Online Attorney

edies, such as habeas corpus, are available in such situations. Although rule 1 indicates that these rules apply to a motion for a determination that the judgment was imposed "in violation of the . . . laws of the United States," the language of 28 U.S.C. Sec. 2255, it is not the intent of these rules to define or limit what is encompassed within that phrase. See Davis v. United States, 417 U.S. 333 (1974), holding that it is not true "that every asserted error of law can be raised on a Sec. 2255 motion," and that the appropriate inquiry is "whether the claimed error of law was a fundamental defect which inherently results in a complete miscarriage of justice,' and whether [i]t . . . present[s] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.' " For a discussion of the "custody" requirement and the intended limited scope of this remedy, see advisory committee note to Sec. 2254 rule 1. -HEAD- RULE 2. MOTION (a) Nature of application for relief. If the person is presently in custody pursuant to the federal judgment in question, or if not presently in custody may be subject to such custody in the future pursuant to such judgment, the application for relief shall be in the form of a motion to vacate, set aside, or correct the sentence. (b) Form of motion. The motion shall be in substantially the form annexed to these rules, except that any district court may by local rule require that motions filed with it shall be in a form prescribed by the local rule. Blank motions in the prescribed form shall be made available without charge by the clerk of the district court to applicants upon their request. It shall specify all the grounds for relief which are available to the movant and of which he has or, by the exercise of reasonable diligence, should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified. It shall also state the relief requested. The motion shall be typewritten or legibly handwritten and shall be signed under penalty of perjury by the petitioner. (c) Motion to be directed to one judgment only. A motion shall be limited to the assertion of a claim for relief against one judgment only of the district court. If a movant desires to attack the validity of other judgments of that or any other district court under which he is in custody or may be subject to future custody, as the case may be, he shall do so by separate motions. (d) Return of insufficient motion. If a motion received by the clerk of a district court does not substantially comply with the requirements of rule 2 or rule 3, it may be returned to the movant, if a judge of the court so directs, together with a statement of the reason for its return. The clerk shall retain a copy of the motion. -SOURCE- (As amended Pub. L. 94-426, Sec. 2(3), (4), Sept. 28, 1976, 90 Stat. 1334; Apr. 28, 1982, eff. Aug. 1, 1982.) -MISC6- ADVISORY COMMITTEE NOTE Under these rules the application for relief is in the form of a motion rather than a petition (see rule 1 and advisory committee note). Therefore, there is no requirement that the movant name a respondent. This is consistent with 28 U.S.C. Sec. 2255. The United States Attorney for the district in which the judgment under attack was entered is the proper party to oppose the motion since the federal government is the movant's adversary of record. If the movant is attacking a federal judgment which will subject him to future custody, he must be in present custody (see rule 1 and advisory committee note) as the result of a state or federal governmental action. He need not alter the nature of the motion by trying to include the government officer who presently has official custody of him as a psuedo-respondent, or third-party plaintiff, or other fabrication. The court hearing his motion attacking the future custody can exercise jurisdiction over those having him in present custody without the use of artificial pleading devices. There is presently a split among the courts as to whether a person currently in state custody may use a Sec. 2255 motion to obtain relief from a federal judgment under which he will be subjected to custody in the future. Negative, see Newton v. United States, 329 F.Supp. 90 (S.D. Texas 1971); affirmative, see Desmond v. The United States Board of Parole, 397 F.2d 386 (1st Cir. 1968), cert. denied, 393 U.S. 919 (1968); and Paalino v. United States, 314 F.Supp. 875 (C.D.Cal. 1970). It is intended that these rules settle the matter in favor of the prisoner's being able to file a Sec. 2255 motion for relief under those circumstances. The proper district in which to file such a motion