
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 28USC2254]

 
               TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
 
                     PART VI--PARTICULAR PROCEEDINGS
 
                       CHAPTER 153--HABEAS CORPUS
 
Sec. 2254. State custody; remedies in Federal courts

    (a) The Supreme Court, a Justice thereof, a circuit judge, or a 
district court shall entertain an application for a writ of habeas 
corpus in behalf of a person in custody pursuant to the judgment of a 
State court only on the ground that he is in custody in violation of the 
Constitution or laws or treaties of the United States.
    (b)(1) An application for a writ of habeas corpus on behalf of a 
person in custody pursuant to the judgment of a State court shall not be 
granted unless it appears that--
        (A) the applicant has exhausted the remedies available in the 
    courts of the State; or
        (B)(i) there is an absence of available State corrective 
    process; or
        (ii) circumstances exist that render such process ineffective to 
    protect the rights of the applicant.

    (2) An application for a writ of habeas corpus may be denied on the 
merits, notwithstanding the failure of the applicant to exhaust the 
remedies available in the courts of the State.
    (3) A State shall not be deemed to have waived the exhaustion 
requirement or be estopped from reliance upon the requirement unless the 
State, through counsel, expressly waives the requirement.
    (c) An applicant shall not be deemed to have exhausted the remedies 
available in the courts of the State, within the meaning of this 
section, if he has the right under the law of the State to raise, by any 
available procedure, the question presented.
    (d) An application for a writ of habeas corpus on behalf of a person 
in custody pursuant to the judgment of a State court shall not be 
granted with respect to any claim that was adjudicated on the merits in 
State court proceedings unless the adjudication of the claim--
        (1) resulted in a decision that was contrary to, or involved an 
    unreasonable application of, clearly established Federal law, as 
    determined by the Supreme Court of the United States; or
        (2) resulted in a decision that was based on an unreasonable 
    determination of the facts in light of the evidence presented in the 
    State court proceeding.

    (e)(1) In a proceeding instituted by an application for a writ of 
habeas corpus by a person in custody pursuant to the judgment of a State 
court, a determination of a factual issue made by a State court shall be 
presumed to be correct. The applicant shall have the burden of rebutting 
the presumption of correctness by clear and convincing evidence.
    (2) If the applicant has failed to develop the factual basis of a 
claim in State court proceedings, the court shall not hold an 
evidentiary hearing on the claim unless the applicant shows that--
        (A) the claim relies on--
            (i) a new rule of constitutional law, made retroactive to 
        cases on collateral review by the Supreme Court, that was 
        previously unavailable; or
            (ii) a factual predicate that could not have been previously 
        discovered through the exercise of due diligence; and

        (B) the facts underlying the claim would be sufficient to 
    establish by clear and convincing evidence that but for 
    constitutional error, no reasonable factfinder would have found the 
    applicant guilty of the underlying offense.

    (f) If the applicant challenges the sufficiency of the evidence 
adduced in such State court proceeding to support the State court's 
determination of a factual issue made therein, the applicant, if able, 
shall produce that part of the record pertinent to a determination of 
the sufficiency of the evidence to support such determination. If the 
applicant, because of indigency or other reason is unable to produce 
such part of the record, then the State shall produce such part of the 
record and the Federal court shall direct the State to do so by order 
directed to an appropriate State official. If the State cannot provide 
such pertinent part of the record, then the court shall determine under 
the existing facts and circumstances what weight shall be given to the 
State court's factual determination.
    (g) A copy of the official records of the State court, duly 
certified by the clerk of such court to be a true and correct copy of a 
finding, judicial opinion, or other reliable written indicia showing 
such a factual determination by the State court shall be admissible in 
the Federal court proceeding.
    (h) Except as provided in section 408 of the Controlled Substances 
Act, in all proceedings brought under this section, and any subsequent 
proceedings on review, the court may appoint counsel for an applicant 
who is or becomes financially unable to afford counsel, except as 
provided by a rule promulgated by the Supreme Court pursuant to 
statutory authority. Appointment of counsel under this section shall be 
governed by section 3006A of title 18.
    (i) The ineffectiveness or incompetence of counsel during Federal or 
State collateral post-conviction proceedings shall not be a ground for 
relief in a proceeding arising under section 2254.

(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.)


                       Senate Revision Amendments

    Senate amendment to this section, Senate Report No. 1559, amendment 
No. 47, has three declared purposes, set forth as follows:
    ``The first is to eliminate from the prohibition of the section 
applications in behalf of prisoners in custody under authority of a 
State officer but whose custody has not been directed by the judgment of 
a State court. If the section were applied to applications by persons 
detained solely under authority of a State officer it would unduly 
hamper Federal courts in the protection of Federal officers prosecuted 
for acts committed in the course of official duty.
    ``The second purpose is to eliminate, as a ground of Federal 
jurisdiction to review by habeas corpus judgments of State courts, the 
proposition that the State court has denied a prisoner a `fair 
adjudication of the legality of his detention under the Constitution and 
laws of the United States.' The Judicial Conference believes that this 
would be an undesirable ground for Federal jurisdiction in addition to 
exhaustion of State remedies or lack of adequate remedy in the State 
courts because it would permit proceedings in the Federal court on this 
ground before the petitioner had exhausted his State remedies. This 
ground would, of course, always be open to a petitioner to assert in the 
Federal court after he had exhausted his State remedies or if he had no 
adequate State remedy.
    ``The third purpose is to substitute detailed and specific language 
for the phrase `no adequate remedy available.' That phrase is not 
sufficiently specific and precise, and its meaning should, therefore, be 
spelled out in more detail in the section as is done by the amendment.''

                       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.''


 Postponement of Effective Date of Proposed Rules Governing Proceedings 
               Under Sections 2254 and 2255 of this Title

    Rules and forms governing proceedings under sections 2254 and 2255 
of this title proposed by Supreme Court order of Apr. 26, 1976, 
effective 30 days after adjournment sine die of 94th Congress, or until 
and to the extent approved by Act of Congress, whichever is earlier, see 
section 2 of Pub. L. 94-349, set out as a note under section 2074 of 
this title.

 RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS

   (Effective February 1, 1977, as amended to January 2, 2001)

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.
                        APPENDIX OF FORMS

    Model form for use in applications for habeas corpus under 28 U.S.C. 
Sec. 2254.
    Model form for use in 28 U.S.C. Sec. 2254 cases involving a Rule 9 
issue.


        Effective Date of Rules; Effective Date of 1975 Amendment

    Rules governing Section 2254 cases, and the amendments thereto by 
Pub. L. 94-426, Sept. 28, 1976, 90 Stat. 1334, effective with respect to 
petitions under section 2254 of this title and motions under section 
2255 of this title filed on or after Feb. 1, 1977, see section 1 of Pub. 
L. 94-426, set out as a note above.

                         Rule 1. Scope of Rules

    (a) Applicable to cases involving custody pursuant to a judgment of 
a state court. These rules govern the procedure in the United States 
district courts on applications under 28 U.S.C. Sec. 2254:
        (1) by a person in custody pursuant to a judgment of a state 
    court, for a determination that such custody is in violation of the 
    Constitution, laws, or treaties of the United States; and
        (2) by a person in custody pursuant to a judgment of either a 
    state or a federal court, who makes application for a determination 
    that custody to which he may be subject in the future under a 
    judgment of a state court will be in violation of the Constitution, 
    laws, or treaties of the United States.

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


                         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.

                       321 F.Supp. at 573

    Hammond v. Lenfest, 398 F.2d 705 (2d Cir. 1968), reviewed prior 
``custody'' doctrine and reaffirmed a generalized flexible approach to 
the issue. In speaking about 28 U.S.C. Sec. 2241, the first section in 
the habeas corpus statutes, the court said:
        While the language of the Act indicates that a writ of habeas 
    corpus is appropriate only when a petitioner is ``in custody,'' * * 
    * the Act ``does not attempt to mark the boundaries of `custody' nor 
    in any way other than by use of that word attempt to limit the 
    situations in which the writ can be used.'' * * * And, recent 
    Supreme Court decisions have made clear that ``[i]t [habeas corpus] 
    is not now and never has been a static, narrow, formalistic remedy; 
    its scope has grown to achieve its grand purpose--the protection of 
    individuals against erosion of their right to be free from wrongful 
    restraints upon their liberty.'' * * * ``[B]esides physical 
    imprisonment, there are other restraints on a man's liberty, 
    restraints not shared by the public generally, which have been 
    thought sufficient in the English-speaking world to support the 
    issuance of habeas corpus.''

                       398 F.2d at 710-711

    There is, as of now, no final list of the situations which are 
appropriate for habeas corpus relief. It is not the intent of these 
rules or notes to define or limit ``custody.''
    It is, however, the view of the Advisory Committee that claims of 
improper conditions of custody or confinement (not related to the 
propriety of the custody itself), can better be handled by other means 
such as 42 U.S.C. Sec. 1983 and other related statutes. In Wilwording v. 
Swanson, 404 U.S. 249 (1971), the court treated a habeas corpus petition 
by a state prisoner challenging the conditions of confinement as a claim 
for relief under 42 U.S.C. Sec. 1983, the Civil Rights Act. Compare 
Johnson v. Avery, 393 U.S. 483 (1969).
    The distinction between duration of confinement and conditions of 
confinement may be difficult to draw. Compare Preiser v. Rodriguez, 411 
U.S. 475 (1973), with Clutchette v. Procunier, 497 F.2d 809 (9th Cir. 
1974), modified, 510 F.2d 613 (1975).

                            Rule 2. Petition

    (a) Applicants in present custody. If the applicant is presently in 
custody pursuant to the state judgment in question, the application 
shall be in the form of a petition for a writ of habeas corpus in which 
the state officer having custody of the applicant shall be named as 
respondent.
    (b) Applicants subject to future custody. If the applicant is not 
presently in custody pursuant to the state judgment against which he 
seeks relief but may be subject to such custody in the future, the 
application shall be in the form of a petition for a writ of habeas 
corpus with an added prayer for appropriate relief against the judgment 
which he seeks to attack. In such a case the officer having present 
custody of the applicant and the attorney general of the state in which 
the judgment which he seeks to attack was entered shall each be named as 
respondents.
    (c) Form of petition. The petition shall be in substantially the 
form annexed to these rules, except that any district court may by local 
rule require that petitions filed with it shall be in a form prescribed 
by the local rule. Blank petitions in the prescribed form shall be made 
available without charge by the clerk of the district court to 
applicants upon their request. It shall specify all the grounds for 
relief which are available to the petitioner and of which he has or by 
the exercise of reasonable diligence should have knowledge and shall set 
forth in summary form the facts supporting each of the grounds thus 
specified. It shall also state the relief requested. The petition shall 
be typewritten or legibly handwritten and shall be signed under penalty 
of perjury by the petitioner.
    (d) Petition to be directed to judgments of one court only. A 
petition shall be limited to the assertion of a claim for relief against 
the judgment or judgments of a single state court (sitting in a county 
or other appropriate political subdivision). If a petitioner desires to 
attack the validity of the judgments of two or more state courts under 
which he is in custody or may be subject to future custody, as the case 
may be, he shall do so by separate petitions.
    (e) Return of insufficient petition. If a petition received by the 
clerk of a district court does not substantially comply with the 
requirements of rule 2 or rule 3, it may be returned to the petitioner, 
if a judge of the court so directs, together with a statement of the 
reason for its return. The clerk shall retain a copy of the petition.

