Laws: Cases and Codes : U.S. Code : Title 28 : Section 2254
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U.S. Code as of:
01/19/04
Section 2254 - Notes
SOURCE
(June 25, 1948, ch. 646, 62 Stat. 967; Pub. L. 89-711, Sec. 2, Nov.
2, 1966, 80 Stat. 1105; Pub. L. 104-132, title I, Sec. 104, Apr.
24, 1996, 110 Stat. 1218.)
HISTORICAL AND REVISION NOTES
This new section is declaratory of existing law as affirmed by
the Supreme Court. (See Ex parte Hawk, 1944, 64 S. Ct. 448, 321,
U.S. 114, 88L. Ed. 572.)
REFERENCES IN TEXT
Section 408 of the Controlled Substances Act, referred to in
subsec. (h), is classified to section 848 of Title 21, Food and
Drugs.
AMENDMENTS
1996 - Subsec. (b). Pub. L. 104-132, Sec. 104(1), amended subsec.
(b) generally. Prior to amendment, subsec. (b) read as follows: "An
application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted unless it appears that the applicant has exhausted the
remedies available in the courts of the State, or that there is
either an absence of available State corrective process or the
existence of circumstances rendering such process ineffective to
protect the rights of the prisoner."
Subsec. (d). Pub. L. 104-132, Sec. 104(3), added subsec. (d).
Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 104-132, Sec. 104(4), amended subsec. (e)
generally, substituting present provisions for provisions which
stated that presumption of correctness existed unless applicant
were to establish or it otherwise appeared or respondent were to
admit that any of several enumerated factors applied to invalidate
State determination or else that factual determination by State
court was clearly erroneous.
Pub. L. 104-132, Sec. 104(2), redesignated subsec. (d) as (e).
Former subsec. (e) redesignated (f).
Subsecs. (f), (g). Pub. L. 104-132, Sec. 104(2), redesignated
subsecs. (e) and (f) as (f) and (g), respectively.
Subsecs. (h), (i). Pub. L. 104-132, Sec. 104(5), added subsecs.
(h) and (i).
1966 - Pub. L. 89-711 substituted "Federal courts" for "State
Courts" in section catchline, added subsec. (a), designated
existing paragraphs as subsecs. (b) and (c), and added subsecs. (d)
to (f).
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 2244, 2261, 2262, 2263,
2264, 2266 of this title; title 18 section 3006A; title 21 section
848.
APPROVAL AND EFFECTIVE DATE OF RULES GOVERNING SECTION 2254 CASES
AND SECTION 2255 PROCEEDINGS FOR UNITED STATES DISTRICT COURTS
Pub. L. 94-426, Sec. 1, Sept. 28, 1976, 90 Stat. 1334, provided:
"That the rules governing section 2254 cases in the United States
district courts and the rules governing section 2255 proceedings
for the United States district courts, as proposed by the United
States Supreme Court, which were delayed by the Act entitled 'An
Act to delay the effective date of certain proposed amendments to
the Federal Rules of Criminal Procedure and certain other rules
promulgated by the United States Supreme Court' (Public Law
94-349), are approved with the amendments set forth in section 2 of
this Act and shall take effect as so amended, with respect to
petitions under section 2254 and motions under section 2255 of
title 28 of the United States Code filed on or after February 1,
1977."
(EFFECTIVE FEBRUARY 1, 1977, AS AMENDED TO JANUARY 22, 2002)
Rule
1. Scope of rules.
2. Petition.
3. Filing petition.
4. Preliminary consideration by judge.
5. Answer; contents.
6. Discovery.
7. Expansion of record.
8. Evidentiary hearing.
9. Delayed or successive petitions.
10. Powers of magistrates.
11. Federal Rules of Civil Procedure; extent of
applicability.
ADVISORY COMMITTEE NOTE
Rule 1 provides that the habeas corpus rules are applicable to
petitions by persons in custody pursuant to a judgment of a state
court. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Whether
the rules ought to apply to other situations (e.g., person in
active military service, Glazier v. Hackel, 440 F.2d 592 (9th Cir.
