Federal Habeas Corpus: Discovery and Expanding the Record in Federal Habeas Corpus

Insider`s Guide: Discovery and Expanding the Record in Federal Habeas Corpus

Winning in federal habeas corpus comes down to whether the record either supports or forecloses your claims. Your goal, then, is to develop the record with arguments and evidence that are not in the current criminal record, and that show you are entitled to relief. The government`s goal is to prove that the record somehow forecloses your claims. And the court`s goal is to develop the record so that it can grant or deny relief without having to hold a hearing.

Three procedures accomplish these conflicting goals: Discovery, expanding the record, and supplementing the habeas filings. Let`s go over each in a little more detail.


You`ll likely have a good idea of the basis for your claims from the existing record. But your strongest habeas claims are those asserting facts outside the existing record. Discovery is a procedure that allows you to “discover” what evidence the government might have that would support your claims.

For example, assume your claim is that trial counsel failed to tell you about a favorable plea offer by the prosecutor. As a result, you pled guilty to a worse deal and received a longer prison sentence. You can allege the better offer was made, and then discovery would allow you to request all notes, emails, and other documents from both your old lawyer and the prosecutor to show details of the better offer. See Missouri v. Frye, 566 U.S. 134 (2012) (establishing prejudice after counsel`s failure to notify of a better plea offer).

But discovery is not a “fishing expedition,” as the courts have held. United States v. Webster, 392 F.3d 787 (5th Cir. 2004). Rule 6 of the Rules Governing Section 2255 Proceedings for the U.S. District Court requires that you show “good cause” for discovery, which the Supreme Court has defined as “specific allegations” that would show, if the facts were fully developed, you`d be entitled to relief. See Bracy v. Gramley, 520 U.S. 899 (1997).

You also need the court`s permission for discovery. Rule 6(b) says that when requesting discovery, you “must” provide reasons, including “any proposed interrogatories” and “must specify any requested documents” to the court. If a lawyer is needed for effective discovery, Rule 6(a) says the court “must” appoint one, if you qualify for appointment of counsel under the Criminal Justice Act, 18 U.S.C. sec 3006A.

Discovery in civil cases is governed by a set of well-developed and detailed rules and procedures, and Rule 6 incorporates the Federal Rules of Civil Procedure`s discovery rules. Consequently, being familiar with civil discovery procedures will help in your efforts with habeas discovery, since habeas cases are in reality “civil” in nature.


Another way to develop the record to support your habeas claims is be expanding the record with evidence not already in the criminal record. More often, though, expanding the record is a method used by the court to dispose of your habeas case without a hearing.

In fact, the purpose of expanding the record under habeas Rule 7 is so that an evidentiary hearing can be avoided. In creating Rule 7, the Rules Committee said that the rule`s purpose is “to enable the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing.” Murray v. Carrier, 477 U.S. 478 (1986).

A simple way I`ve seen courts expand the record is by issuing a “questionnaire” in an attempt to “clarify” the claims, by having the petitioner answer questions about his claims. The answers are then submitted under the penalty of perjury and are not different from giving testimony in court. See Brown v. United States, 2007 U.S. Dist. LEXIS 23853 (M.D. Fla. Mar. 19, 2007).

You can also use Rule 7 to expand the record for your own benefit. This requires permission from the court, and it`s a way for you to develop the record to support your claims. Submitting affidavits or old court records from prior convictions as evidence is a common way to expand the record. Just remember that whatever you submit becomes a permanent part of your case record, and harmful information in your old court records can work to your disadvantage later down the road.

State prisoners filing for habeas relief under 28 U.S.C. sec 2254 have a hurdle that federal prisoners under 28 U.S.C. sec 2255 don`t have: They must meet the harsh standard under sec 2254(e)(2) when expanding the record in federal court with new evidence. Under that standard, established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a state prisoner must show that the new facts could not have been discovered earlier through due diligence.

There`s two parts to this standard: (1) new evidence and (2) due diligence. You might prove the evidence is new, like DNA evidence, but the due diligence part is difficult if you waited too long. Some say this is unfair and the restriction applies only to evidentiary hearing requests by state prisoners. But so far the courts have all said the restriction applies to all new evidence to expand the record in a habeas case, even if no evidentiary hearing is requested. See Mark v. Ault, 498 F.3d 775 (8th Cir. 2007).

A “limited” expansion of the record, however, is not controlled by sec 2254(e)(2). Courts instead say this falls under their “discretion” to expand the record for certain reasons to further the case. Brentlinger v. Marquis, 2020 U.S. Dist. LEXIS 125726 (N.D. Ohio May 6, 2020).


Amending and supplementing a habeas petition are two very different things, technically, even though the terms are often used interchangeably by the courts. In short, a supplement adds to your existing petition or motion pending in court, but an amendment replaces your petition or motion. Some court are flexible with this, while some strictly follow local rules. See E.D. Tenn. L.R. 15.1 (requiring an amendment to replace the original motion and to not incorporate any prior filings by reference).

Generally, Rule 15 of the Federal Rules of Civil Procedure controls both types of actions. You don`t need the court`s permission to amend if you do so within 21 days of service on the government of your original filing. While habeas Rule 4 says that the court serves the government and it`s not your job to do so, you can still amend your filings while the court determines whether to serve the government or dismiss your petition. Once the government is served by the court, though, you`ll need the court`s permission to amend or supplement. Mayle v. Felix, 545 U.S. 644 (2005).

While all courts agree that a new habeas petition or motion filed while you have one pending in the district court is a supplement, some courts stop there and don`t consider a new petition filed while an original petition is on appeal to be a proper supplement. Instead, they call it an unauthorized second petition. The courts are completely divided over this point. Compare Ching v. United States, 298 F.3d 174 (2d Cir. 2001) (new petition in district court supplements even petitions on appeal), with Phillips v. United States, 668 F.3d 433 (7th Cir. 2012) (supplement with new petition only while pending in district court).


Properly developing the record is an often-overlooked task in a federal habeas case, leading to early dismissal or outright denial. Taking the time to grasp the concepts of discovery and expanding the record will go a long way toward getting you the relief you deserve.


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