is the one in which is situated the court which rendered the sentence under attack. Under rule 35, Federal Rules of Criminal Procedure, the court may correct an illegal sentence or a sentence imposed in an illegal manner, or may reduce the sentence. This remedy should be used, rather than a motion under these Sec. 2255 rules, whenever applicable, but there is some overlap between the two proceedings which has caused the courts difficulty. The movant should not be barred from an appropriate remedy because he has misstyled his motion. See United States v. Morgan, 346 U.S. 502, 505 (1954). The court should construe it as whichever one is proper under the circumstances and decide it on its merits. For a Sec. 2255 motion construed as a rule 35 motion, see Heflin v. United States, 358 U.S. 415 (1959); and United States v. Coke, 404 F.2d 836 (2d Cir. 1968). For writ of error coram nobis treated as a rule 35 motion, see Hawkins v. United States, 324 F.Supp. 223 (E.D.Texas, Tyler Division 1971). For a rule 35 motion treated as a Sec. 2255 motion, see Moss v. United States, 263 F.2d 615 (5th Cir. 1959); Jones v. United States, 400 F.2d 892 (8th Cir. 1968), cert. denied 394 U.S. 991 (1969); and United States v. Brown, 413 F.2d 878 (9th Cir. 1969), cert. denied, 397 U.S. 947 (1970). One area of difference between Sec. 2255 and rule 35 motions is that for the latter there is no requirement that the movant be "in custody." Heflin v. United States, 358 U.S. 415, 418, 422 (1959); Duggins v. United States, 240 F.2d 479, 483 (6th Cir. 1957). Compare with rule 1 and advisory committee note for Sec. 2255 motions. The importance of this distinction has decreased since Peyton v. Rowe, 391 U.S. 54 (1968), but it might still make a difference in particular situations. A rule 35 motion is used to attack the sentence imposed, not the basis for the sentence. The court in Gilinsky v. United States, 335 F.2d 914, 916 (9th Cir. 1964), stated, "a Rule 35 motion presupposes a valid conviction. * * * [C]ollateral attack on errors allegedly committed at trial is not permissible under Rule 35." By illustration the court noted at page 917: "a Rule 35 proceeding contemplates the correction of a sentence of a court having jurisdiction. * * * [J]urisdictional defects * * * involve a collateral attack, they must ordinarily be presented under 28 U.S.C. Sec. 2255." In United States v. Semet, 295 F.Supp. 1084 (E.D. Okla. 1968), the prisoner moved under rule 35 and Sec. 2255 to invalidate the sentence he was serving on the grounds of his failure to understand the charge to which he pleaded guilty. The court said: As regards Defendant's Motion under Rule 35, said Motion must be denied as its presupposes a valid conviction of the offense with which he was charged and may be used only to attack the sentence. It may not be used to examine errors occurring prior to the imposition of sentence. 295 F.SUPP. AT 1085 See also: Moss v. United States, 263 F.2d at 616; Duggins v. United States, 240 F. 2d at 484; Migdal v. United States, 298 F.2d 513, 514 (9th Cir. 1961); Jones v. United States, 400 F.2d at 894; United States v. Coke, 404 F.2d at 847; and United States v. Brown, 413 F.2d at 879. A major difficulty in deciding whether rule 35 or Sec. 2255 is the proper remedy is the uncertainty as to what is meant by an "illegal sentence." The Supreme Court dealt with this issue in Hill v. United States, 368 U.S. 424 (1962). The prisoner brought a Sec. 2255 motion to vacate sentence on the ground that he had not been given a Fed.R.Crim. P. 32(a) opportunity to make a statement in his own behalf at the time of sentencing. The majority held this was not an error subject to collateral attack under Sec. 2255. The five-member majority considered the motion as one brought pursuant to rule 35, but denied relief, stating: [T]he narrow function of Rule 35 is to permit correction at any time of an illegal sentence, not to re-examine errors occurring at the trial or other proceedings prior to the imposition of sentence. The sentence in this case was not illegal. The punishment meted out was not in excess of that prescribed by the relevant statutes, multiple terms were not imposed for the same offense, nor were the terms of the sentence itself legally or constitutionally invalid in any other respect. 