1971); or a reservist called to active duty but not reported,
Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968)) is left to the
discretion of the court.
The basic scope of habeas corpus is prescribed by statute. 28
U.S.C. Sec. 2241(c) provides that the "writ of habeas corpus shall
not extend to a prisoner unless * * * (h)e is in custody in
violation of the Constitution." 28 U.S.C. Sec. 2254 deals
specifically with state custody, providing that habeas corpus shall
apply only "in behalf of a person in custody pursuant to a judgment
of a state court * * *."
In Preiser v. Rodriguez, supra, the court said: "It is clear . .
. that the essence of habeas corpus is an attack by a person in
custody upon the legality of that custody, and that the traditional
function of the writ is to secure release from illegal custody."
411 U.S. at 484.
Initially the Supreme Court held that habeas corpus was
appropriate only in those situations in which petitioner's claim
would, if upheld, result in an immediate release from a present
custody. McNally v. Hill, 293 U.S. 131 (1934). This was changed in
Peyton v. Rowe, 391 U.S. 54 (1968), in which the court held that
habeas corpus was a proper way to attack a consecutive sentence to
be served in the future, expressing the view that consecutive
sentences resulted in present custody under both judgments, not
merely the one imposing the first sentence. This view was expanded
in Carafas v. LaVallee, 391 U.S. 234 (1968), to recognize the
propriety of habeas corpus in a case in which petitioner was in
custody when the petition had been originally filed but had since
been unconditionally released from custody.
See also Preiser v. Rodriguez, 411 U.S. at 486 et seq.
Since Carafas, custody has been construed more liberally by the
courts so as to make a Sec. 2255 motion or habeas corpus petition
proper in more situations. "In custody" now includes a person who
is: on parole, Jones v. Cunningham, 371 U.S. 236 (1963); at large
on his own recognizance but subject to several conditions pending
execution of his sentence, Hensley v. Municipal Court, 411 U.S. 345
(1973); or released on bail after conviction pending final
disposition of his case, Lefkowitz v. Newsome, 95 S.Ct. 886 (1975).
See also United States v. Re, 372 F.2d 641 (2d Cir.), cert. denied,
388 U.S. 912 (1967) (on probation); Walker v. North Carolina, 262
F.Supp. 102 (W.D.N.C. 1966), aff'd per curiam, 372 F.2d 129 (4th
Cir.), cert. denied, 388 U.S. 917 (1967) (recipient of a
conditionally suspended sentence); Burris v. Ryan, 397 F.2d 553
(7th Cir. 1968); Marden v. Purdy, 409 F.2d 784 (5th Cir. 1969)
(free on bail); United States ex rel. Smith v. Dibella, 314 F.Supp.
446 (D.Conn. 1970) (release on own recognizance); Choung v.
California, 320 F.Supp. 625 (E.D.Cal. 1970) (federal stay of state
court sentence); United States ex rel. Meadows v. New York, 426
F.2d 1176 (2d Cir. 1970), cert. denied, 401 U.S. 941 (1971)
(subject to parole detainer warrant); Capler v. City of Greenville,
422 F.2d 299 (5th Cir. 1970) (released on appeal bond); Glover v.
North Carolina, 301 F.Supp. 364 (E.D.N.C. 1969) (sentence served,
but as convicted felon disqualified from engaging in several
activities).
The courts are not unanimous in dealing with the above
situations, and the boundaries of custody remain somewhat unclear.
In Morgan v. Thomas, 321 F.Supp. 565 (S.D.Miss. 1970), the court
noted:
It is axiomatic that actual physical custody or restraint is
not required to confer habeas jurisdiction. Rather, the term is
synonymous with restraint of liberty. The real question is how
much restraint of one's liberty is necessary before the right to
apply for the writ comes into play. * * *
It is clear however, that something more than moral restraint
is necessary to make a case for habeas corpus.
SOURCE
(As amended Pub. L. 94-426, Sec. 2(1), (2), Sept. 28, 1976, 90
Stat. 1334; Apr. 28, 1982, eff. Aug. 1, 1982.)
