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se the trial judge is thoroughly familiar with the case, there is obvious administrative advantage in giving him the first opportunity to decide whether there are grounds for granting the motion. Since the motion is part of the criminal action in which was entered the judgment to which it is directed, the files, records, transcripts, and correspondence relating to that judgment are automatically available to the judge in his consideration of the motion. He no longer need order them incorporated for that purpose. Rule 4 has its basis in Sec. 2255 (rather than 28 U.S.C. Sec. 2243 in the corresponding habeas corpus rule) which does not have a specific time limitation as to when the answer must be made. Also, under Sec. 2255, the United States Attorney for the district is the party served with the notice and a copy of the motion and required to answer (when appropriate). Subdivision (b) continues this practice since there is no respondent involved in the motion (unlike habeas) and the United States Attorney, as prosecutor in the case in question, is the most appropriate one to defend the judgment and oppose the motion. The judge has discretion to require an answer or other appropriate response from the United States Attorney. See advisory committee note to rule 4 of the Sec. 2254 rules. -HEAD- RULE 5. ANSWER; CONTENTS (a) Contents of answer. The answer shall respond to the allegations of the motion. In addition it shall state whether the movant has used any other available federal remedies including any prior post-conviction motions under these rules or those existing previous to the adoption of the present rules. The answer shall also state whether an evidentiary hearing was accorded the movant in a federal court. (b) Supplementing the answer. The court shall examine its files and records to determine whether it has available copies of transcripts and briefs whose existence the answer has indicated. If any of these items should be absent, the government shall be ordered to supplement its answer by filing the needed records. The court shall allow the government an appropriate period of time in which to do so, without unduly delaying the consideration of the motion. -MISC9- ADVISORY COMMITTEE NOTE Unlike the habeas corpus statutes (see 28 U.S.C. Secs. 2243, 2248) Sec. 2255 does not specifically call for a return or answer by the United States Attorney or set any time limits as to when one must be submitted. The general practice, however, if the motion is not summarily dismissed, is for the government to file an answer to the motion as well as counter-affidavits, when appropriate. Rule 4 provides for an answer to the motion by the United States Attorney, and rule 5 indicates what its contents should be. There is no requirement that the movant exhaust his remedies prior to seeking relief under Sec. 2255. However, the courts have held that such a motion is inappropriate if the movant is simultaneously appealing the decision. We are of the view that there is no jurisdictional bar to the District Court's entertaining a Section 2255 motion during the pendency of a direct appeal but that the orderly administration of criminal law precludes considering such a motion absent extraordinary circumstances. WOMACK V. UNITED STATES, 395 F.2D 630, 631 (D.C.CIR. 1968) Also see Masters v. Eide, 353 F.2d 517 (8th Cir. 1965). The answer may thus cut short consideration of the motion if it discloses the taking of an appeal which was omitted from the form motion filed by the movant. There is nothing in Sec. 2255 which corresponds to the Sec. 2248 requirement of a traverse to the answer. Numerous cases have held that the government's answer and affidavits are not conclusive against the movant, and if they raise disputed issues of fact a hearing must be held. Machibroda v. United States, 368 U.S. 487, 494, 495 (1962); United States v. Salerno, 290 F.2d 105, 106 (2d Cir. 1961); Romero v. United States, 327 F.2d 711, 712 (5th Cir. 1964); Scott v. United States, 349 F.2d 641, 642, 643 (6th Cir. 1965); Schiebelhut v. United States, 357 F.2d 743, 745 (6th Cir. 1966); and Del Piano v. United States, 362 F.2d 931, 932, 933 (3d Cir. 1966). None of these cases make any mention of a traverse by the movant to the government's answer. As under rule 5 of the Sec. 2254 rules, there is no intention here that such a traverse