(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 * * *.

                       33 F.R.D. 363, 384

    Approximately 65 to 70% of all districts have adopted forms or local 
rules which require answers to essentially the same questions as 
contained in the standard form annexed to these rules. All courts using 
forms have indicated the petitions are time-saving and more legible. The 
form is particularly helpful in getting information about whether there 
has been an exhaustion of state remedies or, at least, where that 
information can be obtained.
    The requirement of a standard form benefits the petitioner as well. 
His assertions are more readily apparent, and a meritorious claim is 
more likely to be properly raised and supported. The inclusion in the 
form of the ten most frequently raised grounds in habeas corpus 
petitions is intended to encourage the applicant to raise all his 
asserted grounds in one petition. It may better enable him to recognize 
if an issue he seeks to raise is cognizable under habeas corpus and 
hopefully inform him of those issues as to which he must first exhaust 
his state remedies.
    Some commentators have suggested that the use of forms is of little 
help because the questions usually are too general, amounting to little 
more than a restatement of the statute. They contend the blanks permit a 
prisoner to fill in the same ambiguous answers he would have offered 
without the aid of a form. See Comment, Developments in the Law--Federal 
Habeas Corpus, 83 Harv.L.Rev. 1038, 1177-1178 (1970). Certainly, as long 
as the statute requires factual pleading, the adequacy of a petition 
will continue to be affected largely by the petitioner's intelligence 
and the legal advice available to him. On balance, however, the use of 
forms has contributed enough to warrant mandating their use.
    Giving the petitioner a list of often-raised grounds may, it is 
said, encourage perjury. See Comment, Developments in the Law--Federal 
Habeas Corpus, 83 Harv.L.Rev. 1038, 1178 (1970). Most inmates are aware 
of, or have access to, some common constitutional grounds for relief. 
Thus, the risk of perjury is not likely to be substantially increased 
and the benefit of the list for some inmates seems sufficient to 
outweigh any slight risk that perjury will increase. There is a penalty 
for perjury, and this would seem the most appropriate way to try to 
discourage it.
    Legal assistance is increasingly available to inmates either through 
paraprofessional programs involving law students or special programs 
staffed by members of the bar. See Jacob and Sharma, Justice After 
Trial: Prisoners' Need for Legal Services in the Criminal-Correctional 
Process, 18 Kan.L.Rev. 493 (1970). In these situations, the prescribed 
form can be filled out more competently, and it does serve to ensure a 
degree of uniformity in the manner in which habeas corpus claims are 
presented.
    Subdivision (c) directs the clerk of the district court to make 
available to applicants upon request, without charge, blank petitions in 
the prescribed form.
    Subdivision (c) also requires that all available grounds for relief 
be presented in the petition, including those grounds of which, by the 
exercise of reasonable diligence, the petitioner should be aware. This 
is reinforced by rule 9(b), which allows dismissal of a second petition 
which fails to allege new grounds or, if new grounds are alleged, the 
judge finds an inexcusable failure to assert the ground in the prior 
petition.
    Both subdivision (c) and the annexed form require a legibly 
handwritten or typewritten petition. As required by 28 U.S.C. Sec. 2242, 
the petition must be signed and sworn to by the petitioner (or someone 
acting in his behalf).
    Subdivision (d) provides that a single petition may assert a claim 
only against the judgment or judgments of a single state court (i.e., a 
court of the same county or judicial district or circuit). This permits, 
but does not require, an attack in a single petition on judgments based 
upon separate indictments or on separate counts even though sentences 
were imposed on separate days by the same court. A claim against a 
judgment of a court of a different political subdivision must be raised 
by means of a separate petition.
    Subdivision (e) allows the clerk to return an insufficient petition 
to the petitioner, and it must be returned if the clerk is so directed 
by a judge of the court. Any failure to comply with the requirements of 
rule 2 or 3 is grounds for insufficiency. In situations where there may 
be arguable noncompliance with another rule, such as rule 9, the judge, 
not the clerk, must make the decision. If the petition is returned it 
must be accompanied by a statement of the reason for its return. No 
petitioner should be left to speculate as to why or in what manner his 
petition failed to conform to these rules.
    Subdivision (e) also provides that the clerk shall retain one copy 
of the insufficient petition. If the prisoner files another petition, 
the clerk will be in a better position to determine the sufficiency of 
the new petition. If the new petition is insufficient, comparison with 
the prior petition may indicate whether the prisoner has failed to 
understand the clerk's prior explanation for its insufficiency, so that 
the clerk can make another, hopefully successful, attempt at 
transmitting this information to the petitioner. If the petitioner 
insists that the original petition was in compliance with the rules, a 
copy of the original petition is available for the consideration of the 
judge. It is probably better practice to make a photocopy of a petition 
which can be corrected by the petitioner, thus saving the petitioner the 
task of completing an additional copy.

                         1982 Amendment

    Subdivision (c). The amendment takes into account 28 U.S.C. 
Sec. 1746, enacted after adoption of the Sec. 2254 rules. Section 1746 
provides that in lieu of an affidavit an unsworn statement may be given 
under penalty of perjury in substantially the following form if executed 
within the United States, its territories, possessions or commonwealths: 
``I declare (or certify, verify, or state) under penalty of perjury that 
the foregoing is true and correct. Executed on (date). (Signature).'' 
The statute is ``intended to encompass prisoner litigation,'' and the 
statutory alternative is especially appropriate in such cases because a 
notary might not be readily available. Carter v. Clark, 616 F.2d 228 
(5th Cir. 1980). The Sec. 2254 forms have been revised accordingly.


                               Amendments

    1976--Subd. (c). Pub. L. 94-426, Sec. 2(1), inserted 
``substantially'' after ``The petition shall be in'', and struck out 
requirement that the petition follow the prescribed form.
    Subd. (e). Pub. L. 94-426, Sec. 2(2), inserted ``substantially'' 
after ``district court does not'', and struck out provision which 
permitted the clerk to return a petition for noncompliance without a 
judge so directing.

                         Rule 3. Filing Petition

    (a) Place of filing; copies; filing fee. A petition shall be filed 
in the office of the clerk of the district court. It shall be 
accompanied by two conformed copies thereof. It shall also be 
accompanied by the filing fee prescribed by law unless the petitioner 
applies for and is given leave to prosecute the petition in forma 
pauperis. If the petitioner desires to prosecute the petition in forma 
pauperis, he shall file the affidavit required by 28 U.S.C. Sec. 1915. 
In all such cases the petition shall also be accompanied by a 
certificate of the warden or other appropriate officer of the 
institution in which the petitioner is confined as to the amount of 
money or securities on deposit to the petitioner's credit in any account 
in the institution, which certificate may be considered by the court in 
acting upon his application for leave to proceed in forma pauperis.
    (b) Filing and service. Upon receipt of the petition and the filing 
fee, or an order granting leave to the petitioner to proceed in forma 
pauperis, and having ascertained that the petition appears on its face 
to comply with rules 2 and 3, the clerk of the district court shall file 
the petition and enter it on the docket in his office. The filing of the 
petition shall not require the respondent to answer the petition or 
otherwise move with respect to it unless so ordered by the court.


                         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.

               Rule 4. Preliminary Consideration by Judge

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


                         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.

                        Rule 5. Answer; Contents

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


                         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.

                      186 F.2d at 342, n. 5

    In actual practice, the traverse tends to be a mere pro forma 
refutation of the return, serving little if any expository function. In 
the interests of a more streamlined and manageable habeas corpus 
procedure, it is not required except in those instances where it will 
serve a truly useful purpose. Also, under rule 11 the court is given the 
discretion to incorporate Federal Rules of Civil Procedure when 
appropriate, so civil rule 15(a) may be used to allow the petitioner to 
amend his petition when the court feels this is called for by the 
contents of the answer.
    Rule 5 does not indicate who the answer is to be served upon, but it 
necessarily implies that it will be mailed to the petitioner (or to his 
attorney if he has one). The number of copies of the answer required is 
left to the court's discretion. Although the rule requires only a copy 
of petitioner's brief on appeal, respondent is free also to file a copy 
of respondent's brief. In practice, courts have found it helpful to have 
a copy of respondent's brief.

                            Rule 6. Discovery

    (a) Leave of court required. A party shall be entitled to invoke the 
processes of discovery available under the Federal Rules of Civil 
Procedure if, and to the extent that, the judge in the exercise of his 
discretion and for good cause shown grants leave to do so, but not 
otherwise. If necessary for effective utilization of discovery 
procedures, counsel shall be appointed by the judge for a petitioner who 
qualifies for the appointment of counsel under 18 U.S.C. Sec. 3006A(g).
    (b) Requests for discovery. Requests for discovery shall be 
accompanied by a statement of the interrogatories or requests for 
admission and a list of the documents, if any, sought to be produced.
    (c) Expenses. If the respondent is granted leave to take the 
deposition of the petitioner or any other person the judge may as a 
condition of taking it direct that the respondent pay the expenses of 
travel and subsistence and fees of counsel for the petitioner to attend 
the taking of the deposition.


                         Advisory Committee Note

    This rule prescribes the procedures governing discovery in habeas 
corpus cases. Subdivision (a) provides that any party may utilize the 
processes of discovery available under the Federal Rules of Civil 
Procedure (rules 26-37) if, and to the extent that, the judge allows. It 
also provides for the appointment of counsel for a petitioner who 
qualifies for this when counsel is necessary for effective utilization 
of discovery procedures permitted by the judge.
    Subdivision (a) is consistent with Harris v. Nelson, 394 U.S. 286 
(1969). In that case the court noted,
    [I]t is clear that there was no intention to extend to habeas 
    corpus, as a matter of right, the broad discovery provisions * * * 
    of the new [Federal Rules of Civil Procedure].

