Local Rule LCvR 2241: ACTIONS UNDER 28 U.S.C. § 2241

LCvR 2241 ACTIONS UNDER 28 U.S.C. § 2241 A. Scope. These rules shall apply in the United States District Court, Western District of Pennsylvania, in all proceedings initiated by federal prisoners under 28 U.S.C. § 2241. In filings submitted to this Court, these Local Rules shall be cited as "LCvR 2241.__." In addition to these rules, all parties also should consult the applicable provisions of the federal habeas corpus statute at 28 U.S.C. §§ 2241-2266, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), P.L. 104-132, effective April 24, 1996.

B. The Petition.

1. Naming the Respondent. If the petitioner is currently serving a sentence imposed by a federal Court and he or she is challenging the execution of his or her sentence, petitioner must name as respondent the warden or custodian of the prison or correctional facility were petitioner is incarcerated.

2. Form.

a. Form of Petitions Required. A petitioner who files a petition seeking relief pursuant to 28 U.S.C. § 2241 may submit his or her petition on the standard form supplied by this Court. If the petitioner does not use the standard form, the petition must substantially follow the standard form supplied by this Court. Petitions that do not utilize the standard form shall contain all of the information required by the standard form. If the petitioner is represented by counsel, Electronic Case Filing (ECF) procedures apply.

b. Content. The petitioner is to state all grounds for relief, provide specific facts supporting each argument, and identify the relief requested. An accompanying memorandum of law is not required but will be accepted by the Clerk of Court at the time the petition is filed.

c. Where to Get the Standard Form. The standard form supplied by this Court for 28 U.S.C. § 2241 petitions can be obtained free of charge from the following sources: (i) this Court's website (www.pawd.uscourts.gov) (FORMS/MANUALS); (ii) this Court's Office of the Clerk of Court upon request; (iii) the Federal Public Defender's website (http://paw.fd.org); or (iv) the Federal Public Defender's Office upon request.

d. Requirements Concerning Filing Format. All filings in 28 U.S.C. § 2241 proceedings must by typed, word-processed or neatly written in ink. All filings must be submitted on paper sized 8½ by 11 inches. No writing or typing shall be made on the back of any filing.

e. Return of Petitions that Do Not Substantially Comply With Local Form Rules. If the form or other initial filing submitted by a pro se petitioner does not substantially comply with these Local Rules, the filing may be returned to the pro se petitioner with a copy of the Court's standard form, a statement of reasons for its return, and a directive that the petitioner resubmit the claims outlined in the original filing on the Court's form. A petitioner will be given 21 days or as directed by the Court to return his or her filing on the form supplied by this Court. A petitioner may seek leave of Court for an extension of time to return the form.

f. Certificate Required in Death Penalty Case. A petitioner challenging the execution of a sentence of death pursuant to a federal Court judgment shall file with the Clerk of Court a copy of the "Certificate of Death Penalty Case" required by the Third Circuit L.A.R. Misc. 111.2(a). The certificate will include the following information: names, addresses, and telephone numbers of parties and counsel; if set, the proposed date of execution of the sentence; and the emergency nature of the proceedings. Upon docketing, the Clerk of Court will transmit a copy of the certificate, together with a copy of the relevant documents, to the Clerk of the Court of Appeals as required by Third Circuit L.A.R. Misc. 111.2(a).

C. Filing the Petition. The original Section 2241 petition shall be filed with the Clerk of Court. Section 2241 petitions must be accompanied by the applicable filing fee or a motion requesting leave to proceed in forma pauperis.

D. The Answer and the Reply.

1. The Answer.

a. When Required. Upon undertaking preliminary review of the motion for relief under 28 U.S.C. § 2241, if the Court finds that there is no basis for dismissal, the Court must enter an order directing the respondent to file an Answer within the time frame permitted by the Court. The respondent is not required to file a Response to the petition unless a Judge so orders. An extension may be granted only for good cause shown.

b. Contents. The Response must address the allegations in the petition. All relevant documents should be attached to the Response as exhibits. In addition, the Response must state whether any claim in the petition is barred by a failure to exhaust administrative remedies, a procedural bar, or non-retroactivity.

2. The Reply. Although not required, the petitioner may file a Reply (also known as "a Traverse") within 30 days of the date the respondent files its Response. If the petitioner wishes to file a Reply after 30 days have passed, he or she must file a motion requesting to do so and an extension may be granted only for good cause shown.

E. Powers of a Magistrate Judge. Within 21 days of commencement of a Section 2241 proceeding in the Erie or Pittsburgh Divisions, the petitioner shall execute and file a "CONSENT TO JURISDICTION BY UNITED STATES MAGISTRATE JUDGE" form, either consenting to the jurisdiction of the Magistrate Judge or electing to have the case randomly assigned to a District Judge. Respondent shall execute and file within 21 days of its appearance a form either consenting to the jurisdiction of the Magistrate Judge or electing to have the case randomly assigned to a District Judge. If all parties do not consent to Magistrate Judge jurisdiction, a District Judge shall be assigned and the Magistrate Judge shall continue to manage the case consistent with 28 U.S.C. § 636.

The "CONSENT TO JURISDICTION BY UNITED STATES MAGISTRATE JUDGE" form is available on this Court's website (www.pawd.uscourts.gov) (CASE ASSIGNMENT SYSTEM). If a party elects to have the case assigned to a District Judge, the Magistrate Judge shall continue to manage the case by deciding non-dispositive motions and submitting reports and recommendations on the petition and on dispositive motions, unless otherwise directed by the District Judge.

F. Applicability of the Federal Rules of Civil Procedure. The Federal Rules of Civil Procedure may be applied to a proceeding under these rules.

G. Appeals.

1. Upon entry of a final decision decided pursuant to 28 U.S.C. § 2241, the Court shall set forth the judgment on a separate document and enter the judgment on the civil docket as required under Fed. R. Civ. P. 58(a)(1).

2. The time for filing a notice of appeal is governed by Fed. R. App. P. 4(a) and such time commences when the Court enters the judgment as described in said Rule.

H. The Appointment of Counsel. There is no constitutional right to counsel in proceedings brought pursuant to 28 U.S.C. § 2241. Financially eligible petitioners may, however, request that counsel be appointed at any time. See 18 U.S.C. § 3006A. The Court may appoint counsel for a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A. This Local Rule is not intended to alter or limit the appointment of counsel available pursuant to 18 U.S.C. § 3006A.

Comment (June 2008)

All Section 2241 habeas cases in the Erie and Pittsburgh Divisions are assigned to a Magistrate Judge only.