ADVISORY COMMITTEE NOTE
Rule 2 describes the requirements of the actual petition,
including matters relating to its form, contents, scope, and
sufficiency. The rule provides more specific guidance for a
petitioner and the court than 28 U.S.C. Sec. 2242, after which it
is patterned.
Subdivision (a) provides that an applicant challenging a state
judgment, pursuant to which he is presently in custody, must make
his application in the form of a petition for a writ of habeas
corpus. It also requires that the state officer having custody of
the applicant be named as respondent. This is consistent with 28
U.S.C. Sec. 2242, which says in part, "[Application for a writ of
habeas corpus] shall allege * * * the name of the person who has
custody over [the applicant] * * *." The proper person to be served
in the usual case is either the warden of the institution in which
the petitioner is incarcerated (Sanders v. Bennett, 148 F.2d 19
(D.C.Cir. 1945)) or the chief officer in charge of state penal
institutions.
Subdivision (b) prescribes the procedure to be used for a
petition challenging a judgment under which the petitioner will be
subject to custody in the future. In this event the relief sought
will usually not be released from present custody, but rather for a
declaration that the judgment being attacked is invalid.
Subdivision (b) thus provides for a prayer for "appropriate
relief." It is also provided that the attorney general of the state
of the judgment as well as the state officer having actual custody
of the petitioner shall be named as respondents. This is
appropriate because no one will have custody of the petitioner in
the state of the judgment being attacked, and the habeas corpus
action will usually be defended by the attorney general. The
attorney general is in the best position to inform the court as to
who the proper party respondent is. If it is not the attorney
general, he can move for a substitution of party.
Since the concept of "custody" requisite to the consideration of
a petition for habeas corpus has been enlarged significantly in
recent years, it may be worthwhile to spell out the various
situations which might arise and who should be named as
respondent(s) for each situation.
(1) The applicant is in jail, prison, or other actual physical
restraint due to the state action he is attacking. The named
respondent shall be the state officer who has official custody of
the petitioner (for example, the warden of the prison).
(2) The applicant is on probation or parole due to the state
judgment he is attacking. The named respondents shall be the
particular probation or parole officer responsible for supervising
the applicant, and the official in charge of the parole or
probation agency, or the state correctional agency, as appropriate.
(3) The applicant is in custody in any other manner differing
from (1) and (2) above due to the effects of the state action he
seeks relief from. The named respondent should be the attorney
general of the state wherein such action was taken.
(4) The applicant is in jail, prison, or other actual physical
restraint but is attacking a state action which will cause him to
be kept in custody in the future rather than the government action
under which he is presently confined. The named respondents shall
be the state or federal officer who has official custody of him at
the time the petition is filed and the attorney general of the
state whose action subjects the petitioner to future custody.
(5) The applicant is in custody, although not physically
restrained, and is attacking a state action which will result in
his future custody rather than the government action out of which
his present custody arises. The named respondent(s) shall be the
attorney general of the state whose action subjects the petitioner
to future custody, as well as the government officer who has
present official custody of the petitioner if there is such an
officer and his identity is ascertainable.
In any of the above situations the judge may require or allow the
petitioner to join an additional or different party as a respondent
if to do so would serve the ends of justice.
As seen in rule 1 and paragraphs (4) and (5) above, these rules
contemplate that a petitioner currently in federal custody will be
permitted to apply for habeas relief from a state restraint which
is to go into effect in the future. There has been disagreement in
the courts as to whether they have jurisdiction of the habeas
application under these circumstances (compare Piper v. United
States, 306 F.Supp. 1259 (D.Conn. 1969), with United States ex rel.
Meadows v. New York, 426 F.2d 1176 (2d Cir. 1970), cert. denied,
401 U.S. 941 (1971)). This rule seeks to make clear that they do
have such jurisdiction.
Subdivision (c) provides that unless a district court requires
otherwise by local rule, the petition must be in the form annexed
to these rules. Having a standard prescribed form has several
advantages. In the past, petitions have frequently contained mere
conclusions of law, unsupported by any facts. Since it is the
relationship of the facts to the claim asserted that is important,
these petitions were obviously deficient. In addition, lengthy and
often illegible petitions, arranged in no logical order, were
submitted to judges who have had to spend hours deciphering them.