                         394 U.S. at 295

However, citing the lack of methods for securing information in habeas 
proceedings, the court pointed to an alternative.
    Clearly, in these circumstances * * * the courts may fashion 
    appropriate modes of procedure, by analogy to existing rules or 
    otherwise in conformity with judicial usage. * * * Their authority 
    is expressly confirmed in the All Writs Act, 28 U.S.C. Sec. 1651.

                         394 U.S. at 299

    The court concluded that the issue of discovery in habeas corpus 
cases could best be dealt with as part of an effort to provide general 
rules of practice for habeas corpus cases:
        In fact, it is our view that the rulemaking machinery should be 
    invoked to formulate rules of practice with respect to federal 
    habeas corpus and Sec. 2255 proceedings, on a comprehensive basis 
    and not merely one confined to discovery. The problems presented by 
    these proceedings are materially different from those dealt with in 
    the Federal Rules of Civil Procedure and the Federal Rules of 
    Criminal Procedure, and reliance upon usage and the opaque language 
    of Civil Rule 81(a)(2) is transparently inadequate. In our view the 
    results of a meticulous formulation and adoption of special rules 
    for federal habeas corpus and Sec. 2255 proceedings would promise 
    much benefit.

                      394 U.S. at 301 n. 7

    Discovery may, in appropriate cases, aid in developing facts 
necessary to decide whether to order an evidentiary hearing or to grant 
the writ following an evidentiary hearing:
    We are aware that confinement sometimes induces fantasy which has 
    its basis in the paranoia of prison rather than in fact. But where 
    specific allegations before the court show reason to believe that 
    the petitioner may, if the facts are fully developed, be able to 
    demonstrate that he is confined illegally and is therefore entitled 
    to relief, it is the duty of the court to provide the necessary 
    facilities and procedures for an adequate inquiry. Obviously, in 
    exercising this power, the court may utilize familiar procedures, as 
    appropriate, whether these are found in the civil or criminal rules 
    or elsewhere in the ``usages and principles.''
    Granting discovery is left to the discretion of the court, 
discretion to be exercised where there is a showing of good cause why 
discovery should be allowed. Several commentators have suggested that at 
least some discovery should be permitted without leave of court. It is 
argued that the courts will be burdened with weighing the propriety of 
requests to which the discovered party has no objection. Additionally, 
the availability of protective orders under Fed.R.Civ.R., Rules 30(b) 
and 31(d) will provide the necessary safeguards. See Developments in the 
Law--Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1186-87 (1970); Civil 
Discovery in Habeas Corpus, 67 Colum.L.Rev. 1296, 1310 (1967).
    Nonetheless, it is felt the requirement of prior court approval of 
all discovery is necessary to prevent abuse, so this requirement is 
specifically mandated in the rule.
    While requests for discovery in habeas proceedings normally follow 
the granting of an evidentiary hearing, there may be instances in which 
discovery would be appropriate beforehand. Such an approach was 
advocated in Wagner v. United States, 418 F.2d 618, 621 (9th Cir. 1969), 
where the opinion stated the trial court could permit interrogatories, 
provide for deposing witnesses, ``and take such other prehearing steps 
as may be appropriate.'' While this was an action under Sec. 2255, the 
reasoning would apply equally well to petitions by state prisoners. Such 
pre-hearing discovery may show an evidentiary hearing to be unnecessary, 
as when there are ``no disputed issues of law or fact.'' 83 Harv. L.Rev. 
1038, 1181 (1970). The court in Harris alluded to such a possibility 
when it said ``the court may * * * authorize such proceedings with 
respect to development, before or in conjunction with the hearing of the 
facts * * *.'' [emphasis added] 394 U.S. at 300. Such pre-hearing 
discovery, like all discovery under rule 6, requires leave of court. In 
addition, the provisions in rule 7 for the use of an expanded record may 
eliminate much of the need for this type of discovery. While probably 
not as frequently sought or granted as discovery in conjunction with a 
hearing, it may nonetheless serve a valuable function.
    In order to make pre-hearing discovery meaningful, subdivision (a) 
provides that the judge should appoint counsel for a petitioner who is 
without counsel and qualifies for appointment when this is necessary for 
the proper utilization of discovery procedures. Rule 8 provides for the 
appointment of counsel at the evidentiary hearing stage (see rule 8(b) 
and advisory committee note), but this would not assist the petitioner 
who seeks to utilize discovery to stave off dismissal of his petition 
(see rule 9 and advisory committee note) or to demonstrate that an 
evidentiary hearing is necessary. Thus, if the judge grants a 
petitioner's request for discovery prior to making a decision as to the 
necessity for an evidentiary hearing, he should determine whether 
counsel is necessary for the effective utilization of such discovery 
and, if so, appoint counsel for the petitioner if the petitioner 
qualifies for such appointment.
    This rule contains very little specificity as to what types and 
methods of discovery should be made available to the parties in a habeas 
proceeding, or how, once made available, these discovery procedures 
should be administered. The purpose of this rule is to get some 
experience in how discovery would work in actual practice by letting 
district court judges fashion their own rules in the context of 
individual cases. When the results of such experience are available it 
would be desirable to consider whether further, more specific 
codification should take place.
    Subdivision (b) provides for judicial consideration of all matters 
subject to discovery. A statement of the interrogatories, or requests 
for admission sought to be answered, and a list of any documents sought 
to be produced, must accompany a request for discovery. This is to 
advise the judge of the necessity for discovery and enable him to make 
certain that the inquiry is relevant and appropriately narrow.
    Subdivision (c) refers to the situation where the respondent is 
granted leave to take the deposition of the petitioner or any other 
person. In such a case the judge may direct the respondent to pay the 
expenses and fees of counsel for the petitioner to attend the taking of 
the deposition, as a condition granting the respondent such leave. While 
the judge is not required to impose this condition subdivision (c) will 
give the court the means to do so. Such a provision affords some 
protection to the indigent petitioner who may be prejudiced by his 
inability to have counsel, often court-appointed, present at the taking 
of a deposition. It is recognized that under 18 U.S.C. Sec. 3006A(g), 
court-appointed counsel in a Sec. 2254 proceeding is entitled to receive 
up to $250 and reimbursement for expenses reasonably incurred. (Compare 
Fed.R. Crim.P. 15(c).) Typically, however, this does not adequately 
reimburse counsel if he must attend the taking of depositions or be 
involved in other pre-hearing proceedings. Subdivision (c) is intended 
to provide additional funds, if necessary, to be paid by the state 
government (respondent) to petitioner's counsel.
    Although the rule does not specifically so provide, it is assumed 
that a petitioner who qualifies for the appointment of counsel under 18 
U.S.C. Sec. 3006A(g) and is granted leave to take a deposition will be 
allowed witness costs. This will include recording and transcription of 
the witness's statement. Such costs are payable pursuant to 28 U.S.C. 
Sec. 1825. See Opinion of Comptroller General, February 28, 1974.
    Subdivision (c) specifically recognizes the right of the respondent 
to take the deposition of the petitioner. Although the petitioner could 
not be called to testify against his will in a criminal trial, it is 
felt the nature of the habeas proceeding, along with the safeguards 
accorded by the Fifth Amendment and the presence of counsel, justify 
this provision. See 83 Harv.L.Rev. 1038, 1183-84 (1970).

                       Rule 7. Expansion of Record

    (a) Direction for expansion. If the petition is not dismissed 
summarily the judge may direct that the record be expanded by the 
parties by the inclusion of additional materials relevant to the 
determination of the merits of the petition.
    (b) Materials to be added. The expanded record may include, without 
limitation, letters predating the filing of the petition in the district 
court, documents, exhibits, and answers under oath, if so directed, to 
written interrogatories propounded by the judge. Affidavits may be 
submitted and considered as a part of the record.
    (c) Submission to opposing party. In any case in which an expanded 
record is directed, copies of the letters, documents, exhibits, and 
affidavits proposed to be included shall be submitted to the party 
against whom they are to be offered, and he shall be afforded an 
opportunity to admit or deny their correctness.
    (d) Authentication. The court may require the authentication of any 
material under subdivision (b) or (c).


                         Advisory Committee Note

    This rule provides that the judge may direct that the record be 
expanded. The purpose is to enable the judge to dispose of some habeas 
petitions not dismissed on the pleadings, without the time and expense 
required for an evidentiary hearing. An expanded record may also be 
helpful when an evidentiary hearing is ordered.
    The record may be expanded to include additional material relevant 
to the merits of the petition. While most petitions are dismissed either 
summarily or after a response has been made, of those that remain, by 
far the majority require an evidentiary hearing. In the fiscal year 
ending June 30, 1970, for example, of 8,423 Sec. 2254 cases terminated, 
8,231 required court action. Of these, 7,812 were dismissed before a 
prehearing conference and 469 merited further court action (e.g., 
expansion of the record, prehearing conference, or an evidentiary 
hearing). Of the remaining 469 cases, 403 required an evidentiary 
hearing, often time-consuming, costly, and, at least occasionally, 
unnecessary. See Director of the Administrative Office of the United 
States Courts, Annual Report, 245a-245c (table C4) (1970). In some 
instances these hearings were necessitated by slight omissions in the 
state record which might have been cured by the use of an expanded 
record.
    Authorizing expansion of the record will, hopefully, eliminate some 
unnecessary hearings. The value of this approach was articulated in 
Raines v. United States, 423 F.2d 526, 529-530 (4th Cir. 1970):
        Unless it is clear from the pleadings and the files and records 
    that the prisoner is entitled to no relief, the statute makes a 
    hearing mandatory. We think there is a permissible intermediate step 
    that may avoid the necessity for an expensive and time consuming 
    evidentiary hearing in every Section 2255 case. It may instead be 
    perfectly appropriate, depending upon the nature of the allegations, 
    for the district court to proceed by requiring that the record be 
    expanded to include letters, documentary evidence, and, in an 
    appropriate case, even affidavits. United States v. Carlino, 400 
    F.2d 56 (2nd Cir. 1968); Mirra v. United States, 379 F.2d 782 (2nd 
    Cir. 1967); Accardi v. United States, 379 F.2d 312 (2nd Cir. 1967). 
    When the issue is one of credibility, resolution on the basis of 
    affidavits can rarely be conclusive, but that is not to say they may 
    not be helpful.
    In Harris v. Nelson, 394 U.S. 286, 300 (1969), the court said:
        At any time in the proceedings * * * either on [the court's] own 
    motion or upon cause shown by the petitioner, it may issue such 
    writs and take or authorize such proceedings * * * before or in 
    conjunction with the hearing of the facts * * * [emphasis added]
    Subdivision (b) specifies the materials which may be added to the 
record. These include, without limitation, letters predating the filing 
of the petition in the district court, documents, exhibits, and answers 
under oath directed to written interrogatories propounded by the judge. 
Under this subdivision affidavits may be submitted and considered part 
of the record. Subdivision (b) is consistent with 28 U.S.C. Secs. 2246 
and 2247 and the decision in Raines with regard to types of material 
that may be considered upon application for a writ of habeas corpus. See 
United States v. Carlino, 400 F.2d 56, 58 (2d Cir. 1968), and Machibroda 
v. United States, 368 U.S. 487 (1962).
    Under subdivision (c) all materials proposed to be included in the 
record must be submitted to the party against whom they are to be 
offered.
    Under subdivision (d) the judge can require authentication if he 
believes it desirable to do so.

