
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: 28USC2255]

 
               TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
 
                     PART VI--PARTICULAR PROCEEDINGS
 
                       CHAPTER 153--HABEAS CORPUS
 
Sec. 2255. Federal custody; remedies on motion attacking 
        sentence
        
    A prisoner in custody under sentence of a court established by Act 
of Congress claiming the right to be released upon the ground that the 
sentence was imposed in violation of the Constitution or laws of the 
United States, or that the court was without jurisdiction to impose such 
sentence, or that the sentence was in excess of the maximum authorized 
by law, or is otherwise subject to collateral attack, may move the court 
which imposed the sentence to vacate, set aside or correct the sentence.
    Unless the motion and the files and records of the case conclusively 
show that the prisoner is entitled to no relief, the court shall cause 
notice thereof to be served upon the United States attorney, grant a 
prompt hearing thereon, determine the issues and make findings of fact 
and conclusions of law with respect thereto. If the court finds that the 
judgment was rendered without jurisdiction, or that the sentence imposed 
was not authorized by law or otherwise open to collateral attack, or 
that there has been such a denial or infringement of the constitutional 
rights of the prisoner as to render the judgment vulnerable to 
collateral attack, the court shall vacate and set the judgment aside and 
shall discharge the prisoner or resentence him or grant a new trial or 
correct the sentence as may appear appropriate.
    A court may entertain and determine such motion without requiring 
the production of the prisoner at the hearing.
    An appeal may be taken to the court of appeals from the order 
entered on the motion as from a final judgment on application for a writ 
of habeas corpus.
    An application for a writ of habeas corpus in behalf of a prisoner 
who is authorized to apply for relief by motion pursuant to this 
section, shall not be entertained if it appears that the applicant has 
failed to apply for relief, by motion, to the court which sentenced him, 
or that such court has denied him relief, unless it also appears that 
the remedy by motion is inadequate or ineffective to test the legality 
of his detention.
    A 1-year period of limitation shall apply to a motion under this 
section. The limitation period shall run from the latest of--
        (1) the date on which the judgment of conviction becomes final;
        (2) the date on which the impediment to making a motion created 
    by governmental action in violation of the Constitution or laws of 
    the United States is removed, if the movant was prevented from 
    making a motion by such governmental action;
        (3) the date on which the right asserted was initially 
    recognized by the Supreme Court, if that right has been newly 
    recognized by the Supreme Court and made retroactively applicable to 
    cases on collateral review; or
        (4) the date on which the facts supporting the claim or claims 
    presented could have been discovered through the exercise of due 
    diligence.

    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, 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.
    A second or successive motion must be certified as provided in 
section 2244 by a panel of the appropriate court of appeals to contain--
        (1) newly discovered evidence that, if proven and viewed in 
    light of the evidence as a whole, would be sufficient to establish 
    by clear and convincing evidence that no reasonable factfinder would 
    have found the movant guilty of the offense; or
        (2) a new rule of constitutional law, made retroactive to cases 
    on collateral review by the Supreme Court, that was previously 
    unavailable.

(June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139, Sec. 114, 
63 Stat. 105; Pub. L. 104-132, title I, Sec. 105, Apr. 24, 1996, 110 
Stat. 1220.)


                      Historical and Revision Notes

                            1948 Act

    This section restates, clarifies and simplifies the procedure in the 
nature of the ancient writ of error coram nobis. It provides an 
expeditious remedy for correcting erroneous sentences without resort to 
habeas corpus. It has the approval of the Judicial Conference of the 
United States. Its principal provisions are incorporated in H.R. 4233, 
Seventy-ninth Congress.

                            1949 Act

    This amendment conforms language of section 2255 of title 28, 
U.S.C., with that of section 1651 of such title and makes it clear that 
the section is applicable in the district courts in the Territories and 
possessions.

                       References in Text

    Section 408 of the Controlled Substances Act, referred to in text, 
is classified to section 848 of Title 21, Food and Drugs.


                               Amendments

    1996--Pub. L. 104-132 inserted at end three new undesignated 
paragraphs beginning ``A 1-year period of limitation'', ``Except as 
provided in section 408 of the Controlled Substances Act'', and ``A 
second or successive motion must be certified'' and struck out second 
and fifth undesignated pars. providing, respectively, that ``A motion 
for such relief may be made at any time.'' and ``The sentencing court 
shall not be required to entertain a second or successive motion for 
similar relief on behalf of the same prisoner.''
    1949--Act May 24, 1949, substituted ``court established by Act of 
Congress'' for ``court of the United States'' in first par.

                  Section Referred to in Other Sections

    This section is referred to in sections 753, 1825, 2244, 2253, 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 and Forms 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 2255 PROCEEDINGS FOR THE UNITED STATES DISTRICT 
                                 COURTS

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

Rule
1.            Scope of rules.
2.            Motion.
3.            Filing motion.
4.            Preliminary consideration by judge.
5.            Answers; contents.
6.            Discovery.
7.            Expansion of record.
8.            Evidentiary hearing.
9.            Delayed or successive motions.
10.           Powers of magistrates.
11.           Time for appeal.
12.           Federal Rules of Criminal and Civil Procedure; extent of 
                  applicability.
                        APPENDIX OF FORMS

    Model form for motions under 28 U.S.C. Sec. 2255.
    Model form for use in 28 U.S.C. Sec. 2255 cases involving a Rule 9 
issue.


        Effective Date of Rules; Effective Date of 1975 Amendment

    Rules, 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

    These rules govern the procedure in the district court on a motion 
under 28 U.S.C. Sec. 2255:
        (1) by a person in custody pursuant to a judgment of that court 
    for a determination that the judgment was imposed in violation of 
    the Constitution or laws of the United States, or that the court was 
    without jurisdiction to impose such judgment, or that the sentence 
    was in excess of the maximum authorized by law, or is otherwise 
    subject to collateral attack; and
        (2) by a person in custody pursuant to a judgment of a state or 
    other federal court and subject to future custody under a judgment 
    of the district court for a determination that such future custody 
    will be in violation of the Constitution or laws of the United 
    States, or that the district court was without jurisdiction to 
    impose such judgment, or that the sentence was in excess of the 
    maximum authorized by law, or is otherwise subject to collateral 
    attack.


