the deception practiced upon him by his general restyling of the rules to make them more eas-
attorney. ily understood and to make style and terminology con-
sistent throughout the rules. These changes are in-
333 F.2d at 381 tended to be stylistic and no substantive change is in-
In a similar vein are United States v. Moore and United tended.
States v. Bostic, supra, and United States v. Wiggins, 184 Changes Made After Publication and Comments. The
F. Supp. at 676. Committee restyled the proposed rule.
Subdivision (a) provides a flexible, equitable time AMENDMENTS BY PUBLIC LAW
limitation based on laches to prevent movants from
withholding their claims so as to prejudice the govern- 1976—Pub. L. 94–426 inserted ‘‘, and to the extent the
ment both in meeting the allegations of the motion and district court has established standards and criteria for
in any possible retrial. It includes a reasonable dili- the performance of such duties,’’ after ‘‘rule of the dis-
gence requirement for ascertaining possible grounds for trict court’’.
relief. If the delay is found to be excusable, or non-
prejudicial to the government, the time bar is inoper- Rule 11. Certificate of Appealability; Time to
ative. Appeal
Subdivision (b) is consistent with the language of
§ 2255 and relevant case law. (a) CERTIFICATE OF APPEALABILITY. The dis-
The annexed form is intended to serve the same pur- trict court must issue or deny a certificate of
pose as the comparable one included in the § 2254 rules. appealability when it enters a final order ad-
For further discussion applicable to this rule, see the verse to the applicant. Before entering the final
advisory committee note to rule 9 of the § 2254 rules. order, the court may direct the parties to sub-
COMMITTEE NOTES ON RULES—2004 AMENDMENT mit arguments on whether a certificate should
issue. If the court issues a certificate, the court
The language of Rule 9 has been amended as part of
must state the specific issue or issues that sat-
general restyling of the rules to make them more eas-
ily understood and to make style and terminology con- isfy the showing required by 28 U.S.C. § 2253(c)(2).
sistent throughout the rules. These changes are in- If the court denies a certificate, a party may not
tended to be stylistic and no substantive change is in- appeal the denial but may seek a certificate
tended, except as indicated below. from the court of appeals under Federal Rule of
Page 567 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2255
Appellate Procedure 22. A motion to reconsider 11(a) also requires the district judge to grant or deny
a denial does not extend the time to appeal. the certificate at the time a final order is issued. See 3d
(b) TIME TO APPEAL. Federal Rule of Appellate Cir. R. 22.2, 111.3. This will ensure prompt decision
making when the issues are fresh, rather than post-
Procedure 4(a) governs the time to appeal an
poning consideration of the certificate until after a no-
order entered under these rules. A timely notice tice of appeal is filed. These changes will expedite pro-
of appeal must be filed even if the district court ceedings, avoid unnecessary remands, and help to in-
issues a certificate of appealability. These rules form the applicant’s decision whether to file a notice of
do not extend the time to appeal the original appeal.
judgment of conviction. Subdivision (b). The amendment is designed to make
it clear that the district court’s grant of a COA does
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. not eliminate the need to file a notice of appeal.
26, 2004, eff. Dec. 1, 2004; Mar. 26, 2009, eff. Dec. 1, Changes Made to Proposed Amendment Released for Pub-
2009.) lic Comment. In response to public comments, a sen-
tence was added stating that prior to the entry of the
ADVISORY COMMITTEE NOTE final order the district court may direct the parties to
Rule 11 is intended to make clear that, although a submit arguments on whether or not a certificate
§ 2255 action is a continuation of the criminal case, the should issue. This allows a court in complex cases (such
bringing of a § 2255 action does not extend the time. as death penalty cases with numerous claims) to solicit
briefing that might narrow the issues for appeal. For
1979 AMENDMENT purposes of clarification, two sentences were added at
Prior to the promulgation of the Rules Governing the end of subdivision (a) stating that (1) although the
Section 2255 Proceedings, the courts consistently held district court’s denial of a certificate is not appealable,
that the time for appeal in a section 2255 case is as pro- a certificate may be sought in the court of appeals, and
vided in Fed.R.App.P. 4(a), that is, 60 days when the (2) a motion for reconsideration of a denial of a certifi-
government is a party, rather than as provided in ap- cate does not extend the time to appeal. Finally, a sen-
pellate rule 4(b), which says that the time is 10 days in tence indicating that notice of appeal must be filed
criminal cases. This result has often been explained on even if a COA is issued was added to subdivision (b).
the ground that rule 4(a) has to do with civil cases and Minor changes were also made to conform to style
that ‘‘proceedings under section 2255 are civil in na- conventions.
ture.’’ E.g., Rothman v. United States, 508 F.2d 648 (3d
REFERENCES IN TEXT
Cir. 1975). Because the new section 2255 rules are based
upon the premise ‘‘that a motion under § 2255 is a fur- The Federal Rules of Appellate Procedure, referred to
ther step in the movant’s criminal case rather than a in text, are set out in the Appendix to this title.