                       Rule 8. Evidentiary Hearing

    (a) Determination by court. If the petition is not dismissed at a 
previous stage in the proceeding, the judge, after the answer and the 
transcript and record of state court proceedings are filed, shall, upon 
a review of those proceedings and of the expanded record, if any, 
determine whether an evidentiary hearing is required. If it appears that 
an evidentiary hearing is not required, the judge shall make such 
disposition of the petition as justice shall require.
    (b) Function of the magistrate.
        (1) When designated to do so in accordance with 28 U.S.C. 
    Sec. 636(b), a magistrate may conduct hearings, including 
    evidentiary hearings, on the petition, and submit to a judge of the 
    court proposed findings of fact and recommendations for disposition.
        (2) The magistrate shall file proposed findings and 
    recommendations with the court and a copy shall forthwith be mailed 
    to all parties.
        (3) Within ten days after being served with a copy, any party 
    may serve and file written objections to such proposed findings and 
    recommendations as provided by rules of court.
        (4) A judge of the court shall make a de novo determination of 
    those portions of the report or specified proposed findings or 
    recommendations to which objection is made. A judge of the court may 
    accept, reject, or modify in whole or in part any findings or 
    recommendations made by the magistrate.

    (c) Appointment of counsel; time for hearing. If an evidentiary 
hearing is required the judge shall appoint counsel for a petitioner who 
qualifies for the appointment of counsel under 18 U.S.C. Sec. 3006A(g) 
and the hearing shall be conducted as promptly as practicable, having 
regard for the need of counsel for both parties for adequate time for 
investigation and preparation. These rules do not limit the appointment 
of counsel under 18 U.S.C. Sec. 3006A at any stage of the case if the 
interest of justice so requires.

(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.)


                         Advisory Committee Note

    This rule outlines the procedure to be followed by the court 
immediately prior to and after the determination of whether to hold an 
evidentiary hearing.
    The provisions are applicable if the petition has not been dismissed 
at a previous stage in the proceeding [including a summary dismissal 
under rule 4; a dismissal pursuant to a motion by the respondent; a 
dismissal after the answer and petition are considered; or a dismissal 
after consideration of the pleadings and an expanded record].
    If dismissal has not been ordered, the court must determine whether 
an evidentiary hearing is required. This determination is to be made 
upon a review of the answer, the transcript and record of state court 
proceedings, and if there is one, the expanded record. As the United 
States Supreme Court noted in Townsend v. Sam, 372 U.S. 293, 319 (1963):
    Ordinarily [the complete state-court] record--including the 
    transcript of testimony (or if unavailable some adequate substitute, 
    such as a narrative record), the pleadings, court opinions, and 
    other pertinent documents--is indispensable to determining whether 
    the habeas applicant received a full and fair state-court 
    evidentiary hearing resulting in reliable findings.
    Subdivision (a) contemplates that all of these materials, if 
available, will be taken into account. This is especially important in 
view of the standard set down in Townsend for determining when a hearing 
in the federal habeas proceeding is mandatory.
    The appropriate standard * * * is this: Where the facts are in 
    dispute, the federal court in habeas corpus must hold an evidentiary 
    hearing if the habeas applicant did not receive a full and fair 
    evidentiary hearing in a state court, either at the time of the 
    trial or in a collateral proceeding.

                         372 U.S. at 312

    The circumstances under which a federal hearing is mandatory are now 
specified in 28 U.S.C. Sec. 2254(d). The 1966 amendment clearly places 
the burden on the petitioner, when there has already been a state 
hearing, to show that it was not a fair or adequate hearing for one or 
more of the specifically enumerated reasons, in order to force a federal 
evidentiary hearing. Since the function of an evidentiary hearing is to 
try issues of fact (372 U.S. at 309), such a hearing is unnecessary when 
only issues of law are raised. See, e.g., Yeaman v. United States, 326 
F.2d 293 (9th Cir. 1963).
    In situations in which an evidentiary hearing is not mandatory, the 
judge may nonetheless decide that an evidentiary hearing is desirable:
    The purpose of the test is to indicate the situations in which the 
    holding of an evidentiary hearing is mandatory. In all other cases 
    where the material facts are in dispute, the holding of such a 
    hearing is in the discretion of the district judge.

                         372 U.S. at 318

    If the judge decides that an evidentiary hearing is neither required 
nor desirable, he shall make such a disposition of the petition ``as 
justice shall require.'' Most habeas petitions are dismissed before the 
prehearing conference stage (see Director of the Administrative Office 
of the United States Courts, Annual Report 245a-245c (table C4) (1970)) 
and of those not dismissed, the majority raise factual issues that 
necessitate an evidentiary hearing. If no hearing is required, most 
petitions are dismissed, but in unusual cases the court may grant the 
relief sought without a hearing. This includes immediate release from 
custody or nullification of a judgment under which the sentence is to be 
served in the future.
    Subdivision (b) provides that a magistrate, when so empowered by 
rule of the district court, may recommend to the district judge that an 
evidentiary hearing be held or that the petition be dismissed, provided 
he gives the district judge a sufficiently detailed description of the 
facts so that the judge may decide whether or not to hold an evidentiary 
hearing. This provision is not inconsistent with the holding in Wingo v. 
Wedding, 418 U.S. 461 (1974), that the Federal Magistrates Act did not 
change the requirement of the habeas corpus statute that federal judges 
personally conduct habeas evidentiary hearings, and that consequently a 
local district court rule was invalid insofar as it authorized a 
magistrate to hold such hearings. 28 U.S.C. Sec. 636(b) provides that a 
district court may by rule authorize any magistrate to perform certain 
additional duties, including preliminary review of applications for 
posttrial relief made by individuals convicted of criminal offenses, and 
submission of a report and recommendations to facilitate the decision of 
the district judge having jurisdiction over the case as to whether there 
should be a hearing.
As noted in Wingo, review ``by Magistrates of applications for post-
trial relief is thus limited to review for the purpose of proposing, not 
holding, evidentiary hearings.''
    Utilization of the magistrate as specified in subdivision (b) will 
aid in the expeditious and fair handling of habeas petitions.
        A qualified, experienced magistrate will, it is hoped, acquire 
    an expertise in examining these [postconviction review] applications 
    and summarizing their important contents for the district judge, 
    thereby facilitating his decisions. Law clerks are presently charged 
    with this responsibility by many judges, but judges have noted that 
    the normal 1-year clerkship does not afford law clerks the time or 
    experience necessary to attain real efficiency in handling such 
    applications.

        S. Rep. No. 371, 90th Cong., 1st Sess., 26 (1967)

    Under subdivision (c) there are two provisions that differ from the 
procedure set forth in 28 U.S.C. Sec. 2243. These are the appointment of 
counsel and standard for determining how soon the hearing will be held.
    If an evidentiary hearing is required the judge must appoint counsel 
for a petitioner who qualified for appointment under the Criminal 
Justice Act. Currently, the appointment of counsel is not recognized as 
a right at any stage of a habeas proceeding. See, e.g., United States ex 
rel. Marshall v. Wilkins, 338 F.2d 404 (2d Cir. 1964). Some district 
courts have, however, by local rule, required that counsel must be 
provided for indigent petitioners in cases requiring a hearing. See, 
e.g., D.N.M.R. 21(f), E.D. N.Y.R. 26(d). Appointment of counsel at this 
stage is mandatory under subdivision (c). This requirement will not 
limit the authority of the court to provide counsel at an earlier stage 
if it is thought desirable to do so as is done in some courts under 
current practice. At the evidentiary hearing stage, however, an indigent 
petitioner's access to counsel should not depend on local practice and, 
for this reason, the furnishing of counsel is made mandatory.
    Counsel can perform a valuable function benefiting both the court 
and the petitioner. The issues raised can be more clearly identified if 
both sides have the benefit of trained legal personnel. The presence of 
counsel at the prehearing conference may help to expedite the 
evidentiary hearing or make it unnecessary, and counsel will be able to 
make better use of available prehearing discovery procedures. Compare 
ABA Project on Standards for Criminal Justice, Standards Relating to 
Post-Conviction Remedies Sec. 4.4, p. 66 (Approved Draft 1968). At a 
hearing, the petitioner's claims are more likely to be effectively and 
properly presented by counsel.
    Under 18 U.S.C. Sec. 3006A(g), payment is allowed counsel up to 
$250, plus reimbursement for expenses reasonably incurred. The standards 
of indigency under this section are less strict than those regarding 
eligibility to prosecute a petition in forma pauperis, and thus many who 
cannot qualify to proceed under 28 U.S.C. Sec. 1915 will be entitled to 
the benefits of counsel under 18 U.S.C. Sec. 3006A(g). Under rule 6(c), 
the court may order the respondent to reimburse counsel from state funds 
for fees and expenses incurred as the result of the utilization of 
discovery procedures by the respondent.
    Subdivision (c) provides that the hearing shall be conducted as 
promptly as possible, taking into account ``the need of counsel for both 
parties for adequate time for investigation and preparation.'' This 
differs from the language of 28 U.S.C. Sec. 2243, which requires that 
the day for the hearing be set ``not more than five days after the 
return unless for good cause additional time is allowed.'' This time 
limit fails to take into account the function that may be served by a 
prehearing conference and the time required to prepare adequately for an 
evidentiary hearing. Although ``additional time'' is often allowed under 
Sec. 2243, subdivision (c) provides more flexibility to take account of 
the complexity of the case, the availability of important materials, the 
workload of the attorney general, and the time required by appointed 
counsel to prepare.
    While the rule does not make specific provision for a prehearing 
conference, the omission is not intended to cast doubt upon the value of 
such a conference:
    The conference may limit the questions to be resolved, identify 
    areas of agreement and dispute, and explore evidentiary problems 
    that may be expected to arise. * * * [S]uch conferences may also 
    disclose that a hearing is unnecessary * * *.
    ABA Project on Standards for Criminal Justice, Standards Relating to 
        Post-Conviction Remedies Sec. 4.6, commentary pp. 74-75. 
        (Approved Draft, 1968.)
See also Developments in the Law--Federal Habeas Corpus, 83 Harv.L.Rev. 
1038, 1188 (1970).
    The rule does not contain a specific provision on the subpoenaing of 
witnesses. It is left to local practice to determine the method for 
doing this. The implementation of 28 U.S.C. Sec. 1825 on the payment of 
witness fees is dealt with in an opinion of the Comptroller General, 
February 28, 1974.