                         Advisory Committee Note

    The basic scope of this postconviction remedy is prescribed by 28 
U.S.C. Sec. 2255. Under these rules the person seeking relief from 
federal custody files a motion to vacate, set aside, or correct 
sentence, rather than a petition for habeas corpus. This is consistent 
with the terminology used in section 2255 and indicates the difference 
between this remedy and federal habeas for a state prisoner. Also, 
habeas corpus is available to the person in federal custody if his 
``remedy by motion is inadequate or ineffective to test the legality of 
his detention.''
    Whereas sections 2241-2254 (dealing with federal habeas corpus for 
those in state custody) speak of the district court judge ``issuing the 
writ'' as the operative remedy, section 2255 provides that, if the judge 
finds the movant's assertions to be meritorious, he ``shall discharge 
the prisoner or resentence him or grant a new trial or correct the 
sentence as may appear appropriate.'' This is possible because a motion 
under Sec. 2255 is a further step in the movant's criminal case and not 
a separate civil action, as appears from the legislative history of 
section 2 of S. 20, 80th Congress, the provisions of which were 
incorporated by the same Congress in title 28 U.S.C. as Sec. 2255. In 
reporting S. 20 favorably the Senate Judiciary Committee said (Sen. Rep. 
1526, 80th Cong. 2d Sess., p. 2):
    The two main advantages of such motion remedy over the present 
habeas corpus are as follows:
    First, habeas corpus is a separate civil action and not a further 
step in the criminal case in which petitioner is sentenced (Ex parte Tom 
Tong, 108 U.S. 556, 559 (1883)). It is not a determination of guilt or 
innocence of the charge upon which petitioner was sentenced. Where a 
prisoner sustains his right to discharge in habeas corpus, it is usually 
because some right--such as lack of counsel--has been denied which 
reflects no determination of his guilt or innocence but affects solely 
the fairness of his earlier criminal trial. Even under the broad power 
in the statute ``to dispose of the party as law and justice require'' 
(28 U.S.C.A., sec. 461), the court or judge is by no means in the same 
advantageous position in habeas corpus to do justice as would be so if 
the matter were determined in the criminal proceeding (see Medley, 
petitioner, 134 U.S. 160, 174 (1890)). For instance, the judge (by 
habeas corpus) cannot grant a new trial in the criminal case. Since the 
motion remedy is in the criminal proceeding, this section 2 affords the 
opportunity and expressly gives the broad powers to set aside the 
judgment and to ``discharge the prisoner or resentence him or grant a 
new trial or correct the sentence as may appear appropriate.''
    The fact that a motion under Sec. 2255 is a further step in the 
movant's criminal case rather than a separate civil action has 
significance at several points in these rules. See, e.g., advisory 
committee note to rule 3 (re no filing fee), advisory committee note to 
rule 4 (re availability of files, etc., relating to the judgment), 
advisory committee note to rule 6 (re availability of discovery under 
criminal procedure rules), advisory committee note to rule 11 (re no 
extension of time for appeal), and advisory committee not to rule 12 (re 
applicability of federal criminal rules). However, the fact that 
Congress has characterized the motion as a further step in the criminal 
proceedings does not mean that proceedings upon such a motion are of 
necessity governed by the legal principles which are applicable at a 
criminal trial regarding such matters as counsel, presence, 
confrontation, self-incrimination, and burden of proof.
    The challenge of decisions such as the revocation of probation or 
parole are not appropriately dealt with under 28 U.S.C. Sec. 2255, which 
is a continuation of the original criminal action. Other remedies, such 
as habeas corpus, are available in such situations.
    Although rule 1 indicates that these rules apply to a motion for a 
determination that the judgment was imposed ``in violation of the . . . 
laws of the United States,'' the language of 28 U.S.C. Sec. 2255, it is 
not the intent of these rules to define or limit what is encompassed 
within that phrase. See Davis v. United States, 417 U.S. 333 (1974), 
holding that it is not true ``that every asserted error of law can be 
raised on a Sec. 2255 motion,'' and that the appropriate inquiry is 
``whether the claimed error of law was a fundamental defect which 
inherently results in a complete miscarriage of justice,' and whether 
[i]t . . . present[s] exceptional circumstances where the need for the 
remedy afforded by the writ of habeas corpus is apparent.' ''
    For a discussion of the ``custody'' requirement and the intended 
limited scope of this remedy, see advisory committee note to Sec. 2254 
rule 1.

                             Rule 2. Motion

    (a) Nature of application for relief. If the person is presently in 
custody pursuant to the federal judgment in question, or if not 
presently in custody may be subject to such custody in the future 
pursuant to such judgment, the application for relief shall be in the 
form of a motion to vacate, set aside, or correct the sentence.
    (b) Form of motion. The motion shall be in substantially the form 
annexed to these rules, except that any district court may by local rule 
require that motions filed with it shall be in a form prescribed by the 
local rule. Blank motions 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 movant 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 motion shall be typewritten 
or legibly handwritten and shall be signed under penalty of perjury by 
the petitioner.
    (c) Motion to be directed to one judgment only. A motion shall be 
limited to the assertion of a claim for relief against one judgment only 
of the district court. If a movant desires to attack the validity of 
other judgments of that or any other district court under which he is in 
custody or may be subject to future custody, as the case may be, he 
shall do so by separate motions.
    (d) Return of insufficient motion. If a motion 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 movant, 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 motion.

(As amended Pub. L. 94-426, Sec. 2(3), (4), Sept. 28, 1976, 90 Stat. 
1334; Apr. 28, 1982, eff. Aug. 1, 1982.)


