In my book, WinningCites: Section 2255, a Handbook for Prisoners and Lawyers, I shed light on these obstacles and explain why they exist and how to navigate them. Most of the battle in federal habeas is knowing why things happen the way that they do and how to deal with them. This column, my fourth in a series on federal habeas corpus relief, is an overview of filing procedures you will face pursuing relief in federal court.
Not only do you have the rulesgoverning federal habeas proceedings covering your federal habeas case, but there’s also a slew of rules under the Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure that also apply to federal habeas cases. The easiest way to digest all of this is to know that the habeas rules apply first, and then the civil and criminal rules apply if the habeas rules don’t cover the issue. Thankfully, only a handful of the civil and criminal rules actually apply in the average habeas case.
While pro se filers (those without a lawyer) are given leeway by the courts, the courts still expect them to follow the rules. “Liberal construction” of pro se pleadings simply means the courts must construe your papers so that you don’t inadvertently sabotage good claims because of your bad writing. Some courts are more forgiving than others, especially if you at least make the effort to follow the rules.
An important point, whether you’re using a lawyer or filing pro se, is that everything you put in your petition under 28 U.S.C. § 2254 (for state prisoners) or motion under 28 U.S.C. § 2255 (for federal prisoners) is filed under the penalty of perjury. This is the same as if you were standing before the court with your hand raised, swearing to tell the truth. And courts take this seriously: Prisoners have been convicted of perjury in habeas cases and have had more time added to their sentences for lying in habeas petitions and motions. United States v. Roberts, 308 F.3d 1147 (11th Cir. 2002) (adding 15 months after perjury conviction under 18 U.S.C. § 1521 for lying in a § 2255 application).
You must file a separate petition or motion for each judgment you’re challenging, even if the judgments are from the same court. However, if you had two criminal cases that were consolidated for sentencing and only one judgment was entered for both, you only need to file one motion to challenge both criminal cases. It all depends on how many judgments were entered, not the number of criminal case numbers.
Your pro se petition or motion is considered “filed” when you hand it to prison officials for mailing to the court. The Supreme Court created this so-called “mailbox rule” because prisoners have no control over when and if prison staff will deliver the papers to the court. So the Court held that once handed to staff, it’s as good as filed with the clerk, no matter when it arrives at the court. To invoke the mailbox rule, you must include a signed statement with your filing under the penalty of perjury that you used the prison’s legal mail system (if available) or regular mail and the date you did so. Houston v. Lack, 487 U.S. 266 (1988).
There is an application to file a habeas corpus petition or motion in federal court. Some courts have their own application, but they all generally follow the standard application found in the rules. Your best option, though, is to contact the court clerk and request the application that the court uses. There’s no charge for the application.
The application you file is technically your “petition” (under § 2254) or “motion” (under § 2255). This is the filing that opens your habeas case and gives the court jurisdiction to start the proceedings. Most courts do require the application, even if you file a memorandum in support with all the claims and facts; some courts allow you to skip the application, as long as you “substantially follow” the layout of the application.
While the application is not exactly designed to make filing your claims easier, using it will help to avoid any delays in hearing your claims, should you miss something required in the application. And as crucial as the application is in some courts, it’s really your memorandum in support of your motion that the court will be focusing on when evaluating your claims.
The Memorandum in Support
You should file a “memorandum in support” of your motion (the application) outlining the history of your case, especially focusing on the events related to your claims, and then provide detailed facts in support of your claims. Thankfully, the application doesn’t require you to provide a full discussion of your claims; instead, a concise overview with a reference to your memorandum for further details suffices.
Think of your memorandum in support as really the “facts in support” of your motion. While providing the history of your case is a good way to focus the court on the events underlying the problem that you want to highlight, it’s the facts you provide that carry the most weight. That’s the part the court will be digging into in order to decide if you are entitled to relief. So put your best efforts into the facts in your memorandum.
As mentioned in my last column dealing with the types of claims available under habeas corpus, the facts are critical in developing your claims. The Supreme Court has said that “it is the relationship of the facts to the claim asserted that is important” with habeas claims. Mayle v. Felix, 545 U.S. 644 (2005). It’s these facts that will determine whether the court will grant an evidentiary hearing or even grant relief. The standard is that if the record does not “conclusively show” your claims require relief, the court “shall” grant a hearing or relief. 28 U.S.C. § 2255(b).
You must show “a real possibility of constitutional error,” however, the Court said in Mayle. You can only do that by clearly presenting the facts. Sure, case law is important. But case law typically doesn’t amount to a claim – at least not a strong claim to gain relief. Don’t confuse a habeas proceeding with a civil proceeding. In those cases, the claims are alleged generally and then the facts are established later on, usually after discovery. Habeas corpus doesn’t follow that path, even though it’s a civil proceeding. Borden v. Allen, 646 F.3d 785 (11th Cir. 2011).
An example of a common habeas claim that gets granted often is ineffective assistance of counsel (“IAC”) for counsel’s failure to consult regarding filing an appeal. The application might allege generally that counsel was ineffective for not filing the appeal, and then the memorandum in support would provide the facts about how you tried to contact counsel to file an appeal and that person ignored you. Your family can even provide affidavits of how they attempted to contact counsel to file an appeal for you. These facts would point to a constitutional error: IAC in violation of the Sixth Amendment.
When you file your memorandum, be aware of the court’s rules on page limits. Some courts strictly adhere to page limits for filings and will either reject your filing if it’s over the limit or simply ignore anything beyond the limit. The average page limit is 25 to 30 pages and 10 for a reply. See, e.g., E.D.N.C. L.R. 7.2(f)(1)(A).
You can even attach supplemental pages to your application, instead of filing a memorandum, if you want. I don’t recommend this, unless your claims are not complex or too fact-heavy.
Should you fail to properly file your petition or motion, the rule is that the clerk should accept the deficient filing and then require you to file corrections. United States v. Zepeda, 2011 U.S. Dist. LEXIS 55631 (N.D. Ind. 2011 (explaining this rule)). This ensures that your motion is not rendered untimely filed merely because of a technicality in its form.
You could have the greatest claim in the world, but if you can’t get it properly before the court, it’s worthless. If you are filing for federal habeas corpus relief, take the time to understand the rules and procedures for properly filing your habeas corpus petition or motion in federal court. You won’t get a second chance if you mess it up.
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