be required, except under special circumstances. See advisory committee note to rule 9. Subdivision (b) provides for the government to supplement its answers with appropriate copies of transcripts or briefs if for some reason the judge does not already have them under his control. This is because the government will in all probability have easier access to such papers than the movant, and it will conserve the court's time to have the government produce them rather than the movant, who would in most instances have to apply in forma pauperis for the government to supply them for him anyway. For further discussion, see the advisory committee note to rule 5 of the Sec. 2254 rules. -HEAD- RULE 6. DISCOVERY (a) Leave of court required. A party may invoke the processes of discovery available under the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure or elsewhere in the usages and principles of law if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise. If necessary for effective utilization of discovery procedures, counsel shall be appointed by the judge for a movant who qualifies for appointment of counsel under 18 U.S.C. Sec. 3006A(g). (b) Requests for discovery. Requests for discovery shall be accompanied by a statement of the interrogatories or requests for admission and a list of the documents, if any, sought to be produced. (c) Expenses. If the government is granted leave to take the deposition of the movant or any other person, the judge may as a condition of taking it direct that the government pay the expenses of travel and subsistence and fees of counsel for the movant to attend the taking of the deposition. -MISC10- ADVISORY COMMITTEE NOTE This rule differs from the corresponding discovery rule under the Sec. 2254 rules in that it includes the processes of discovery available under the Federal Rules of Criminal Procedure as well as the civil. This is because of the nature of a Sec. 2255 motion as a continuing part of the criminal proceeding (see advisory committee note to rule 1) as well as a remedy analogous to habeas corpus by state prisoners. See the advisory committee note to rule 6 of the Sec. 2254 rules. The discussion there is fully applicable to discovery under these rules for Sec. 2255 motions. -HEAD- RULE 7. EXPANSION OF RECORD (a) Direction for expansion. If the motion is not dismissed summarily, the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the motion. (b) Materials to be added. The expanded record may include, without limitation, letters predating the filing of the motion in the district court, documents, exhibits, and answers under oath, if so directed, to written interrogatories propounded by the judge. Affidavits may be submitted and considered as a part of the record. (c) Submission to opposing party. In any case in which an expanded record is directed, copies of the letters, documents, exhibits, and affidavits proposed to be included shall be submitted to the party against whom they are to be offered, and he shall be afforded an opportunity to admit or deny their correctness. (d) Authentication. The court may require the authentication of any material under subdivision (b) or (c). -MISC11- ADVISORY COMMITTEE NOTE It is less likely that the court will feel the need to expand the record in a Sec. 2255 proceeding than in a habeas corpus proceeding, because the trial (or sentencing) judge is the one hearing the motion (see rule 4) and should already have a complete file on the case in his possession. However, rule 7 provides a convenient method for supplementing his file if the case warrants it. See the advisory committee note to rule 7 of the Sec. 2254 rules for a full discussion of reasons and procedures for expanding the record. -HEAD- RULE 8. EVIDENTIARY HEARING (a) Determination by court. If the motion has not been dismissed at a previous stage in the proceeding, the judge, after the answer is filed and any transcripts or records of prior court actions in the matter are in his possession, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice dictates. (b) Function of the magistrate. (1) When designated to do so in accordance with 28 U.S.C. Sec. 636(b), a magistrate may conduct hearings, including evidentiary hearings, on the motion, and submit to a judge of the court proposed findings and recommendations for disposition. (2) The magistrate shall file proposed findings and recommendations