                         Advisory Committee Note

    Under these rules the application for relief is in the form of a 
motion rather than a petition (see rule 1 and advisory committee note). 
Therefore, there is no requirement that the movant name a respondent. 
This is consistent with 28 U.S.C. Sec. 2255. The United States Attorney 
for the district in which the judgment under attack was entered is the 
proper party to oppose the motion since the federal government is the 
movant's adversary of record.
    If the movant is attacking a federal judgment which will subject him 
to future custody, he must be in present custody (see rule 1 and 
advisory committee note) as the result of a state or federal 
governmental action. He need not alter the nature of the motion by 
trying to include the government officer who presently has official 
custody of him as a psuedo-respondent, or third-party plaintiff, or 
other fabrication. The court hearing his motion attacking the future 
custody can exercise jurisdiction over those having him in present 
custody without the use of artificial pleading devices.
    There is presently a split among the courts as to whether a person 
currently in state custody may use a Sec. 2255 motion to obtain relief 
from a federal judgment under which he will be subjected to custody in 
the future. Negative, see Newton v. United States, 329 F.Supp. 90 (S.D. 
Texas 1971); affirmative, see Desmond v. The United States Board of 
Parole, 397 F.2d 386 (1st Cir. 1968), cert. denied, 393 U.S. 919 (1968); 
and Paalino v. United States, 314 F.Supp. 875 (C.D.Cal. 1970). It is 
intended that these rules settle the matter in favor of the prisoner's 
being able to file a Sec. 2255 motion for relief under those 
circumstances. The proper district in which to file such a motion is the 
one in which is situated the court which rendered the sentence under 
attack.
    Under rule 35, Federal Rules of Criminal Procedure, the court may 
correct an illegal sentence or a sentence imposed in an illegal manner, 
or may reduce the sentence. This remedy should be used, rather than a 
motion under these Sec. 2255 rules, whenever applicable, but there is 
some overlap between the two proceedings which has caused the courts 
difficulty.
    The movant should not be barred from an appropriate remedy because 
he has misstyled his motion. See United States v. Morgan, 346 U.S. 502, 
505 (1954). The court should construe it as whichever one is proper 
under the circumstances and decide it on its merits. For a Sec. 2255 
motion construed as a rule 35 motion, see Heflin v. United States, 358 
U.S. 415 (1959); and United States v. Coke, 404 F.2d 836 (2d Cir. 1968). 
For writ of error coram nobis treated as a rule 35 motion, see Hawkins 
v. United States, 324 F.Supp. 223 (E.D.Texas, Tyler Division 1971). For 
a rule 35 motion treated as a Sec. 2255 motion, see Moss v. United 
States, 263 F.2d 615 (5th Cir. 1959); Jones v. United States, 400 F.2d 
892 (8th Cir. 1968), cert. denied 394 U.S. 991 (1969); and United States 
v. Brown, 413 F.2d 878 (9th Cir. 1969), cert. denied, 397 U.S. 947 
(1970).
    One area of difference between Sec. 2255 and rule 35 motions is that 
for the latter there is no requirement that the movant be ``in 
custody.'' Heflin v. United States, 358 U.S. 415, 418, 422 (1959); 
Duggins v. United States, 240 F.2d 479, 483 (6th Cir. 1957). Compare 
with rule 1 and advisory committee note for Sec. 2255 motions. The 
importance of this distinction has decreased since Peyton v. Rowe, 391 
U.S. 54 (1968), but it might still make a difference in particular 
situations.
    A rule 35 motion is used to attack the sentence imposed, not the 
basis for the sentence. The court in Gilinsky v. United States, 335 F.2d 
914, 916 (9th Cir. 1964), stated, ``a Rule 35 motion presupposes a valid 
conviction. * * * [C]ollateral attack on errors allegedly committed at 
trial is not permissible under Rule 35.'' By illustration the court 
noted at page 917: ``a Rule 35 proceeding contemplates the correction of 
a sentence of a court having jurisdiction. * * * [J]urisdictional 
defects * * * involve a collateral attack, they must ordinarily be 
presented under 28 U.S.C. Sec. 2255.'' In United States v. Semet, 295 
F.Supp. 1084 (E.D. Okla. 1968), the prisoner moved under rule 35 and 
Sec. 2255 to invalidate the sentence he was serving on the grounds of 
his failure to understand the charge to which he pleaded guilty. The 
court said:
        As regards Defendant's Motion under Rule 35, said Motion must be 
    denied as its presupposes a valid conviction of the offense with 
    which he was charged and may be used only to attack the sentence. It 
    may not be used to examine errors occurring prior to the imposition 
    of sentence.

                       295 F.Supp. at 1085

See also: Moss v. United States, 263 F.2d at 616; Duggins v. United 
States, 240 F. 2d at 484; Migdal v. United States, 298 F.2d 513, 514 
(9th Cir. 1961); Jones v. United States, 400 F.2d at 894; United States 
v. Coke, 404 F.2d at 847; and United States v. Brown, 413 F.2d at 879.
    A major difficulty in deciding whether rule 35 or Sec. 2255 is the 
proper remedy is the uncertainty as to what is meant by an ``illegal 
sentence.'' The Supreme Court dealt with this issue in Hill v. United 
States, 368 U.S. 424 (1962). The prisoner brought a Sec. 2255 motion to 
vacate sentence on the ground that he had not been given a Fed.R.Crim. 
P. 32(a) opportunity to make a statement in his own behalf at the time 
of sentencing. The majority held this was not an error subject to 
collateral attack under Sec. 2255. The five-member majority considered 
the motion as one brought pursuant to rule 35, but denied relief, 
stating:
    [T]he narrow function of Rule 35 is to permit correction at any time 
    of an illegal sentence, not to re-examine errors occurring at the 
    trial or other proceedings prior to the imposition of sentence. The 
    sentence in this case was not illegal. The punishment meted out was 
    not in excess of that prescribed by the relevant statutes, multiple 
    terms were not imposed for the same offense, nor were the terms of 
    the sentence itself legally or constitutionally invalid in any other 
    respect.

                         368 U.S. at 430

The four dissenters felt the majority definition of ``illegal'' was too 
narrow.
    [Rule 35] provides for the correction of an ``illegal sentence'' 
    without regard to the reasons why that sentence is illegal and 
    contains not a single word to support the Court's conclusion that 
    only a sentence illegal by reason of the punishment it imposes is 
    ``illegal'' within the meaning of the Rule. I would have thought 
    that a sentence imposed in an illegal manner--whether the amount or 
    form of the punishment meted out constitutes an additional violation 
    of law or not--would be recognized as an ``illegal sentence'' under 
    any normal reading of the English language.

                       368 U.S. at 431-432

The 1966 amendment of rule 35 added language permitting correction of a 
sentence imposed in an ``illegal manner.'' However, there is a 120-day 
time limit on a motion to do this, and the added language does not 
clarify the intent of the rule or its relation to Sec. 2255.
    The courts have been flexible in considering motions under 
circumstances in which relief might appear to be precluded by Hill v. 
United States. In Peterson v. United States, 432 F.2d 545 (8th Cir. 
1970), the court was confronted with a motion for reduction of sentence 
by a prisoner claiming to have received a harsher sentence than his 
codefendants because he stood trial rather than plead guilty. He alleged 
that this violated his constitutional right to a jury trial. The court 
ruled that, even though it was past the 120-day time period for a motion 
to reduce sentence, the claim was still cognizable under rule 35 as a 
motion to correct an illegal sentence.
    The courts have made even greater use of Sec. 2255 in these types of 
situations. In United States v. Lewis, 392 F.2d 440 (4th Cir. 1968), the 
prisoner moved under Sec. 2255 and rule 35 for relief from a sentence he 
claimed was the result of the judge's misunderstanding of the relevant 
sentencing law. The court held that he could not get relief under rule 
35 because it was past the 120 days for correction of a sentence imposed 
in an illegal manner and under Hill v. United States it was not an 
illegal sentence. However, Sec. 2255 was applicable because of its 
``otherwise subject to collateral attack'' language. The flaw was not a 
mere trial error relating to the finding of guilt, but a rare and 
unusual error which amounted to ``exceptional circumstances'' embraced 
in Sec. 2255's words ``collateral attack.'' See 368 U.S. at 444 for 
discussion of other cases allowing use of Sec. 2255 to attack the 
sentence itself in similar circumstances, especially where the judge has 
sentenced out of a misapprehension of the law.
    In United States v. McCarthy, 433 F.2d 591, 592 (1st Cir. 1970), the 
court allowed a prisoner who was past the time limit for a proper rule 
35 motion to use Sec. 2255 to attack the sentence which he received upon 
a plea of guilty on the ground that it was induced by an unfulfilled 
promise of the prosecutor to recommend leniency. The court specifically 
noted that under Sec. 2255 this was a proper collateral attack on the 
sentence and there was no need to attack the conviction as well.
    The court in United States v. Malcolm, 432 F.2d 809, 814, 818 (2d 
Cir. 1970), allowed a prisoner to challenge his sentence under Sec. 2255 
without attacking the conviction. It held rule 35 inapplicable because 
the sentence was not illegal on its face, but the manner in which the 
sentence was imposed raised a question of the denial of due process in 
the sentencing itself which was cognizable under Sec. 2255.
    The flexible approach taken by the courts in the above cases seems 
to be the reasonable way to handle these situations in which rule 35 and 
Sec. 2255 appear to overlap. For a further discussion of this problem, 
see C. Wright, Federal Practice and Procedure; Criminal Secs. 581-587 
(1969, Supp. 1975).
    See the advisory committee note to rule 2 of the Sec. 2254 rules for 
further discussion of the purposes and intent of rule 2 of these 
Sec. 2255 rules.