separate civil action,’’ see Advisory Committee Note to
rule 1, the question has arisen whether the new rules Rule 12. Applicability of the Federal Rules of
have the effect of shortening the time for appeal to Civil Procedure and the Federal Rules of
that provided in appellate rule 4(b). A sentence has Criminal Procedure
been added to rule 11 in order to make it clear that this
is not the case. The Federal Rules of Civil Procedure and the
Even though section 2255 proceedings are a further Federal Rules of Criminal Procedure, to the ex-
step in the criminal case, the added sentence correctly tent that they are not inconsistent with any
states current law. In United States v. Hayman, 342 U.S. statutory provisions or these rules, may be ap-
205 (1952), the Supreme Court noted that such appeals plied to a proceeding under these rules.
‘‘are governed by the civil rules applicable to appeals
from final judgments in habeas corpus actions.’’ In sup- (As amended Apr. 26, 2004, eff. Dec. 1, 2004.)
port, the Court cited Mercado v. United States, 183 F.2d
486 (1st Cir. 1950), a case rejecting the argument that ADVISORY COMMITTEE NOTE
because § 2255 proceedings are criminal in nature the This rule differs from rule 11 of the § 2254 rules in that
time for appeal is only 10 days. The Mercado court con- it includes the Federal Rules of Criminal Procedure as
cluded that the situation was governed by that part of well as the civil. This is because of the nature of a § 2255
28 U.S.C. § 2255 which reads: ‘‘An appeal may be taken motion as a continuing part of the criminal proceeding
to the court of appeals from the order entered on the (see advisory committee note to rule 1) as well as a
motion as from a final judgment on application for a remedy analogous to habeas corpus by state prisoners.
writ of habeas corpus.’’ Thus, because appellate rule Since § 2255 has been considered analogous to habeas
4(a) is applicable in habeas cases, it likewise governs in as respects the restrictions in Fed.R.Civ.P. 81(a)(2) (see
§ 2255 cases even though they are criminal in nature. Sullivan v. United States, 198 F.Supp. 624 (S.D.N.Y. 1961)),
COMMITTEE NOTES ON RULES—2004 AMENDMENT rule 12 is needed. For discussion, see the advisory com-
mittee note to rule 11 of the § 2254 rules.
The language of Rule 11 has been amended as part of
general restyling of the rules to make them more eas- COMMITTEE NOTES ON RULES—2004 AMENDMENT
ily understood and to make style and terminology con- The language of Rule 12 has been amended as part of
sistent throughout the rules. These changes are in- general restyling of the rules to make them more eas-
tended to be stylistic and no substantive change is in- ily understood and to make style and terminology con-
tended. sistent throughout the rules. These changes are in-
Changes Made After Publication and Comments. The tended to be stylistic and no substantive change is in-
Committee made no changes to Rule 11, as published. tended.
COMMITTEE NOTES ON RULES—2009 AMENDMENT Changes Made After Publication and Comments. The
Committee made no changes to Rule 12.
Subdivision (a). As provided in 28 U.S.C. § 2253(c), an
applicant may not appeal to the court of appeals from REFERENCES IN TEXT
a final order in a proceeding under § 2255 unless a judge The Federal Rules of Civil Procedure, referred to in
issues a COA, identifying the specific issues for which heading and text, are set out in the Appendix to this
the applicant has made a substantial showing of a de- title.
nial of constitutional right. New Rule 11(a) makes the The Federal Rules of Criminal Procedure, referred to
requirements concerning certificates of appealability in heading and text, are set out in the Appendix to
more prominent by adding and consolidating them in Title 18, Crimes and Criminal Procedure.
the appropriate rule of the Rules Governing § 2255 Pro-
ceedings for the United States District Courts. Rule APPENDIX OF FORMS
§ 2255 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 568
Page 569 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2255
§ 2255 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 570
Page 571 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2255
§ 2255 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 572
Page 573 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2255
§ 2255 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 574
Page 575 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2255
§ 2255 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 576
Page 577 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2255
§ 2255 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 578
Page 579 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2255
§ 2255 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 580
Page 581 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2255
[§ 2256 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 582
IN FORMA PAUPERIS DECLARATION I further certify that movant likewise has the following
securities to his credit according to the records of said
lllllllllllllllllllllllll llll institution:
[Insert appropriate court]
lllllllllllllllllllllllll
lllllllllllllllllllllllll
United States DECLARATION IN lllllllllllllllllllllllll
SUPPORT lllllllllllllllllllllllll
v. OF REQUEST llllllllllllll
llllllllllllll TO PROCEED Authorized Officer of
(Movant) IN FORMA Institution
PAUPERIS
(As amended Apr. 28, 1982, eff. Aug. 1, 1982; Apr. 26, 2004,
I, llllllllllllll, declare that I am the eff. Dec. 1, 2004.)
movant in the above entitled case; that in support of
my motion to proceed without being required to prepay MODEL FORM FOR USE IN 28 U.S.C. § 2255 CASES
fees, costs or give security therefor, I state that be- INVOLVING A RULE 9 ISSUE
cause of my poverty, I am unable to pay the costs of Form No. 9
said proceeding or to give security therefor; that I be-
[Omitted as obsolete]
lieve I am entitled to relief.
