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Federal Habeas Corpus: Discovery and Expanding the Record

Three procedures accomplish these conflicting goals. Understanding them will help you to build successful habeas claims and get the relief you want. The following are some pointers from my book, WinningCites: Section 2255, A Handbook for Prisoners and Lawyers, providing an overview of the procedures.


You’ll likely have a good idea of thebasis for your claims from the existing record. But your strongest habeas claims are those asserting facts outside the existing record. Discovery is a procedure that allows you to “discover” what evidence the government might have that would support your claim.

For example, assume your claim is that trial counsel failed to tell you about a favorable plea offer by the prosecutor. As a result, you later pleaded guilty to a worse deal and received a longer prison sentence. You can allege the better offer was made, and then discovery would allow you to request all notes, emails, and other documents from both your old lawyer and the prosecutor to show details of the better offer. SeeMissouri v. Frye, 566 U.S. 134 (2012) (establishing prejudice after counsel’s failure to notify of a better plea offer).

But discovery is not a “fishing expedition.” United States v. Webster, 392 F.3d 787 (5th Cir. 2004). Rule 6 of the Rules Governing Section 2255 Proceedings for the United States District Courts (“Rule 6”) requires that you show “good cause” for discovery, which the Supreme Court has defined as “specific allegations” that would show if the facts are fully developed, you’d be entitled to relief. Bracy v. Gramley, 520 U.S. 899 (1997).

You also need the court’s permission for discovery. Rule 6(b) states that when requesting discovery, you “must” provide reasons, including “any proposed interrogatories” and “must specify any requested documents” to the court. If a lawyer is needed for effective discovery, Rule 6(a) states that the court “must” appoint one, if you qualify under 18 U.S.C. § 3006A.

Discovery in civil cases is governed by a set of well-developed and detailed rules and procedures; Rule 6 incorporates the civil discovery rules. Consequently, being familiar with civil discovery procedures will help in your efforts with habeas discovery. See Fed. R. Civ. Proc. 26.

Expanding the Record


nother way to develop the record to support your claims is by “expanding” the record with evidence not already in the criminal record. More often, though, expanding the record is used by the court to dispose of your habeas case without a hearing.

In fact, the purpose of expanding the record under habeas Rule 7 is so that an evidentiary hearing can be avoided. In creating Rule 7, the Rules Committee said that the rule’s purpose is “to enable the judge to dispose of some habeas petitions not dismissed on the pleading, without the time and expense required for an evidentiary hearing.” Murray v. Carrier, 477 U.S. 478 (1986).

A simple way I’ve seen courts expand the record is by issuing a “questionnaire” in an attempt to “clarify” the claims by having the prisoner answer questions about himself. The answers are submitted under the penalty of perjury and are not different from testimony in court. See Epps v. Davis, 2018 U.S. Dist. LE8876 (N.D. Tex., June 21, 2018).

You can also use Rule 7 to expand the record. This requires permission from the court, and it’s a way for you to develop the record to support your claims. Submitting affidavits or old court records from prior convictions as evidence is a common tactic. Just remember that whatever you submit becomes a permanent part of your case record: harmful information in old court records could work to your disadvantage later down the road. It’s happened, so be careful.

State prisoners filing under 28 U.S.C. § 2254 have a hurdle that federal prisoners under 28 U.S.C. § 2255 don’t have. They must meet the harsh standard under § 2254(e)(2) when expanding the record with new evidence under Rule 7. Under this standard established by the Antiterrorism and Effective Death Penalty Act (“AEDPA”) that severely restricts relief to state prisoners, you must show that the new facts could not have been discovered with due diligence earlier.

There’s two parts to this: (1) new evidence and (2) due diligence. You might prove the evidence is new, like DNA evidence, but the due diligence part is difficult if you’ve waited too long. Some say this is unfair and the restriction applies only to evidentiary hearing requests, but so far, courts have all said the restriction applies to all new evidence, even without an evidentiary hearing. See Mark v. Ault, 498 F.3d 775 (8th Cir. 2007).

A “limited” expansion of the record with new evidence, however, is not controlled by § 2254(e)(2), courts instruct, because that falls under a court’s “discretion.” Brentlinger v. Marquis, 2020 U.S. Dist. LEXIS 125726 (N.D. Ohio, May 6, 2020) (explaining this issue).

Amending and Supplementing Your Motion

Amending and supplementing your motion are two very different things, even though the terms are used interchangeably by the courts. In short, a supplement adds to your existing motion, but an amendment replaces your motion. Some courts are flexible with this, while some strictly follow local rules. See E.D. Tenn. L.R. 15.1 (requiring an amendment to replace the original motion and not incorporate any prior filings by reference in the amendment).

Generally, Rule 15 of the Federal Rules of Civil Procedure controls both types of actions. You don’t need the court’s permission to amend if you do so within 21 days of service on the government. While habeas Rule 4 states that the court serves the government (and not you), you can still amend your filings while the court determines whether to serve the government or dismiss your motion. After service, though, you’ll need the court’s permission. Mayle v. Felix, 545 U.S. 644 (2005).

Filing another habeas while you already have one pending will be taken as an amendment to the pending case. While all courts agree that a new habeas filed while you have an open habeas in the district court is an amendment, some courts stop there, but others allow a new habeas to amend a habeas case, even if it’s on appeal. The courts are completely divided on this issue, however. Ching v. United States, 298 F.3d 174 (2d Cir. 2001) (amendment up through an appeal); Phillips v. United States, 668 F.3d 433 (7th Cir. 2012) (amendment only while in district court).


Properly developing the record is often overlooked in habeas cases, leading to early dismissal or denial. Take the time to grasp the concepts of discovery and expanding the record, and your habeas case will go a long way toward getting you the relief you deserve. 


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