Protocol for the Effective Handling of Collateral
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
Attacks on Convictions Brought Pursuant to
28 U.S.C. 2241
The use of applications for writs of habeas corpus and their federal
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
the district of conviction. Section 2255 provides that because a prisoner is
authorized to apply for relief under § 2255, "[a]n application for ?
of habeas corpus" under § 2241 in the district of confinement "shall
be entertained," unless "the remedy by § 2255 motion is inadequate ?
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 ?
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, ?
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. §§
¶¶ 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 ?
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. ?
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
Almost all of these § 2241 petitions are defective on
grounds, because challenges to convictions and sentences must be brought under
§ 2255 in the district of conviction rather than under ?
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, ?
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
petitions in the districts of confinement, and properly defending
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 ?
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 ?
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
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
conviction or sentence imposed in another district:
(1) When a § 2241 collateral challenge to a conviction or
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
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.
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 ?
protect the requirements of § 2255 and the AEDPA.
(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 ?
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 ?
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 ?
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 ?
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
FN 1. It may be that the ?
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 ?
petitions for want of jurisdiction rather than stray into issues they lack
jurisdiction to decide, and discourage prisoners from filing such
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 ?
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
[updated December 2005] [renumbered March 2012]
[cited in USAM 9-37.000]