1. Are you presently employed? Yes b No b Changes Made After Publication and Comments—Forms
a. If the answer is ‘‘yes,’’ state the amount of your Accompanying Rules Governing § 2254 and § 2255 Pro-
salary or wages per month, and give the name ceedings. Responding to a number of comments from
and address of your employer. the public, the Committee deleted from both sets of of-
lllllllllllllllllllllllll ficial forms the list of possible grounds of relief. The
lllllllllllllllllllllllll Committee made additional minor style corrections to
b. If the answer is ‘‘no,’’ state the date of last em- the forms.
ployment and the amount of the salary and
wages per month which you received. [§ 2256. Omitted]
lllllllllllllllllllllllll CODIFICATION
lllllllllllllllllllllllll
2. Have you received within the past twelve months Section, added Pub. L. 95–598, title II, § 250(a), Nov. 6,
any money from any of the following sources? 1978, 92 Stat. 2672, did not become effective pursuant to
a. Business, profession or form of self-employment? section 402(b) of Pub. L. 95–598, as amended, set out as
Yes b No b an Effective Date note preceding section 101 of Title 11,
b. Rent payments, interest or dividends? Bankruptcy. Section read as follows:
Yes b No b § 2256. Habeas corpus from bankruptcy courts
c. Pensions, annuities or life insurance payments? A bankruptcy court may issue a writ of habeas cor-
Yes b No b pus—
d. Gifts or inheritances? Yes b No b (1) when appropriate to bring a person before the
e. Any other sources? Yes b No b court—
If the answer to any of the above is ‘‘yes,’’ de- (A) for examination;
scribe each source of money and state the amount (B) to testify; or
received from each during the past twelve months. (C) to perform a duty imposed on such person
lllllllllllllllllllllllllll under this title; or
lllllllllllllllllllllllllll (2) ordering the release of a debtor in a case under
lllllllllllllllllllllllllll title 11 in custody under the judgment of a Federal or
3. Do you own any cash, or do you have money in a State court if—
checking or savings account? (A) such debtor was arrested or imprisoned on
Yes b No b (Include any funds in prison accounts) process in any civil action;
If the answer is ‘‘yes,’’ state the total value of the (B) such process was issued for the collection of a
items owned. debt—
lllllllllllllllllllllllllll (i) dischargeable under title 11; or
lllllllllllllllllllllllllll (ii) that is or will be provided for in a plan
lllllllllllllllllllllllllll under chapter 11 or 13 of title 11; and
4. Do you own real estate, stocks, bonds, notes, auto- (C) before the issuance of such writ, notice and a
mobiles, or other valuable property (excluding ordi- hearing have been afforded the adverse party of
nary household furnishings and clothing)? such debtor in custody to contest the issuance of
Yes b No b such writ.
If the answer is ‘‘yes,’’ describe the property and
state its approximate value.
Editorial Notes
lllllllllllllllllllllllllll
lllllllllllllllllllllllllll PRIOR PROVISIONS
5. List the persons who are dependent upon you for sup-
port, state your relationship to those persons, and A prior section 2256, added Pub. L. 95–144, § 3, Oct. 28,
indicate how much you contribute toward their 1977, 91 Stat. 1220, related to jurisdiction of proceedings
support. relating to transferred offenders, prior to transfer to
lllllllllllllllllllllllllll section 3244 of Title 18, Crimes and Criminal Procedure,
lllllllllllllllllllllllllll by Pub. L. 95–598, title III, § 314(j), Nov. 6, 1978, 92 Stat.
I declare (or certify, verify, or state) under penalty of 2677.
perjury that the foregoing is true and correct. Executed CHAPTER 154—SPECIAL HABEAS CORPUS
on lllll.
(date)
PROCEDURES IN CAPITAL CASES
llllllllllllll Sec.
Signature of Movant 2261. Prisoners in State custody subject to capital
sentence; appointment of counsel; require-
CERTIFICATE
ment of rule of court or statute; procedures
I hereby certify that the movant herein has the sum for appointment.
of $llll on account to his credit at the llll in- 2262. Mandatory stay of execution; duration; limits
stitution where he is confined. on stays of execution; successive petitions.
File and source
- File
- USCODE-2023-title28-partVI-chap153-sec2255.pdf
- Size
- 880,295 bytes
- SHA-256
- 6b56a61381070a5c17d8593060bd4a824e686d42af36cbf9ee6a3eadfa51832d
- Original
- www.govinfo.gov