by Dale Chappell

After working hard to set out the claims in your federal habeas corpus petition, along comes the person having custody over you and files a response in court that recharacterizes your claims and makes you look like someone who needs to spend the rest of his life in jail to protect the public. What do you do? You file a reply, of course.

But the kind of reply you file is key to whether the court even hears your claims in the first place. Here’s some information from my book, WinningCites: Section 2255, a Handbook for Prisoners and Lawyers, to help you understand this next step in your pursuit of habeas relief in federal court.

The Government’s Response

The first thing a court must do after you file your petition (or § 2255 motion) is to screen the filing and determine whether it deserves a response from the entity having custody of you (collectively called the “government” here). Under the Rules Governing Section 2254 Proceedings, Rule 4 says that the government may only respond to your petition if the court orders it to do so. A response by the government is not automatic. The same goes for federal prisoners filing under § 2255.

And the government doesn’t even have to address all your claims, if it responds. The rule doesn’t say how the government must respond, only that it may respond to your claims or file some “other response,” if the court says it can. It could even be a motion for the court to take other action without mentioning your claims. Basically, the government has broad leeway on what it files in response—unless the court expressly orders it to respond a certain way. SeeWare v. United States, 2014 U.S. Dist. LEXIS 50310 (D.N.J. Apr. 11, 2014) (government’s motion to dismiss was improper because the court, “in no ambiguous terms, directed [the government] to answer the petition”).

The purpose of the government’s response is supposed to be to allow it “the opportunity to state [its] position” on your claims, the rule says. Often, this does happen. Sometimes, it turns into a mud-slinging contest, though. Don’t fall into this trap. When the government starts making personal attacks, take it as a sign that your claims are good. The government may be simply trying to shift the focus from your claims to how you’re such a “bad” person and must stay in prison. In a moment, we’ll go over the purpose of your reply to this, which is to steer the court’s focus back on your claims.

The amount of time the government has to respond is usually set by the court or local rule, typically 30 days. However, if the government fails to respond, it’s not a “default” allowing the court to automatically grant your motion. There’s not “winner by default” in federal habeas corpus. SeeTaylor v. United States, 2018 U.S. Dist. LEXIS 197295 (S.D. Ind. Nov. 20, 2018) (while the government’s delays were “extreme and unjustified,” the court must still weigh merits of the claims and motion for default judgment by movant was inappropriate).

Instead of a response, the government can file a motion asking the court to do something other than rule on the merits of your claims. This could be a motion to dismiss (“MTD”), a motion for summary judgment (“MSJ”), a motion to strike your petition, or any of the varied motions found in civil cases. Understanding civil procedure is helpful when dealing with federal habeas corpus.

A “motion to dismiss” says to the court that your habeas petition “fails to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Two important points about the government’s MTD. First, it is typically filed prior to the government’s response (since it’s not technically a “response”), and the government can still file a response if the court refuses to dismiss your petition. The standard of review for an MTD is rather favorable toward you. The court can only grant it if it couldn’t grant you relief even if your claims were entirely true. You might see this with a collateral attack waiver in the plea agreement blocking a habeas petition from being considered by the court.

Second, though the court screened your petition under Rule 4 and said it deserved a response from the government, it can still grant an MTD. This is because Rule 4 requires dismissal if it “plainly appears” you’re not entitled to relief. An MTD, on the other hand, is about the court’s ability to grant relief. Sometimes, that ability isn’t in question until after the government responds (like when it invokes the collateral attack waiver).

The government may also file affidavits by your old defense lawyer to refute facts underlying your claims. For example, if you claim that your lawyer never consulted you about filing an appeal, the government might file an affidavit from your lawyer detailing that she did talk to you about an appeal. The same way you are developing the record with “evidence” to support your claims with these filings in your habeas case, so too is the government developing the record to refute your claims.

One point about your old lawyer working with the government: Your habeas petition isn’t against your old lawyer, even when you file ineffective assistance of counsel claims. They are not a “party” in the case. They can’t, therefore, talk to the government about your case other than the claims you filed. That’s it. SeeSteele v. United States, 321 F. Supp. 3d 584 (D. Md. 2018) (criticizing a defense lawyer who disclosed her client’s case to the prosecutor in attempts to clear her name of some IAC claims).

Should the government quote portions of the criminal record that you don’t have access to, like guilty plea hearing transcripts, it must provide you with a copy of those records. Don’t trust that what the government is quoting is correct or in the right context—always verify. More than a few times the government has twisted the record to fit its version of the story.

