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AMENDMENT TO THE F EDER AL

RULES OF CRIMINAL PR OCEDURE

R u l e 3 5. C o r r e c t i n g or R e d u c in g a S en t e n c e

* * * * *

(c ) “Sen t en c ing” Defined . As used in this rule,

“sentencing” means the oral announcement of the

sentence.



RULES GOVERNING SECTION 2254 CASESIN THE UNITE D STATES DISTRICT COURTS

Ru le 1 . Scop e

(a ) Cases Invo lv ing a Pe t i t ion under 28 U.S .C .

§ 2254. These rules govern a petition for a writ of

habeas corpus filed in a United States district court

un der 28 U .S.C. § 2254 by:

(1) a person in custody un der a stat e-cour t judgment

who seeks a determination that the custody

violates the Constitution, laws, or treaties of the

United States; an d

(2) a person in custody under a state-court or

federal-court judgment who seeks a

determination t hat futu re custody under a s ta te-

court judgment would violate the Constitution,

laws, or t reat ies of th e United St at es.



2 RULE S GOVERN ING § 2254 CASES

(b ) Oth er Cases . The district court may apply any or

all of these rules to a habeas corpus petition not

covered by Ru le 1(a).

Ru le 2 . The Pe t i t ion

(a ) C u r r e n t C u s t od y ; N a m i n g t h e R e s p o n d e n t . I f

the petitioner is currently in custody under a state-

court judgment, the petition must name as

responden t t he st at e officer who ha s cust ody.

(b ) F u t u r e C u s t o d y ; N a m i n g t h e R e s p o n d e n t s a n d

S p e c ify in g t h e J u d g m e n t . If the petitioner is not

yet in custody — but ma y be subject t o fut ur e cust ody

— under the state-court judgment being contested,

the peti t ion must name as respondents both the

officer who has current custody and the attorney

general of th e stat e where the judgment was ent ered.

The petition must ask for relief from the state-court

judgment being contested.



RULES GOVERNIN G § 2254 CASES 3

(c ) Form. The petition must:

(1) specify all th e groun ds for r elief available to th e

petitioner;

(2) stat e th e facts supporting each ground;

(3) stat e the r elief requested;

(4) be printed, typewritten, or legibly handwritten;

and

(5) be signed under penalty of perjury by the

petitioner or by a per son au th orized to sign it for

th e petitioner u nd er 28 U.S.C. § 2242.

( d ) S t a n d a r d F o r m . The petition must substantially

follow either the form appended to these rules or a

form prescribed by a local district-court rule. The

clerk must make forms available to petitioners

without charge.

(e ) S e p a r a t e P e t i t io n s fo r J u d g m e n t s o f S e p a r a t e

C o u r t s . A petitioner who seeks relief from




judgments of more than one state court must file a

separa te petition covering th e judgment or judgment s

of each cour t.

Ru le 3 . F i l ing th e P e t i t ion ; Inm at e F i l in g

(a) Where to Fi le ; Copies ; Fi l ing Fee. An original

and two copies of the petition must be filed with the

clerk an d mu st be a ccompa nied by:

(1) th e a pplicab le filing fee, or

(2) a m otion for lea ve to proceed in form a pau peris,

th e affidavit requ ired by 28 U.S.C. § 1915, an d a

certificate from the warden or other appropriate

officer of the place of confinement showing the

am ount of money or securities tha t th e petitioner

has in an y accoun t in t he inst i tut ion.

(b ) F i l ing . The clerk m ust file th e petition a nd en ter it

on t he docket.




(c) Tim e to Fi le . The time for filing a petition is

govern ed by 28 U .S.C. § 2244(d).

(d ) I n m a t e F i li n g . A pa per filed by an inm at e confined

in an institution is timely if deposited in the

instit ut ion’s inter na l ma iling system on or before th e

last day for filing. If an inst itu tion ha s a system

designed for legal mail, the inmate must use that

system t o receive th e benefit of th is ru le. Timely

filing may be shown by a declaration in compliance

with 28 U.S.C. § 1746 or by a notarized statement,

either of which mu st set fort h t he da te of deposit a nd

stat e tha t first-class postage ha s been prepaid.

Ru le 4. P r e l i m i n a r y R e v ie w; S e r v i n g t h e P e t i t i on

a n d O r d e r

The clerk must promptly forward the petition to a

judge under th e cour t’s a ssignm ent procedure, a nd th e

judge mu st promptly examin e it. If it plainly ap pear s




from the petition and any attached exhibits that the

petitioner is not entitled to relief in the district court, the

judge must dismiss the petition and direct the clerk to

notify th e petitioner . If th e petition is not dismissed, th e

judge must order the respondent to file an answer,

motion, or other response within a fixed time, or to take

oth er a ction th e judge may order. In every case, th e clerk

must serve a copy of the petition and any order on the

respondent and on the attorney general or other

ap pr opriat e officer of th e sta te involved.

R u l e 5. T h e An s w e r a n d t h e R e p l y

(a ) Wh e n R e q u i r e d . The respondent is not r equired to

an swer th e petition u nless a judge so orders.

(b ) C o n t e n t s : Ad d r e s s i n g t h e All e g a t i o n s ; S t a t i n g a

B a r . The an swer m ust a ddress the al legations in t he

petition. In addition, it mu st stat e wheth er an y

claim in th e petition is barred by a failure to exhaust




sta te r emedies, a procedur al bar , non-ret roactivity, or

a st at ut e of limitat ions.

