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741 Protocol for the Effective Handling of Collateral Attacks on Convictions Brought Pursuant to 28 U.S.C. 2241

U.S. Department of Justice
Washington, D.C. 20530

Approved by the Attorney General's
Advisory Committee (AGAC) on May 23, 2002

Protocol for the Effective Handling of Collateral
Attacks on Convictions Brought Pursuant to
28 U.S.C. 2241

This protocol addresses the emerging legal and procedural issues that have arisen in the handling of actions brought under 28 U.S.C. § 2241 that collaterally attack the validity of a criminal conviction or sentence. The Criminal, Civil and Appellate Chiefs' Working Groups have worked together to address these issues and together make the following recommendations for the effective and coordinated handling of these cases.

Background

The use of applications for writs of habeas corpus and their federal statutory equivalent, 28 U.S.C. § 2241, to challenge federal convictions and sentences is a current problem which has raised its head before. Because a § 2241 petition must be filed against a prisoner's custodian in the district where the prisoner is in custody (the district of confinement), the use of such petitions to challenge convictions and sentences leads to (1) a heavy burden on districts of confinement with a higher concentration of federal prisoners, with a disproportionate drain on judicial and USAO resources, and (2) the adjudication of such challenges in whatever federal judicial district the prisoner happens to be incarcerated, and by a judge who is wholly unfamiliar with the prosecution, rather than in the district of conviction, where the prosecutors, witnesses, records and evidence are located, where it could be adjudicated by the judge who tried and sentenced the prisoner.

An earlier increase in such petitions caused Congress in 1948 to enact 28 U.S.C. § 2255. Section 2255 requires that a prisoner seeking to challenge his conviction or sentence must file a motion under § 2255 in the district of conviction. Section 2255 provides that because a prisoner is authorized to apply for relief under § 2255, "[a]n application for writ of habeas corpus" under § 2241 in the district of confinement "shall not be entertained," unless "the remedy by § 2255 motion is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255 ¶ 5. This "savings clause" of § 2255 allows a convict for whom § 2255 relief is "inadequate or ineffective" to file a petition for habeas corpus pursuant to § 2241, thus preserving the constitutional validity of § 2255.

As a result of the enactment of § 2255, the problem of prisoners using § 2241 to challenge their convictions and sentences subsided until the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) revisions to § 2255 procedure. The AEDPA placed a one-year time limit within which § 2255 motions may be filed, provided that an appeal may not be taken from the denial of a § 2255 motion unless it raises a substantial showing of the denial of a constitutional right, and established new procedures and criteria for court approval of "second or successive" § 2255 motions. 28 U.S.C. §§ 2244(b), 2253(c), 2255 ¶¶ 6, 8.

To evade these requirements of the AEDPA, prisoners are increasingly resorting to the use of § 2241 petitions to attack the validity of their convictions and sentences. These § 2241 petitions are brought in the district of confinement, and pose all of the problems -- burdening districts of confinement and shifting the litigation of their challenges from the districts of conviction which are best equipped to address them -- posed by such § 2241 petitions prior to the enactment of § 2255. The current prisoners, moreover, are filing such petitions in great numbers. In addition, by seeking to evade the AEDPA limitations, these § 2241 petitions engender the same abuses -- delay, insubstantial appeals, relitigation of claims, and successive motions -- that the AEDPA was enacted to prevent.

Currently, such § 2241 petitions are addressed by a variety of methods -- by the district of confinement alone, or with the help of the district of conviction; by civil AUSAs or criminal AUSAs; procedurally or substantively; and by requests for dismissal, transfer, or denial. The methods differ district by district, which can and does lead to courts and USAOs in districts of confinement being overburdened, USAOs in districts of confinement and conviction differing as to which is responsible, USAOs in district of confinement acting with insufficient assistance from districts of conviction and vice versa, and district courts in the district of confinement being uncertain whether they should entertain the merits, transfer the action to the district or circuit of conviction, or dismiss for want of jurisdiction.

Almost all of these § 2241 petitions are defective on jurisdictional grounds, because challenges to convictions and sentences must be brought under § 2255 in the district of conviction rather than under § 2241 in the district of confinement. Some of these petitions are also facially defective on procedural grounds. Many petitions are dismissed through the screening process by the district courts when they act sua sponte.

Recently, however, in a number of § 2241 actions, district courts have ignored jurisdictional defects, and ruled that the government must file an answer. Usually, once the jurisdictional defect is ignored or overcome, the case will require recourse to the criminal record, review of the procedural history in the district of confinement, and a substantive response to the merits of the claims raised. This presents substantial difficulty for the responsible AUSAs in the district of confinement, who by definition have no familiarity with the case or the court from which it arose and lack knowledge of the record. That difficulty will be compounded without the cooperation of the district of conviction.

