Rule 2 Habeas Corpus Proceedings

(a) Petition form and content.

(1) Availability. Any person who believes he or she is unlawfully imprisoned or detained in custody, confined under unlawful conditions, or otherwise unlawfully restrained of his or her liberty, may file a petition for a writ of habeas corpus to seek review of the legality of that imprisonment or detention.

(2) Format. A petitions for writ of habeas corpus shall be writing and must be dated and must be signed under oath by the party seeking relief or, if authorized by law, by someone on that party's behalf. The petition may be typed, printed, or neatly handwritten.

(3) Content. In compliance with 5 V.I.C. § 1302, the petition must:

(A) specify that the person on whose behalf the writ is sought is imprisoned or restrained of his liberty;

(B) identify the officer or person by whom, and the place where, the petitioner is confined or restrained, naming all the parties, if they are known, or describing them, if they are not known; and

(C) list all of the following:

(i) name and location of the court that entered the judgment of conviction or order of detention being challenged;

(ii) criminal docket or case number of that proceeding (if known);

(iii) date of the judgment of conviction or other order of detention (if known);

(iv) whether in that proceeding the petitioner pled not guilty, guilty, nolo contendere (no contest), or an insanity plea. If there were multiple charges and different pleas to the various charges, specify the plea for each count or charge.

(iv) date of sentencing as well as the length and terms of the sentence imposed;

(v) name(s) of all crimes of which the petitioner was convicted in the judgment of conviction being challenged;

(vi) date of the judgment of conviction or order of detention; and

(vii) date and docket number (if known) of each appeal and of each appellate decision relating to these charges.

(4) Statement of grounds and supporting facts. The petition shall set forth separately each ground on which the imprisonment or detention is alleged to be illegal, and shall state the specific facts supporting each ground. The petition need not argue or cite law, but it must separately state the facts that support each of the claims.

(5) Copies of orders and decisions. The petitioner should attach copies (if available) of any order or court decision regarding the charges that led to the petitioner's incarceration or detention, if relevant to the issues raised in the petition.

(6) Damage claims are not to be included. The petition must address the grounds upon which the petitioner's detention is unlawful. Claims for recovery of damages or other relief based on the incarceration, detention or restraint of the defendant shall not be included in the petition for habeas corpus relief.

(7) Filing. The petition must be sent to the Clerk of the Superior Court of the Virgin Islands at one of these addresses:

St. Thomas/St. John office: Superior Court of the Virgin Islands Office of the Clerk Alexander A. Farrelly Justice Center 5400 Veteran’s Drive St. Thomas, USVI 00802

St. Croix office: Superior Court of the Virgin Islands Office of the Clerk R.H. Amphlett Leader Justice Center RR1 9000 Kingshill, USVI 00850

(8) Docketing fees. The petition must be accompanied by the appropriate docket fee, deposited with the Clerk of the Superior Court, unless permission to proceed in forma pauperis has been granted. If a petition is docketed without prepayment of the applicable docketing fee, the petitioner shall pay the fee within 14 days after docketing. If the petitioner fails to do so and has not filed a motion for leave to proceed in forma pauperis accompanied by supporting documents, the court may dismiss the petition without further notice.

(9) Presentation to judge or magistrate judge. Upon filing, the clerk of the court must immediately deliver the petition to the judge assigned to the matter; provided, however, that the petition for writ of habeas corpus shall not be assigned for decision to the same judge who presided at the petitioner's trial or other hearing that led to the detention challenged in the petition as unlawful.

(10) Time for initial action by the court. The court must take initial action on a petition for writ of habeas corpus within 60 days after it is filed by:

(A) Requesting an informal response to the petition under subpart (c) of this Rule;

(B) Entering an order denying the petition after consideration under subpart (b) of this Rule; or

(C) Issuing a writ of habeas corpus, which requires further proceedings under subpart (d) of this Rule.

(11) Procedure if initial disposition timetable is not met. If the court fails to rule on the petition within 60 days of its filing as provided in subpart (a)(8), the petitioner may file a dated notice and request for ruling that includes a declaration stating the date the petition was filed, and indicating that the petitioner has not received a ruling on the petition. A copy of the original petition must be attached to the notice and request for ruling. If the notice is complete and the court has failed to rule – and has made no other scheduling directions – the clerk shall notify the Presiding Judge of the Superior Court of the Virgin Islands and a copy of such notice shall be sent to the parties.

(b) Preliminary consideration by the court.