(c ) C o n t e n t s : T r a n s c r i p t s . The answer must also

indicate what transcripts (of pretrial, trial,

sentencing, or post-conviction proceedings) are

available, when they can be furnished, and what

proceedings h ave been recorded bu t not t ra nscribed.

The respondent must at tach to the answer parts of

th e tran script tha t th e respondent considers relevant.

The judge may order that the respondent furnish

other parts of existing transcripts or that parts of

untranscribed recordings be transcribed and

furn ished. If a tra nscript can not be obtained, th e

respondent may submit a narrative summary of the

evidence.

( d ) C o n t e n t s : B r i e fs o n Ap p e a l a n d Op in i o n s . The

responden t m ust also file with t he a nswer a copy of:




(1) any brief that the petitioner submitted in an

appellate court contesting the conviction or

sentence, or contesting an adverse judgment or

order in a post-conviction pr oceeding;

(2) any brief that the prosecution submitted in an

appellate court relating to the conviction or

senten ce; an d

(3) the opinions and dispositive orders of the

appellate court relating to the conviction or the

sentence.

(e) Reply . The petitioner may submit a reply to the

responden t’s an swer or other plead ing with in a tim e

fixed by the judge.

Ru le 6 . Discover y (a ) L e a v e o f C o u r t R e q u i r e d . A judge may, for good

cause, authorize a party to conduct discovery under

the Federal Rules of Civil Procedure and may limit




th e exten t of discovery. If necessa ry for effective

discovery, the judge must appoint an attorney for a

petitioner who qualifies to have counsel appointed

un der 18 U.S.C. § 3006A.

(b ) Req ue s t in g Discover y . A party requesting

discovery mu st provide reasons for th e request. The

request must also include any proposed

interrogatories an d requests for a dmission, an d mu st

specify an y request ed docum ent s.

(c ) Depos i t ion Expe n ses . If th e respondent is gra nt ed

leave to ta ke a deposition, th e judge ma y require th e

respondent to pay the travel expenses, subsistence

expenses, an d fees of th e petitioner’s at torn ey to

at ten d the deposition.

R u l e 7 . E x p a n d i n g t h e R e c o r d

(a ) I n Ge n e r a l . If the petition is not dismissed, the

judge may direct t he pa rt ies to expand t he r ecord by




submitting additional materials relating to the

petition. The judge may require that these materials

be au then ticat ed.

(b ) Types o f Mate r ia l s . The materials that may be

required include letters predating the filing of the

petition, documents, exhibits, and answers under

oath to written interrogatories propounded by the

judge. Affidavits ma y also be subm itted an d

consider ed as pa rt of th e record.

(c ) R e v i e w b y t h e Op p o s i n g P a r t y . The judge must

give the part y against whom the a dditiona l materials

are offered an opportunity to admit or deny their

correctness.

R u l e 8 . E v i d e n t i a r y He a r i n g (a ) De t e r m i n i n g Wh e t h e r t o Ho l d a He a r i n g . If the

petition is not dismissed, the judge must review the

answer, any transcripts and records of state-court



RULE S GOVERN ING § 2254 CASES 11

proceedings, and an y mat erials submitted un der Rule

7 to determine whether an evidentiary hearing is

warranted.

(b ) R e fe r e n c e t o a Ma g i s t r a t e J u d g e . A judge may,

under 28 U.S.C. § 636(b), refer the petition to a

magistrate judge to conduct hearings and to file

proposed findings of fact and recommendations for

disposition. When they are filed, th e clerk must

promptly serve copies of the proposed findings and

recomm enda tions on all par ties. With in 10 days

after being served, a party may file objections as

provided by local cour t rule. The judge mu st

determine de novo any proposed finding or

recomm enda tion to which objection is ma de. The

judge may accept, reject, or modify any proposed

finding or recomm enda tion.




(c ) Appoin t ing Counse l ; T ime of Hear ing . If an

evidentiary hearing is warranted, the judge must

appoint an attorney to represent a petitioner who

qualifies to have counsel appointed under 18 U.S.C.

§ 3006A. The judge must cond uct th e hear ing as soon

as practicable after giving the attorneys adequate

time to investigate and prepare. These rules do not

limit the appointment of counsel under § 3006A at

an y sta ge of th e proceeding.

Ru le 9 . Second o r Success ive P e t i t ions

Before presen ting a second or successive pet ition, t he

petitioner must obtain an order from the appropriate

court of appeals authorizing the district court to consider

th e pet ition a s requ ired by 28 U.S.C. § 2244(b)(3) an d (4).




R u l e 10 . P o we r s o f a Ma g is t r a t e J u d g e

A magistrate judge may perform the duties of a

district judge under these rules, as authorized under

28 U .S.C. § 636.

Ru le 11. App l icab i l i ty o f th e Fe der a l Ru les o f C ivi l

P r o c e d u r e

The Federal Rules of Civil Procedure, to the extent

that they are not inconsistent with any statutory

provisions or these rules, may be applied to a proceeding

un der these rules.