                               Amendments

    1976--Subd. (b). Pub. L. 94-577, Sec. 2(a)(1), substituted 
provisions which authorized magistrates, when designated to do so in 
accordance with section 636(b) of this title, to conduct hearings, 
including evidentiary hearings, on the petition and to submit to a judge 
of the court proposed findings of fact and recommendations for 
disposition, which directed the magistrate to file proposed findings and 
recommendations with the court with copies furnished to all parties, 
which allowed parties thus served 10 days to file written objections 
thereto, and which directed a judge of the court to make de novo 
determinations of the objected-to portions and to accept, reject, or 
modify the findings or recommendations for provisions under which the 
magistrate had been empowered only to recommend to the district judge 
that an evidentiary hearing be held or that the petition be dismissed.
    Subd. (c). Pub. L. 94-577, Sec. 2(b)(1), substituted ``and the 
hearing shall be conducted'' for ``and shall conduct the hearing''.
    Pub. L. 94-426 provided that these rules not limit the appointment 
of counsel under section 3006A of title 18, if the interest of justice 
so require.


                    Effective Date of 1976 Amendment

    Section 2(c) of Pub. L. 94-577 provided that: ``The amendments made 
by this section [amending subdivs. (b) and (c) of this rule and Rule 
8(b), (c) of the Rules Governing Proceedings Under Section 2255 of this 
title] shall take effect 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.''

                 Rule 9. Delayed or Successive Petitions

    (a) Delayed petitions. A petition may be dismissed if it appears 
that the state of which the respondent is an officer has been prejudiced 
in its ability to respond to the petition by delay in its filing unless 
the petitioner shows that it is based on grounds of which he could not 
have had knowledge by the exercise of reasonable diligence before the 
circumstances prejudicial to the state occurred.
    (b) Successive petitions. A second or successive petition may be 
dismissed if the judge finds that it fails to allege new or different 
grounds for relief and the prior determination was on the merits or, if 
new and different grounds are alleged, the judge finds that the failure 
of the petitioner to assert those grounds in a prior petition 
constituted an abuse of the writ.

(As amended Pub. L. 94-426, Sec. 2(7), (8), Sept. 28, 1976, 90 Stat. 
1335.)


                         Advisory Committee Note

    This rule is intended to minimize abuse of the writ of habeas corpus 
by limiting the right to assert stale claims and to file multiple 
petitions. Subdivision (a) deals with the delayed petition. Subdivision 
(b) deals with the second or successive petition.
    Subdivision (a) provides that a petition attacking the judgment of a 
state court may be dismissed on the grounds of delay if the petitioner 
knew or should have known of the existence of the grounds he is 
presently asserting in the petition and the delay has resulted in the 
state being prejudiced in its ability to respond to the petition. If the 
delay is more than five years after the judgment of conviction, 
prejudice is presumed, although this presumption is rebuttable by the 
petitioner. Otherwise, the state has the burden of showing such 
prejudice.
    The assertion of stale claims is a problem which is not likely to 
decrease in frequency. Following the decisions in Jones v. Cunningham, 
371 U.S. 236 (1963), and Benson v. California, 328 F.2d 159 (9th Cir. 
1964), the concept of custody expanded greatly, lengthening the time 
period during which a habeas corpus petition may be filed. The 
petitioner who is not unconditionally discharged may be on parole or 
probation for many years. He may at some date, perhaps ten or fifteen 
years after conviction, decide to challenge the state court judgment. 
The grounds most often troublesome to the courts are ineffective 
counsel, denial of right of appeal, plea of guilty unlawfully induced, 
use of a coerced confession, and illegally constituted jury. The latter 
four grounds are often interlocked with the allegation of ineffective 
counsel. When they are asserted after the passage of many years, both 
the attorney for the defendant and the state have difficulty in 
ascertaining what the facts are. It often develops that the defense 
attorney has little or no recollection as to what took place and that 
many of the participants in the trial are dead or their whereabouts 
unknown. The court reporter's notes may have been lost or destroyed, 
thus eliminating any exact record of what transpired. If the case was 
decided on a guilty plea, even if the record is intact, it may not 
satisfactorily reveal the extent of the defense attorney's efforts in 
behalf of the petitioner. As a consequence, there is obvious difficulty 
in investigating petitioner's allegations.
    The interest of both the petitioner and the government can best be 
served if claims are raised while the evidence is still fresh. The 
American Bar Association has recognized the interest of the state in 
protecting itself against stale claims by limiting the right to raise 
such claims after completion of service of a sentence imposed pursuant 
to a challenged judgment. See ABA Standards Relating to Post-Conviction 
Remedies Sec. 2.4 (c), p. 45 (Approved Draft, 1968). Subdivision (a) is 
not limited to those who have completed their sentence. Its reach is 
broader, extending to all instances where delay by the petitioner has 
prejudiced the state, subject to the qualifications and conditions 
contained in the subdivision.
    In McMann v. Richardson, 397 U.S. 759 (1970), the court made 
reference to the issue of the stale claim:
        What is at stake in this phase of the case is not the integrity 
    of the state convictions obtained on guilty pleas, but whether, 
    years later, defendants must be permitted to withdraw their pleas, 
    which were perfectly valid when made, and be given another choice 
    between admitting their guilt and putting the State to its proof. 
    [Emphasis added.]

                         397 U.S. at 773

    The court refused to allow this, intimating its dislike of 
collateral attacks on sentences long since imposed which disrupt the 
state's interest in finality of convictions which were constitutionally 
valid when obtained.
    Subdivision (a) is not a statute of limitations. Rather, the 
limitation is based on the equitable doctrine of laches. ``Laches is 
such delay in enforcing one's rights as works disadvantage to another.'' 
30A C.J.S. Equity Sec. 112, p. 19. Also, the language of the 
subdivision, ``a petition may be dismissed'' [emphasis added], is 
permissive rather than mandatory. This clearly allows the court which is 
considering the petition to use discretion in assessing the equities of 
the particular situation.
    The use of a flexible rule analogous to laches to bar the assertion 
of stale claims is suggested in ABA Standards Relating to Post-
Conviction Remedies Sec. 2.4, commentary at 48 (Approved Draft, 1968). 
Additionally, in Fay v. Noia, 372 U.S. 391 (1963), the Supreme Court 
noted:
    Furthermore, habeas corpus has traditionally been regarded as 
    governed by equitable principles. United States ex rel. Smith v. 
    Baldi, 344 U.S. 561, 573 (dissenting opinion). Among them is the 
    principle that a suitor's conduct in relation to the matter at hand 
    may disentitle him to the relief he seeks.

                         372 U.S. at 438

    Finally, the doctrine of laches has been applied with reference to 
another postconviction remedy, the writ of coram nobis. See 24 C.J.S. 
Criminal Law Sec. 1606(25), p. 779.
    The standard used for determining if the petitioner shall be barred 
from asserting his claim is consistent with that used in laches 
provisions generally. The petitioner is held to a standard of reasonable 
diligence. Any inference or presumption arising by reason of the failure 
to attack collaterally a conviction may be disregarded where (1) there 
has been a change of law or fact (new evidence) or (2) where the court, 
in the interest of justice, feels that the collateral attack should be 
entertained and the prisoner makes a proper showing as to why he has not 
asserted a particular ground for relief.
    Subdivision (a) establishes the presumption that the passage of more 
than five years from the time of the judgment of conviction to the time 
of filing a habeas petition is prejudicial to the state. ``Presumption'' 
has the meaning given it by Fed.R.Evid. 301. The prisoner has ``the 
burden of going forward with evidence to rebut or meet the presumption'' 
that the state has not been prejudiced by the passage of a substantial 
period of time. This does not impose too heavy a burden on the 
petitioner. He usually knows what persons are important to the issue of 
whether the state has been prejudiced. Rule 6 can be used by the court 
to allow petitioner liberal discovery to learn whether witnesses have 
died or whether other circumstances prejudicial to the state have 
occurred. Even if the petitioner should fail to overcome the presumption 
of prejudice to the state, he is not automatically barred from asserting 
his claim. As discussed previously, he may proceed if he neither knew 
nor, by the exercise of reasonable diligence, could have known of the 
grounds for relief.
    The presumption of prejudice does not come into play if the time lag 
is not more than five years.
    The time limitation should have a positive effect in encouraging 
petitioners who have knowledge of it to assert all their claims as soon 
after conviction as possible. The implementation of this rule can be 
substantially furthered by the development of greater legal resources 
for prisoners. See ABA Standards Relating to Post-Conviction Remedies 
Sec. 3.1, pp. 49-50 (Approved Draft, 1968).
    Subdivision (a) does not constitute an abridgement or modification 
of a substantive right under 28 U.S.C. Sec. 2072. There are safeguards 
for the hardship case. The rule provides a flexible standard for 
determining when a petition will be barred.
    Subdivision (b) deals with the problem of successive habeas 
petitions. It provides that the judge may dismiss a second or successive 
petition (1) if it fails to allege new or different grounds for relief 
or (2) if new or different grounds for relief are alleged and the judge 
finds the failure of the petitioner to assert those grounds in a prior 
petition is inexcusable.
    In Sanders v. United States, 373 U.S. 1 (1963), the court, in 
dealing with the problem of successive applications, stated:
        Controlling weight may be given to denial of a prior application 
    for federal habeas corpus or Sec. 2255 relief only if (1) the same 
    ground presented in the subsequent application was determined 
    adversely to the applicant on the prior application, (2) the prior 
    determination was on the merits, and (3) the ends of justice would 
    not be served by reaching the merits of the subsequent application. 
    [Emphasis added.]

