Local Rule Rule 72.2: PRISONER PETITIONS FOR POST-CONVICTION RELIEF INCLUDING RELIEF UNDER 28 U.S.C. § 2241, § 2254 AND § 2255

Rule 72.2 PRISONER PETITIONS FOR POST-CONVICTION RELIEF INCLUDING RELIEF UNDER 28 U.S.C. § 2241, § 2254 AND § 2255.

(a) Magistrate Judge Duties. A magistrate judge may perform any or all of the duties imposed upon a district judge in proceedings involving petitions for post-conviction relief made by individuals convicted of criminal offenses. However, an order disposing of the petition may be made only by a district judge. A magistrate judge may issue preliminary orders, conduct evidentiary hearings or other proceedings and may submit to a district judge findings of fact and recommendations for final disposition of the petition.

(b) Initial Review. The district judge shall conduct an initial review of the post-conviction petition to determine if the petition is frivolous on its face. If the petition does not appear to be frivolous, the district judge may either retain the case or refer it to a magistrate judge. If the petition is not frivolous on its face, the Court shall enter an order directing the Clerk of Court to immediately serve the petition on the named respondent(s) in accordance with Fed R. Civ. P. 5. The respondent(s) shall respond in accordance with Fed. R. Civ. P. 12.

(c) Evidentiary Hearing. A district judge or magistrate judge may set and conduct an evidentiary hearing after an answer or motion to dismiss is filed. The petitioner and out-of-town witnesses shall appear at hearings by telephone, unless otherwise ordered by the Court. The parties may be required to submit proposed findings of fact and conclusions of law.

(d) Filing Fees. Except for petitions under 28 U.S.C. § 2255, before a petition is reviewed by the district judge or magistrate judge, the prisoner must pay the appropriate filing fee or file a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. No filing fee is required for petitions under 28 U.S.C. § 2255. If the Court grants the motion for leave to proceed in forma pauperis, the prisoner shall be required to pay the filing fee in the manner set forth in 28 U.S.C. § 1915.

(e) Forms. Upon request, the Clerk of Court shall provide forms for petitions for a writ of habeas corpus under 28 U.S.C. § 2254, motions to vacate, set aside or correct a sentence under 28 U.S.C. § 2255, and motions for leave to proceed in forma pauperis.

(f) Motions. The filing and briefing of any motions and responses thereto shall be subject to the provisions of Local Rule 7.1.