RULES GOVERNING SECTION 2255 CASESIN THE UNITE D STATES DISTRICT COURTS

Ru le 1 . Scop e

These ru les govern a motion filed in a United St at es

distr ict cour t u nd er 28 U .S.C. § 2255 by:

(a ) a person in custody under a judgment of that court

who seeks a determinat ion th at:

(1) th e judgm ent violates t he Constitu tion or laws of

the United States;

(2) the court lacked jurisdiction to enter the

judgment;

(3) th e senten ce exceeded the m aximum allowed by

law; or

(4) the judgment or sentence is otherwise subject to

collateral review; and

(b ) a person in custody un der a judgmen t of a st at e cour t

or another federal court, and subject to future




custody under a judgment of the district court, who

seeks a determinat ion t hat :

(1) future custody under a judgment of the district

court would violate the Constitution or laws of

the United States;

(2) the district court lacked jurisdiction to enter the

judgment;

(3) th e distr ict court ’s sen ten ce exceeded t he

ma ximum allowed by law; or

(4) th e district cour t’s judgmen t or sen ten ce is

other wise subject t o collater al r eview.

Ru le 2 . The Mot ion (a) App lying for Rel ief . The applicat ion m ust be in t he

form of a motion to vacate, set aside, or correct the

sentence.

(b ) Form. The motion must :




(1) specify all th e groun ds for r elief available to th e

moving par ty;

(2) stat e th e facts supporting each ground;

(3) stat e the r elief requested;

(4) be printed, typewritten, or legibly handwritten;

and

(5) be signed under penalty of perjury by the

movant or by a person authorized to sign it for

the movan t.

(c ) St a n d a r d F o r m . The motion must substantially

follow either the form appended to these rules or a

form pr escribed by a local district-cour t ru le. The

clerk must make forms available to moving parties

without charge.

(d ) S e p a r a t e M o t io n s fo r S e p a r a t e J u d g m e n t s . A

moving party who seeks relief from more than one




judgment must file a separate motion covering each

judgment.

Ru le 3 . F i l ing th e Mot ion ; Inm at e F i ling

(a ) Where to Fi le ; Copies . An original and two copies

of the m otion mu st be filed with th e clerk.

(b ) F i li n g a n d S e r v ic e . The clerk must file the motion

and enter it on the criminal docket of the case in

which the cha llenged judgment was enter ed. The

clerk mu st t hen deliver or ser ve a copy of the m otion

on the United States attorney in that district,

togeth er wit h a notice of its filing.

(c ) T i m e t o F i l e . The time for filing a motion is

govern ed by 28 U .S.C. § 2255 pa ra . 6.

(d ) I n m a t e F i l in g . A paper filed by an inmate confined

in an institution is timely if deposited in the

instit ut ion’s inter na l ma iling system on or before th e

last day for filing. If an inst itu tion ha s a system




designed for legal mail, the inmate must use that

system t o receive th e benefit of th is ru le. Timely

filing may be shown by a declaration in compliance

with 28 U.S.C. § 1746 or by a notarized statement,

either of which mu st set fort h t he da te of deposit a nd

stat e tha t first-class postage ha s been prepaid.

R u l e 4 . P r e l i m i n a r y R e v i ew

(a ) R e f e r r a l t o a J u d g e . The clerk must promptly

forward the motion to the judge who conducted the

trial and imposed sentence or, if the judge who

imposed senten ce was n ot t he t rial judge, to the judge

who conducted the proceedings being challenged. If

th e appr opriate judge is not available, the clerk mu st

forward th e motion t o a judge un der t he cour t’s

assignment procedure.

(b ) I n i t ia l C on s i d e r a t i o n b y t h e J u d g e . The judge

who receives the motion must promptly examine it.




If it plainly appears from the motion, any attached

exhibits, and the record of prior proceedings that the

moving party is not entitled to relief, the judge must

dismiss the motion and direct the clerk to notify the

moving part y. If th e motion is not dismissed, th e

judge must order the United States attorney to file

an answer, motion, or other response within a fixed

time, or t o take other a ction t he judge may order.

R u l e 5. T h e An s w e r a n d t h e R e p l y

(a ) Wh e n R e q u i r e d . The respondent is not r equired to

an swer th e motion u nless a judge so orders.

(b ) C o n t e n t s . The an swer must address the al legations

in the motion. In addition, it must sta te whether th e

moving party has used any other federal remedies,

including any prior post-conviction motions under

these rules or any previous rules, and whether the

moving part y received an evidentiar y hear ing.




( c ) R e c o r d s o f P r i o r P r o c e e d i n g s . If the answer

refers to briefs or t ra nscripts of the pr ior p roceedings

th at ar e not a vailable in th e cour t’s records, th e judge

must order the government to furnish them within a

reasonable time that will not unduly delay the

proceedings.

( d ) R e p l y . The moving part y may submit a r eply to the

responden t’s an swer or other plead ing with in a tim e

fixed by the judge.

Ru le 6 . Discover y

(a ) L e a v e of Co u r t R e q u i r e d . A judge may, for good

cause, authorize a party to conduct discovery under

the Federal Rules of Criminal Procedure or Civil

Procedure, or in accordance with the practices and

pr inciples of law. If necessar y for effective discovery,

the judge must appoint an attorney for a moving




party who qualifies to have counsel appointed under

18 U .S.C. § 3006A.

(b ) Req ue s t in g Discover y . A party requesting

discovery must provide reasons for the request. The

request must also include any proposed

interr ogatories an d r equests for a dmission, a nd must

specify an y request ed docum ent s.

(c ) Depos i t ion Expe n ses . If th e governmen t is grant ed

leave to ta ke a deposition, th e judge ma y require th e

government to pay the travel expenses, subsistence

expenses, an d fees of th e moving pa rt y’s at torn ey to

at ten d the deposition.

