Federal Habeas Corpus: Your Reply to the Government`s Response

When seeking habeas corpus relief in federal court, nothing says that you have to file a reply to the prosecutor`s (“government`s”) response to your petition. In fact, courts had long held that a habeas petition doesn`t have the right to file a reply after the government responds.

But that changed on December 1, 2019, when the Rules Committee clarified that Rule 5, under the Rules Governing Section 2254 (and 2255) Proceedings, gives a habeas petitioner the “right” to file a reply. You now have the right to file a reply, despite what a court or local rule might say about it (national rules always trump local rules).

Get to the Point in Your Reply

So, what`s the point of a reply if the courts had for so long ignored them? The reason courts have ignored them is because habeas petitioners often just re-argued their claims they had already made in their petition, hoping to convince the court to grant relief. There was nothing new for the court to consider in a reply.

But the whole point of your reply in a federal habeas case is to bring the court`s attention back to your claims, especially after the government has done its best to turn your claims into something they probably aren`t. So that`s your focus with a reply: getting things back on track.

How do you do this without re-arguing your claims? One way is to point out where the government went astray with your claims. But 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 a reply to just ten.

Be on Time

Rule 5 also says 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 some local rules have very short times for a reply. Always ask for an “extension of time” to file a reply when you file your original petition or in a separate motion shortly thereafter. Replying from prison within seven days can be rather difficult, and courts generously grant extensions of time.

A common practice by the courts is to require your reply within a set time time from the “service” of the government`s response. Under Federal Rule of Civil Procedure 6(d), you would add three days to the government`s date of service to start the clock for your reply deadline. In other words, if the government says it mailed its response to you on July 7, Rule 6(d) says the clock to file your reply starts on July 10. If you didn`t get the response until well after July 10, ask the court for an extension of time to file your reply, the clock does not start when you receive the government`s response.

Filing a Motion Instead of a Reply

In some cases, you might want to (or need to) file a motion instead of a reply, after the government`s response. For example, if the government`s response points out something you missed in your petition, you should file a motion to supplement your petition to fix the error. Note that in some courts an “amendment” replaces your already-filed petition. Be clear with the court on what you`re filing and why, so there`s no confusion on this. A court will consider an amendment as a supplement, if you are clear that`s what its purpose is.

Also be careful about supplementing a claim so much that it turns it into a new claim. Courts will not allow a new claim in a reply brief, especially after the one-year time limit has passed. That`s unless it`s a “miscarriage of justice,” such as actual innocence.

Responding to the Government`s Motion for Summary Judgment

One type of reply that`s crucial in saving your petition is when the government files a “motion for summary judgment” (MSJ). Since the government`s “response” is actually a “motion,” you would be filing a “response” to that motion. These technicalities matter. In plain English, an MSJ says that your claims, and the facts in support of them, are so baseless that the court cannot grant you relief. Your response to the government`s MSJ must be done a certain way. The Supreme Court has explained what someone facing an MSJ in a civil case (i.e., a habeas case) must do to avoid denial of their petition:

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).

Responding to the Government`s Motion to Dismiss

Responding to the government`s “motion to dismiss” (MTD) your petition must likewise be done a certain way. However, an MTD isn`t about the quality of your claims but the legal standing of your petition. Thus, your reply won`t be about your claims at all but instead about fixing the legal problem with your petition to give the court the legal authority to hear your claims. You do this by filing a supplement to fix the legal error, or a response on why the government is wrong and that there is no legal error.

You Can`t (Usually) Can`t File Your Own Reply if You Have a Lawyer

If you have a lawyer on your habeas case, most courts won`t let you file your own reply. However, if your lawyer fails to file a reply the court may expect you to pick up the slack. Compare these two cases from the same court: United States v. Perez-Barocela, 2018 U.S. Dist. LEXIS 104415 (S.D. Tex. June 14, 2018) (court noting that counsel failed to file a reply and petitioner made no attempt to correct this himself), and Cardenas v. United States, 2018 U.S. Dist. LEXIS 139885 (S.D. Tex. Aug. 17, 2018) (forbidding a petitioner`s reply while represented by counsel).

With no controlling local rule, it`s up to the judge to decide which way to go, as happened in these cases. It`s always best to ask the court beforehand to avoid these kinds of problems.

In conclusion, The government`s response can create all kinds of hurdles for a habeas petitioner. This means your reply could be one of the most important filings in your habeas case. Don`t simply re-argue your claims in your reply. Take the time to make your reply count.

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