(1) Consideration by the court. When presented with a petition for a writ of habeas corpus, within the period(s) specified in this Rule the Superior Court must first determine whether the petition states a prima facie case for relief — that is, whether it states facts that, if true, would entitle the petitioner to discharge or other relief — and, in its discretion, may also determine, after providing the petitioner with reasonable notice and a right to be heard, whether the stated claims are for any reason procedurally or substantively barred as a matter of law.

(2) Grounds for relief. A petitioner may be awarded a discharge – or another form of redress, such as a new sentencing hearing, that remedies the violation alleged – if any of the seven conditions set forth in 5 V.I.C. § 1314 are met, or if relief is warranted to remedy a constitutional or statutory violation, even if the right to that remedy is not expressly set forth in a statute.

(3) Issues previously raised on direct appeal to the Supreme Court. A petitioner may not raise in a petition for writ of habeas corpus an issue previously rejected in direct appeal to the Supreme Court of the Virgin Islands unless there has been a subsequent change in the law affecting the petitioner's claim.

(4) Denial of a petition at the preliminary consideration stage. If the court determines that the petition does not state a prima facie case for relief, or that the claims are all barred as a matter of law, the court shall enter an order denying the petition without further proceedings. Where the court requests submission of records in an informal response as provided in subpart (c) of this Rule, the submitted records may also be considered in determining whether the petition states a prima facie case for relief, or whether all claims are barred as a matter of law.

(5) Issuing a writ of habeas corpus. If it appears that the petition states a prima facie case for relief and that the claims are not all barred as a matter of law, Superior Court must issue a writ of habeas corpus, requiring further proceedings on the petition as provided in subpart

(d) of this Rule – directing the respondent to file a response, as provided in 5 V.I.C. § 1304. Where the petition is not denied as provided in subpart (b)(4) of this Rule, a writ of habeas corpus shall be issued within the initial 60 days after the filing of the petition, or within 45 days after filing of any informal response requested by the court under subpart

(c) of this Rule, whichever is later.

(c) Informal response.

(1) As part of its initial consideration of the petition as provided in subpart (b) of this Rule, before ruling upon whether the petition states a prima facie case or is barred as a matter of law, the court may – in the exercise of its discretion – request an informal response from:

(A) The respondent or real party in interest; or

(B) The custodian of any record pertaining to the petitioner, directing the custodian to produce the record or a certified copy to be filed with the clerk of the court.

(2) A copy of the request must be sent to the petitioner.

(3) The respondent, real party in interest, or record custodian shall within 15 days file the requested informal response and serve it upon the petitioner. The informal response must be in writing and, if it consists of records or copies of records, a copy of every record and document furnished to the court must be furnished to the petitioner.

(4) When an informal response is filed, the court must notify the petitioner that a reply thereto may be served within 15 days from the date of service of the informal response on the petitioner. After receiving an informal response, the court may not deny the petition until the petitioner has filed a timely reply to the informal response or the 15-day period provided for a reply under this Rule has expired.

(d) Writ of habeas corpus; further proceedings; appointing counsel.

(1) The court must issue a writ of habeas corpus if the petitioner has alleged, prima facie, grounds showing entitlement to relief and the claims are not legally barred. In assessing whether the petitioner would be entitled to relief if the factual allegations were proved, the court must take petitioner's factual allegations as true. The court does not determine at this stage whether the petitioner is entitled to discharge or any other form of remedy if habeas corpus relief is ultimately granted. The issuance of a writ of habeas corpus under this Rule is an intermediate step pursuant to 5 V.I.C. § 1304 which does not award any of the relief sought in the petition, but requires the respondent to file a return, responding to the petition.

(2) Pursuant to 5 V.I.C. § 1306 the Superior Court has the duty of serving upon the respondents the writ of habeas corpus calling for further proceedings on the petition.

(3) Upon issuing a writ of habeas corpus, the Superior Court has discretion to appoint counsel for the petitioner under 5 V.I.C. § 3524 (governing the Office of the Territorial Public Defender) or under 4 V.I.C. § 513(d) (providing for appointment of an attorney to represent any person unable to employ counsel).

(4) Further proceedings under the order granting a writ of habeas corpus – and any later orders of the court – shall afford the petitioner appropriate opportunities to confer with counsel.

(e) Return. If aa writ of habeas corpus is issued as provided in subpart (d) of this Rule, the respondent shall file a return – verified upon oath – within 30 days, or within such other period as the writ may prescribe. The return must explain under what lawful order the petitioner is detained and must allege facts establishing the legality of the petitioner's custody. Any material allegation of the petition not controverted in the return is deemed admitted for purposes of the proceeding. The return must comply with 5 V.I.C. § 1308 and must be served on the petitioner.

