Local Rule LCvR 2255: ACTIONS UNDER 28 U.S.C. § 2255

LCvR 2255 ACTIONS UNDER 28 U.S.C. § 2255 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. § 2255. In addition to these rules, all parties also should consult 28 U.S.C. § 2255 and the applicable provisions of the federal habeas corpus statute, 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 2255 Proceedings for the United States District Courts." Those rules are cited herein as "the Federal 2255 Rules," and a specific Federal 2255 Rule is cited as "Federal 2255 Rule ___." All parties should consult the Federal 2255 Rules at the commencement of litigation to ensure compliance with the Federal 2255 Rules, as supplemented by these Local Rules. In filings submitted to this Court, these Local Rules shall be cited as "LCvR 2255.__."

B. The Motion.

1. Form.

a. Form of Motions Required. Motions seeking relief under 28 U.S.C. § 2255 filed with this Court may be submitted on the standard form supplied by this Court. If the movant does not use the standard form, the motion must substantially follow the standard form supplied by this Court or the form attached to the Federal 2255 Rules. Motions that do not utilize the standard forms shall contain all of the information required by the standard forms.

b. Content. In the § 2255 motion, the movant 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 motion is filed.

c. Where to Get the Standard Form. The standard form supplied by this Court for 28 U.S.C. § 2255 motions can be obtained free of charge from the following sources: (i) this Court's website (www.pawd.uscourts.gov); (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 Section 2255 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 Motions that Do Not Substantially Comply With Local Form Rules. If the form or other initial filing submitted by a pro se movant does not substantially comply with Federal 2255 Rule 2, as supplemented by these Local Rules, the Clerk of Court will accept the motion 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 movant with a copy of the Court's standard form, a statement of reasons for its return, and a directive that the movant resubmit the claims outlined in the original filing on the Court's form. A movant will be given 21 days to return his or her filing on the form supplied by this Court. A party may seek leave of Court for an extension of time to return the form.

f. Certificate Required in Death Penalty Case. A movant challenging the imposition 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 and Serving the Motion.

1. The original Section 2255 motion shall be filed with the Office of the Clerk of Court.

2. Upon receiving the filing, the Clerk of Court will docket it at two places. The Clerk of Court will assign a civil case number for the motion, open that civil case, and enter the motion at that civil case number. At the same time, the Clerk of Court will file and docket the motion at the movant's related criminal case number. All filings related to the motion thereafter will be filed and docketed at the criminal case number only, with the exception of the final judgment order. The final judgment order will be filed and docketed at the civil case number only. If the movant is represented by counsel, Electronic Case Filing (ECF) procedures apply.

3. Following docketing of the filing, the Clerk of Court will deliver a copy of the filing to the United States Attorney by way of a Notice of Electronic Filing (NEF) or by hard copy. Although the United States Attorney has no obligation to do so, he or she may elect to respond to the motion prior to receipt of a District Court order directing that a response be filed.

D. Preliminary Review.

These Local Rules provide no supplement to Federal 2255 Rule 4. Please consult that rule regarding preliminary review.

E. The Answer and the Reply.

1. Order Directing Response. Upon undertaking preliminary review of the motion for relief under 28 U.S.C. § 2255 (and the United States Attorney's initial response, if any), if the Court finds that there is no basis for dismissal, the Court must enter an order directing the United States Attorney to respond by way of an Answer, motion or other form of response within 45 days. An extension may be granted only for good cause shown.

2. The Reply. Although not required, the movant may file a Reply within 30 days of the date the United States Attorney files its Answer or other form of response. If the movant 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 2255 Rule 6. Please consult that rule regarding discovery.

G. Expanding the Record. These Local Rules provide no supplement to Federal 2255 Rule 7. Please consult that rule regarding expanding the record.

H. Evidentiary Hearing. Local Rules of Criminal Procedure [insert Local Rule here when that Rule is finalized] apply at a hearing under Federal 2255 Rule 8(d).

I. Second or Successive Motions. These Local Rules provide no supplement to Federal 2255 Rule 9. Please consult that rule regarding second or successive motions.

J. Powers of a Magistrate Judge. Motions filed under 28 U.S.C. § 2255 shall be assigned to District Judges only.

K. Appeals.

1. Upon entry of a final decision on a motion decided pursuant to 28 U.S.C. § 2255, 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 subsection (a).

L. Applicability of the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure. These Local Rules provide no supplement to Federal 2255 Rule 12. Please consult that rule regarding the applicability of the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure.

M. The Appointment of Counsel. There is no constitutional right to counsel in proceedings brought under 28 U.S.C. § 2255. Financially eligible movants may, however, request that counsel be appointed at any time. See 18 U.S.C. § 3006A. Pursuant to Federal 2255 Rule 6(a), the Court may, if necessary for effective discovery, appoint counsel for a movant who qualifies to have counsel appointed under 18 U.S.C. § 3006A. Pursuant to Federal 2255 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 2255 Rule 6(a), Federal 2255 Rule 8(c), or 18 U.S.C. § 3006A.