Working Groups' Recommendations

The Civil, Criminal and Appellate Chiefs' Working Groups have conferred and have reached a consensus that the most efficient method of protecting the requirements of § 2255 and the AEDPA, preventing a flood of § 2241 petitions in the districts of confinement, and properly defending § 2241 actions, is to recommend a coordinated and shared responsibility for litigating those claims between the USAO in the district where the defendant is incarcerated and the § 2241 action is pending, and the USAO in the district which handled the underlying prosecution. Under our recommendation, the USAO in the district of confinement should have the responsibility of moving to dismiss for want of jurisdiction any § 2241 which challenges a conviction or sentence, and the USAO which handled the underlying prosecution should have the litigating responsibility for those claims which are not dismissed for want of jurisdiction and which require further procedural or substantive analysis. This would permit rapid dismissal of the majority of improper § 2241 actions, encourage the district courts to adopt a similar practice in their sua sponte screening decisions, lessen the burden on districts of confinement, and ensure that those § 2241 petitions not dismissed on jurisdictional grounds are answered by the USAO with ready access to the criminal record and a thorough analysis of the critical aspects of the criminal case. Our recommendation would also encourage notification, consultation and cooperation between the responsible AUSA and supervisor in the district of confinement and the responsible AUSA and supervisor (often the Criminal Chief) in the district of conviction.

Accordingly, the Criminal, Civil and Appellate Chiefs' Working Groups jointly recommend the following procedure as the method for the most efficient and proficient handling of § 2241 petitions which challenge a conviction or sentence imposed in another district:
(1) When a § 2241 collateral challenge to a conviction or sentence imposed in another district is served upon a USAO in the district of confinement, that office reviews the case and determines if it is subject to dismissal on the grounds that the district court lacks jurisdiction under § 2255 ¶ 5, and the § 2255 remedy is not inadequate or ineffective. If so, the AUSA to whom the case is assigned in the district of confinement should take the necessary dispositive steps (i.e., a motion to dismiss for want of jurisdiction or a motion to reconsider the screening order on that ground).[FN1] In making this motion, the district of confinement may coordinate with the district of conviction.

(2) If the motion to dismiss for want of jurisdiction is denied, the supervising AUSA in the district of confinement should contact the appropriate supervisor in the district of conviction and request assignment of an AUSA from the district of conviction to collaborate with the responsible AUSA in the district of confinement in litigating the § 2241 action in the district of confinement. Absent an alternate agreement, the AUSA from the district of conviction should take the lead in litigating the challenges to that district's conviction or sentence, with the responsible AUSA in the district of confinement remaining involved to handle any remaining § 2241-specific issues and to serve as local counsel (to assure conformity with local rules, to prevent omission of pertinent precedent of the district and circuit of confinement, and the like). The supervisors in the two districts should confer on the necessity of the AUSA from the district of conviction obtaining a SAUSA designation in the district of confinement, so that AUSA can enter an appearance in the case (together with the responsible AUSA in the district of confinement) and/or sign the subsequent pleadings. Such § 2241 petitions typically do not involve court appearances, so travel and attendant disruption of schedules should not produce a problem; if a court appearance is required, the supervisors should consult about whether the AUSA from the district of conviction should travel to the district of confinement and, if so, the supervisors should confer about costs.

(3) Supervisors from the two districts should collaborate to provide cooperative oversight. Unless otherwise agreed, oversight of the AUSA from the district of conviction should be provided by the appropriate supervisor in the district of conviction; supervisory oversight of the responsible AUSA in the district of confinement should be provided by the supervisory AUSA in the district of confinement.

(4) If the district court dismisses the § 2241 petition for want of jurisdiction in response to a motion, or does so sua sponte, any appeal should be handled by the USAO in the district of confinement. If the district court dismisses, denies or grants the § 2241 petition on some other ground, any appeal should be handled by the USAO in the district of conviction, with the USAO in the district of confinement serving as local counsel if the districts are in different circuits.

Following this recommendation will result in a simple, unified and coordinated approach which will mutually benefit USAOs in the districts of conviction and confinement, will provide the most efficient method of defending § 2241 actions, and will encourage district courts to better protect the requirements of § 2255 and the AEDPA.

FN 1. It may be that the § 2241 petition is also facially defective or subject to easy disposal on procedural grounds on a basis other than jurisdiction. However, to preserve the limitations of the AEDPA and § 2255, encourage the district courts to refuse to entertain such § 2241 petitions for want of jurisdiction rather than stray into issues they lack jurisdiction to decide, and discourage prisoners from filing such § 2241 petitions, the district of confinement should file a motion to dismiss for want of jurisdiction, rather than file a dispositive motion on some other grounds. If such other defects are apparent on the face of the § 2241 petition, and the district of confinement wishes to mention them in its motion to dismiss for want of jurisdiction, it should do so only after consultation with the responsible AUSA or appropriate supervisor in the district of conviction.

December 2005 Criminal Resource Manual 741