R u l e 7 . E x p a n d i n g t h e R e c o r d

(a ) I n G e n e r a l . If the motion is not dismissed, the

judge may direct t he pa rt ies to expand t he r ecord by

submitting additional materials relating to the




motion. The judge may require that these materials

be au then ticat ed.

(b ) Types o f Mate r ia l s . The materials that may be

required include letters predating the filing of the

motion, docum ents, exhibits, an d a nswers u nder oat h

to written interrogatories propounded by the judge.

Affidavits also may be submitted and considered as

par t of th e record.

(c ) R e v i e w b y t h e Op p o s i n g P a r t y . The judge must

give the part y against whom the a dditiona l materials

are offered an opportunity to admit or deny their

correctness.

R u l e 8 . E v i d e n t i a r y He a r i n g

(a ) D e t e r m i n i n g Wh e t h e r t o H o l d a H e a r i n g . If the

motion is not dismissed, the judge must review the

answer, any transcripts and records of prior

proceedings, and an y mat erials submitted un der Rule




7 to determine whether an evidentiary hearing is

warranted.

(b ) R e fe r e n c e t o a Ma g i s t r a t e J u d g e . A judge may,

under 28 U.S.C. § 636(b), refer the motion to a

magistrate judge to conduct hearings and to file

proposed findings of fact and recommendations for

disposition. When they are filed, th e clerk must

promptly serve copies of the proposed findings and

recomm enda tions on all par ties. With in 10 days

after being served, a party may file objections as

provided by local cour t rule. The judge mu st

determine de novo any proposed finding or

recommendation to which objection is made. The

judge may accept, reject, or modify any proposed

finding or recomm enda tion.

(c ) Appoin t ing Counse l ; T ime of Hear ing . If an

evidentiary hearing is warranted, the judge must




appoint an at torney to represent a moving party who

qualifies to have counsel appointed under 18 U.S.C.

§ 3006A. The judge must cond uct th e hear ing as soon

as practicable after giving the attorneys adequate

time to investigate and prepare. These rules do not

limit the appointment of counsel under § 3006A at

an y sta ge of th e proceeding.

(d ) P r o d u c i n g a S t a t e m e n t . Federal Rule of Criminal

Procedure 26.2(a)-(d) and (f) applies at a hearing

un der th is ru le. If a pa rt y does not comply with a

Rule 26.2(a) order to produce a witness’s statement,

th e cour t m ust not consider th at witn ess’s test imony.

Ru le 9 . Second o r Success ive Mot ions

Before presen ting a second or su ccessive m otion, t he

moving party must obtain an order from the appropriate

court of appeals authorizing the district court to consider

th e motion, as requ ired by 28 U.S.C. § 2255, pa ra . 8.




R u l e 10 . P o we r s o f a Ma g is t r a t e J u d g e

A magistrate judge may perform the duties of a

district judge under these rules, as authorized by 28

U.S.C. § 636.

Ru le 11. Time to App ea l

Feder al Ru le of Appellate P rocedur e 4(a) govern s th e

time to appeal an order entered un der these rules. These

rules do not extend the time to appeal the original

jud gmen t of conviction.

Ru le 12. App l icab i l i ty o f th e Fe der a l Ru les o f C ivi l

P r o ce d u r e a n d t h e F e d e r a l R u l e s o f

C r i m in a l P r o c e d u r e

The F ederal Rules of Civil Pr ocedure an d th e Federa l

Rules of Criminal Procedure, to the extent that they are

not inconsistent with any statutory provisions or these

ru les, may be a pplied to a proceeding u nder th ese rules.



Page 1

P e t i t i o n fo r R e l i e f F r o m a C o n v ic t i on o r S e n t e n c e

B y a P e r s o n i n S t a t e C u s t o d y

(Pe t i t i on U n der 28 U .S .C . § 2254 fo r a Wr i t o f H abea s C orp us )

I n s t r u c t i o n s

1. To use this form, you must be a person who is curr ently serving a sentence under a judgment

again st you in a sta te cour t. You are askin g for relief from th e conviction or th e senten ce. This

form is your petition for relief.

2. You may a lso use th is form to challenge a st ate judgment tha t imposed a sent ence to be served in

the futur e, but you must fill in th e nam e of the state where th e judgment was ent ered. If you

want to challenge a federal judgment t hat imposed a sent ence to be served in t he futur e, you

should file a motion u nder 28 U .S.C. § 2255 in t he federal court tha t en tered t he judgment.

3. Make sure the form is typed or neatly writt en.

4. You m ust tell the tru th and sign t he form. If you m ake a false stat ement of a m aterial fact, you

may be prosecuted for perjury.

5. Answer all the quest ions. You do not need to cite law. You may submit a dditional pages if

necessary. If you do not fill out t he form properly, you will be asked to submit additional or

correct informa tion. If you wan t to submit a brief or a rgument s, you must su bmit th em in a

separate memorandu m.

6. You mu st pa y a fee of $5. If the fee is paid, your pet ition will be filed. If you can not pa y the fee,

you m ay as k to proceed in form a pauperis (as a poor pers on). To do that , you must fill out th e

last pa ge of this form . Also, you m ust subm it a certificat e signed by an officer at t he inst itut ion

where you are confined showing the a mount of money tha t th e institu tion is holding for you. If

your account exceeds $ , you mu st pay the filing fee.

7. In th is petition, you ma y cha llenge th e judgmen t ent ered by only one court. If you wan t to

challenge a judgment entered by a different court (either in th e same stat e or in different stat es),

you must file a separ ate petition.

