The defendant must file a motion under 28 U.S.C. § 2255 with the clerk of the United States District Court in which the defendant was sentenced.  Court rules require pro se petitioners (and some courts even require attorneys) to use forms supplied by the Clerk. There is no filing fee.

 

The motions are presented to the judge who heard the case originally, if that judge is available.  The court examines the case file and either dismisses the motion or orders the government to answer.  The court must dismiss the motion if it decides that the claims raised, even if true, would not justify relief, or where the record conclusively disproves the claims.

 

After the government answers the motion, the defendant may have an opportunity to reply, either automatically or after filing a motion for leave to file a reply.

 

After these papers have been filed, the district court will either grant or deny relief, or decide in its discretion to hold a hearing.[163]  Hearings are held only where the court feels critical facts are in dispute.  At the hearing, Rule 8(c) requires the court to appoint counsel for pro se defendants who cannot afford to hire counsel. The prisoner can be brought to court for the hearing if his or her testimony is required, or for any other reason approved by the judge.

 

[163] Fed.R. Gov. § 2255 Proc. 8(a).

POST CON RELIEF " HABEAS " REVIEW OF STATE CONVICTION IS LIMITED TO RECORD BEFORE STATE COURT
Cullen v. Pinholster, ___ S.Ct. ___, 2011 WL 1225705 (Apr. 4, 2011) (on federal habeas corpus review of a state court conviction, pursuant to 28 U. S. C. 2254, raising a claim of ineffective counsel, under 28 U.S.C. 2254(d)(1) the federal court is limited only to the record that was before the state court that adjudicated the claim on the merits).

POST CON RELIEF " FEDERAL " HABEAS " EXCEPTIONS TO PRESUMPTION OF CORRECTNESS GIVEN TO LOWER COURT
Jefferson v. Upton, 130 S.Ct. 2217 (May 24, 2010) (in a capital habeas matter, the Eleventh Circuit's affirmance of a denial of petitioner's habeas petition is vacated and remanded where the court of appeals did not fully consider several remaining potentially applicable exceptions to the presumption of correctness given to state court factual findings under 28 U.S.C. sections 2254(d)(1)"(8)).

POST CON RELIEF - US SUPREME COURT - FEDERAL HABEAS RULES DO NOT LIMIT STATE COURT AUTHORITY TO REMEDY TEAGUE NONRETROACTIVE VIOLATIONS
Danforth v. Minnesota, 128 S.Ct. 1029 (Feb. 20, 2008) (rule of Teague v. Lane, 489 U. S. 288 (1989), does not limit the authority of state courts to give broader effect to new rules of criminal procedure than is required by Teague).

HABEAS CORPUS - FEDERAL - POWER TO DISMISS ON OWN MOTION
Day v. McDonough, __ U.S. ___ (Apr. 25, 2006) (district court had the power (after giving petitioner notice and a chance to respond) to dismiss a state habeas petition for untimeliness even though the State erroneously agreed it was timely. If the waiver by the State had been deliberate, it would have been an abuse of discretion to dismiss it, but here it was just an error).

POST CON RELIEF - HABEAS - FEDERAL - APPEAL - CERTIFICATE OF APPEALABILITY
Tennard v. Dretke, 124 S.Ct. 2562 (June 24, 2004) (district court should have issued certificate of appealability, because reasonable jurist could have found district court's assessment of constitutional claims relating to defendant's low IQ of 67 debatable or wrong).
http://laws.lp.findlaw.com/us/000/02-10038.html

POST CONVICTION RELIEF - HABEAS - FEDERAL HABEAS - STATE CONVICTION - WARNING TO PRO SE PLAINTIFF
Pliler v. Ford, 124 S.Ct. 2441 (June 21, 2004) (no requirement that district court warn pro se plaintiff bringing habeas petition that it could not consider motions to stay unless plaintiff dismissed unexhausted claims, or that if he chose to dismiss the claims, they would be time-barred if raised in the future).
http://laws.lp.findlaw.com/us/000/03221.html

First Circuit

POST CON RELIEF " FEDERAL " HABEAS CORPUS " EQUAL ACCESS TO JUSTICE ACT " ATTORNEY FEES
Saysana v. Gillen, 614 F.3d 1, 6 (1st Cir. Jul. 14, 2010) (petition for award of attorneys fees under Equal Access to Justice Act following grant of habeas corpus denied, because governments position was substantially justified: We declined to accept the Government's view that 1226(c) was ambiguous. However, just because the Government's position-or, more precisely, one aspect of the Government's position-does not, in the end, win the day, does not mean that the Government's position is not substantially justified. Rather, we must determine if the Government's position has a reasonable basis in law and fact. Under the circumstances presented here, we must conclude that the Government's position had such a reasonable basis.).