                         1982 Amendment

    Subdivision (b). The amendment takes into account 28 U.S.C. 
Sec. 1746, enacted after adoption of the Sec. 2255 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. 2255 forms have been revised accordingly.


                               Amendments

    1976--Subd. (b). Pub. L. 94-426, Sec. 2(3), inserted 
``substantially'' after ``The motion shall be in'', and struck out 
requirement that the motion follow the prescribed form.
    Subd. (d). Pub. L. 94-426, Sec. 2(4), inserted ``substantially'' 
after ``district court does not'', and struck out provision which 
permitted the clerk to return a motion for noncompliance without a judge 
so directing.

                          Rule 3. Filing Motion

    (a) Place of filing; copies. A motion under these rules shall be 
filed in the office of the clerk of the district court. It shall be 
accompanied by two conformed copies thereof.
    (b) Filing and service. Upon receipt of the motion and having 
ascertained that it appears on its face to comply with rules 2 and 3, 
the clerk of the district court shall file the motion and enter it on 
the docket in his office in the criminal action in which was entered the 
judgment to which it is directed. He shall thereupon deliver or serve a 
copy of the motion together with a notice of its filing on the United 
States Attorney of the district in which the judgment under attack was 
entered. The filing of the motion shall not require said United States 
Attorney to answer the motion or otherwise move with respect to it 
unless so ordered by the court.


                         Advisory Committee Note

    There is no filing fee required of a movant under these rules. This 
is a change from the practice of charging $15 and is done to recognize 
specifically the nature of a Sec. 2255 motion as being a continuation of 
the criminal case whose judgment is under attack.
    The long-standing practice of requiring a $15 filing fee has 
followed from 28 U.S.C. Sec. 1914(a) whereby ``parties instituting any 
civil action * * * pay a filing fee of $15, except that on an 
application for a writ of habeas corpus the filing fee shall be $5.'' 
This has been held to apply to a proceeding under Sec. 2255 despite the 
rationale that such a proceeding is a motion and thus a continuation of 
the criminal action. (See note to rule 1.)
        A motion under Section 2255 is a civil action and the clerk has 
    no choice but to charge a $15.00 filing fee unless by leave of court 
    it is filed in forma pauperis.
    McCune v. United States, 406 F.2d 417, 419 (6th Cir. 1969).
    Although the motion has been considered to be a new civil action in 
the nature of habeas corpus for filing purposes, the reduced fee for 
habeas has been held not applicable. The Tenth Circuit considered the 
specific issue in Martin v. United States, 273 F.2d 775 (10th Cir. 
1960), cert. denied, 365 U.S. 853 (1961), holding that the reduced fee 
was exclusive to habeas petitions.
        Counsel for Martin insists that, if a docket fee must be paid, 
    the amount is $5 rather than $15 and bases his contention on the 
    exception contained in 28 U.S.C. Sec. 1914 that in habeas corpus the 
    fee is $5. This reads into Sec. 1914 language which is not there. 
    While an application under Sec. 2255 may afford the same relief as 
    that previously obtainable by habeas corpus, it is not a petition 
    for a writ of habeas corpus. A change in Sec. 1914 must come from 
    Congress.

                         273 F.2d at 778

    Although for most situations Sec. 2255 is intended to provide to the 
federal prisoner a remedy equivalent to habeas corpus as used by state 
prisoners, there is a major distinction between the two. Calling a 
Sec. 2255 request for relief a motion rather than a petition militates 
toward charging no new filing fee, not an increased one. In the absence 
of convincing evidence to the contrary, there is no reason to suppose 
that Congress did not mean what it said in making a Sec. 2255 action a 
motion. Therefore, as in other motions filed in a criminal action, there 
is no requirement of a filing fee. It is appropriate that the present 
situation of docketing a Sec. 2255 motion as a new action and charging a 
$15 filing fee be remedied by the rule when the whole question of 
Sec. 2255 motions is thoroughly thought through and organized.
    Even though there is no need to have a forma pauperis affidavit to 
proceed with the action since there is no requirement of a fee for 
filing the motion the affidavit remains attached to the form to be 
supplied potential movants. Most such movants are indigent, and this is 
a convenient way of getting this into the official record so that the 
judge may appoint counsel, order the government to pay witness fees, 
allow docketing of an appeal, and grant any other rights to which an 
indigent is entitled in the course of a Sec. 2255 motion, when 
appropriate to the particular situation, without the need for an 
indigency petition and adjudication at such later point in the 
proceeding. This should result in a streamlining of the process to allow 
quicker disposition of these motions.
    For further discussion of this rule, see the advisory committee note 
to rule 3 of the Sec. 2254 rules.

               Rule 4. Preliminary Consideration by Judge

    (a) Reference to judge; dismissal or order to answer. The original 
motion shall be presented promptly to the judge of the district court 
who presided at the movant's trial and sentenced him, or, if the judge 
who imposed sentence was not the trial judge, then it shall go to the 
judge who was in charge of that part of the proceedings being attacked 
by the movant. If the appropriate judge is unavailable to consider the 
motion, it shall be presented to another judge of the district in 
accordance with the procedure of the court for the assignment of its 
business.
    (b) Initial consideration by judge. The motion, together with all 
the files, records, transcripts, and correspondence relating to the 
judgment under attack, shall be examined promptly by the judge to whom 
it is assigned. If it plainly appears from the face of the motion and 
any annexed exhibits and the prior proceedings in the case that the 
movant is not entitled to relief in the district court, the judge shall 
make an order for its summary dismissal and cause the movant to be 
notified. Otherwise, the judge shall order the United States Attorney 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.