                         373 U.S. at 15

    The requirement is that the prior determination of the same ground 
has been on the merits. This requirement is in 28 U.S.C. Sec. 2244(b) 
and has been reiterated in many cases since Sanders. See Gains v. 
Allgood, 391 F.2d 692 (5th Cir. 1968); Hutchinson v. Craven, 415 F.2d 
278 (9th Cir. 1969); Brown v. Peyton, 435 F.2d 1352 (4th Cir. 1970).
    With reference to a successive application asserting a new ground or 
one not previously decided on the merits, the court in Sanders noted:
    In either case, full consideration of the merits of the new 
    application can be avoided only if there has been an abuse of the 
    writ * * * and this the Government has the burden of pleading. * * *
        Thus, for example, if a prisoner deliberately withholds one of 
    two grounds for federal collateral relief at the time of filing his 
    first application, * * * he may be deemed to have waived his right 
    to a hearing on a second application presenting the withheld ground.

                        373 U.S. at 17-18

Subdivision (b) has incorporated this principle and requires that the 
judge find petitioner's failure to have asserted the new grounds in the 
prior petition to be inexcusable.
    Sanders, 18 U.S.C. Sec. 2244, and subdivision (b) make it clear that 
the court has discretion to entertain a successive application.
    The burden is on the government to plead abuse of the writ. See 
Sanders v. United States, 373 U.S. 1, 10 (1963); Dixon v. Jacobs, 427 
F.2d 589, 596 (D.C.Cir. 1970); cf. Johnson v. Copinger, 420 F.2d 395 
(4th Cir. 1969). Once the government has done this, the petitioner has 
the burden of proving that he has not abused the writ. In Price v. 
Johnston, 334 U.S. 266, 292 (1948), the court said:
    [I]f the Government chooses * * * to claim that the prisoner has 
    abused the writ of habeas corpus, it rests with the Government to 
    make that claim with clarity and particularity in its return to the 
    order to show cause. That is not an intolerable burden. The 
    Government is usually well acquainted with the facts that are 
    necessary to make such a claim. Once a particular abuse has been 
    alleged, the prisoner has the burden of answering that allegation 
    and of proving that he has not abused the writ.
    Subdivision (b) is consistent with the important and well 
established purpose of habeas corpus. It does not eliminate a remedy to 
which the petitioner is rightfully entitled. However, in Sanders, the 
court pointed out:
    Nothing in the traditions of habeas corpus requires the federal 
    courts to tolerate needless piecemeal litigation, or to entertain 
    collateral proceedings whose only purpose is to vex, harass, or 
    delay.

                         373 U.S. at 18

There are instances in which petitioner's failure to assert a ground in 
a prior petition is excusable. A retroactive change in the law and newly 
discovered evidence are examples. In rare instances, the court may feel 
a need to entertain a petition alleging grounds that have already been 
decided on the merits. Sanders, 373 U.S. at 1, 16. However, abusive use 
of the writ should be discouraged, and instances of abuse are frequent 
enough to require a means of dealing with them. For example, a 
successive application, already decided on the merits, may be submitted 
in the hope of getting before a different judge in multijudge courts. A 
known ground may be deliberately withheld in the hope of getting two or 
more hearings or in the hope that delay will result in witnesses and 
records being lost. There are instances in which a petitioner will have 
three or four petitions pending at the same time in the same court. 
There are many hundreds of cases where the application is at least the 
second one by the petitioner. This subdivision is aimed at screening out 
the abusive petitions from this large volume, so that the more 
meritorious petitions can get quicker and fuller consideration.
    The form petition, supplied in accordance with rule 2(c), encourages 
the petitioner to raise all of his available grounds in one petition. It 
sets out the most common grounds asserted so that these may be brought 
to his attention.
    Some commentators contend that the problem of abuse of the writ of 
habeas corpus is greatly overstated:
        Most prisoners, of course, are interested in being released as 
    soon as possible; only rarely will one inexcusably neglect to raise 
    all available issues in his first federal application. The purpose 
    of the ``abuse'' bar is apparently to deter repetitious applications 
    from those few bored or vindictive prisoners * * *.

                   83 Harv.L.Rev. at 1153-1154

See also ABA Standards Relating to Post-Conviction Remedies Sec. 6.2, 
commentary at 92 (Approved Draft, 1968), which states: ``The occasional, 
highly litigious prisoner stands out as the rarest exception.'' While no 
recent systematic study of repetitious applications exists, there is no 
reason to believe that the problem has decreased in significance in 
relation to the total number of Sec. 2254 petitions filed. That number 
has increased from 584 in 1949 to 12,088 in 1971. See Director of the 
Administrative Office of the United States Courts, Annual Report, table 
16 (1971). It is appropriate that action be taken by rule to allow the 
courts to deal with this problem, whatever its specific magnitude. The 
bar set up by subdivision (b) is not one of rigid application, but 
rather is within the discretion of the courts on a case-by-case basis.
    If it appears to the court after examining the petition and answer 
(where appropriate) that there is a high probability that the petition 
will be barred under either subdivision of rule 9, the court ought to 
afford petitioner an opportunity to explain his apparent abuse. One way 
of doing this is by the use of the form annexed hereto. The use of a 
form will ensure a full airing of the issue so that the court is in a 
better position to decide whether the petition should be barred. This 
conforms with Johnson v. Copinger, 420 F.2d 395 (4th Cir. 1969), where 
the court stated:
    [T]he petitioner is obligated to present facts demonstrating that 
    his earlier failure to raise his claims is excusable and does not 
    amount to an abuse of the writ. However, it is inherent in this 
    obligation placed upon the petitioner that he must be given an 
    opportunity to make his explanation, if he has one. If he is not 
    afforded such an opportunity, the requirement that he satisfy the 
    court that he has not abused the writ is meaningless. Nor do we 
    think that a procedure which allows the imposition of a forfeiture 
    for abuse of the writ, without allowing the petitioner an 
    opportunity to be heard on the issue, comports with the minimum 
    requirements of fairness.

                         420 F.2d at 399

Use of the recommended form will contribute to an orderly handling of 
habeas petitions and will contribute to the ability of the court to 
distinguish the excusable from the inexcusable delay or failure to 
assert a ground for relief in a prior petition.


                               Amendments

    1976--Subd. (a). Pub. L. 94-426, Sec. 2(7), struck out provision 
which established a rebuttable presumption of prejudice to the state if 
the petition was filed more than five years after conviction and started 
the running of the five year period, where a petition challenged the 
validity of an action after conviction, from the time of the order of 
such action.
    Subd. (b). Pub. L. 94-426, Sec. 2(8), substituted ``constituted an 
abuse of the writ'' for ``is not excusable''.

                     Rule 10. Powers of Magistrates

    The duties imposed upon the judge of the district court by these 
rules may be performed by a United States magistrate pursuant to 28 
U.S.C. Sec. 636.

(As amended Pub. L. 94-426, Sec. 2(11), Sept. 28, 1976, 90 Stat. 1335; 
Apr. 30, 1979, eff. Aug. 1, 1979.)


                         Advisory Committee Note

    Under this rule the duties imposed upon the judge of the district 
court by rules 2, 3, 4, 6, and 7 may be performed by a magistrate if and 
to the extent he is empowered to do so by a rule of the district court. 
However, when such duties involve the making of an order under rule 4 
disposing of the petition, that order must be made by the court. The 
magistrate in such instances must submit to the court his report as to 
the facts and his recommendation with respect to the order.
    The Federal Magistrates Act allows magistrates, when empowered by 
local rule, to perform certain functions in proceedings for post-trial 
relief. See 28 U.S.C. Sec. 636(b)(3). The performance of such functions, 
when authorized, is intended to ``afford some degree of relief to 
district judges and their law clerks, who are presently burdened with 
burgeoning numbers of habeas corpus petitions and applications under 28 
U.S.C. Sec. 2255.'' Committee on the Judiciary, The Federal Magistrates 
Act, S.Rep. No. 371, 90th Cong., 1st sess., 26 (1967).
    Under 28 U.S.C. Sec. 636(b), any district court,
    by the concurrence of a majority of all the judges of such district 
    court, may establish rules pursuant to which any full-time United 
    States magistrate * * * may be assigned within the territorial 
    jurisdiction of such court such additional duties as are not 
    inconsistent with the Constitution and laws of the United States.
The proposed rule recognizes the limitations imposed by 28 U.S.C. 
Sec. 636(b) upon the powers of magistrates to act in federal 
postconviction proceedings. These limitations are: (1) that the 
magistrate may act only pursuant to a rule passed by the majority of the 
judges in the district court in which the magistrate serves, and (2) 
that the duties performed by the magistrate pursuant to such rule be 
consistent with the Constitution and laws of the United States.
    It has been suggested that magistrates be empowered by law to hold 
hearings and make final decisions in habeas proceedings. See Proposed 
Reformation of Federal Habeas Corpus Procedure: Use of Federal 
Magistrates, 54 Iowa L.Rev. 1147, 1158 (1969). However, the Federal 
Magistrates Act does not authorize such use of magistrates. Wingo v. 
Wedding, 418 U.S. 461 (1974). See advisory committee note to rule 8. 
While the use of magistrates can help alleviate the strain imposed on 
the district courts by the large number of unmeritorious habeas 
petitions, neither 28 U.S.C. Sec. 636(b) nor this rule contemplate the 
abdication by the court of its decision-making responsibility. See also 
Developments in the Law--Federal Habeas Corpus, 83 Harv. L.Rev. 1038, 
1188 (1970)
    Where a full-time magistrate is not available, the duties 
contemplated by this rule may be assigned to a part-time magistrate.

                         1979 Amendment

    This amendment conforms the rule to subsequently enacted legislation 
clarifying and further defining the duties which may be assigned to a 
magistrate, 18 U.S.C. Sec. 636, as amended in 1976 by Pub. L. 94-577. To 
the extent that rule 10 is more restrictive than Sec. 636, the 
limitations are of no effect, for the statute expressly governs 
``[n]otwithstanding any provision of law to the contrary.''
    The reference to particular rules is stricken, as under 
Sec. 636(b)(1)(A) a judge may designate a magistrate to perform duties 
under other rules as well (e.g., order that further transcripts be 
furnished under rule 5; appoint counsel under rule 8). The reference to 
``established standards and criteria'' is stricken, as Sec. 636(4) 
requires each district court to ``establish rules pursuant to which the 
magistrates shall discharge their duties.'' The exception with respect 
to a rule 4 order dismissing a petition is stricken, as that limitation 
appears in Sec. 636(b)(1)(B) and is thereby applicable to certain other 
actions under these rules as well (e.g., determination of a need for an 
evidentiary hearing under rule 8; dismissal of a delayed or successive 
petition under rule 9).