(f) Traverse by Petitioner. Within 30 days after service and filing of a return by the respondent, the petitioner may file a traverse. The petitioner may deny or controvert any of the material facts or matters set forth in the respondent's return, challenge the sufficiency thereof, or allege any fact to show either that the imprisonment or detention is unlawful, or that petitioner is entitled to discharge or another form of relief. Any material allegation of the respondent's return not contested in the petitioner's traverse is deemed admitted for purposes of the proceeding. A traverse must be verified under oath and must be served on the respondent.

(g) Evidentiary hearing; when required; standard applied.

(1) The Superior Court generally must hold an evidentiary hearing after it has concluded that a petitioner has alleged a prima facie case for relief, a writ of habeas corpus has been issued, and the respondent has filed a return; provided, however, that an evidentiary hearing is not necessary if the submissions before the court, including any reply or traverse by the petitioner, reveal no factual disputes that are material to disposition of the issues raised in the petition, and the court makes a written finding to that effect.

(2) Except where an express finding is made under subpart (g)(1) of this Rule that there are no material factual matters in dispute, within 30 days after the filing of any traverse by the petitioner or, if none is filed, within 30 days after the expiration of the time allowed for filing a traverse, the court must either grant or deny the habeas corpus relief sought by the petition – or order an evidentiary hearing to be held without any unnecessary delay, on a date certain.

(3) The petitioner must be produced at the evidentiary hearing unless the court, for good cause, directs otherwise. The court may, in its discretion, require that the petitioner appear by approved video-conferencing arrangements that provide two-way audio and visual connection; provided however, that if the petitioner is represented by counsel – whether retained or appointed by the court – the petitioner must be afforded the means and opportunity for appropriate confidential consultation with, and private advice from, counsel before, during and after the proceedings.

(4) At the evidentiary hearing the court shall proceed in a summary way to hear such proof as may be offered against the petitioner's imprisonment or detention, or in favor of the same, and to dispose of the petition as the justice of the case may require. The court has full authority to compel the attendance of witnesses, to issue subpoenas, and to perform all other acts necessary for a full and fair hearing and determination of the case, as provided in 5 V.I.C. § 1311. At the evidentiary hearing the petitioner may deny or controvert any of the material facts or matters set forth in the respondent's return, or challenge the sufficiency thereof, and may present any facts showing that his imprisonment or detention is unlawful, or that he is entitled to discharge or another form of relief.

(h) Granting relief on the merits of the petition. If the Superior Court grants habeas corpus relief on the merits, in whole or in part, it may order discharge of the petitioner or award a different form of remedy as the justice of the case may require. Consistent with Section 3 of the Revised Organic Act, the court shall provide a successful habeas corpus petitioner with redress in the form of a remedy that cures the constitutional or statutory violation, even if that specific remedy is not set forth in a statute.

(i) Reasons for denial of petition Any order denying a petition for writ of habeas corpus upon preliminary consideration under subpart (b) of this Rule – or denying habeas corpus relief on the merits upon consideration of the parties submissions and any evidentiary hearing, as provided in subparts (c) and (d) of this Rule – must contain a brief statement of the reasons for the denial. An order merely declaring the petition or habeas corpus relief "denied" is insufficient.

(j) Extending or shortening time. On motion of any party, or on the court's own motion, for good cause stated in an order the court may shorten or extend the time for doing any act under this Rule. A copy of the order must be mailed to each party.

(k) Successive petitions. A petitioner should raise all then-available legal grounds in support of the writ of habeas corpus in the initial application; provided, however, that successive habeas corpus petitions may be filed. In a later petition, any ground for relief that has been ruled upon by the Supreme Court of the Virgin Islands on a prior direct appeal will be barred. If a subsequent petition is not legally barred on the merits or procedurally, the Superior Court may reject a successive petition only if the Government pleads and demonstrates, or the court finds on its own motion, that the successive filings are an abuse of the writ process (or violate similar common law standards for striking repetitive baseless, improper, harassing, or frivolous petitions); this is an equitable issue and the decision to invoke the abuse-of-writ doctrine to preclude a subsequent habeas corpus petition is vested in the sound discretion of the Superior Court, which shall set forth its reasons for so ruling and must explain its consideration of all relevant circumstances and factors, including the petitioner's prior writ history, the merits of the claim, and the reasons for raising new arguments or attempting to relitigate prior unsuccessful arguments.