Motion of Discovery in 2255 Proceedings

After a section 2255 motion is filed and docketed, and has passed the judge's initial frivolity review, the movant may be entitled to pursue discovery. Discovery in the habeas context is significantly different than in generic civil actions, and is governed by Rule 6 of the Rules Governing Section 2255 Proceedings. This article discusses what exactly a motion of discovery is and how it is used in 2255 proceedings.

Motion of Discovery Standards in 2255 Proceedings: Good Cause

The major difference is that the habeas petitioner must seek leave of court prior to conducting discovery. Rule 6(a). The standard is one of "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").motion of discovery

If good cause is shown, the judge "may" authorize discovery. Rule 6(a). The Supreme Court has taken Rule 6(a) one step further, however, saying that once good cause has been 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, the movant must clearly explain the relationship between the discovery request and the legal claim. The movant must also list exactly what is being requested.

Appointment of Counsel for Motion of Discovery

If discovery is authorized by the court, counsel may be appointed "if necessary for effective discovery." Rule 6(a). Given the difficulty of pursuing discovery from a prison cell, most courts recognize that when discovery is authorized, counsel should be appointed.

Examples of Cases in Which a Motion of Discovery was Granted

Discovery has been granted by habeas courts in a variety of situations. Here are a few examples where a motion of discovery was granted:


  • 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).


  • 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).

Motion of Discovery: Using Discovery in Place of an Evidentiary Hearing

One final note on discovery: habeas courts will sometimes use discovery to substitute for an evidentiary hearing. 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).

Attorneys Experienced with Motion of Discovery in 2255 Proceedings

Successfully obtaining discovery can make the difference between winning and losing a section 2255 motion. Government actors tend to fight tooth and nail to avoid giving over documents and providing depositions. The attorneys at the Law Offices of Brandon Sample are aggressive litigators who know how to obtain the documents needed to prevail on a section 2255 motion. If you or a loved one want to file a section 2255 motion, but need documents from the government or other third parties in order to proceed, contact us today for a consultation. With our experienced assistance, you will get what you need to present a compelling section 2255 motion.

Motion of Discovery in 2255 Proceedings

Q: I have filed a section 2255 motion. Can I use a motion of discovery to get discovery?

A: Unlike other criminal or civil actions, there is no automatic right to discovery in section 2255 proceedings. Rule 6 of the Rules Governing Section 2255 Proceedings provides that discovery is available in section 2255 proceedings, but only upon a showing of good cause.

Q: How do I pursue discovery in section 2255 proceedings?

A: In order to get discovery in section 2255 proceedings, you must ask the judge through a motion of discovery. In your motion, you must explain why you need discovery (the "good cause"), and what exactly you are requesting. 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," discovery will be authorized. Bracy v. Gramley, 520 U.S. 899, 908-09 (1997).

Q: Is the government required to comply with my motion of discovery request?

A: If the court has authorized discovery and signed off on your requests, the government must comply. Unfortunately, that does not mean that the government will comply. In cases where the government failed to turn over exculpatory Brady material during trial, you will find that the government is in no hurry to turn it over in section 2255 proceedings. That's where we come in. Our aggressive and experienced litigators will employ every technique in our formidable arsenal to pry the documents out of the government's hands. Contact us now to discuss your section 2255 situation.

Related Content

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