L.A.R. 22.5: Application for Authorization to File a Second or Successive Petition Under 28 U.S.C. § 2254 or § 2255

(a) Forms for filing an application to file a second or successive petition under 28 U.S.C. § 2254 or § 2255 are available from the clerk. If the form application is not used, the application must contain the information requested in the form. The application must be accompanied by:

(1) the proposed new § 2254 or § 2255 petition;

(2) copies of all prior § 2254 or § 2255 petitions;

(3) copies of the docket entries in all prior § 2254 or § 2255 proceedings;

(4) copies of all magistrate judge’s reports, district court opinions and orders disposing of the prior petitions; and

(5) any other relevant documents.

(b) The application may be accompanied by a memorandum, not exceeding 20 pages, clearly stating how the standards of § 2244(b) and/or § 2255 are satisfied.

(c) The movant must serve a copy of the application for authorization to file a second or successive petition and all accompanying attachments on the appropriate respondent.

(d) Any response to the application must be filed within 7 days of the filing of the application with the clerk.

(e) If the court determines that the motion and accompanying materials are not sufficiently complete to assess the motion, the court may deny the motion with or without prejudice to refiling or may in its discretion treat the motion as lodged, the filing being deemed complete when the deficiency is remedied.

(f) The clerk will transmit a copy of any order granting authorization to file a second or successive petition to the appropriate district court together with a copy of the petition.

(g) No filing fee is required for an application to file a second or successive petition. If the application is granted, the filing of the petition in the district court will be subject to the requirements of 28 U.S.C. § 1915(a).

(h) If the district court enters an order transferring to the court of appeals an application to file a second or successive petition or a § 2254 or § 2255 petition that the district court deems to be a second or successive petition requiring authorization, the clerk of the district court must promptly certify the record to the court of appeals as provided in L.A.R. 11.2. The record must include the documents listed in part (a)(1) through (5) of this rule. The clerk of the district court must transmit copies of its order of transfer and any necessary documents to the appropriate respondent.

(i) If a case transferred by the district court does not contain a statement by the applicant as to how the standards of § 2244(b) or § 2255 are satisfied, the clerk may direct the applicant to file a memorandum clearly stating how the statutory standards are met. Failure to file a memorandum as directed will result in the dismissal of the case by the clerk without further notice. If the applicant files a memorandum as directed, the time prescribed in § 2244(b)(3)(D) for deciding the application will run from the date the memorandum is filed.

(j) If an appeal is taken in a case in which the district court issued an order denying a petition under § 2254 or § 2255 on the grounds that it is a second or successive petition that requires authorization under § 2244, the record on appeal certified to this court must include the documents listed in part (a)(1) through (5) of this rule.

Technical changes were made in 1997 to conform to the Antiterrorism and Effective Death Penalty Act. Revisions were made in 2008 to accommodate electronic records.