For example, in Passic v. Michigan, 98 F.Supp. 1015, 1016
(E.D.Mich. 1951), the court dismissed a petition for habeas corpus,
describing it as "two thousand pages of irrational, prolix and
redundant pleadings * * *."
Administrative convenience, of benefit to both the court and the
petitioner, results from the use of a prescribed form. Judge Hubert
L. Will briefly described the experience with the use of a standard
form in the Northern District of Illinois:
Our own experience, though somewhat limited, has been quite
satisfactory. * * *
In addition, [petitions] almost always contain the necessary
basic information * * *. Very rarely do we get the kind of hybrid
federal-state habeas corpus petition with civil rights
allegations thrown in which were not uncommon in the past. * * *
[W]hen a real constitutional issue is raised it is quickly
apparent * * *.
ADVISORY COMMITTEE NOTE
Rule 3 sets out the procedures to be followed by the petitioner
and the court in filing the petition. Some of its provisions are
currently dealt with by local rule or practice, while others are
innovations. Subdivision (a) specifies the petitioner's
responsibilities. It requires that the petition, which must be
accompanied by two conformed copies thereof, be filed in the office
of the clerk of the district court. The petition must be
accompanied by the filing fee prescribed by law (presently $5; see
28 U.S.C. Sec. 1914(a)), unless leave to prosecute the petition in
forma pauperis is applied for and granted. In the event the
petitioner desires to prosecute the petition in forma pauperis, he
must file the affidavit required by 28 U.S.C. Sec. 1915, together
with a certificate showing the amount of funds in his institutional
account.
Requiring that the petition be filed in the office of the clerk
of the district court provides an efficient and uniform system of
filing habeas corpus petitions.
Subdivision (b) requires the clerk to file the petition. If the
filing fee accompanies the petition, it may be filed immediately,
and, if not, it is contemplated that prompt attention will be given
to the request to proceed in forma pauperis. The court may delegate
the issuance of the order to the clerk in those cases in which it
is clear from the petition that there is full compliance with the
requirements to proceed in forma pauperis.
Requiring the copies of the petition to be filed with the clerk
will have an impact not only upon administrative matters, but upon
more basic problems as well. In districts with more than one judge,
a petitioner under present circumstances may send a petition to
more than one judge. If no central filing system exists for each
district, two judges may independently take different action on the
same petition. Even if the action taken is consistent, there may be
needless duplication of effort.
The requirement of an additional two copies of the form of the
petition is a current practice in many courts. An efficient filing
system requires one copy for use by the court (central file), one
for the respondent (under 3(b), the respondent receives a copy of
the petition whether an answer is required or not), and one for
petitioner's counsel, if appointed. Since rule 2 provides that
blank copies of the petition in the prescribed form are to be
furnished to the applicant free of charge, there should be no undue
burden created by this requirement.
Attached to copies of the petition supplied in accordance with
rule 2 is an affidavit form for the use of petitioners desiring to
proceed in forma pauperis. The form requires information concerning
the petitioner's financial resources.
In forma pauperis cases, the petition must also be accompanied by
a certificate indicating the amount of funds in the petitioner's
institution account. Usually the certificate will be from the
warden. If the petitioner is on probation or parole, the court
might want to require a certificate from the supervising officer.
Petitions by persons on probation or parole are not numerous
enough, however, to justify making special provision for this
situation in the text of the rule.
The certificate will verify the amount of funds credited to the
petitioner in an institution account. The district court may by
local rule require that any amount credited to the petitioner, in
excess of a stated maximum, must be used for the payment of the
filing fee. Since prosecuting an action in forma pauperis is a
privilege (see Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)),
it is not to be granted when the petitioner has sufficient
resources.
