After you file your application and memorandum in support of your request for habeas corpus relief in federal court, the prosecutor (commonly called the “government” in these cases), gets a chance to respond to your filings. This usually comes after the court reviews your papers to see if the government should even respond.
Unfortunately, habeas cases are sometimes dismissed outright by the court before the government responds simply because the claims presented would never entitle someone to relief. The fact that the government has been ordered to respond in your habeas case is a good sign that your claims at least have some merit.
Don`t be surprised if the government`s response tries to make it look like you`re the worst person in the world who deserves to spend the rest of your life in prison. That`s their job, of course. So what do you do? You file a “reply” to the response. But the kind of reply you file is important to whether the court hears your claims, and this all depends on what kind of response the government has filed. Let`s take a deeper look at the government`s response.
The Government`s Response
First, even if the government is ordered to respond to your habeas petition, it doesn`t have to address your claims. Under the Rules Governing Section 2254 Proceedings (and Section 2255 Proceedings, separately), Rule 4 doesn`t say how the government has to respond, only that it may respond to your claims or file some “other response,” if the court says that it can. It could even be a motion asking the court to take other action having nothing to do with your claims. The government has broad leeway to file whatever it wants, unless the court specifically tells it how to file a response (which is rare but does happen). See Ware 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 Rule says the purpose of the government`s response is to allow “the opportunity to state [its] position” on your claims. If it turns into a mud-slinging contest, don`t fall into that trap. The government may be trying to shift the focus off your good claims. Your job is to keep the focus on your claims.
The Government`s Deadline to Reply
The amount of time the government has to respond is usually set by the court or local rule, but is typically 30 days. However, if the government fails to respond to your petition, it is not an automatic default in your favor that requires the court to grant relief. There`s no such thing as a “winner by default” in the habeas world. See Taylor v. United States, 2018 U.S. Dist. LEXIS 197295 (S.D. Ind. Nov. 20, 2018) (government`s delays were “extreme and unjustified” but no default judgment warranted, as court must still address merits in habeas cases).
The Government`s Type of Response Matters
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 your petition, a motion for summary judgment in the government`s favor, or some other request for the court to dispose of your case. These different types of responses in habeas proceedings usually fall under the Federal Rules of Civil Procedure, so an understanding of civil cases would be helpful here.
A “motion to dismiss” (MTD) falls under civil rule 12(b)(6), which says that your motion “fails to state a claim upon which relief can be granted.” Two important points about this kind of motion by the government. First, it is typically filed prior to the government`s response, and it can still file a true response if the court denies the MTD.
Second, though the court screened your habeas petition under rule 4 and said it deserved a response from the government, it can still grant a MTD. Rule 4 requires dismissal only if it “plainly appears” to the court you`re not entitled to relief. A motion to dismiss is about the court`s ability to grant relief. Sometimes the ability isn`t in question until after the government responds (like when it invokes the collateral attack waiver in your plea agreement, an affirmative defense the court cannot raise on its own).
The standard of review for a MTD is rather favorable toward you. The court can only grant the government`s MTD if it couldn`t grant you relief even if your claims were entirely true. What the government is saying, with a MTD, is that there is a legal defect with your petition or motion that precludes the court from granting relief.
A motion for summary judgment (MSJ) is basically a motion by the government requesting judgment in its favor (and against you, meaning it wants the court to deny relief), saying that your claims, even if true, would not rise to the level warranting habeas relief. It`s not that your petition or motion is defective, but that your claims are not cognizable under habeas corpus.
The MSJ is probably the most common “other” response the government files in a habeas case. It`s an easy way for the government to turn the tables and put the burden on you to show that your claims are in fact cognizable under habeas review. This isn`t an easy task. I into the specific way you must respond to a MSJ in another post titled Federal Habeas Corpus: your Reply.
Your Old Lawyer Takes the Government`s Side
If you file an ineffective assistance of counsel (IAC) claim, the government may have your old lawyer file affidavits to refute your claims. This is perfectly legal, and your lawyer may even be able to disclose some attorney-client confidential information to the government. But only as it relates to your claim. Courts are careful to limit this disclosure to just the facts related to the claim. See Steele 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).
Also note that your old lawyer is not a party to your habeas case. Even if you file an IAC claim about your old lawyer, it`s not a claim against your old lawyer. It`s still a claim against the government. Your case is against the government. That`s it.
Make Sure the Government`s Quotes are Correct
Always verify anything the government quotes from the record. Should the government quote portions of the criminal record that you don`t have access to, like the guilty plea hearing transcripts, it must provide you with a copy of those records. The government cannot be trusted to accurately quote the record, but the error won`t be exposed unless you expose it yourself.
I go over much more detail on the government`s response to habeas petitions in my books, Federal Habeas Corpus for State Prisoners: An Insider`s Guide and Habeas Corpus for Federal Prisoners: An Insider`s Guide.
Note: This information was adapted from my column in the Sept. 2021 issue of Criminal Legal News Magazine.