with the court and a copy shall forthwith be mailed to all parties. (3) Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. (4) A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify in whole or in part any findings or recommendations made by the magistrate. (c) Appointment of counsel; time for hearing. If an evidentiary hearing is required, the judge shall appoint counsel for a movant who qualifies for the appointment of counsel under 18 U.S.C. Sec. 3006A(g) and the hearing shall be conducted as promptly as practicable, having regard for the need of counsel for both parties for adequate time for investigation and preparation. These rules do not limit the appointment of counsel under 18 U.S.C. Sec. 3006A at any stage of the proceeding if the interest of justice so requires. (d) Production of statements at evidentiary hearing. (1) In general. Federal Rule of Criminal Procedure 26.2(a)-(d), and (f) applies at an evidentiary hearing under these rules. (2) Sanctions for failure to produce statement. If a party elects not to comply with an order under Federal Rule of Criminal Procedure 26.2(a) to deliver a statement to the moving party, at the evidentiary hearing the court may not consider the testimony of the witness whose statement is withheld. -SOURCE- (As amended Pub. L. 94-426, Sec. 2(6), Sept. 28, 1976, 90 Stat. 1335; Pub. L. 94-577, Sec. 2(a)(2), (b)(2), Oct. 21, 1976, 90 Stat. 2730, 2731; Apr. 22, 1993, eff. Dec. 1, 1993.) -MISC12- ADVISORY COMMITTEE NOTE The standards for Sec. 2255 hearings are essentially the same as for evidentiary hearings under a habeas petition, except that the previous federal fact-finding proceeding is in issue rather than the state's. Also Sec. 2255 does not set specific time limits for holding the hearing, as does Sec. 2243 for a habeas action. With these minor differences in mind, see the advisory committee note to rule 8 of Sec. 2254 rules, which is applicable to rule 8 of these Sec. 2255 rules. 1993 AMENDMENT The amendment to Rule 8 is one of a series of parallel amendments to Federal Rules of Criminal Procedure 32, 32.1, and 46 which extend the scope of Rule 26.2 (Production of Witness Statements) to proceedings other than the trial itself. The amendments are grounded on the compelling need for accurate and credible information in making decisions concerning the defendant's liberty. See the Advisory Committee Note to Rule 26.2(g). A few courts have recognized the authority of a judicial officer to order production of prior statements by a witness at a Section 2255 hearing, see, e.g., United States v. White, 342 F.2d 379, 382, n.4 (4th Cir. 1959). The amendment to Rule 8 grants explicit authority to do so. The amendment is not intended to require production of a witness's statement before the witness actually presents oral testimony. AMENDMENTS 1976 - Subd. (b). Pub. L. 94-577, Sec. 2(a)(2), substituted provisions which authorized magistrates, when designated to do so in accordance with section 636(b) of this title, to conduct hearings, including evidentiary hearings, on the petition and to submit to a judge of the court proposed findings of fact and recommendations for disposition, which directed the magistrate to file proposed findings and recommendations with the court with copies furnished to all parties, which allowed parties thus served 10 days to file written objections thereto, and which directed a judge of the court to make de novo determinations of the objected-to portions and to accept, reject, or modify the findings or recommendations for provisions under which the magistrate had been empowered only to recommend to the district judge that an evidentiary hearing be held or that the petition be dismissed. Subd. (c). Pub. L. 94-577, Sec. 2(b)(2), substituted "and the hearing shall be conducted" for "and shall conduct the hearing." Pub. L. 94-426 provided that these rules not limit the appointment of counsel under section 3006A of title 18, if the interest of justice so require. EFFECTIVE DATE OF 1976 AMENDMENT Amendments made by Pub. L. 94-577 effective with respect to motions under section 2255 of this title filed on or after Feb. 1, 1977, see section 2(c) of Pub. L. 94-577, set out as a note under Rule 8 of the Rules Governing Cases Under Section 2254 of this title. -HEAD- RULE 9. DELAYED OR SUCCESSIVE MOTIONS (a) Delayed motions. A motion for relief made pursuant to these rules may