                               Amendments

    1976--Pub. L. 94-426 inserted ``, and to the extent the district 
court has established standards and criteria for the performance of such 
duties'' after ``rule of the district court''.

                         Change of Name

    Reference to United States magistrate or to magistrate deemed to 
refer to United States magistrate judge pursuant to section 321 of Pub. 
L. 101-650, set out as a note under section 631 of this title.

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

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


                         Advisory Committee Note

    Habeas corpus proceedings are characterized as civil in nature. See 
e.g., Fisher v. Baker, 203 U.S. 174, 181 (1906). However, under 
Fed.R.Civ.P. 81(a)(2), the applicability of the civil rules to habeas 
corpus actions has been limited, although the various courts which have 
considered this problem have had difficulty in setting out the 
boundaries of this limitation. See Harris v. Nelson, 394 U.S. 286 (1969) 
at 289, footnote 1. Rule 11 is intended to conform with the Supreme 
Court's approach in the Harris case. There the court was dealing with 
the petitioner's contention that Civil Rule 33 granting the right to 
discovery via written interrogatories is wholly applicable to habeas 
corpus proceedings. The court held:
    We agree with the Ninth Circuit that Rule 33 of the Federal Rules of 
    Civil Procedure is not applicable to habeas corpus proceedings and 
    that 28 U.S.C. Sec. 2246 does not authorize interrogatories except 
    in limited circumstances not applicable to this case; but we 
    conclude that, in appropriate circumstances, a district court, 
    confronted by a petition for habeas corpus which establishes a prima 
    facie case for relief, may use or authorize the use of suitable 
    discovery procedures, including interrogatories, reasonably 
    fashioned to elicit facts necessary to help the court to ``dispose 
    of the matter as law and justice require'' 28 U.S.C. Sec. 2243.

                         394 U.S. at 290

The court then went on to consider the contention that the 
``conformity'' provision of Rule 81(a)(2) should be rigidly applied so 
that the civil rules would be applicable only to the extent that habeas 
corpus practice had conformed to the practice in civil actions at the 
time of the adoption of the Federal Rules of Civil Procedure on 
September 16, 1938. The court said:
    Although there is little direct evidence, relevant to the present 
    problem, of the purpose of the ``conformity'' provision of Rule 
    81(a)(2), the concern of the draftsmen, as a general matter, seems 
    to have been to provide for the continuing applicability of the 
    ``civil'' rules in their new form to those areas of practice in 
    habeas corpus and other enumerated proceedings in which the 
    ``specified'' proceedings had theretofore utilized the modes of 
    civil practice. Otherwise, those proceedings were to be considered 
    outside of the scope of the rules without prejudice, of course, to 
    the use of particular rules by analogy or otherwise, where 
    appropriate.

                         394 U.S. at 294

The court then reiterated its commitment to judicial discretion in 
formulating rules and procedures for habeas corpus proceedings by 
stating:
    [T]he habeas corpus jurisdiction and the duty to exercise it being 
    present, the courts may fashion appropriate modes of procedure, by 
    analogy to existing rules or otherwise in conformity with judicial 
    usage.
Where their duties require it, this is the inescapable obligation of the 
courts. Their authority is expressly confirmed in the All Writs Act, 28 
U.S.C. Sec. 1651.

                         394 U.S. at 299

    Rule 6 of these proposed rules deals specifically with the issue of 
discovery in habeas actions in a manner consistent with Harris. Rule 11 
extends this approach to allow the court considering the petition to use 
any of the rules of civil procedure (unless inconsistent with these 
rules of habeas corpus) when in its discretion the court decides they 
are appropriate under the circumstances of the particular case. The 
court does not have to rigidly apply rules which would be inconsistent 
or inequitable in the overall framework of habeas corpus. Rule 11 merely 
recognizes and affirms their discretionary power to use their judgment 
in promoting the ends of justice.
    Rule 11 permits application of the civil rules only when it would be 
appropriate to do so. Illustrative of an inappropriate application is 
that rejected by the Supreme Court in Pitchess v. Davis, 95 S.Ct. 1748 
(1975), holding that Fed.R.Civ.P. 60(b) should not be applied in a 
habeas case when it would have the effect of altering the statutory 
exhaustion requirement of 28 U.S.C. Sec. 2254.

                        APPENDIX OF FORMS

 MODEL FORM FOR USE IN APPLICATIONS FOR HABEAS CORPUS UNDER 28 
                        U.S.C. Sec. 2254

Name ____________________________________________________
Prison number __________________________________________

__________________________________________________
Place of confinement __________________________________
United States District Court __________ District of __________
Case No. ________________________________________________
(To be supplied by Clerk of U.S. District Court)
______________________________________, PETITIONER
(Full name)

                               v.

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

                               and

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

 PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

                  Instructions--Read Carefully

(1) This petition must be legibly handwritten or typewritten, and signed 
        by the petitioner under penalty of perjury. Any false statement 
        of a material fact may serve as the basis for prosecution and 
        conviction for perjury. All questions must be answered concisely 
        in the proper space on the form.
(2) Additional pages are not permitted except with respect to the facts 
        which you rely upon to support your grounds for relief. No 
        citation of authorities need be furnished. If briefs or 
        arguments are submitted, they should be submitted in the form of 
        a separate memorandum.
(3) Upon receipt of a fee of $5 your petition will be filed if it is in 
        proper order.
(4) If you do not have the necessary filing fee, you may request 
        permission to proceed in forma pauperis, in which event you must 
        execute the declaration on the last page, setting forth 
        information establishing your inability to prepay the fees and 
        costs or give security therefor. If you wish to proceed in forma 
        pauperis, you must have an authorized officer at the penal 
        institution complete the certificate as to the amount of money 
        and securities on deposit to your credit in any account in the 
        institution. If your prison account exceeds $______, you must 
        pay the filing fee as required by the rule of the district 
        court.
(5) Only judgments entered by one court may be challenged in a single 
        petition. If you seek to challenge judgments entered by 
        different courts either in the same state or in different 
        states, you must file separate petitions as to each court.
(6) Your attention is directed to the fact that you must include all 
        grounds for relief and all facts supporting such grounds for 
        relief in the petition you file seeking relief from any judgment 
        of conviction.
(7) When the petition is fully completed, the original and two copies 
        must be mailed to the Clerk of the United States District Court 
        whose address is ____
     ______________________________________________________
(8) Petitions which do not conform to these instructions will be 
        returned with a notation as to the deficiency.

                            PETITION

1. Name and location of court which entered the judgment of conviction 
        under attack____________________
     ______________________________________________________
2. Date of judgment of conviction ______________________
3. Length of sentence __________________________________
4. Nature of offense involved (all counts) ______________
     ______________________________________________________
     ______________________________________________________
     ______________________________________________________
5. What was your plea? (Check one)
            (a) Not guilty {time} 
            (b) Guilty {time} 
            (c) Nolo contendere {time} 
    If you entered a guilty plea to one count or indictment, and a not 
        guilty plea to another count or indictment, give details:
     ______________________________________________________
     ______________________________________________________
     ______________________________________________________
6. Kind of trial: (Check one)
            (a) Jury  {time} 
            (b) Judge only  {time} 
7. Did you testify at the trial?
        Yes  {time}   No  {time} 
8. Did you appeal from the judgment of conviction?
        Yes  {time}   No  {time} 
9. If you did appeal, answer the following:
            (a) Name of court ________________________________
            (b) Result ________________________________________
            (c) Date of result __________________________________
10. Other than a direct appeal from the judgment of conviction and 
        sentence, have you previously filed any petitions, applications, 
        or motions with respect to this judgment in any court, state or 
        federal?
        Yes  {time}   No  {time} 
11. If your answer to 10 was ``yes,'' give the following information:
      (a)     (1) Name of court ____________________________
              (2) Nature of proceeding ____________________
                  ____________________________________________
              (3) Grounds raised ____________________________
                  ____________________________________________
                  ____________________________________________
                  ____________________________________________
                  ____________________________________________
              (4) Did you receive an evidentiary hearing on       your 
                  petition, application or motion?
                      Yes  {time}   No  {time} 
              (5) Result______________________________________
              (6) Date of result______________________________
      (b)     As to any second petition, application or motion give the 
                  same information:
              (1) Name of court ____________________________
              (2) Nature of proceeding ____________________
                  ____________________________________________
              (3) Grounds raised ____________________________
                  ____________________________________________
                  ____________________________________________
                  ____________________________________________
                  ____________________________________________
              (4) Did you receive an evidentiary hearing on
                    your petition, application or motion?
                  Yes  {time}   No  {time} 
              (5) Result______________________________________
              (6) Date of result______________________________
      (c)     As to any third petition, application or motion, give the 
                  same information:
              (1) Name of court ____________________________
              (2) Nature of proceeding ____________________
                  ____________________________________________
              (3) Grounds raised ____________________________
                  ____________________________________________
                  ____________________________________________
                  ____________________________________________
                  ____________________________________________
              (4) Did you receive an evidentiary hearing on       your 
                  petition, application or motion?
                  Yes  {time}   No  {time} 
              (5) Result______________________________________
              (6) Date of result______________________________
      (d)     Did you appeal to the highest state court having 
                  jurisdiction the result of action taken on any 
                  petition, application or motion?
              (1) First petition, etc.        Yes {time}   No {time} 
              (2) Second petition, etc.    Yes {time}   No {time} 
              (3) Third petition, etc.    Yes {time}   No {time} 
      (e)     If you did not appeal from the adverse action on any 
                  petition, application or motion, explain briefly why 
                  you did not:
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 
12. State concisely every ground on which you claim that you are being 
        held unlawfully. Summarize briefly the facts supporting each 
        ground. If necessary, you may attach pages stating additional 
        grounds and facts supporting same.
        Caution: In order to proceed in the federal court, you must 
            ordinarily first exhaust your state court remedies as to 
            each ground on which you request action by the federal 
            court. If you fail to set forth all grounds in this 
            petition, you may be barred from presenting additional 
            grounds at a later date.
            For your information, the following is a list of the most 
        frequently raised grounds for relief in habeas corpus 
        proceedings. Each statement preceded by a letter constitutes a 
        separate ground for possible relief. You may raise any grounds 
        which you may have other than those listed if you have exhausted 
        your state court remedies with respect to them. However, you 
        should raise in this petition all available grounds (relating to 
        this conviction) on which you base your allegations that you are 
        being held in custody unlawfully.
            Do not check any of these listed grounds. If you select one 
        or more of these grounds for relief, you must allege facts. The 
        petition will be returned to you if you merely check (a) through 
        (j) or any one of these grounds.