8. When you ha ve completed th e form, send th e original an d two copies to the Clerk of th e Un ited

Stat es District Court at t his address:

Clerk, United States District Court for AddressCity, Sta te Zip Code

9. C AU T IO N : Yo u m u s t i n c l u d e i n t h i s p e t i t i o n a l l t h e g r o u n d s f or r e l ie f fr o m t h e

c o n v ic t i on o r s e n t e n c e t h a t y o u c h a l le n g e . An d y o u m u s t s t a t e t h e fa c t s t h a t s u p p o r te a c h g r o u n d . I f y o u fa i l t o s e t fo r t h a l l t h e g r o u n d s in t h i s p e t i t i o n , y o u m a y b e b a r r e d

fr o m p r e s e n t i n g a d d i t io n a l g r o u n d s a t a l a t e r d a t e .

10. C AP I T AL C AS E S : I f y o u a r e u n d e r a s e n t e n c e o f d e a t h , y o u a r e e n t i t l e d t o t h e

a s s is t a n c e o f co u n s e l a n d s h o u l d r e q u e s t t h e a p p o i n t m e n t o f c o u n s e l.



Page 2

P ETI TION UNDE R 28 U.S.C . § 2254 FOR WRIT OF

HABEAS CORP US BY A P ER SON IN STATE CUSTODY

U n i t e d S t a t e s D i s t r i c t Co u r t District

Name (under which you were convicted): Docket or Case No.:

Place of Confinement : Prisoner No.:

Petitioner (include the name under which you were convicted) Respondent (authorized person h aving custody of petitioner)

v.

The Attorney General of the State of

P E T I T I O N

1. (a) Na me an d location of cour t th at en ter ed the judgment of conviction you ar e cha llenging:

(b) Criminal docket or case number (if you know):

2. (a) Da te of th e judgm ent of conviction (if you kn ow):

(b) Dat e of senten cing:

3. Lengt h of sent ence:

4. In t his case, were you convicted on more th an one coun t or of more th an one crime? Yes “ No “ 5. Ident ify all crimes of which you were convicted and sent enced in th is case:

6. (a) What was your plea? (Check one)

(1) Not guilt y “ (3) Nolo cont end er e (no cont est ) “ (2) Guilty

“ (4) Insa nity plea

“ (b) If you en ter ed a guilty plea t o one coun t or char ge and a n ot guilty plea t o another coun t or

charge, what did you plead guilty to and wh at did you plead n ot guilty to?



Page 3

(c) If you wen t t o trial, wha t k ind of trial did you ha ve? (Check one)

J u r y “ Judge only “ 7. Did you t estify at a pr etrial hear ing, trial, or a post-trial hearing?

Yes “ No “ 8. Did you a ppeal from t he judgm ent of conviction?

Yes “ No “ 9. If you did appea l, answer th e following:

(a) Name of court:

(b) Docket or case number (if you know):

(c) Result:

(d) Dat e of res ult (if you kn ow):

(e) Citation to the case (if you know):

(f) Grounds r aised:

(g) Did you seek furt her review by a higher sta te court ? Yes “ No “ If yes, answer the following:

(1) Name of court:

(2) Docket or case number (if you know):

(3) Result :

(4) Dat e of resu lt (if you kn ow):

(5) Citation to the case (if you know):

(6) Grounds raised:

(h) Did you file a petit ion for certiorari in th e Un ited Sta tes Supr eme Court? Yes “ No “ If yes, answer the following:








Page 6

12. For t his pet ition, sta te every groun d on wh ich you claim t ha t you ar e being held in violation of

the Constitut ion, laws, or t reat ies of the Un ited States. Attach additional pages if you h ave more

tha n four grounds. Stat e the facts supporting each ground.

CAUTION: To proceed in th e federa l court , you m ust ordinar ily first exhau st (use up ) your

available state-court remedies on each ground on which you request action by the federal court.

Also, if you fail to set fort h a ll the groun ds in t his pet ition, you may be bar red from presen ting

additional grounds at a later dat e.

GROUND ONE:

(a) Support ing facts (Do not ar gue or cite law. J ust sta te th e specific facts t ha t su pport your claim.):

(b) If you did not exhau st your st at e remedies on Groun d One, explain why:

(c) D i r e c t Ap p e a l o f G r o u n d O n e :

(1) If you appea led from th e judgmen t of conviction, did you r aise t his issue?

Yes “ No “ (2) If you did n ot raise t his issu e in your direct a ppeal, explain why:

(d) P o s t -C o n v i c t i on P r o c e e d i n g s :

(1) Did you r aise th is issue th rough a post-conviction motion or pet ition for habea s corpu s in a

sta te tr ial cour t? Yes “ No “ (2) If your an swer to Ques tion (d)(1) is “Yes,” st at e:

Type of motion or petition:

Na me an d location of the cour t wher e th e motion or petit ion was filed:



Page 7

Docket or case n um ber (if you k now):

Date of the court’s decision:

Result (attach a copy of the court’s opinion or order, if available):

(3) Did you r eceive a hea ring on your motion or petition?

Yes “ No “ (4) Did you a pp eal from th e denia l of your motion or petit ion?

Yes “ No “ (5) If your an swer t o Question (d)(4) is “Yes,” did you ra ise th is issue in th e ap peal?

