Post-Conviction: Expanding the Record with Rule 7

A federal prisoner who seeks to collaterally attack a conviction or sentence via section 2255 faces significant obstacles. However, not every rule is bad; some even present unique opportunities to the habeas petitioner. One of those is Rule 7 of the Rules Governing Section 2255 Proceedings. This post-conviction rule is very helpful to the habeas litigant.

Rule 7: Expanding the Post-Conviction Record

Rule 7 allows for the expansion of the record. Once the section 2255 motion has passed the preliminary review, the judge may, either pursuant to a motion or sua sponte, “direct the parties to expand the record by submitting additional materials relating to the [section 2255] motion.” Rule 7(a).

The scope of expansion materials contemplated by Rule 7 is wide. According to Rule 7(b), “The materials that may be required include letters predating the filing of the motion, documents, exhibits, and answers under oath to written interrogatories propounded by the judge.”          Affidavits may also by submitted and added to the post-conviction record.

The Unique Benefits of Rule 7 on Expanding the Post-Conviction Record

Rule 7 is unique in the world of criminal procedure because it allows for the admission of materials that might otherwise be inadmissible under the rules of evidence. Affidavits are, for example, the very definition of hearsay, but are commonly relied upon in the early stages of habeas litigation. See, e.g., Abdur’Rahman v. Bell, 999 F.Supp. 1073, 1097 n. 30 (M.D. Tenn. 1998)(Rule 7 “contemplates a relaxed post-conviction, Rule 7application of the hearsay, best evidence, authentication, and other evidentiary rules under the Federal Rules of Evidence.”).

Expanding the record under Rule 7 is meant to assist the court, but it can also assist the movant. The documents that may be added to the record should “clarify the relevant facts.” Vasguez v. Hillery, 474 U.S. 254, 258 (1986). In Vasgue , for example, the Supreme Court approved of the district court’s expansion of the record to include statistical analysis relating to the underlying jury discrimination claim. In short, the movant may be permitted to expand the record with plenty of documentation that would not have made it into the record for the criminal case.

 Rules Governing Section 2255 Proceedings: Timing of Rule 7

Rule 7 permits expansion of the record at any time during the post-conviction proceedings. If a movant (or the court) wishes to expand the record in order to obviate the need for an evidentiary hearing, the motion may be filed in the early stages of the proceedings. Rule 7 may be used to expand the record immediately prior to the evidentiary hearing, or even during the hearing. The record may also be expanded in conjunction with a motion for reconsideration, or an appeal. United States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000).

Reviewing the Post-Conviction Documents Filed Under Rule 7

In order to expand the record under Rule 7, the movant should file a motion with the proposed documents attached, as well as a memorandum of law as to why the motion should be granted. Rule 7(c) requires the judge to “give the party against whom the additional materials are offered an opportunity to admit or deny their correctness.” Moreover, if the proposed documents include affidavits, 28 U.S.C. §2246 provides the opposing party “the right to propound written interrogatories to the affiants, or to file answering affidavits.”                    When credibility is at issue, the court must generally convene a hearing.

If after reviewing the motion and documents, the court finds the documents relevant, the motion will be granted and the record will be expanded to include the new documents. Even if the district court denies the motion, Rule 7 is still valuable to a section 2255 movant:             the documents that the court refused to add to the record become a part of the record on appeal. Schlup v. Delo 513 U.S. 298, 308, n. 18 (1995).

Experienced Post-Conviction Attorneys: Using Rule 7 To Expand the Record

Rule 7 is one of the best kept secrets of habeas corpus litigation. The Rule is uniquely important and powerful because in almost every case, the section 2255 motion is the last chance a federal prisoner will have to challenge his or her conviction. At the Law Offices of Brandon Sample, we know how to use Rule 7 to our clients’ benefit. Our experienced habeas corpus litigators know when the time is right to expand the record, and how to ensure success.

If you or a loved one are considering filing a section 2255 motion that may rely on documents outside of the criminal court’s record, contact us now to discuss the matter. Our competent staff is standing by to help you put your best post-conviction foot forward in what may be the most important court filing of your life.

Post-Conviction: Expanding the  Record FAQs

Q: I have records and exhibits that I believe will help me win a section 2255 claim, but they are not part of the record. How can I get these important documents before the court for post-conviction proceedings?

A: Rule 7 of the Rules Governing Section 2255 Proceedings allows you to “expand the record” with a variety of materials, including letters, affidavits and other documents. In order to ensure that the court may use your materials when deciding your section 2255 motion, you should file a motion to expand the record under Rule 7. You will want to attach to the motion the documents you would like to add to the record.

Q: Is the court required to admit the materials attached to my Rule 7 motion?

A: No, but if the documents “clarify the relevant facts” of the section 2255 claim, the court will likely admit them. You should argue that the documents are intended to assist the court in deciding the claim. This rule provides an excellent opportunity to get otherwise inadmissible evidence before the court for the purposes of post-conviction proceedings, so you should consider hiring an experienced attorney for assistance. Section 2255 motions are sometimes won or lost based on expansion of the record. Contact us today for a consultation.

Q: When may I use Rule 7 to expand the post-conviction record?

A: Rule 7 is available at any time during the proceedings. Litigants who believe that they can prevail without a hearing will often use Rule 7 to expand the record early in the proceedings. You may also use Rule 7 immediately prior to an evidentiary hearing, or even during the hearing. If the court denies your section 2255 motion, you can use Rule 7 to expand the record in conjunction with a motion for reconsideration or a post-conviction appeal.

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Section 2255 Litigation: The Initial Motion


Section 2255 Litigation: Post-Filing Proceedings


Section 2255 Litigation: Amending the Motion


Section 2255 Litigation: Discovery


Section 2255 Litigation: The Evidentiary Hearing


Section 2255 Litigation: Resolution by Magistrate