What Happens After One Files a Federal Habeas Petition?

After one files a federal petition for a writ of habeas corpus, several things can happen and it is good to know in advance what they are so one avoids surprise or confusion.

After the petition is filed, the federal court will screen it to make sure that all the procedural requirements have been met and that the petition raises a viable legal claim. 

The federal judge may ask the parties to consent to have the case heard by a magistrate judge.  If consent is given, the magistrate judge will conduct the proceedings and will make findings and recommendations, which the federal district court judge will adopt or reject. 28 U.S.C. § 636; Federal Rules of Habeas Corpus, rule 10.

If the court allows the petition to proceed, it will issue an order giving the respondent (or respondents) an opportunity to file a brief and set a date as the deadline for such a filing.

The respondent can either file a motion to dismiss the petition due to a procedural defect, or file an “answer” responding to the legal and factual issues in the petition. 

If the respondent files an answer, the respondent must state what records are available in support of its position arguing habeas relief is not appropriate and attach any relevant state court transcripts, briefs, and decisions. Federal Rules of Habeas Corpus, rule 5(a)-(d).

  

The petitioner will then have an opportunity to file either an opposition to a motion to dismiss, or a reply (called a traverse) to the respondent’s answer. Federal Rules of Habeas Corpus, rule 5(e). The petitioner should serve the respondent by mail with a copy of any document filed in the court. 

Usually, the court orders will set forth the deadlines for further briefing.  If the petitioner cannot meet a deadline, they can file a request asking the court to grant an extension of time.

The federal court can order parties to produce additional documents or evidence; this is called an order for discovery. 28 U.S.C. § 2254; Federal Rules of Habeas Corpus, rule 6; Bracy v. Gramley (1997) 520 U.S. 899, 908-909, 117 S. Ct. 1793; 138 L. Ed. 2d 97.  In limited circumstances, the court may also allow parties to expand the record by filing additional documents or holding evidentiary hearings to develop the facts. Federal Rules of Habeas Corpus, rules 7-8.

If a habeas petition is dismissed or denied, the petitioner may be able to file a “Rule 59” motion to amend the judgment in the district court.  The motion may ask the district court to “correct manifest errors of law or fact upon which the judgment rests” by reconsidering its ruling.  Such a motion must be filed no later than 28 days after the dismissal or denial order is filed. Federal Rules of Civil Procedure, rule 59(e); Rishor v. Ferguson (9th Cir. 2016) 822 F. 3d 482, 492-494.

The Rule 59 motion will toll the timeline for filing a notice of appeal until the court rules on the motion. Federal Rule of Appellate Procedure, rule 4(a).

Another option following dismissal or denial is to file a “Rule 60(b)” motion for relief from the judgment in the district court.  A motion based on clerical mistake can be filed any time except when an appeal is pending.  A motion based on other reasons must be filed within a “reasonable time,” with the added requirement that motions based on mistake or excusable neglect, or based on fraud or misconduct by an opposing party, must be filed within one year after the entry of the dismissal or denial order. Federal Rules of Civil Procedure, rule 60.

Thus, a Rule 60(b) motion can be filed after the time to appeal has expired.  

The rights to file Rule 59 and Rule 60 motions are limited by the AEDPA rule prohibiting people in prison from filing successive petitions.  This means that such motions may not seek to present new evidence, raise a new legal claim for relief, or seek to vacate the judgment because of a subsequent change in the law.  

However, a Rule 59 or Rule 60 motion may be used to challenge a defect in the integrity of the federal habeas proceedings. Gonzalez v. Crosby (2005) 545 U.S. 524, 532-533, 125 S. Ct. 2641; 162 L. Ed. 2d 180; Rishor v. Ferguson (9th Cir. 2016) 822 F. 3d 482; 28 U.S.C. § 2244(b). Phelps v. Alameida (9th Cir. 2009) 569 F. 3d 1120, 1134 (petitioner entitled to reconsideration where Ninth Circuit panels reached varying outcomes in similar cases pending at same time, legal issue was subsequently resolved in person’s favor, and person acted diligently in pursuing case).

For Rule 59 motions, this means a petitioner can ask the district court to reconsider its decision regarding any claim on grounds already raised. Rishor, supra, 493-494.

For Rule 60 motions, motions, AEDPA prohibits attacking the district court’s decision on the merits, and allows only attacks on procedural matters. Gonzalez, supra, 532-533 (disallowing motion seeking to raise substantive claims, but allowing motion challenging dismissal for untimeliness); Hall v. Haws (9th Cir. 2017) 861 F. 3d 977 (motion to reopen where petitioner had abandoned claim based on erroneous belief that he was joined in codefendant’s habeas petition motion); Washington v. Ryan (9th Cir. 2016) 833 F. 3d 1087 (motion where court clerk errors caused failure to file timely notice of appeal); Brooks v. Yates (9th Cir. 2016) 818 F. 3d 532 (motion challenging dismissal for untimeliness due to attorney abandonment); Foley v. Biter (9th Cir. 2015) 793 F. 3d 998 (motion where attorney abandonment caused petitioner to miss timeline to file notice of appeal);Phelps v. Alameida (9th Cir. 2009) 569 F. 3d 1120, 1134 (motion challenging untimeliness dismissal); Butz v. Mendoza-Powers (9th Cir. 2007) 474 F. 3d 1193 (motion challenging dismissal for failure to pay filing fee or request in forma pauperis status).

While this article appears on our website, we must acknowledge the Prison Law Office as the source of the article’s contents.  Their treaties, the California Prison and Parole Law Handbook is very helpful and without it, this article would not be possible.