Yes “ No “ (6) If your an swer to Ques tion (d)(4) is “Yes,” st at e:

Name and location of the court where the appeal was filed:




(7) If your answer to Question (d)(4) or Question (d)(5) is “No,” explain why you did not raise this

issue:

(e) O t h e r R e m e d i e s: Describe any other procedures (such as habeas corpus, a dministra tive

remedies, etc.) that you h ave used to exhaust your stat e remedies on Ground On e:

GROUND T WO:




Page 8

(b) If you did not exha ust your sta te r emedies on Ground Two, explain wh y:

(c) D i r e c t Ap p e a l o f G r o u n d T w o :

(1) If you appea led from th e judgment of conviction, did you r aise t his issu e?



(1) Did you r aise t his issu e th rough a post-conviction motion or petition for h abeas corpu s in a

stat e trial court ?



Na me a nd locat ion of th e court wh ere t he motion or petit ion wa s filed:




(3) Did you receive a hea ring on your motion or petition?

Yes “ No “ (4) Did you a ppeal from t he den ial of your motion or petition?






Page 9





issue:

(e) O t h e r R e m e d i e s: Describe any other procedures (such as h abeas corpu s, administr ative

remedies, etc.) that you h ave used to exhaust your stat e remedies on Gr oun d Two:

G R O U ND TH R EE :


(b) If you did not exhaust your state remedies on Ground Three, explain why:

(c) D ir e c t A p p e a l o f G r o u n d T h r e e :





Page 10





Na me and location of the cour t wh ere th e motion or pet ition was filed:













issue:


remedies, etc.) that you h ave used to exhau st your stat e remedies on Groun d Thr ee:



Page 11

G R O U N D FO U R :


(b) If you did not exhaust your state remedies on Ground Four, explain why:

(c) D i r e c t Ap p e a l of G r o u n d F o u r :







Na me a nd location of th e court wh ere th e motion or pet ition was filed:






Yes “ No “



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(5) If your an swer t o Question (d)(4) is “Yes,” did you ra ise th is issue in th e ap peal?







issue:


remedies, etc.) that you h ave used to exhau st your stat e remedies on Ground Four:

13. Please an swer th ese additional questions about th e petition you are filing:

(a) Have all grounds for r elief that you h ave raised in t his petition been pr esented to the highest

sta te cour t ha ving jurisdiction? Yes “ No “ If your an swer is “No,” sta te which groun ds ha ve not been so present ed an d give your

reason(s) for n ot presenting t hem:

(b) Is there a ny ground in t his petition t hat has n ot been presented in some state or federal

cour t? If so, which groun d or grounds h ave not been presented, an d stat e your reas ons for

not presenting them:

14. Ha ve you pr eviously filed any t ype of petition, application, or m otion in a federal cour t r egard ing

Yes “ No “the conviction that you challenge in this petition?



Page 13

If “Yes,” sta te t he n am e an d locat ion of the cour t, th e docket or case n um ber, th e type of

proceeding, the issues r aised, th e dat e of th e cour t’s decision, an d th e resu lt for ea ch petition,

ap plication, or motion filed. Atta ch a copy of an y court opinion or order , if ava ilable.

15. Do you ha ve any pet ition or a ppeal n ow pending (filed and n ot decided yet) in a ny cour t, either

sta te or federal, for th e judgmen t you ar e challenging? Yes “ No “ If “Yes,” sta te t he n am e an d locat ion of the cour t, th e docket or case n um ber, th e type of

proceeding, and the issues raised.

16. Give the na me an d addr ess, if you kn ow, of each at torney who repr esent ed you in t he following

stages of the judgment you are challenging:

(a) At preliminary hearing:

(b) At a rra ignment and plea:

(c) At t ria l:

(d) At sent encing:

(e) On a ppeal:

(f) In any post-conviction proceeding:

(g) On app eal from an y ru ling again st you in a p ost-conviction pr oceeding:

17. Do you have an y futu re sent ence to serve after you complete th e sentence for the judgment tha t

Yes “ No “you are challenging?



Page 14

(a) If so, give na me a nd locat ion of court th at imposed th e other sen ten ce you will serve in th e

future:

(b) Give th e date t he other s ent ence was imposed: (c) Give the length of th e other sent ence: (d) Ha ve you filed, or do you plan to file, any petition th at challenges th e judgment or sent ence tobe served in th e futur e? Yes “ No “

18. TIMELINE SS OF PE TITION: If your judgment of conviction became fina l over one yea r a go, you

mu st explain wh y the one-year sta tu te of limitat ions a s cont ained in 28 U.S.C. § 2244(d) does not

bar your petition.*

* The Antiter rorism a nd Effective Deat h P enalt y Act of 1996 (“AEDPA”) as cont ained in 28 U .S.C.

§ 2244(d) provides in par t t ha t:

(1) A one-year per iod of limitat ion sh all apply to an application for a writ of habeas corpu s by a

person in custody pursu ant to the judgment of a Sta te court . The limitat ion period shall run

from t he lat est of —

(continued…)



Page 15

Therefore, petitioner asks tha t the Court grant th e following relief:

or any other relief to which pet itioner ma y be entitled.

Signature of Attorney (if any)

I declar e (or certify, verify, or st at e) under p ena lty of perjur y tha t t he foregoing is tr ue a nd correct

and that this Petition for Writ of Habeas Corpus was placed in the prison mailing system on

(month, date, year).

Execut ed (signed) on (date).

