2255 Federal Habeas Petition: Post-Filing Procedures

Once a federal prisoner has submitted the 2255 federal habeas petition, the Rules Governing Section 2255 Proceedings require the clerk to file the motion, enter it on the criminal docket in which the challenged judgment was entered, and deliver a copy to the U.S. Attorney. R. Governing §2255 Proc. U.S. Dist. Cts. 3(b). Importantly, however, the United States is not obligated to respond unless the court so orders.

2255 Federal Habeas Petition: Standard for Review and Avoiding Dismissal

Instead, Rule 4 requires the clerk to also forward the motion to the judge who conducted the trial or imposed the sentence, for a pre-2255 federal habeas petitionresponse review. Rule 4(b) directs that “[i]f 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 party.” The Supreme Court was more specific in Blackledge v. Allison, 431 U.S. 63, 76 (1977), when it said that dismissal under Rule 4(b) is justified only if the “allegations, when viewed against the record [are] so palpably incredible, so patently frivolous or false, as to warrant summary dismissal.”

The Court also contemplates dismissal under Rule 4(b) when the claims made in the motion are vague or conclusory. Id. at 75 and n. 7. Dismissal of a motion for this reason should be without prejudice, and some courts will instead direct the movant to amend the motion. See, e.g., United States v. Thomas, 221 F.3d 430, 437-38 (3rd Cir. 2000).

Accepting the 2255 Federal Habeas Petition

If the reviewing judge finds the motion nonfrivolous, “the judge must order the United States Attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.” Rule 4(b). If the judge orders a response other than an answer, such response may be a nonsubstantive motion. Otherwise, the court will order an answer, which is a substantive response to the claims made by the movant.

The Government’s Response to a 2255 Federal Habeas Petition

Rule 5 provides specifics as to the Government’s answer. Rule 5(a) says that “[ t]he answer must address the allegations in the motion . . .[and] must state whether the 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 party received an evidentiary hearing.” If the answer refers to briefs or transcripts of the prior proceedings that are not part of the court’s records, the Government must furnish them within a reasonable time. Rule 5(c).

If the court orders any response from the Government, it will also allow the moving party to reply to the response within a fixed timeframe. Rule 5(d). While not required, a section 2255 movant should always reply to the Government’s response. The reply should not restate the claims made in the initial motion. Instead, the reply should focus exclusively on the Government’s answer.

At any time prior to the close of the pleadings, the movant may move for discovery pursuant to Rule 6. Read our page about discovery practice in the section 2255 setting for more information.

Summary Judgement in the Context of 2255 Federal Habeas Petitions

Once discovery (if applicable) is completed, and the pleadings are closed, either party may move for summary judgment. The Rules Governing Section 2255 Proceedings do not specifically contemplate such a filing, but the federal habeas rules incorporate the more generalized Federal Rules of Civil Procedure. Rule 12. Summary judgment is available pursuant to Fed. R. Civ. Pro. 56 when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In practice, the Government will move for summary judgment in every case that hasn’t already been dismissed.

Experienced 2255 Federal Habeas Petition Attorneys

The initial 2255 federal habeas petition, the Government’s response or answer, and the movant’s reply combine to frame section 2255 issues for the court. As such, it is crucial that these filings are robust, and proper. The attorneys at the Law Offices of Brandon Sample have extensive experience drafting section 2255 federal habeas petitions for federal prisoners with career offender enhancements, drug convictions and §924 firearm convictions. We know the rules and procedures for drafting the initial motion and replying to the Government’s response.

If you or a loved one wishes to pursue habeas corpus relief through a section 2255 federal habeas petition, contact us now. We will consult with you on your case, and if retained, we will be with you every step of the way.

2255 Federal Habeas Petition: Post-Filing Procedures FAQs

Q: I have filed a section 2255 federal habeas petition with my sentencing court. What happens now?

A: Once your section 2255 motion is properly filed and accepted by the court, your sentencing judge will conduct an initial review of the motion. If it “plainly appears” from the motion, exhibits and prior record that you are not entitled to relief, the judge must dismiss your motion. Note, however, that such dismissal is only contemplated when the allegations, when viewed against the record, are “so palpably incredible, so patently frivolous or false, as to warrant summary dismissal.” Blackledge v. Allison, 431 U.S. 63, 76 (1977).

Q: My section 2255 federal habeas petition was not dismissed on the judge’s initial review. What’s next?

A: The judge will order the U.S. Attorney to respond to the motion. The response may be substantive (i.e., an answer) or procedural (i.e., a motion to dismiss), unless the court requires an answer. The Government’s answer must address the allegations in your motion, and if it refers to any transcripts or briefs that are not part of the record, the Government must furnish them.

Q: I have just received the Government’s response to my 2255 federal habeas petition. What do I do now?

A: You should file a reply to the Government’s response, addressing the points made in the response. The court will provide you with the timeframe within which you must reply, if you choose to (hint: always choose to reply).

Q: Once the documents are all filed, should I do anything else?

A:   If you have a cognizable claim, you should file a motion for summary judgment. This motion argues that there are no facts in dispute, and you are entitled to relief as a matter of law. Expect the Government to file a motion for summary judgment as well.

Q: I am in over my head. Help!!

A: Section 2255 litigants often find themselves in difficult situations. We are here to help you. Whether you are anticipating filing a section 2255 federal habeas petition, or have already done so, if you find yourself in trouble, contact us right away. Our team of experienced habeas corpus attorneys will consult with you and get you on the right track to success. Section 2255 is a last resort — don’t go it alone.

Related Content

Preparing for a Section 2255 Motion

Section 2255 Litigation: The Initial Motion

Section 2255 Litigation: Amending the Motion

Section 2255 Litigation: Expanding the Record

Section 2255 Litigation: Discovery

Section 2255 Litigation: The Evidentiary Hearing

Section 2255 Litigation: Resolution by Magistrate