Your Reply to the Government’s Response

Nothing says that you have to file a reply to the government’s response. In fact, courts had long held that a habeas petitioner doesn’t have a right to file a reply. That changed on December 1, 2019, when the Rules Committee clarified that § 2254/2255 Rule 5 gives petitioners the “right” to file a reply. You now have the right to file a reply, despite what a court or local rule might say forbidding it.

So, what’s the point of your reply if the courts had for so long ignored them? The reason courts have ignored them is because petitioners often just re-argue their claims they already made. There was nothing new for the court to consider! As eluded to above, the whole point of your reply is to bring the court’s attention back to your claims. This is especially true after the government did its best to turn your claims into something they probably aren’t.

How do you do this without rearguing your claims? One way could be to address the government’s arguments and respectfully point out where they went astray. And be quick about it. A ten page reply has a better chance of being read by a judge than one that rambles on for 20 pages. Besides, most courts have rules limiting the number of pages for replies.

The rule says that your reply must be filed within a time set by the court. Be aware that a local rule may have already set the time for your reply and missing that deadline could waive your reply. Some local rules have very short reply times of only seven days. Always ask for an “extension of time” to reply when you file your original papers or shortly afterward. Replying within seven days from prison can be difficult.

A common practice by the courts is to require your reply within a set time from the “service” of the government’s response. Under Fed. R. Civ. P. 6(d), you add another three days to the government’s date of service to start the clock for your reply deadline.

Instead of replying, you may want to (or need to) file a motion asking the court to do something. This depends mostly on the government’s response. If the response points out something you missed in one of your claims, you should file a motion to amend or supplement your claim. Note that in some courts an amended motion replaces your existing motion. Be clear with the court on what you’re filing and why, so there’s no confusion.

Also be careful when supplementing the facts of a claim so that it doesn’t turn into a new claim. Courts will not allow a new claim raised in a reply, especially after the one-year deadline, unless it’s a “fundamental miscarriage of justice” (something like actual innocence).

One type of reply that is crucial in saving your petition from a short life will be when you reply to the government’s MSJ. In plain English, an MSJ is saying that your claims, and the facts in support of them, are baseless and the court cannot grant the relief you are requesting. Your reply to an MSJ must be specific. The Supreme Court has said what someone facing an MSJ in a civil case must do to rebut it: “In response to a summary judgment motion, however, [a petitioner] can no longer rest on such mere allegations [in his claims], but must set forth by affidavit or other evidence specific facts.” Lewis v. Casey, 518 U.S. 343 (1996).

Replying to the government’s MTD must likewise be specific. However, an MTD isn’t about your claims but the legal standing of your motion. Thus, your reply will not be about your claims. Instead, you must supplement your motion to fix the legal problem (or argue why it’s not a problem and your petition should continue).

A word to those who have a lawyer representing them in their federal habeas case (whether appointed or retained): The court may still expect you to file a reply, if your lawyer fails to do so. Some courts, though, don’t allow pro se filings with a lawyer on the case. CompareUnited States v. Perez-Barocela, 2018 U.S. Dist. LEXIS 104415 (S.D. Tex. June 14, 2018) (counsel failed to file a reply and petitioner made no attempt to correct this himself), withCardenas v. United States, 2018 U.S. Dist. LEXIS 139885 (S.D. Tex. Aug. 17, 2018) (forbidding pro se reply while represented by counsel). Both cases were from the same court before different judges. With no local rule, it’s up to the judge. Ask the court before you file a reply, if you have a lawyer.

Conclusion

The government’s response can create all kinds of hurdles for a habeas petitioner. This means your reply to the government’s response could become one of the most important filings in your habeas case. Don’t overlook this. Take some time to understand what’s required of your reply and make it count. It could mean the difference between having your petition dismissed before it gets started and having your claims heard and maybe granted. 

About the author: Dale Chappell is a staff writer for Criminal Legal News and Prison Legal News. For over a decade, he has helped prisoners challenge their wrongful convictions and sentences, with dozens being released from prison. He is a member of the National Lawyers Guild and was a 20-year career firefighter before becoming an advocate for prisoners. He is the author of two books written in conjunction with attorney Brandon Sample: WinningCites: Section 2255, A Handbook for Prisoners and Lawyers and WinningCites: Attacking the Guilty Plea. Email info@brandonsample.com for more information on these books (prisoner emails accepted).

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