368 U.S. AT 430 The four dissenters felt the majority definition of "illegal" was too narrow. [Rule 35] provides for the correction of an "illegal sentence" without regard to the reasons why that sentence is illegal and contains not a single word to support the Court's conclusion that only a sentence illegal by reason of the punishment it imposes is "illegal" within the meaning of the Rule. I would have thought that a sentence imposed in an illegal manner - whether the amount or form of the punishment meted out constitutes an additional violation of law or not - would be recognized as an "illegal sentence" under any normal reading of the English language. 368 U.S. AT 431-432 The 1966 amendment of rule 35 added language permitting correction of a sentence imposed in an "illegal manner." However, there is a 120-day time limit on a motion to do this, and the added language does not clarify the intent of the rule or its relation to Sec. 2255. The courts have been flexible in considering motions under circumstances in which relief might appear to be precluded by Hill v. United States. In Peterson v. United States, 432 F.2d 545 (8th Cir. 1970), the court was confronted with a motion for reduction of sentence by a prisoner claiming to have received a harsher sentence than his codefendants because he stood trial rather than plead guilty. He alleged that this violated his constitutional right to a jury trial. The court ruled that, even though it was past the 120-day time period for a motion to reduce sentence, the claim was still cognizable under rule 35 as a motion to correct an illegal sentence. The courts have made even greater use of Sec. 2255 in these types of situations. In United States v. Lewis, 392 F.2d 440 (4th Cir. 1968), the prisoner moved under Sec. 2255 and rule 35 for relief from a sentence he claimed was the result of the judge's misunderstanding of the relevant sentencing law. The court held that he could not get relief under rule 35 because it was past the 120 days for correction of a sentence imposed in an illegal manner and under Hill v. United States it was not an illegal sentence. However, Sec. 2255 was applicable because of its "otherwise subject to collateral attack" language. The flaw was not a mere trial error relating to the finding of guilt, but a rare and unusual error which amounted to "exceptional circumstances" embraced in Sec. 2255's words "collateral attack." See 368 U.S. at 444 for discussion of other cases allowing use of Sec. 2255 to attack the sentence itself in similar circumstances, especially where the judge has sentenced out of a misapprehension of the law. In United States v. McCarthy, 433 F.2d 591, 592 (1st Cir. 1970), the court allowed a prisoner who was past the time limit for a proper rule 35 motion to use Sec. 2255 to attack the sentence which he received upon a plea of guilty on the ground that it was induced by an unfulfilled promise of the prosecutor to recommend leniency. The court specifically noted that under Sec. 2255 this was a proper collateral attack on the sentence and there was no need to attack the conviction as well. The court in United States v. Malcolm, 432 F.2d 809, 814, 818 (2d Cir. 1970), allowed a prisoner to challenge his sentence under Sec. 2255 without attacking the conviction. It held rule 35 inapplicable because the sentence was not illegal on its face, but the manner in which the sentence was imposed raised a question of the denial of due process in the sentencing itself which was cognizable under Sec. 2255. The flexible approach taken by the courts in the above cases seems to be the reasonable way to handle these situations in which rule 35 and Sec. 2255 appear to overlap. For a further discussion of this problem, see C. Wright, Federal Practice and Procedure; Criminal Secs. 581-587 (1969, Supp. 1975). See the advisory committee note to rule 2 of the Sec. 2254 rules for further discussion of the purposes and intent of rule 2 of these Sec. 2255 rules. 1982 AMENDMENT Subdivision (b). The amendment takes into account 28 U.S.C. Sec. 1746, enacted after adoption of the Sec. 2255 rules. Section 1746 provides that in lieu of an affidavit an unsworn statement may be given under penalty of perjury in substantially the following form if executed within the United States, its territories, possessions or commonwealths: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)." The statute is "intended to encompass prisoner litigation," and the statutory alternative is especially appropriate in such cases because a notary might not be readily available. Carter v. Clark, 616 F.2d 228 (5th Cir. 1980). The Sec. 2255 forms have been revised accordingly. AMENDMENTS 1976 - Subd. (b). Pub. L. 94-426, Sec. 2(3), inserted "substantially" after "The motion shall be in", and struck out requirement that the motion follow the prescribed form. Subd. (d). Pub. L. 94-426, Sec. 