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“discovery” is the formal process for getting evidence from the other side, like documents or sworn answers. In a § 2255 case you have no automatic right to it. You must ask the judge and show “good cause” — specific reasons to believe the evidence could prove your claim. Rule 6(a), Rules Governing Section 2255 Proceedings.
What is the “good cause” standard?
Unlike in an ordinary civil case, you must get the court’s permission before doing any discovery. Rule 6(a). The standard is “good cause.” Good cause is shown “where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.” Bracy v. Gramley, 520 U.S. 899, 908-09 (1997). Note that while specific allegations are required, the movant need not show that he would prevail on the merits of his claim before receiving discovery. Stouffer v. Reynolds, 168 F.3d 1155, 1173 (10th Cir. 1999)(“[T]he good cause showing under Rule 6(a) is targeted at discovery and is not meant to be judged by whether or not a petitioner would succeed on the merits of his claims”).
Rule 6(a) says the judge “may” authorize discovery for good cause. But the Supreme Court has said that once good cause is shown, “it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.” Bracy, 520 U.S. at 909.
Rule 6(b) governs the discovery request. When making the request, which should be in the form of a motion, the 2255 litigant must “provide reasons for the request” and “must also include any proposed interrogatories and requests for admission, and must specify any requested documents.” Rule 6(b). In practice, explain clearly how each request connects to your claim, and list exactly what you want.
Will the court appoint a lawyer for discovery?
If it is needed. “If necessary 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.” Rule 6(a). Doing discovery from a prison cell is hard, so this matters.
When have courts allowed discovery?
Here are examples from published and unpublished habeas decisions:
- When the movant established that the FBI Form 302 produced in pretrial discovery was different than the Form 302 produced pursuant to a FOIA request, movant was entitled to discovery of all Form 302’s and notes concerning interviews with or debriefings of a particular witness. Pizzuti v. United States, 809 F.Supp.2d 164 (S.D.N.Y. 2011).
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
- When the statement of local assistant police chief revealed the FBI’s participation in analysis of evidence, movant was entitled to discovery of FBI records related to the analysis. Rice v. Clarke, 923 F.2d 117, 118 n. 3 (8th Cir. 1991).
- When movant made a colorable claim that the prosecutor’s office routinely exercised peremptory challenges to exclude blacks from juries, discovery was permissible. Love v. Jones, 923 F.2d 816, 819 (11th Cir. 1991).
- When movant made a colorable claim of excessive pretrial publicity, depositions and production of documents by newspaper and media organizations was allowed. Coleman v. Zant, 708 F.2d 541, 547 (11th Cir. 1983).
- When the judge who presided over movant’s trial was convicted of accepting bribes to fix cases, movant was entitled to discovery of the U.S. Attorney’s “Proffer of Evidence in Aggravation.” United States ex rel. Giangrande v. Roth, 2001 U.S. Dist. LEXIS 694 (N.D. Ill. Jan. 18, 2001).
- When movant made a colorable claim of prosecutorial suppression of evidence in violation of Brady, movant was permitted to depose two Assistant State’s Attorneys, three police officers, and one witness. United States ex rel. Pecoraro v. Page, 1998 U.S. Dist. LEXIS 15746 (N.D. Ill. Sept. 30, 1998).
- When movant could show that prosecution knew or should have known of perjured witness testimony, discovery was permissible. Drake v. Portuondo, 321 F.3d 338 (2d Cir. 2003).
Can discovery replace an evidentiary hearing?
Sometimes. If what is produced through discovery settles factual disputes and leaves only legal issues, the evidentiary hearing may become unnecessary. See Blackledge v. Allison, 431 U.S. 63 (1977).
Common questions
I filed a § 2255 motion. Can I get discovery?
Only with the judge’s permission. There is no automatic right to discovery in § 2255 cases. Rule 6 allows it only on a showing of good cause.
How do I pursue discovery in section 2255 proceedings?
File a motion for discovery. Explain why you need it (the “good cause”) and exactly what you want, including any proposed questions and a list of documents. Good cause exists where specific allegations “show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.” Bracy v. Gramley, 520 U.S. 899, 908-09 (1997).
Does the government have to comply once discovery is authorized?
Yes. If the court authorizes discovery, the government must respond as ordered. If it does not, you can ask the court to enforce its order. If you need help with discovery in a § 2255 case, book a consultation with Brandon Sample.
Related pages
Preparing for a Section 2255 Motion
Section 2255 Litigation: The Initial Motion
Section 2255 Litigation: Post-Filing Proceedings
Section 2255 Litigation: Amending the Motion
Section 2255 Litigation: Expanding the Record
Section 2255 Litigation: The Evidentiary Hearing
Section 2255 Litigation: Resolution by Magistrate
Questions about your case? Book a consultation to talk it through with Brandon Sample.