  (a) Conviction obtained by plea of guilty which was unlawfully induced 
                or not made voluntarily with understanding of the nature 
                of the charge and the consequences of the plea.
  (b) Conviction obtained by use of coerced confession.
  (c) Conviction obtained by use of evidence gained pursuant to an 
                unconstitutional search and seizure.
  (d) Conviction obtained by use of evidence obtained pursuant to an 
                unlawful arrest.
  (e) Conviction obtained by a violation of the privilege against self-
                incrimination.
  (f) Conviction obtained by the unconstitutional failure of the 
                prosecution to disclose to the defendant evidence 
                favorable to the defendant.
  (g) Conviction obtained by a violation of the protection against 
                double jeopardy.
  (h) Conviction obtained by action of a grand or petit jury which was 
                unconstitutionally selected and impaneled.
  (i) Denial of effective assistance of counsel.
  (j) Denial of right of appeal.

    A. Ground one: ______________________________________
      ____________________________________________________ 
          Supporting FACTS (tell your story briefly without citing cases 
            or law): __________________________
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 

    B. Ground two: ____________________________________
      ____________________________________________________ 
          Supporting FACTS (tell your story briefly without citing cases 
            or law): __________________________
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 

    C. Ground three: ____________________________________
      ____________________________________________________ 
          Supporting FACTS (tell your story briefly without citing cases 
            or law): __________________________
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 

    D. Ground four: ____________________________________
      ____________________________________________________ 
          Supporting FACTS (tell your story briefly without citing cases 
            or law): __________________________
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 
      ____________________________________________________ 

13. If any of the grounds listed in 12A, B, C, and D were not previously 
        presented in any other court, state or federal, state briefly 
        what grounds were not so presented, and give your reasons for 
        not presenting them:
    ______________________________________________________ 
    ______________________________________________________ 
    ______________________________________________________ 

14. Do you have any petition or appeal now pending in any court, either 
        state or federal, as to the judgment under attack?

        Yes {time}  No {time} 

15. Give the name and address, if known, of each attorney who 
        represented you in the following stages of the judgment attacked 
        herein:
      (a)  At  preliminary  hearing ____________________
          ________________________________________________ 

      (b)  At  arraignment  and  plea __________________
          ________________________________________________ 

      (c)  At  trial ______________________________________
          ________________________________________________ 

      (d)  At  sentencing ______________________________
          ________________________________________________ 

      (e)  On appeal ____________________________________
          ________________________________________________ 

      (f)  In  any  post-conviction  proceeding ________
          ________________________________________________ 
          ________________________________________________ 

      (g)     On appeal from any adverse ruling in a postconviction 
                  proceeding __________________
          ________________________________________________ 
          ________________________________________________ 

16. Were you sentenced on more than one count of an indictment, or on 
        more than one indictment, in the same court and at the same 
        time?

        Yes {time}  No {time} 

17. Do you have any future sentence to serve after you complete the 
        sentence imposed by the judgment under attack?

        Yes {time}  No {time} 

      (a)     If so, give name and location of court which imposed 
                  sentence to be served in the future:
          ________________________________________________ 
          ________________________________________________ 
      (b)     And give date and length of sentence to be served in the 
                  future:
          ________________________________________________ 
          ________________________________________________ 
      (c)     Have you filed, or do you contemplate filing, any petition 
                  attacking the judgment which imposed the sentence to 
                  be served in the future?
                  Yes {time}  No {time} 
    Wherefore, petitioner prays that the Court grant petitioner relief 
to which he may be entitled in this proceeding.
                                      __________________________________
                                          Signature of Attorney (if any)
    I declare (or certify, verify, or state) under penalty of perjury 
that the foregoing is true and correct. Executed on __________.
            (date)
                                            ____________________________
                                               Signature of Petitioner  

                  IN FORMA PAUPERIS DECLARATION

__________________________________________________
                    [Insert appropriate court]

    ____________________________                 DECLARATION IN
            (Petitioner)                             SUPPORT
                                                   OF REQUEST
                 v.                                TO PROCEED
    ____________________________                    IN FORMA
           (Respondent(s))                          PAUPERIS

    I, ____________________________, declare that I am the petitioner in 
the above entitled case; that in support of my motion to proceed without 
being required to prepay fees, costs or give security therefor, I state 
that because of my poverty I am unable to pay the costs of said 
proceeding or to give security therefor; that I believe I am entitled to 
relief.
1. Are you presently employed? Yes {time}  No {time} 
    a. If the answer is ``yes,'' state the amount of your salary or 
                wages per month, and give the name and address of your 
                employer.
        __________________________________________________ 
        __________________________________________________ 
    b. If the answer is ``no,'' state the date of last employment and 
                the amount of the salary and wages per month which you 
                received.
        __________________________________________________ 
        __________________________________________________ 
2. Have you received within the past twelve months any money from any of 
        the following sources?
    a. Business, profession or form of self-employment? Yes {time}  No 
                {time} 
    b. Rent payments, interest or dividends? Yes {time} No {time} 
    c. Pensions, annuities or life insurance payments? Yes {time}  No 
                {time} 
    d. Gifts or inheritances? Yes {time}  No {time} 
    e. Any other sources? Yes {time}  No {time} 
            If the answer to any of the above is ``yes,'' describe each 
        source of money and state the amount received from each during 
        the past twelve months.
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
3. Do you own cash, or do you have money in a checking or savings 
        account?
        Yes {time}  No {time}  (Include any funds in prison accounts.)
            If the answer is ``yes,'' state the total value of the items 
        owned.
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
4. Do you own any real estate, stocks, bonds, notes, automobiles, or 
        other valuable property (excluding ordinary household 
        furnishings and clothing)?
        Yes {time}  No {time} 
            If the answer is ``yes,'' describe the property and state  
        its  approximate  value.
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
5. List the persons who are dependent upon you for support, state your 
        relationship to those persons, and indicate how much you 
        contribute toward their support.
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
    I declare (or certify, verify, or state) under penalty of perjury 
that the foregoing is true and correct. Executed on __________.
            (date)
                                            ____________________________
                                                Signature of Petitioner 

                           Certificate

    I hereby certify that the petitioner herein has the sum of $________ 
on account to his credit at the ________ institution where he is 
confined. I further certify that petitioner likewise has the following 
securities to his credit according to the records of said ________ 
institution:

__________________________________________________

__________________________________________________

__________________________________________________

__________________________________________________
                                            ____________________________
                                                 Authorized Officer of  
                                                     Institution        

(As amended Apr. 28, 1982, eff. Aug. 1, 1982.)

MODEL FORM FOR USE IN 28 U.S.C. Sec. 2254 CASES INVOLVING A RULE 
                             9 ISSUE

                           Form No. 9

                  United States District Court,

      ____________________ District of ____________________

                        Case No. --------

                ____________________, PETITIONER

                               v.

                ____________________, RESPONDENT

                               and

               ____________, ADDITIONAL RESPONDENT

   Petitioner's Response as to Why His Petition Should Not Be 
                       Barred Under Rule 9

          Explanation and Instructions--Read Carefully

(I) Rule 9. Delayed or successive petitions.
    (a) Delayed petitions. A petition may be dismissed if it appears 
that the state of which the respondent is an officer has been prejudiced 
in its ability to respond to the petition by delay in its filing unless 
the petitioner shows that it is based on grounds of which he could not 
have had knowledge by the exercise of reasonable diligence before the 
circumstances prejudicial to the state occurred.
    (b) Successive petitions. A second or successive petition may be 
dismissed if the judge finds that it fails to allege new or different 
grounds for relief and the prior determination was on the merits or, if 
new and different grounds are alleged, the judge finds that the failure 
of the petitioner to assert those grounds in a prior petition 
constituted an abuse of the writ.
(II) Your petition for habeas corpus has been found to be subject to 
                dismissal under rule 9( ) for the following reason(s):
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
(III) This form has been sent so that you may explain why your petition 
                contains the defect(s) noted in (II) above. It is 
                required that you fill out this form and send it back to 
                the court within ________ days. Failure to do so will 
                result in the automatic dismissal of your petition.
(IV) When you have fully completed this form, the original and two 
                copies must be mailed to the Clerk of the United States 
                District Court whose address is 
                ________________________________
        ______________________________________________________ 
(V) This response must be legibly handwritten or typewritten, and signed 
                by the petitioner, under penalty of perjury. Any false 
                statement of a material fact may serve as the basis for 
                prosecution and conviction for perjury. All questions 
                must be answered concisely in the proper space on the 
                form.
(VI) Additional pages are not permitted except with respect to the facts 
                which you rely upon in item 4 or 5 in the response. Any 
                citation of authorities should be kept to an absolute 
                minimum and is only appropriate if there has been a 
                change in the law since the judgment you are attacking 
                was rendered.
(VII) Respond to 4 or 5 below, not to both, unless (II) above indicates 
                that you must answer both sections.

                            RESPONSE

1. Have you had the assistance of an attorney, other law-trained 
        personnel, or writ writers since the conviction your petition is 
        attacking was entered?
        Yes {time}  No {time} 
2. If you checked ``yes'' above, specify as precisely as you can the 
        period(s) of time during which you received such assistance, up 
        to and including the present.
        ______________________________________________________ 
        ______________________________________________________ 
3. Describe the nature of the assistance, including the names of those 
        who rendered it to you.
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
4. If your petition is in jeopardy because of delay prejudicial to the 
        state under rule 9(a), explain why you feel the delay has not 
        been prejudicial and/or why the delay is excusable under the 
        terms of 9(a). This should be done by relying upon FACTS, not 
        your opinions or conclusions.
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
5. If your petition is in jeopardy under rule 9(b) because it asserts 
        the same grounds as a previous petition, explain why you feel it 
        deserves a reconsideration. If its fault under rule 9(b) is that 
        it asserts new grounds which should have been included in a 
        prior petition, explain why you are raising these grounds now 
        rather than previously. Your explanation should rely on FACTS, 
        not your opinions or conclusions.
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
        ______________________________________________________ 
    I declare (or certify, verify, or state) under penalty of perjury 
that the foregoing is true and correct. Executed on __________.
            (date)
                                            ____________________________
                                                Signature of Petitioner 

(As amended Apr. 28, 1982, eff. Aug. 1, 1982.)