2(4), inserted "substantially" after "district court does not", and struck out provision which permitted the clerk to return a motion for noncompliance without a judge so directing. -HEAD- RULE 3. FILING MOTION (a) Place of filing; copies. A motion under these rules shall be filed in the office of the clerk of the district court. It shall be accompanied by two conformed copies thereof. (b) Filing and service. Upon receipt of the motion and having ascertained that it appears on its face to comply with rules 2 and 3, the clerk of the district court shall file the motion and enter it on the docket in his office in the criminal action in which was entered the judgment to which it is directed. He shall thereupon deliver or serve a copy of the motion together with a notice of its filing on the United States Attorney of the district in which the judgment under attack was entered. The filing of the motion shall not require said United States Attorney to answer the motion or otherwise move with respect to it unless so ordered by the court. -MISC7- ADVISORY COMMITTEE NOTE There is no filing fee required of a movant under these rules. This is a change from the practice of charging $15 and is done to recognize specifically the nature of a Sec. 2255 motion as being a continuation of the criminal case whose judgment is under attack. The long-standing practice of requiring a $15 filing fee has followed from 28 U.S.C. Sec. 1914(a) whereby "parties instituting any civil action * * * pay a filing fee of $15, except that on an application for a writ of habeas corpus the filing fee shall be $5." This has been held to apply to a proceeding under Sec. 2255 despite the rationale that such a proceeding is a motion and thus a continuation of the criminal action. (See note to rule 1.) A motion under Section 2255 is a civil action and the clerk has no choice but to charge a $15.00 filing fee unless by leave of court it is filed in forma pauperis. McCune v. United States, 406 F.2d 417, 419 (6th Cir. 1969). Although the motion has been considered to be a new civil action in the nature of habeas corpus for filing purposes, the reduced fee for habeas has been held not applicable. The Tenth Circuit considered the specific issue in Martin v. United States, 273 F.2d 775 (10th Cir. 1960), cert. denied, 365 U.S. 853 (1961), holding that the reduced fee was exclusive to habeas petitions. Counsel for Martin insists that, if a docket fee must be paid, the amount is $5 rather than $15 and bases his contention on the exception contained in 28 U.S.C. Sec. 1914 that in habeas corpus the fee is $5. This reads into Sec. 1914 language which is not there. While an application under Sec. 2255 may afford the same relief as that previously obtainable by habeas corpus, it is not a petition for a writ of habeas corpus. A change in Sec. 1914 must come from Congress. 273 F.2D AT 778 Although for most situations Sec. 2255 is intended to provide to the federal prisoner a remedy equivalent to habeas corpus as used by state prisoners, there is a major distinction between the two. Calling a Sec. 2255 request for relief a motion rather than a petition militates toward charging no new filing fee, not an increased one. In the absence of convincing evidence to the contrary, there is no reason to suppose that Congress did not mean what it said in making a Sec. 2255 action a motion. Therefore, as in other motions filed in a criminal action, there is no requirement of a filing fee. It is appropriate that the present situation of docketing a Sec. 2255 motion as a new action and charging a $15 filing fee be remedied by the rule when the whole question of Sec. 2255 motions is thoroughly thought through and organized. Even though there is no need to have a forma pauperis affidavit to proceed with the action since there is no requirement of a fee for filing the motion the affidavit remains attached to the form to be supplied potential movants. Most such movants are indigent, and this is a convenient way of getting this into the official record so that the judge may appoint counsel, order the government to pay witness fees, allow docketing of an appeal, and grant any other rights to which an indigent is entitled in the course of a Sec. 2255 motion, when appropriate to the particular situation, without the need for an indigency petition and adjudication at such later point in the proceeding. This should result in a streamlining of the process to allow quicker disposition of these motions. For further discussion of this rule, see the advisory committee note to rule 3 of the Sec. 2254 rules. -HEAD- RULE 