Local Rule LCvR 2254: ACTIONS UNDER 28 U.S.C. § 2254

LCvR 2254 ACTIONS UNDER 28 U.S.C. § 2254 A. Scope.

1. These rules shall apply in the United States District Court, Western District of Pennsylvania, in all proceedings initiated under 28 U.S.C. § 2254. In addition to these rules, all parties also should consult 28 U.S.C. § 2254 and 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.

2. These Local Rules are intended to supplement, when necessary, the corresponding rules promulgated by the United States Supreme Court that are entitled "Rules Governing Section 2254 Proceedings for the United States District Courts." Those rules are cited herein as "the Federal 2254 Rules," and a specific Federal 2254 Rule is cited as "Federal 2254 Rule ___." All parties should consult the Federal 2254 Rules at the commencement of litigation to ensure compliance with the Federal 2254 Rules, as supplemented by these Local Rules. In filings submitted to this Court, these Local Rules shall be cited as "LCvR 2254.__."

B. The Petition.

1. Naming the Respondent. If the petitioner is currently under a state Court judgment and he or she is challenging the state Court conviction/sentence, he or she must name as respondent the state officer who has custody (i.e., the warden or superintendent). The petitioner must also name as respondent the District Attorney of the county in which he or she was convicted and sentenced. If a petitioner is challenging parole proceedings, he or she must name as respondent the Pennsylvania Board of Probation and Parole.

2. Form.

a. Form of Petitions Required. A petitioner who files a petition seeking relief pursuant to 28 U.S.C. § 2254 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 or the form attached to the Federal 2254 Rules. Petitions that do not utilize the standard forms shall contain all of the information required by the standard forms. If the petitioner is represented by counsel, the 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. § 2254 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. § 2254 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 Federal 2254 Rule 2, as supplemented by these Local Rules, the Clerk of Court will accept the petition and file it for the sole purpose of preserving the timeliness. If the Court so directs, the filing may be returned to a 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 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 imposition of a sentence of death pursuant to a state 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 2254 petition shall be filed with the Clerk of Court. Section 2254 petitions must be accompanied by the applicable filing fee or for leave to proceed in forma pauperis.

D. Preliminary Review. These Local Rules provide no supplement to Federal 2254 Rule 4. Please consult that rule regarding preliminary review.

E. The Answer and the Reply.

1. The Answer.

a. When Required. Upon the directive of the Court, the respondent shall file an Answer to the petition in a form consistent with LCvR 2254.E.1.b-f.

The Respondent may, within the time frame permitted by the Court for the filing of the Answer, file a motion to dismiss if the respondent believes that there is a clear procedural bar to the action, such as the failure to exhaust, statute of limitations, abuse of the writ, and/or successive petitions. A motion to dismiss need not be in a form consistent with LCvR 2254.E.1.b-f. However, such a motion must be accompanied by a certified copy of all relevant state Court records.

b. Contents. The Answer is more than just a responsive pleading that simply admits or denies the allegations contained in the petition. In habeas petitions challenging a state conviction/sentence, the Answer shall contain a discussion of the relevant procedural and factual history of all state proceedings, including the state Court trial, direct appeal, and post-conviction proceedings. In habeas petitions challenging state parole proceedings, the Answer shall contain the relevant procedural and factual history of the parole proceedings and any state Court proceedings which related to the parole proceedings.

The Answer also shall address procedural issues, the merits of the petition, and shall contain accompanying legal argument and citation to appropriate authorities. All assertions of historical or procedural facts shall be accompanied by citations to the state Court record and shall appear in a style comporting with the designations employed in the index of materials prepared in accordance with LCvR 2254.E.1.d.

c. The respondent must also provide the Court with a certified copy of all relevant transcripts of the state trial and post-conviction proceedings; relevant documentary evidence admitted at those proceedings; briefs submitted by either party to any state Court relating to the matter; opinions and dispositive orders of the state Court or agency; other relevant state Court/agency records; and a certified copy of the docket sheets of all the state Courts/agencies involved. Care should be taken so that all items are photocopied accurately, legibly, and in full.

d. The respondent shall also submit an index of all material described in LCvR 2254.E.1.c. The pages of the records must be sequentially numbered so that citations to those records will identify the exact location where the information appears.

e. If any item identified in LCvR 2254.E.1.c is not available at the time the respondent submits an answer, the respondent shall notify the Court that the item is unavailable. Once the item becomes available, the respondent shall provide a supplemental lodging of the item and index within 21 days of its availability.

f. As set forth in this Court's "Electronic Case Filing Policies and Procedures," in addition to the items that must be filed electronically with the Answer, a respondent shall also submit the original state Court records, or a certified complete copy of those records. The records shall be submitted in the traditional manner on paper. The Clerk of Court shall note on the docket that the original state Court records have been received. State Court records are not part of this Court's permanent case file and will be returned to the appropriate state Court upon final disposition, including appeals.

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 Answer. If the petitioner wishes to file a Reply after 30 days have passed, he or she must file a motion requesting leave to do so. An extension may be granted only for good cause shown.

F. Discovery. These Local Rules provide no supplement to Federal 2254 Rule 6. Please consult that rule regarding discovery.

G. Expanding the Record. If either party intends to rely on any document(s) that are not a part of the state Court record, such party must include those documents in a separate appendix attached to the pleading by which those documents are being submitted. In addition, that party should address, in its documents filed with the Court, why reliance on those documents is proper under the federal habeas statute and Federal 2254 Rule 7.

H. Evidentiary Hearing. These Local Rules provide no supplement to Federal 2254 Rule 8. Please consult that rule regarding evidentiary hearings.

I. Second or Successive Petitions. These Local Rules provide no supplement to Federal 2254 Rule 9. Please consult that rule regarding second or successive petitions.

J. Powers of a Magistrate Judge. Within 21 days of commencement of a Section 2254 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.

K. Applicability of the Federal Rules of Civil Procedure. These Local Rules provide no supplement to Federal 2254 Rule 11. Please consult that rule regarding applicability of the Federal Rules of Civil Procedure.

L. Appeals.

1. Upon entry of a final decision decided pursuant to 28 U.S.C. § 2254, 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 above in said Rule.

M. The Appointment of Counsel. There is no constitutional right to counsel in proceedings brought pursuant to 28 U.S.C. § 2254. Financially eligible petitioners may, however, request that counsel be appointed at any time. See 18 U.S.C. § 3006A. Pursuant to Federal 2254 Rule 6(a), the Court may, if necessary for effective discovery, appoint counsel for a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A. Pursuant to Federal 2254 Rule 8(c), if an evidentiary hearing is warranted, the Court must appoint counsel to represent a moving party 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 Federal 2254 Rule 6(a), Federal 2254 Rule 8(c), or 18 U.S.C. § 3006A Comment (June 2008)

All non-death penalty Section 2254 habeas cases in the Erie and Pittsburgh Divisions are assigned to a Magistrate Judge only. (Death penalty Section 2254 habeas cases continue to be assigned to District Judges only.)