Subdivision (b) details the clerk's duties with regard to filing
the petition. If the petition does not appear on its face to comply
with the requirements of rules 2 and 3, it may be returned in
accordance with rule 2(e). If it appears to comply, it must be
filed and entered on the docket in the clerk's office. However,
under this subdivision the respondent is not required to answer or
otherwise move with respect to the petition unless so ordered by
the court.
ADVISORY COMMITTEE NOTE
Rule 4 outlines the options available to the court after the
petition is properly filed. The petition must be promptly presented
to and examined by the judge to whom it is assigned. If it plainly
appears from the face of the petition and any exhibits attached
thereto that the petitioner is not entitled to relief in the
district court, the judge must enter an order summarily dismissing
the petition and cause the petitioner to be notified. If summary
dismissal is not ordered, the judge must order the respondent to
file an answer or to otherwise plead to the petition within a time
period to be fixed in the order.
28 U.S.C. Sec. 2243 requires that the writ shall be awarded, or
an order to show cause issued, "unless it appears from the
application that the applicant or person detained is not entitled
thereto." Such consideration may properly encompass any exhibits
attached to the petition, including, but not limited to,
transcripts, sentencing records, and copies of state court
opinions. The judge may order any of these items for his
consideration if they are not yet included with the petition. See
28 U.S.C. Sec. 753(f) which authorizes payment for transcripts in
habeas corpus cases.
It has been suggested that an answer should be required in every
habeas proceeding, taking into account the usual petitioner's lack
of legal expertise and the important functions served by the
return. See Developments in the Law - Federal Habeas Corpus, 83
Harv.L.Rev. 1038, 1178 (1970). However, under Sec. 2243 it is the
duty of the court to screen out frivolous applications and
eliminate the burden that would be placed on the respondent by
ordering an unnecessary answer. Allen v. Perini, 424 F.2d 134, 141
(6th Cir. 1970). In addition, "notice" pleading is not sufficient,
for the petition is expected to state facts that point to a "real
possibility of constitutional error." See Aubut v. State of Maine,
431 F.2d 688, 689 (1st Cir. 1970).
In the event an answer is ordered under rule 4, the court is
accorded greater flexibility than under Sec. 2243 in determining
within what time period an answer must be made. Under Sec. 2243,
the respondent must make a return within three days after being so
ordered, with additional time of up to forty days allowed under the
Federal Rules of Civil Procedure, Rule 81(a)(2), for good cause. In
view of the widespread state of work overload in prosecutors'
offices (see, e.g., Allen, 424 F.2d at 141), additional time is
granted in some jurisdictions as a matter of course. Rule 4, which
contains no fixed time requirement, gives the court the discretion
to take into account various factors such as the respondent's
workload and the availability of transcripts before determining a
time within which an answer must be made.
Rule 4 authorizes the judge to "take such other action as the
judge deems appropriate." This is designed to afford the judge
flexibility in a case where either dismissal or an order to answer
may be inappropriate. For example, the judge may want to authorize
the respondent to make a motion to dismiss based upon information
furnished by respondent, which may show that petitioner's claims
have already been decided on the merits in a federal court; that
petitioner has failed to exhaust state remedies; that the
petitioner is not in custody within the meaning of 28 U.S.C. Sec.
2254; or that a decision in the matter is pending in state court.
In these situations, a dismissal may be called for on procedural
grounds, which may avoid burdening the respondent with the
necessity of filing an answer on the substantive merits of the
petition. In other situations, the judge may want to consider a
motion from respondent to make the petition more certain. Or the
judge may want to dismiss some allegations in the petition,
requiring the respondent to answer only those claims which appear
to have some arguable merit.
Rule 4 requires that a copy of the petition and any order be
served by certified mail on the respondent and the attorney general
of the state involved. See 28 U.S.C. Sec. 2252. Presently, the
respondent often does not receive a copy of the petition unless the
court directs an answer under 28 U.S.C. Sec. 2243. Although the
attorney general is served, he is not required to answer if it is
more appropriate for some other agency to do so. Although the rule
does not specifically so provide, it is assumed that copies of the
court orders to respondent will be mailed to petitioner by the
court.