                         Advisory Committee Note

    Rule 4 outlines the procedure for assigning the motion to a specific 
judge of the district court and the options available to the judge and 
the government after the motion is properly filed.
    The long-standing majority practice in assigning motions made 
pursuant to Sec. 2255 has been for the trial judge to determine the 
merits of the motion. In cases where the Sec. 2255 motion is directed 
against the sentence, the merits have traditionally been decided by the 
judge who imposed sentence. The reasoning for this was first noted in 
Currell v. United States, 173 F.2d 348, 348-349 (4th Cir. 1949):
        Complaint is made that the judge who tried the case passed upon 
    the motion. Not only was there no impropriety in this, but it is 
    highly desirable in such cases that the motions be passed on by the 
    judge who is familiar with the facts and circumstances surrounding 
    the trial, and is consequently not likely to be misled by false 
    allegations as to what occurred.
This case, and its reasoning, has been almost unanimously endorsed by 
other courts dealing with the issue.
    Commentators have been critical of having the motion decided by the 
trial judge. See Developments in the Law--Federal Habeas Corpus, 83 
Harv.L.Rev. 1038, 1206-1208 (1970).
    [T]he trial judge may have become so involved with the decision that 
    it will be difficult for him to review it objectively. Nothing in 
    the legislative history suggests that ``court'' refers to a specific 
    judge, and the procedural advantages of section 2255 are available 
    whether or not the trial judge presides at the hearing.
        The theory that Congress intended the trial judge to preside at 
    a section 2255 hearing apparently originated in Carvell v. United 
    States, 173 F.2d 348 (4th Cir. 1949) (per curiam), where the panel 
    of judges included Chief Judge Parker of the Fourth Circuit, 
    chairman of the Judicial Conference committee which drafted section 
    2255. But the legislative history does not indicate that Congress 
    wanted the trial judge to preside. Indeed the advantages of section 
    2255 can all be achieved if the case is heard in the sentencing 
    district, regardless of which judge hears it. According to the 
    Senate committee report the purpose of the bill was to make the 
    proceeding a part of the criminal action so the court could 
    resentence the applicant, or grant him a new trial. (A judge 
    presiding over a habeas corpus action does not have these powers.) 
    In addition, Congress did not want the cases heard in the district 
    of confinement because that tended to concentrate the burden on a 
    few districts, and made it difficult for witnesses and records to be 
    produced.

                   83 Harv.L.Rev. at 1207-1208

    The Court of Appeals for the First Circuit has held that a judge 
other than the trial judge should rule on the 2255 motion. See Halliday 
v. United States, 380 F.2d 270 (1st Cir. 1967).
    There is a procedure by which the movant can have a judge other than 
the trial judge decide his motion in courts adhering to the majority 
rule. He can file an affidavit alleging bias in order to disqualify the 
trial judge. And there are circumstances in which the trial judge will, 
on his own, disqualify himself. See, e.g., Webster v. United States, 330 
F.Supp. 1080 (1972). However, there has been some questioning of the 
effectiveness of this procedure. See Developments in the Law--Federal 
Habeas Corpus, 83 Harv.L.Rev. 1038, 1200-1207 (1970).
    Subdivision (a) adopts the majority rule and provides that the trial 
judge, or sentencing judge if different and appropriate for the 
particular motion, will decide the motion made pursuant to these rules, 
recognizing that, under some circumstances, he may want to disqualify 
himself. A movant is not without remedy if he feels this is unfair to 
him. He can file an affidavit of bias. And there is the right to 
appellate review if the trial judge refuses to grant his motion. Because 
the trial judge is thoroughly familiar with the case, there is obvious 
administrative advantage in giving him the first opportunity to decide 
whether there are grounds for granting the motion.
    Since the motion is part of the criminal action in which was entered 
the judgment to which it is directed, the files, records, transcripts, 
and correspondence relating to that judgment are automatically available 
to the judge in his consideration of the motion. He no longer need order 
them incorporated for that purpose.
    Rule 4 has its basis in Sec. 2255 (rather than 28 U.S.C. Sec. 2243 
in the corresponding habeas corpus rule) which does not have a specific 
time limitation as to when the answer must be made. Also, under 
Sec. 2255, the United States Attorney for the district is the party 
served with the notice and a copy of the motion and required to answer 
(when appropriate). Subdivision (b) continues this practice since there 
is no respondent involved in the motion (unlike habeas) and the United 
States Attorney, as prosecutor in the case in question, is the most 
appropriate one to defend the judgment and oppose the motion.
    The judge has discretion to require an answer or other appropriate 
response from the United States Attorney. See advisory committee note to 
rule 4 of the Sec. 2254 rules.

                        Rule 5. Answer; Contents

    (a) Contents of answer. The answer shall respond to the allegations 
of the motion. In addition it shall state whether the movant has used 
any other available federal remedies including any prior post-conviction 
motions under these rules or those existing previous to the adoption of 
the present rules. The answer shall also state whether an evidentiary 
hearing was accorded the movant in a federal court.
    (b) Supplementing the answer. The court shall examine its files and 
records to determine whether it has available copies of transcripts and 
briefs whose existence the answer has indicated. If any of these items 
should be absent, the government shall be ordered to supplement its 
answer by filing the needed records. The court shall allow the 
government an appropriate period of time in which to do so, without 
unduly delaying the consideration of the motion.


                         Advisory Committee Note

    Unlike the habeas corpus statutes (see 28 U.S.C. Secs. 2243, 2248) 
Sec. 2255 does not specifically call for a return or answer by the 
United States Attorney or set any time limits as to when one must be 
submitted. The general practice, however, if the motion is not summarily 
dismissed, is for the government to file an answer to the motion as well 
as counter-affidavits, when appropriate. Rule 4 provides for an answer 
to the motion by the United States Attorney, and rule 5 indicates what 
its contents should be.
    There is no requirement that the movant exhaust his remedies prior 
to seeking relief under Sec. 2255. However, the courts have held that 
such a motion is inappropriate if the movant is simultaneously appealing 
the decision.
        We are of the view that there is no jurisdictional bar to the 
    District Court's entertaining a Section 2255 motion during the 
    pendency of a direct appeal but that the orderly administration of 
    criminal law precludes considering such a motion absent 
    extraordinary circumstances.

   Womack v. United States, 395 F.2d 630, 631 (D.C.Cir. 1968)

Also see Masters v. Eide, 353 F.2d 517 (8th Cir. 1965). The answer may 
thus cut short consideration of the motion if it discloses the taking of 
an appeal which was omitted from the form motion filed by the movant.
    There is nothing in Sec. 2255 which corresponds to the Sec. 2248 
requirement of a traverse to the answer. Numerous cases have held that 
the government's answer and affidavits are not conclusive against the 
movant, and if they raise disputed issues of fact a hearing must be 
held. Machibroda v. United States, 368 U.S. 487, 494, 495 (1962); United 
States v. Salerno, 290 F.2d 105, 106 (2d Cir. 1961); Romero v. United 
States, 327 F.2d 711, 712 (5th Cir. 1964); Scott v. United States, 349 
F.2d 641, 642, 643 (6th Cir. 1965); Schiebelhut v. United States, 357 
F.2d 743, 745 (6th Cir. 1966); and Del Piano v. United States, 362 F.2d 
931, 932, 933 (3d Cir. 1966). None of these cases make any mention of a 
traverse by the movant to the government's answer. As under rule 5 of 
the Sec. 2254 rules, there is no intention here that such a traverse be 
required, except under special circumstances. See advisory committee 
note to rule 9.
    Subdivision (b) provides for the government to supplement its 
answers with appropriate copies of transcripts or briefs if for some 
reason the judge does not already have them under his control. This is 
because the government will in all probability have easier access to 
such papers than the movant, and it will conserve the court's time to 
have the government produce them rather than the movant, who would in 
most instances have to apply in forma pauperis for the government to 
supply them for him anyway.
    For further discussion, see the advisory committee note to rule 5 of 
the Sec. 2254 rules.