POST CON - HABEAS - EXHAUSTION REQUIREMENT
Sayyah v. Farquharson, ___ F.3d ___, 2004 WL 1921824 (1st Cir. Aug. 30, 2004) (bar judicial review of final removal orders unless noncitizen has exhausted all administrative remedies to which s/he has a right, under 8 U.S.C. 1252(d), applies to bar habeas corpus petitions as to unexhausted claims).

Ninth Circuit

POST CON RELIEF " FEDERAL " RULE 60(B) MOTION
Mackey v. Hoffman, 682 F.3d 1247 (9th Cir. Jun. 25, 2012) (district court properly granted incarcerated habeas petitioner relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) where his attorney's abandonment caused him to fail to timely file a notice of appeal).

POST CON RELIEF - HABEAS CORPUS - FEDERAL - SUFFICIENCY OF EVIDENCE AT CLOSE OF CASE-IN-CHIEF
LaMere v. Slaughter, 458 F.3d 878 (9th Cir. Aug. 8, 2006) (habeas relief properly denied, despite claims under In re Winship, 397 U.S. 358 (1970), and Jackson v. Virginia, 443 U.S. 307 (1979), on the grounds that the prosecution failed to introduce sufficient evidence of guilt during case-in-chief, since Winship and Jackson do not apply to a motion for directed verdict of acquittal at the close of the case-in-chief; court on habeas looks at all the evidence presented to determine if it was sufficient).

POST CON RELIEF - HABEAS CORPUS - FEDERAL - REMAND FOR EVIDENTIARY HEARING
Earp v. Ornoski, ___ F.3d ___ (9th Cir. Dec. 16, 2005) (claim of ineffective assistance for failure to investigate mitigating circumstances merited evidentiary hearing).

HABEAS CORPUS - FEDERAL - NO WAIVER OF PROCEDURAL DEFAULT OBJECTION
Morrison v. Mahoney, __ F.3d __, 2005 WL 418563 (9th Cir. Feb. 23, 2005) (state did not waive procedural default argument by moving to dismiss first petition on statute of limitations grounds, and then waiving that defense when the case was returned to the district court after a successful appeal; procedural default doctrine "bars federal habeas when a state court declined to address a prisoners federal claims because the prisoner had failed to meet a state procedural requirement." [Calderon v. United States District Court, 96 F.3d 1126, 1129 (9th Cir. 1996) (internal quotations omitted)]; the petitioner can avoid the effect of a procedural default by showing cause and prejudice or manifest injustice [Martinez-Villareal v. Lewis, 80 F.3d 1301, 1307 (9th Cir. 1996)]; it must be raised by the government in its first responsive pleading, but the motion to dismiss was not a responsive pleading).

HABEAS CORPUS - FEDERAL - EXPANSION OF RECORD
Cooper-Smith v. Palmateer, 397 F.3d 1236 (9th Cir. Feb. 16, 2005) (district court properly refused petitioners request to expand the record under Rule 7 of rules governing 28 U.S.C. section 2254 cases with his own declaration, on the grounds that petitioner had failed to comply with section 2254(e)(2), requiring that petitioner show the factual predicate could not have been discovered previously).

HABEAS CORPUS - FEDERAL - PROCEDURAL DEFAULT
Henderson v. Lampert, 396 F.3d 1049 (9th Cir. Jan. 28, 2005) (petition was "second or successive" petition barred by 28 U.S.C. section 2244(b)(1), where petition raised same claims raised in earlier petition that was dismissed on state procedural default grounds (which constitutes a decision on the merits), and petitioner failed to challenge first petitions dismissal).

GUILTY PLEAS - HABEAS - HEARING REQUIRED
United States v. Howard, ___ F.3d ___ (9th Cir. Aug. 25, 2004) (district court should have permitted defendant to develop these claims on habeas petition more fully in an evidentiary hearing; claim must be "so palpably incredible or patently frivolous as to warrant summary dismissal" to justify refusal of an evidentiary hearing); citing United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)).
http://caselaw.lp.findlaw.com/data2/circs/9th/0216228p.pdf

POST CON - HABEAS - STATUTE OF LIMITATIONS - AMENDMENT RELATES BACK TO DATE OF ORIGINAL FILING
Felix v. Mayle, 379 F.3d 612 (9th Cir. Aug. 09, 2004) (amendment to habeas petition to include new claim relates back to date of filing of original petition, and therefore avoids one year limitation under AEDPA).