4. PRELIMINARY CONSIDERATION BY JUDGE (a) Reference to judge; dismissal or order to answer. The original motion shall be presented promptly to the judge of the district court who presided at the movant's trial and sentenced him, or, if the judge who imposed sentence was not the trial judge, then it shall go to the judge who was in charge of that part of the proceedings being attacked by the movant. If the appropriate judge is unavailable to consider the motion, it shall be presented to another judge of the district in accordance with the procedure of the court for the assignment of its business. (b) Initial consideration by judge. The motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate. -MISC8- ADVISORY COMMITTEE NOTE Rule 4 outlines the procedure for assigning the motion to a specific judge of the district court and the options available to the judge and the government after the motion is properly filed. The long-standing majority practice in assigning motions made pursuant to Sec. 2255 has been for the trial judge to determine the merits of the motion. In cases where the Sec. 2255 motion is directed against the sentence, the merits have traditionally been decided by the judge who imposed sentence. The reasoning for this was first noted in Currell v. United States, 173 F.2d 348, 348-349 (4th Cir. 1949): Complaint is made that the judge who tried the case passed upon the motion. Not only was there no impropriety in this, but it is highly desirable in such cases that the motions be passed on by the judge who is familiar with the facts and circumstances surrounding the trial, and is consequently not likely to be misled by false allegations as to what occurred. This case, and its reasoning, has been almost unanimously endorsed by other courts dealing with the issue. Commentators have been critical of having the motion decided by the trial judge. See Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1206-1208 (1970). [T]he trial judge may have become so involved with the decision that it will be difficult for him to review it objectively. Nothing in the legislative history suggests that "court" refers to a specific judge, and the procedural advantages of section 2255 are available whether or not the trial judge presides at the hearing. The theory that Congress intended the trial judge to preside at a section 2255 hearing apparently originated in Carvell v. United States, 173 F.2d 348 (4th Cir. 1949) (per curiam), where the panel of judges included Chief Judge Parker of the Fourth Circuit, chairman of the Judicial Conference committee which drafted section 2255. But the legislative history does not indicate that Congress wanted the trial judge to preside. Indeed the advantages of section 2255 can all be achieved if the case is heard in the sentencing district, regardless of which judge hears it. According to the Senate committee report the purpose of the bill was to make the proceeding a part of the criminal action so the court could resentence the applicant, or grant him a new trial. (A judge presiding over a habeas corpus action does not have these powers.) In addition, Congress did not want the cases heard in the district of confinement because that tended to concentrate the burden on a few districts, and made it difficult for witnesses and records to be produced. 83 HARV.L.REV. AT 1207-1208 The Court of Appeals for the First Circuit has held that a judge other than the trial judge should rule on the 2255 motion. See Halliday v. United States, 380 F.2d 270 (1st Cir. 1967). There is a procedure by which the movant can have a judge other than the trial judge decide his motion in courts adhering to the majority rule. He can file an affidavit alleging bias in order to disqualify the trial judge. And there are circumstances in which the trial judge will, on his own, disqualify himself. See, e.g., Webster v. United States, 330 F.Supp. 1080 (1972). However, there has been some questioning of the effectiveness of this procedure. See Developments in the Law - Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1200-1207 (1970). Subdivision (a) adopts the majority rule and provides that the trial judge, or sentencing judge if different and appropriate for the particular motion, will decide the motion made pursuant to these rules, recognizing that, under some circumstances, he may want to disqualify himself. A movant is not without remedy if he feels this is unfair to him. He can file an affidavit of bias. And there is the right to appellate review if the trial judge refuses to grant his motion. Becau

Online Attorney