be dismissed if it appears that the government has been prejudiced in its ability to respond to the motion by delay in its filing unless the movant shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the government occurred. (b) Successive motions. A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules. -SOURCE- (As amended Pub. L. 94-426, Sec. 2(9), (10), Sept. 28, 1976, 90 Stat. 1335.) -MISC13- ADVISORY COMMITTEE NOTE Unlike the statutory provisions on habeas corpus (28 U.S.C. Secs. 2241-2254), Sec. 2255 specifically provides that "a motion for such relief may be made at any time." [Emphasis added.] Subdivision (a) provides that delayed motions may be barred from consideration if the government has been prejudiced in its ability to respond to the motion by the delay and the movant's failure to seek relief earlier is not excusable within the terms of the rule. Case law, dealing with this issue, is in conflict. Some courts have held that the literal language of Sec. 2255 precludes any possible time bar to a motion brought under it. In Heflin v. United States, 358 U.S. 415 (1959), the concurring opinion noted: The statute [28 U.S.C. Sec. 2255] further provides; "A motion * * * may be made at any time." This * * * simply means that, as in habeas corpus, there is no statute of limitations, no res judicata, and that the doctrine of laches is inapplicable. 358 U.S. AT 420 McKinney v. United States, 208 F.2d 844 (D.C.Cir. 1953) reversed the district court's dismissal of a Sec. 2255 motion for being too late, the court stating: McKinney's present application for relief comes late in the day: he has served some fifteen years in prison. But tardiness is irrelevant where a constitutional issue is raised and where the prisoner is still confined. 208 F.2D AT 846, 847 In accord, see: Juelich v. United States, 300 F.2d 381, 383 (5th Cir. 1962); Conners v. United States, 431 F.2d 1207, 1208 (9th Cir. 1970); Sturrup v. United States, 218 F.Supp. 279, 281 (E.D.N.Car. 1963); and Banks v. United States, 319 F.Supp. 649, 652 (S.D.N.Y. 1970). It has also been held that delay in filing a Sec. 2255 motion does not bar the movant because of lack of reasonable diligence in pressing the claim. The statute [28 U.S.C. Sec. 2255], when it states that the motion may be made at any time, excludes the addition of a showing of diligence in delayed filings. A number of courts have considered contentions similar to those made here and have concluded that there are no time limitations. This result excludes the requirement of diligence which is in reality a time limitation. HAIER V. UNITED STATES, 334 F.2D 441, 442 (10TH CIR. 1964) Other courts have recognized that delay may have a negative effect on the movant. In Raines v. United States, 423 F.2d 526 (4th Cir. 1970), the court stated: [B]oth petitioners' silence for extended periods, one for 28 months and the other for nine years, serves to render their allegations less believable. "Although a delay in filing a section 2255 motion is not a controlling element * * * it may merit some consideration * * *." 423 F.2D AT 531 In Aiken v. United States, 191 F.Supp. 43, 50 (M.D.N.Car. 1961), aff'd 296 F.2d 604 (4th Cir. 1961), the court said: "While motions under 28 U.S.C. Sec. 2255 may be made at any time, the lapse of time affects the good faith and credibility of the moving party." For similar conclusions, see: Parker v. United States, 358 F.2d 50, 54 n. 4 (7th Cir. 1965), cert. denied, 386 U.S. 916 (1967); Le Clair v. United States, 241 F.Supp. 819, 824 (N.D. Ind. 1965); Malone v. United States, 299 F.2d 254, 256 (6th Cir. 1962), cert. denied, 371 U.S. 863 (1962); Howell v. United States, 442 F.2d 265, 274 (7th Cir. 1971); and United States v. Wiggins, 184 F. Supp. 673, 676 (D.C.Cir. 1960). There have been holdings by some courts that a delay in filing a Sec. 2255 motion operates to increase the burden of proof which the movant must meet to obtain relief. The reasons for this, as expressed in United States v. Bostic, 206 F.Supp. 855 (D.C.Cir. 1962), are equitable in nature. Obviously, the burden of proof on a motion to vacate a sentence under 28 U.S.C. Sec. 2255 is on the moving party. . . . The burden is particularly heavy if the issue is one of fact and a long time has elapsed since the trial of the case. While neither the statute of limitations nor laches can bar the assertion of a constitutional right, nevertheless, the passage of time may make it impracticable to retry a case if the motion is granted and a new trial is ordered. No doubt, at times such a motion is a product of an afterthought. Long delay may raise a question of good faith. 