                            Rule 6. Discovery

    (a) Leave of court required. A party may invoke the processes of 
discovery available under the Federal Rules of Criminal Procedure or the 
Federal Rules of Civil Procedure or elsewhere in the usages and 
principles of law 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 movant who 
qualifies for 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 government is granted leave to take the 
deposition of the movant or any other person, the judge may as a 
condition of taking it direct that the government pay the expenses of 
travel and subsistence and fees of counsel for the movant to attend the 
taking of the deposition.


                         Advisory Committee Note

    This rule differs from the corresponding discovery rule under the 
Sec. 2254 rules in that it includes the processes of discovery available 
under the Federal Rules of Criminal Procedure as well as the civil. This 
is because of the nature of a Sec. 2255 motion as a continuing part of 
the criminal proceeding (see advisory committee note to rule 1) as well 
as a remedy analogous to habeas corpus by state prisoners.
    See the advisory committee note to rule 6 of the Sec. 2254 rules. 
The discussion there is fully applicable to discovery under these rules 
for Sec. 2255 motions.

                       Rule 7. Expansion of Record

    (a) Direction for expansion. If the motion 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 motion.
    (b) Materials to be added. The expanded record may include, without 
limitation, letters predating the filing of the motion 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

    It is less likely that the court will feel the need to expand the 
record in a Sec. 2255 proceeding than in a habeas corpus proceeding, 
because the trial (or sentencing) judge is the one hearing the motion 
(see rule 4) and should already have a complete file on the case in his 
possession. However, rule 7 provides a convenient method for 
supplementing his file if the case warrants it.
    See the advisory committee note to rule 7 of the Sec. 2254 rules for 
a full discussion of reasons and procedures for expanding the record.

                       Rule 8. Evidentiary Hearing

    (a) Determination by court. If the motion has not been dismissed at 
a previous stage in the proceeding, the judge, after the answer is filed 
and any transcripts or records of prior court actions in the matter are 
in his possession, 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 motion as justice dictates.
    (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 motion, and submit to a judge of the 
    court proposed findings 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 movant 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 proceeding if 
the interest of justice so requires.
    (d) Production of statements at evidentiary hearing.
        (1) In general. Federal Rule of Criminal Procedure 26.2(a)-(d), 
    and (f) applies at an evidentiary hearing under these rules.
        (2) Sanctions for failure to produce statement. If a party 
    elects not to comply with an order under Federal Rule of Criminal 
    Procedure 26.2(a) to deliver a statement to the moving party, at the 
    evidentiary hearing the court may not consider the testimony of the 
    witness whose statement is withheld.

(As amended Pub. L. 94-426, Sec. 2(6), Sept. 28, 1976, 90 Stat. 1335; 
Pub. L. 94-577, Sec. 2(a)(2), (b)(2), Oct. 21, 1976, 90 Stat. 2730, 
2731; Apr. 22, 1993, eff. Dec. 1, 1993.)


                         Advisory Committee Note

    The standards for Sec. 2255 hearings are essentially the same as for 
evidentiary hearings under a habeas petition, except that the previous 
federal fact-finding proceeding is in issue rather than the state's. 
Also Sec. 2255 does not set specific time limits for holding the 
hearing, as does Sec. 2243 for a habeas action. With these minor 
differences in mind, see the advisory committee note to rule 8 of 
Sec. 2254 rules, which is applicable to rule 8 of these Sec. 2255 rules.

                         1993 Amendment

    The amendment to Rule 8 is one of a series of parallel amendments to 
Federal Rules of Criminal Procedure 32, 32.1, and 46 which extend the 
scope of Rule 26.2 (Production of Witness Statements) to proceedings 
other than the trial itself. The amendments are grounded on the 
compelling need for accurate and credible information in making 
decisions concerning the defendant's liberty. See the Advisory Committee 
Note to Rule 26.2(g). A few courts have recognized the authority of a 
judicial officer to order production of prior statements by a witness at 
a Section 2255 hearing, see, e.g., United States v. White, 342 F.2d 379, 
382, n.4 (4th Cir. 1959). The amendment to Rule 8 grants explicit 
authority to do so. The amendment is not intended to require production 
of a witness's statement before the witness actually presents oral 
testimony.


                               Amendments

    1976--Subd. (b). Pub. L. 94-577, Sec. 2(a)(2), 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)(2), 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

    Amendments made by Pub. L. 94-577 effective with respect to motions 
under section 2255 of this title filed on or after Feb. 1, 1977, see 
section 2(c) of Pub. L. 94-577, set out as a note under Rule 8 of the 
Rules Governing Cases Under Section 2254 of this title.

                  Rule 9. Delayed or Successive Motions

    (a) Delayed motions. A motion for relief made pursuant to these 
rules may be dismissed if it appears that the government has been 
prejudiced in its ability to respond to the motion by delay in its 
filing unless the movant 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 government occurred.
    (b) Successive motions. A second or successive motion 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 movant to assert those grounds in a prior motion constituted an 
abuse of the procedure governed by these rules.

(As amended Pub. L. 94-426, Sec. 2(9), (10), Sept. 28, 1976, 90 Stat. 
1335.)


                         Advisory Committee Note

    Unlike the statutory provisions on habeas corpus (28 U.S.C. 
Secs. 2241-2254), Sec. 2255 specifically provides that ``a motion for 
such relief may be made at any time.'' [Emphasis added.] Subdivision (a) 
provides that delayed motions may be barred from consideration if the 
government has been prejudiced in its ability to respond to the motion 
by the delay and the movant's failure to seek relief earlier is not 
excusable within the terms of the rule. Case law, dealing with this 
issue, is in conflict.
    Some courts have held that the literal language of Sec. 2255 
precludes any possible time bar to a motion brought under it. In Heflin 
v. United States, 358 U.S. 415 (1959), the concurring opinion noted:
    The statute [28 U.S.C. Sec. 2255] further provides; ``A motion * * * 
    may be made at any time.'' This * * * simply means that, as in 
    habeas corpus, there is no statute of limitations, no res judicata, 
    and that the doctrine of laches is inapplicable.

                         358 U.S. at 420

McKinney v. United States, 208 F.2d 844 (D.C.Cir. 1953) reversed the 
district court's dismissal of a Sec. 2255 motion for being too late, the 
court stating:
        McKinney's present application for relief comes late in the day: 
    he has served some fifteen years in prison. But tardiness is 
    irrelevant where a constitutional issue is raised and where the 
    prisoner is still confined.