Signature of Petitioner

*(…continued)

(A) the da te on wh ich t he judgm ent becam e fina l by the conclusion of direct review or th e

expiration of th e time for seeking such r eview;

(B) th e dat e on wh ich t he impedim ent to filing an ap plicat ion creat ed by Stat e action in

violation of th e Const itut ion or laws of th e Unit ed Sta tes is rem oved, if th e applicant wa sprevent ed from filing by such st at e action;

(C) the date on which the constitutional right asserted was initially recognized by the

Supreme Court , if the r ight ha s been newly recognized by the Su preme Court a nd m ade

retroactively applicable to cases on collateral review; or

(D) th e dat e on which th e factu al pr edicat e of th e claim or claims pr esent ed could h ave been

discovered through the exercise of due diligence.

(2) The t ime du ring wh ich a properly filed application for S ta te p ost-conviction or other collater al

review with r espect t o the pert inent judgment or claim is pending shall not be count ed toward

any period of limitation under this subsection.



Page 16

If the person signing is not petitioner, state relationship to petitioner and explain why petitioner is

not signing this petition.

IN FORMA PAUPERIS DECLARATION

[Insert appropriate court ]

* * * * *



Page 1

Mo t io n t o Va c a t e , Se t Asi d e , o r C o r r e c t a S e n t e n c e

B y a P e r s o n i n F e d e r a l C u s t o d y

(Mot ion Un de r 28 U.S.C . § 2255)

I n s t r u c t i o n s

1. To use this form, you m ust be a person who is serving a sentence under a judgment against you

in a federal cour t. You are ask ing for relief from t he conviction or th e senten ce. This form is

your m otion for relief.

2. You must file the form in t he United Sta tes district court tha t ent ered the judgment t hat you ar e

challenging. If you wan t to cha llenge a federal judgm ent t ha t imposed a senten ce to be served in

the futu re, you should file the motion in t he federal court tha t ent ered tha t judgment.

3. Make sure the form is typed or neatly writt en.

4. You must tell the tr uth and sign t he form. If you m ake a false stat ement of a material fact, you

may be prosecuted for perjury.

5. Answer all the questions. You do not need to cite law. You may submit a dditional pages if

necessary. If you do not fill out t he form properly, you will be asked to submit additional or

correct informa tion. If you wan t to submit a brief or a rgument s, you must su bmit th em in a

separate memorandu m.

6. If you can not pa y for t he costs of th is motion (such a s costs for a n at torney or t ra nscripts), you

ma y ask to proceed in form a pau peris (as a poor person). To do th at , you must fill out th e last

page of th is form. Also, you m ust subm it a certificat e signed by an officer a t t he inst itut ion

where you are confined showing the amount of money that the institution is holding for you.

7. In th is motion, you ma y cha llenge th e judgmen t ent ered by only one cour t. If you wan t to

challenge a judgment entered by a different judge or division (either in the same district or in a

different district), you must file a separate motion.

8. When you ha ve completed th e form, send t he original an d two copies to the Clerk of th e United

Stat es District Court at t his address:

Clerk, United States District Court for AddressCity, Sta te Zip Code

9. C AU T IO N : Yo u m u s t i n c l u d e i n t h i s m o t i o n a l l t h e g r o u n d s f o r r e l i e f f r o m t h e

c o n v ic t i on o r s e n t e n c e t h a t y o u c h a l le n g e . An d y o u m u s t s t a t e t h e fa c t s t h a t s u p p o r t

e a c h g r o u n d . I f y o u fa i l t o s e t fo r t h a l l t h e g r o u n d s i n t h i s m o t i o n , y o u m a y b e b a r r e dfr o m p r e s e n t i n g a d d i t io n a l g r o u n d s a t a l a t e r d a t e .

10. C AP I T AL C AS E S : I f yo u a r e u n d e r a s e n t e n c e o f d e a t h , y o u a r e e n t i t le d t o t h e

a s s is t a n c e o f co u n s e l a n d s h o u l d r e q u e s t t h e a p p o i n t m e n t o f c o u n s e l.



Page 2

MOTION UND ER 28 U.S.C. § 2255 TO VACATE , SET ASIDE , OR CORR ECT

SENTENCE BY A PERSON IN FEDERAL CUSTODY

U n i t e d S t a t e s Di s t r i c t C ou r t District

Name (under which you were convicted): Docket or Case No.:

Place of Confinement : Prisoner No.:

UNI TED STATES OF AMERICA Movant (include name under which you were convicted)

v.

MOTION

1. (a) Name an d location of cour t th at en ter ed the judgment of conviction you ar e cha llenging:

(b) Criminal docket or case number (if you know):

2. (a) Dat e of th e jud gmen t of conviction (if you know):

(b) Dat e of senten cing:

3. Lengt h of sent ence:

4. Na tu re of crime (all coun ts ):

5. (a) Wha t was your plea? (Check one)

(1) Not guilty “ (2) Guilty “ (3) Nolo cont end ere (no cont est ) “ (b) If you enter ed a guilty plea to one count or ind ictm ent , and a not guilty plea to an other count

or indictment, what did you plead guilty to and what did you plead not guilty to?

6. I f you went to t r i a l, what k ind of t r i a l d id you have? (Check one) Jury “ Judge only “





Page 4

(4) Nat ur e of the pr oceeding:

(5) Grounds raised:

(6) Did you r eceive a h ear ing wher e evidence was given on your m otion, pet ition, or application? Yes “ No “(7) Result : (8) Date of result (if you kn ow):

(b) If you filed an y second motion, petition, or a pplicat ion, give th e sa me inform at ion:

(1) Name of court:


(3) Date of filing (if you know):

(4) Nat ur e of the pr oceeding:

(5) Grounds raised:

(6) Did you r eceive a h ear ing wher e evidence was given on your m otion, pet ition, or application? Yes “ No “(7) Result : (8) Dat e of result (if you kn ow):

(c) Did you appea l to a federal ap pellate cour t h aving jurisdiction over th e action ta ken on your

motion, petition, or app licat ion?