206 F.SUPP. AT 856-857 See also United States v. Wiggins, 184 F.Supp. at 676. A requirement that the movant display reasonable diligence in filing a Sec. 2255 motion has been adopted by some courts dealing with delayed motions. The court in United States v. Moore, 166 F.2d 102 (7th Cir. 1948), cert. denied, 334 U.S. 849 (1948), did this, again for equitable reasons. [W]e agree with the District Court that the petitioner has too long slept upon his rights. * * * [A]pparently there is no limitation of time within which * * * a motion to vacate may be filed, except that an applicant must show reasonable diligence in presenting his claim. * * * The reasons which support the rule requiring diligence seem obvious. * * * Law enforcement officials change, witnesses die, memories grow dim. The prosecuting tribunal is put to a disadvantage if an unexpected retrial should be necessary after long passage of time. 166 F.2D AT 105 In accord see Desmond v. United States, 333 F.2d 378, 381 (1st Cir. 1964), on remand, 345 F.2d 225 (1st Cir. 1965). One of the major arguments advanced by the courts which would penalize a movant who waits an unduly long time before filing a Sec. 2255 motion is that such delay is highly prejudicial to the prosecution. In Desmond v. United States, writing of a Sec. 2255 motion alleging denial of effective appeal because of deception by movant's own counsel, the court said: [A]pplications for relief such as this must be made promptly. It will not do for a prisoner to wait until government witnesses have become unavailable as by death, serious illness or absence from the country, or until the memory of available government witnesses has faded. It will not even do for a prisoner to wait any longer than is reasonably necessary to prepare appropriate moving papers, however inartistic, after discovery of the deception practiced upon him by his attorney. 333 F.2D AT 381 In a similar vein are United States v. Moore and United States v. Bostic, supra, and United States v. Wiggins, 184 F. Supp. at 676. Subdivision (a) provides a flexible, equitable time limitation based on laches to prevent movants from withholding their claims so as to prejudice the government both in meeting the allegations of the motion and in any possible retrial. It includes a reasonable diligence requirement for ascertaining possible grounds for relief. If the delay is found to be excusable, or nonprejudicial to the government, the time bar is inoperative. Subdivision (b) is consistent with the language of Sec. 2255 and relevant case law. The annexed form is intended to serve the same purpose as the comparable one included in the Sec. 2254 rules. For further discussion applicable to this rule, see the advisory committee note to rule 9 of the Sec. 2254 rules. AMENDMENTS 1976 - Subd. (a). Pub. L. 94-426, Sec. 2(9), struck out provision which established a rebuttable presumption of prejudice to government if the petition was filed more than five years after conviction. Subd. (b). Pub. L. 94-426, Sec. 2(10), substituted "constituted an abuse of the procedure governed by these rules" for "is not excusable". -HEAD- RULE 10. POWERS OF MAGISTRATES The duties imposed upon the judge of the district court by these rules may be performed by a United States magistrate pursuant to 28 U.S.C. Sec. 636. -SOURCE- (As amended Pub. L. 94-426, Sec. 2(12), Sept. 28, 1976, 90 Stat. 1335; Apr. 30, 1979, eff. Aug. 1, 1979.) -MISC14- ADVISORY COMMITTEE NOTE See the advisory committee note to rule 10 of the Sec. 2254 rules for a discussion fully applicable here as well. 1979 AMENDMENT This amendment conforms the rule to 18 U.S.C. Sec. 636. See Advisory Committee Note to rule 10 of the Rules Governing Section 2254 Cases in the United States District Courts. AMENDMENTS 1976 - Pub. L. 94-426 inserted ", and to the extent the district court has established standards and criteria for the performance of such duties," after "rule of the district court". -CHANGE- CHANGE OF NAME Reference to United States magistrate or to magistrate deemed to refer to United States magistrate judge pursuant to section 321 of Pu

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