                      208 F.2d at 846, 847

In accord, see: Juelich v. United States, 300 F.2d 381, 383 (5th Cir. 
1962); Conners v. United States, 431 F.2d 1207, 1208 (9th Cir. 1970); 
Sturrup v. United States, 218 F.Supp. 279, 281 (E.D.N.Car. 1963); and 
Banks v. United States, 319 F.Supp. 649, 652 (S.D.N.Y. 1970).
    It has also been held that delay in filing a Sec. 2255 motion does 
not bar the movant because of lack of reasonable diligence in pressing 
the claim.
    The statute [28 U.S.C. Sec. 2255], when it states that the motion 
    may be made at any time, excludes the addition of a showing of 
    diligence in delayed filings. A number of courts have considered 
    contentions similar to those made here and have concluded that there 
    are no time limitations. This result excludes the requirement of 
    diligence which is in reality a time limitation.

   Haier v. United States, 334 F.2d 441, 442 (10th Cir. 1964)

    Other courts have recognized that delay may have a negative effect 
on the movant. In Raines v. United States, 423 F.2d 526 (4th Cir. 1970), 
the court stated:
    [B]oth petitioners' silence for extended periods, one for 28 months 
    and the other for nine years, serves to render their allegations 
    less believable. ``Although a delay in filing a section 2255 motion 
    is not a controlling element * * * it may merit some consideration * 
    * *.''

                         423 F.2d at 531

    In Aiken v. United States, 191 F.Supp. 43, 50 (M.D.N.Car. 1961), 
aff'd 296 F.2d 604 (4th Cir. 1961), the court said: ``While motions 
under 28 U.S.C. Sec. 2255 may be made at any time, the lapse of time 
affects the good faith and credibility of the moving party.'' For 
similar conclusions, see: Parker v. United States, 358 F.2d 50, 54 n. 4 
(7th Cir. 1965), cert. denied, 386 U.S. 916 (1967); Le Clair v. United 
States, 241 F.Supp. 819, 824 (N.D. Ind. 1965); Malone v. United States, 
299 F.2d 254, 256 (6th Cir. 1962), cert. denied, 371 U.S. 863 (1962); 
Howell v. United States, 442 F.2d 265, 274 (7th Cir. 1971); and United 
States v. Wiggins, 184 F. Supp. 673, 676 (D.C.Cir. 1960).
    There have been holdings by some courts that a delay in filing a 
Sec. 2255 motion operates to increase the burden of proof which the 
movant must meet to obtain relief. The reasons for this, as expressed in 
United States v. Bostic, 206 F.Supp. 855 (D.C.Cir. 1962), are equitable 
in nature.
        Obviously, the burden of proof on a motion to vacate a sentence 
    under 28 U.S.C. Sec. 2255 is on the moving party. . . . The burden 
    is particularly heavy if the issue is one of fact and a long time 
    has elapsed since the trial of the case. While neither the statute 
    of limitations nor laches can bar the assertion of a constitutional 
    right, nevertheless, the passage of time may make it impracticable 
    to retry a case if the motion is granted and a new trial is ordered. 
    No doubt, at times such a motion is a product of an afterthought. 
    Long delay may raise a question of good faith.

                     206 F.Supp. at 856-857

See also United States v. Wiggins, 184 F.Supp. at 676.
    A requirement that the movant display reasonable diligence in filing 
a Sec. 2255 motion has been adopted by some courts dealing with delayed 
motions. The court in United States v. Moore, 166 F.2d 102 (7th Cir. 
1948), cert. denied, 334 U.S. 849 (1948), did this, again for equitable 
reasons.
        [W]e agree with the District Court that the petitioner has too 
    long slept upon his rights. * * * [A]pparently there is no 
    limitation of time within which * * * a motion to vacate may be 
    filed, except that an applicant must show reasonable diligence in 
    presenting his claim. * * *
        The reasons which support the rule requiring diligence seem 
    obvious. * * * Law enforcement officials change, witnesses die, 
    memories grow dim. The prosecuting tribunal is put to a disadvantage 
    if an unexpected retrial should be necessary after long passage of 
    time.

                         166 F.2d at 105

In accord see Desmond v. United States, 333 F.2d 378, 381 (1st Cir. 
1964), on remand, 345 F.2d 225 (1st Cir. 1965).
    One of the major arguments advanced by the courts which would 
penalize a movant who waits an unduly long time before filing a 
Sec. 2255 motion is that such delay is highly prejudicial to the 
prosecution. In Desmond v. United States, writing of a Sec. 2255 motion 
alleging denial of effective appeal because of deception by movant's own 
counsel, the court said:
    [A]pplications for relief such as this must be made promptly. It 
    will not do for a prisoner to wait until government witnesses have 
    become unavailable as by death, serious illness or absence from the 
    country, or until the memory of available government witnesses has 
    faded. It will not even do for a prisoner to wait any longer than is 
    reasonably necessary to prepare appropriate moving papers, however 
    inartistic, after discovery of the deception practiced upon him by 
    his attorney.

                         333 F.2d at 381

In a similar vein are United States v. Moore and United States v. 
Bostic, supra, and United States v. Wiggins, 184 F. Supp. at 676.
    Subdivision (a) provides a flexible, equitable time limitation based 
on laches to prevent movants from withholding their claims so as to 
prejudice the government both in meeting the allegations of the motion 
and in any possible retrial. It includes a reasonable diligence 
requirement for ascertaining possible grounds for relief. If the delay 
is found to be excusable, or nonprejudicial to the government, the time 
bar is inoperative.
    Subdivision (b) is consistent with the language of Sec. 2255 and 
relevant case law.
    The annexed form is intended to serve the same purpose as the 
comparable one included in the Sec. 2254 rules.
    For further discussion applicable to this rule, see the advisory 
committee note to rule 9 of the Sec. 2254 rules.


                               Amendments

    1976--Subd. (a). Pub. L. 94-426, Sec. 2(9), struck out provision 
which established a rebuttable presumption of prejudice to government if 
the petition was filed more than five years after conviction.
    Subd. (b). Pub. L. 94-426, Sec. 2(10), substituted ``constituted an 
abuse of the procedure governed by these rules'' 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(12), Sept. 28, 1976, 90 Stat. 1335; 
Apr. 30, 1979, eff. Aug. 1, 1979.)


                         Advisory Committee Note

    See the advisory committee note to rule 10 of the Sec. 2254 rules 
for a discussion fully applicable here as well.

                         1979 Amendment

    This amendment conforms the rule to 18 U.S.C. Sec. 636. See Advisory 
Committee Note to rule 10 of the Rules Governing Section 2254 Cases in 
the United States District Courts.


                               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. Time for Appeal

    The time for appeal from an order entered on a motion for relief 
made pursuant to these rules is as provided in Rule 4(a) of the Federal 
Rules of Appellate Procedure. Nothing in these rules shall be construed 
as extending the time to appeal from the original judgment of conviction 
in the district court.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979.)


                         Advisory Committee Note

    Rule 11 is intended to make clear that, although a Sec. 2255 action 
is a continuation of the criminal case, the bringing of a Sec. 2255 
action does not extend the time.