(1) Fir st pet ition: Yes “ No “ (2) Second pet ition : Yes “ No “





Page 6




(3) Did you r eceive a hea ring on your motion, petition, or a pplicat ion?

Yes “ No “ (4) Did you a ppeal from t he den ial of your motion, petition, or application?

Yes “ No “ (5) If your an swer t o Question (c)(4) is “Yes,” did you ra ise th is issue in t he a ppeal?

Yes “ No “ (6) If your a nswe r t o Quest ion (c)(4) is “Yes,” st at e:





(7) If your an swer to Qu est ion (c)(4) or Qu est ion (c)(5) is “No,” explain why you d id not app eal or

raise th is issue:

GROUND TWO :

(a) Supp orting facts (Do not ar gue or cite law. J ust st at e the specific facts th at su pport your claim.):



Page 7

(b) D i r e c t Ap p e a l o f G r o u n d T w o :


Yes “ No “ (2) If you did not ra ise this issu e in your direct ap peal, explain why:

(c) P o s t -C o n v i c t i on P r o c e e d i n g s :

(1) Did you r aise t his issu e in a ny post-conviction motion, petition, or ap plicat ion?

















Page 8


raise th is issue:

G R O U N D TH R EE :


(b) D ir e c t A p p e a l o f G r o u n d T h r e e :


Yes “ No “ (2) If you did not ra ise this issu e in your direct ap peal, explain why:

(c) P o s t -C o n v i c t i on P r o c e e d i n g s :

(1) Did you r aise t his issu e in a ny post-conviction motion, petition, or ap plicat ion?








Page 9











raise th is issue:

G R O U N D FO U R :






Page 11


raise th is issue:

13. Is th ere an y ground in th is motion t hat you ha ve not pr eviously presented in some federal court ?

If so, which ground or grounds have not been presented, and state your reasons for not

present ing them:

14. Do you ha ve an y motion, petition, or a ppeal n ow pending (filed and not decided yet) in a ny cour t

for th e judgmen t you ar e challenging? Yes “ No “ If “Yes,” sta te t he n am e an d locat ion of the cour t, th e docket or case n um ber, th e type of

proceeding, and the issues raised.

15. Give th e na me an d addr ess, if kn own, of each at torn ey who repr esent ed you in t he following

stages of the judgment you are challenging:

(a) At preliminary hearing:

(b) At a rra ignment and plea:

(c) At t ria l:

(d) At sent encing:



Page 12

(e) On a ppeal:

(f) In any post-conviction proceeding:

(g) On app eal from an y ru ling again st you in a p ost-conviction pr oceeding:

16. Were you sent enced on m ore than one count of an indictmen t, or on more tha n one indictmen t, in

the same court and at the same time? Yes “ No “ 17. Do you have an y futu re sent ence to serve after you complete th e sentence for the judgment tha t

you ar e challen ging? Yes “ No “ (a) If so, give nam e and locat ion of cour t th at im posed the other s ent ence you will serve in th e

future:

(b) Give the date the other sentence was imposed: (c) Give the length of th e other sent ence: (d) Ha ve you filed, or do you pla n t o file, an y motion, pet ition, or a pplicat ion t ha t cha llenges the

judgmen t or sentence to be served in th e futur e? Yes “ No “



Page 13

18. TIMELINE SS OF MOTION: If your jud gment of conviction becam e final over one year ago, you

mu st explain wh y the one-year sta tu te of limitat ions a s cont ained in 28 U.S.C. § 2255 does not

bar your motion.*

* The Antiter rorism a nd Effective Deat h P enalt y Act of 1996 (“AEDPA”) as cont ained in 28 U .S.C.

§ 2255, para graph 6, provides in par t t hat :

A one-year per iod of limitat ion sha ll apply to a motion un der t his section. The limitat ion period

shall run from t he latest of —

(1) th e dat e on which t he judgm ent of conviction becam e fina l;(2) the date on which the impediment t o making a motion creat ed by government al action inviolation of th e Const itut ion or laws of th e United St at es is removed, if th e m ovant was prevented from m aking such a motion by such government al action;(3) the date on which the right a sserted wa s initially recognized by th e Supr eme Court, if tha t r ight has been newly recognized by the Suprem e Court and made r etroactivelyapplicable to cases on collateral review; or (4) th e dat e on wh ich t he facts support ing th e claim or claims p resen ted could ha ve beendiscovered th rough th e exercise of due diligence.



Page 14

Therefore, movant asks tha t the Court grant the following relief:

or any other r elief to which movant ma y be entitled.

Signature of Attorney (if any)

I declar e (or certify, verify, or st at e) under p ena lty of perjur y tha t t he foregoing is tr ue a nd correct

and that this Motion under 28 U.S.C. § 2255 was placed in the prison mailing system on

(month, date, year).

Execut ed (signed) on (date).

Signa tur e of Movan t

If the person signing is not m ovant , stat e relationship to movant and explain why movant is n ot

signing this motion.

IN FORMA PAUPERIS DECLARATION

[Insert appropriate court ]

* * * * *

Documents

US Supreme Court: frcr04p