ADVISORY COMMITTEE NOTE
Rule 5 details the contents of the "answer". (This is a change in
terminology from "return," which is still used below when referring
to prior practice.) The answer plays an obviously important rule in
a habeas proceeding:
The return serves several important functions: it permits the
court and the parties to uncover quickly the disputed issues; it
may reveal to the petitioner's attorney grounds for release that
the petitioner did not know; and it may demonstrate that the
petitioner's claim is wholly without merit.
Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev.
1083, 1178 (1970).
The answer must respond to the allegations of the petition. While
some districts require this by local rule (see, e.g., E.D.N.C.R.
17(B)), under 28 U.S.C. Sec. 2243 little specificity is demanded.
As a result, courts occasionally receive answers which contain only
a statement certifying the true cause of detention, or a series of
delaying motions such as motions to dismiss. The requirement of the
proposed rule that the "answer shall respond to the allegations of
the petition" is intended to ensure that a responsive pleading will
be filed and thus the functions of the answer fully served.
The answer must also state whether the petitioner has exhausted
his state remedies. This is a prerequisite to eligibility for the
writ under 28 U.S.C. Sec. 2254(b) and applies to every ground the
petitioner raises. Most form petitions now in use contain questions
requiring information relevant to whether the petitioner has
exhausted his remedies. However, the exhaustion requirement is
often not understood by the unrepresented petitioner. The attorney
general has both the legal expertise and access to the record and
thus is in a much better position to inform the court on the matter
of exhaustion of state remedies. An alleged failure to exhaust
state remedies as to any ground in the petition may be raised by a
motion by the attorney general, thus avoiding the necessity of a
formal answer as to that ground.
The rule requires the answer to indicate what transcripts are
available, when they can be furnished, and also what proceedings
have been recorded and not transcribed. This will serve to inform
the court and petitioner as to what factual allegations can be
checked against the actual transcripts. The transcripts include
pretrial transcripts relating, for example, to pretrial motions to
suppress; transcripts of the trial or guilty plea proceeding; and
transcripts of any post-conviction proceedings which may have taken
place. The respondent is required to furnish those portions of the
transcripts which he believes relevant. The court may order the
furnishing of additional portions of the transcripts upon the
request of petitioner or upon the court's own motion.
Where transcripts are unavailable, the rule provides that a
narrative summary of the evidence may be submitted.
Rule 5 (and the general procedure set up by this entire set of
rules) does not contemplate a traverse to the answer, except under
special circumstances. See advisory committee note to rule 9.
Therefore, the old common law assumption of verity of the
allegations of a return until impeached, as codified in 28 U.S.C.
Sec. 2248, is no longer applicable. The meaning of the section,
with its exception to the assumption "to the extent that the judge
finds from the evidence that they (the allegations) are not true,"
has given attorneys and courts a great deal of difficulty. It seems
that when the petition and return pose an issue of fact, no
traverse is required; Stewart v. Overholser, 186 F.2d 339 (D.C.
Cir. 1950).
We read Sec. 2248 of the Judicial Code as not requiring a
traverse when a factual issue has been clearly framed by the
petition and the return or answer. This section provides that the
allegations of a return or answer to an order to show cause shall
be accepted as true if not traversed, except to the extent the
judge finds from the evidence that they are not true. This
contemplates that where the petition and return or answer do
present an issue of fact material to the legality of detention,
evidence is required to resolve that issue despite the absence of
a traverse. This reference to evidence assumes a hearing on
issues raised by the allegations of the petition and the return
or answer to the order to show cause.
SOURCE
(As amended Pub. L. 94-426, Sec. 2(5), Sept. 28, 1976, 90 Stat.
1334; Pub. L. 94-577, Sec. 2(a)(1), (b)(1), Oct. 21, 1976, 90 Stat.
2730, 2731.)
SOURCE
(As amended Pub. L. 94-426, Sec. 2(7), (8), Sept. 28, 1976, 90
Stat. 1335.)
SOURCE
(As amended Pub. L. 94-426, Sec. 2(11), Sept. 28, 1976, 90 Stat.
1335; Apr. 30, 1979, eff. Aug. 1, 1979.)
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