                         1979 Amendment

    Prior to the promulgation of the Rules Governing Section 2255 
Proceedings, the courts consistently held that the time for appeal in a 
section 2255 case is as provided in Fed.R.App.P. 4(a), that is, 60 days 
when the government is a party, rather than as provided in appellate 
rule 4(b), which says that the time is 10 days in criminal cases. This 
result has often been explained on the ground that rule 4(a) has to do 
with civil cases and that ``proceedings under section 2255 are civil in 
nature.'' E.g., Rothman v. United States, 508 F.2d 648 (3d Cir. 1975). 
Because the new section 2255 rules are based upon the premise ``that a 
motion under Sec. 2255 is a further step in the movant's criminal case 
rather than a separate civil action,'' see Advisory Committee Note to 
rule 1, the question has arisen whether the new rules have the effect of 
shortening the time for appeal to that provided in appellate rule 4(b). 
A sentence has been added to rule 11 in order to make it clear that this 
is not the case.
    Even though section 2255 proceedings are a further step in the 
criminal case, the added sentence correctly states current law. In 
United States v. Hayman, 342 U.S. 205 (1952), the Supreme Court noted 
that such appeals ``are governed by the civil rules applicable to 
appeals from final judgments in habeas corpus actions.'' In support, the 
Court cited Mercado v. United States, 183 F.2d 486 (1st Cir. 1950), a 
case rejecting the argument that because Sec. 2255 proceedings are 
criminal in nature the time for appeal is only 10 days. The Mercado 
court concluded that the situation was governed by that part of 28 
U.S.C. Sec. 2255 which reads: ``An appeal may be taken to the court of 
appeals from the order entered on the motion as from a final judgment on 
application for a writ of habeas corpus.'' Thus, because appellate rule 
4(a) is applicable in habeas cases, it likewise governs in Sec. 2255 
cases even though they are criminal in nature.

   Rule 12. Federal Rules of Criminal and Civil Procedure; Extent of 
                              Applicability

    If no procedure is specifically prescribed by these rules, the 
district court may proceed in any lawful manner not inconsistent with 
these rules, or any applicable statute, and may apply the Federal Rules 
of Criminal Procedure or the Federal Rules of Civil Procedure, whichever 
it deems most appropriate, to motions filed under these rules.


                         Advisory Committee Note

    This rule differs from rule 11 of the Sec. 2254 rules in that it 
includes the Federal Rules of Criminal Procedure as well as the civil. 
This is because of the nature of a Sec. 2255 motion as a continuing part 
of the criminal proceeding (see advisory committee note to rule 1) as 
well as a remedy analogous to habeas corpus by state prisoners.
    Since Sec. 2255 has been considered analogous to habeas as respects 
the restrictions in Fed.R.Civ.P. 81(a)(2) (see Sullivan v. United 
States, 198 F.Supp. 624 (S.D.N.Y. 1961)), rule 12 is needed. For 
discussion, see the advisory committee note to rule 11 of the Sec. 2254 
rules.

                       References in Text

    The Federal Rules of Criminal Procedure, referred to in text, are 
classified generally to the Appendix to Title 18, Crimes and Criminal 
Procedure.
    The Federal Rules of Civil Procedure, referred to in text, are 
classified generally to the Appendix to this title.

                        APPENDIX OF FORMS

        MODEL FORM FOR MOTIONS UNDER 28 U.S.C. Sec. 2255

Name ____________________________________________________
Prison Number __________________________________________
Place of Confinement __________________________________ 
United States District Court ______ District of ________
Case No. ________ (to be supplied by Clerk of U.S. District Court)

United States,

                               v.

__________________________________________________

                      (full name of movant)

    (If movant has a sentence to be served in the future under a federal 
judgment which he wishes to attack, he should file a motion in the 
federal court which entered the judgment.)

MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN 
                         FEDERAL CUSTODY

(1) This motion must be legibly handwritten or typewritten, and signed 
        by the movant 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, your motion will be filed if it is in proper order. No 
        fee is required with this motion.
(4) If you do not have the necessary funds for transcripts, counsel, 
        appeal, and other costs connected with a motion of this type, 
        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 pay the 
        costs. 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.
(5) Only judgments entered by one court may be challenged in a single 
        motion. If you seek to challenge judgments entered by different 
        judges or divisions either in the same district or in different 
        districts, you must file separate motions as to each such 
        judgment.
(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 motion you file seeking relief from any judgment 
        of conviction.
(7) When the motion is fully completed, the original and two copies must 
        be mailed to the Clerk of the United States District Court whose 
        address is______
        ______________________________________________________ 
(8) Motions which do not conform to these instructions will be returned 
        with a notation as to the deficiency.

                             MOTION

 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 federal court?
        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} 
            (d) Did you appeal, to an appellate federal 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: If you fail to set forth all grounds in this 
            motion, 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 these proceedings. Each 
        statement preceded by a letter constitutes a separate ground for 
        possible relief. You may raise any grounds which you have other 
        than those listed. However, you should raise in this motion all 
        available grounds (relating to this conviction) on which you 
        based 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 motion will be 
returned to you if you merely check (a) through (j) or any one of the 
grounds.
  (a) Conviction obtained by plea of guilty which was unlawfully induced 
                or not made voluntarily or 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 impanelled.
  (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, 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 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 post-
                conviction proceeding ________________________ 
          ________________________________________________ 
16. Were you sentenced on more than one count of an indictment, or on 
        more than one indictment, in the same court and at approximately 
        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, movant prays that the Court grant him all 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 Movant  

                  IN FORMA PAUPERIS DECLARATION

__________________________________________________

                   [Insert appropriate court]

            United States                        DECLARATION IN
                                                     SUPPORT
                 v.                                OF REQUEST
    ____________________________                   TO PROCEED
              (Movant)                              IN FORMA
                                                    PAUPERIS

    I, ____________________________, declare that I am the movant 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 any 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 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 Movant  

                           CERTIFICATE

    I hereby certify that the movant herein has the sum of $________ on 
account to his credit at the ________ institution where he is confined.

I further certify that movant 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. 2255 CASES INVOLVING A RULE 
                             9 ISSUE

                           Form No. 9

                  United States District Court

      ____________________ District of ____________________

                        Case No. ________

                          United States

                               v.

                  ____________________________

                        (Name of Movant)

  Movant's Response as to Why His Motion Should Not be Barred 
                          Under Rule 9

          Explanation and Instructions--Read Carefully

(I) Rule 9.  Delayed or Successive Motions.

    (a) Delayed motions. A motion for relief made pursuant to these 
rules may be dismissed if it appears that the government has been 
prejudiced in its ability to respond to the motion by delay in its 
filing unless the movant 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 government occurred.
    (b) Successive motions. A second or successive motion 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 movant to assert those grounds in a prior motion constituted an 
abuse of the procedure governed by these rules.
(II)  Your motion to vacate, set aside, or correct sentence 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 motion 
                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 motion.
(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 movant 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, 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 motion 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 motion is in jeopardy because of delay prejudicial to the 
        government 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 motion is in jeopardy under rule 9(b) because it asserts the 
        same grounds as a previous motion, 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 motion, 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 Movant  

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