28 U.S.C. § 2251 — Stay of State court proceedings

Page 521 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2251 1966—Pub. L. 89–711 designated existing provisions as subsec. (a), struck out provision making the sub- section’s terms applicable to applications seeking in- quiry into detention of persons detained pursuant to judgments of State courts, and added subsecs. (b) and (c). § 2245. Certificate of trial judge admissible in evi- dence On the hearing of an application for a writ of habeas corpus to inquire into the legality of the detention of a person pursuant to a judgment the certificate of the judge who presided at the trial resulting in the judgment, setting forth the facts occurring at the trial, shall be admissible in evidence. Copies of the certificate shall be filed with the court in which the application is pending and in the court in which the trial took place. (June 25, 1948, ch. 646, 62 Stat. 966.) HISTORICAL AND REVISION NOTES This section makes no substantive change in existing law. It is derived from H.R. 4232 introduced in the first session of the Seventy-ninth Congress by Chairman Sumners of the House Committee on the Judiciary. It clarifies existing law and promotes uniform procedure. § 2246. Evidence; depositions; affidavits On application for a writ of habeas corpus, evi- dence may be taken orally or by deposition, or, in the discretion of the judge, by affidavit. If af- fidavits are admitted any party shall have the right to propound written interrogatories to the affiants, or to file answering affidavits. (June 25, 1948, ch. 646, 62 Stat. 966.) HISTORICAL AND REVISION NOTES This section is derived from H.R. 4232 introduced in the first session of the Seventy-ninth Congress by Chairman Sumners of the House Committee on the Ju- diciary. It clarifies existing practice without substan- tial change. § 2247. Documentary evidence On application for a writ of habeas corpus doc- umentary evidence, transcripts of proceedings upon arraignment, plea and sentence and a tran- script of the oral testimony introduced on any previous similar application by or in behalf of the same petitioner, shall be admissible in evi- dence. (June 25, 1948, ch. 646, 62 Stat. 966.) HISTORICAL AND REVISION NOTES Derived from H.R. 4232, Seventy-ninth Congress, first session. It is declaratory of existing law and practice. § 2248. Return or answer; conclusiveness The allegations of a return to the writ of ha- beas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not tra- versed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true. (June 25, 1948, ch. 646, 62 Stat. 966.) HISTORICAL AND REVISION NOTES Derived from H.R. 4232, Seventy-ninth Congress, first session. At common law the return was conclusive and could not be controverted but it is now almost univer- sally held that the return is not conclusive of the facts alleged therein. 39 C.J.S. pp. 664–666, §§ 98, 99. § 2249. Certified copies of indictment, plea and judgment; duty of respondent On application for a writ of habeas corpus to inquire into the detention of any person pursu- ant to a judgment of a court of the United States, the respondent shall promptly file with the court certified copies of the indictment, plea of petitioner and the judgment, or such of them as may be material to the questions raised, if the petitioner fails to attach them to his peti- tion, and same shall be attached to the return to the writ, or to the answer to the order to show cause. (June 25, 1948, ch. 646, 62 Stat. 966.) HISTORICAL AND REVISION NOTES Derived from H.R. 4232, Seventy-ninth Congress, first session. It conforms to the prevailing practice in ha- beas corpus proceedings. § 2250. Indigent petitioner entitled to documents without cost If on any application for a writ of habeas cor- pus an order has been made permitting the peti- tioner to prosecute the application in forma pauperis, the clerk of any court of the United States shall furnish to the petitioner without cost certified copies of such documents or parts of the record on file in his office as may be re- quired by order of the judge before whom the ap- plication is pending. (June 25, 1948, ch. 646, 62 Stat. 966.) HISTORICAL AND REVISION NOTES Derived from H.R. 4232, Seventy-ninth Congress, first session. It conforms to the prevailing practice. § 2251. Stay of State court proceedings (a) IN GENERAL.— (1) PENDING MATTERS.—A justice or judge of the United States before whom a habeas cor- pus proceeding is pending, may, before final judgment or after final judgment of discharge, or pending appeal, stay any proceeding against the person detained in any State court or by or under the authority of any State for any matter involved in the habeas corpus pro- ceeding. (2) MATTER NOT PENDING.—For purposes of this section, a habeas corpus proceeding is not pending until the application is filed. (3) APPLICATION FOR APPOINTMENT OF COUN- SEL.—If a State prisoner sentenced to death applies for appointment of counsel pursuant to section 3599(a)(2) of title 18 in a court that would have jurisdiction to entertain a habeas corpus application regarding that sentence, that court may stay execution of the sentence of death, but such stay shall terminate not later than 90 days after counsel is appointed or the application for appointment of counsel is withdrawn or denied. (b) NO FURTHER PROCEEDINGS.—After the granting of such a stay, any such proceeding in any State court or by or under the authority of any State shall be void. If no stay is granted, Page 522 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2252 any such proceeding shall be as valid as if no ha- beas corpus proceedings or appeal were pending. (June 25, 1948, ch. 646, 62 Stat. 966; Pub. L. 109–177, title V, § 507(f), Mar. 9, 2006, 120 Stat. 251.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 465 (R.S. § 766; Mar. 3, 1893, ch. 226, 27 Stat. 751; Feb. 13, 1925, ch. 229, § 8(c), 43 Stat. 940; June 19, 1934, ch. 673, 48 Stat. 1177). Provisions relating to proceedings pending in 1934 were deleted as obsolete. A provision requiring an appeal to be taken within 3 months was omitted as covered by sections 2101 and 2107 of this title. Changes were made in phraseology. Editorial Notes AMENDMENTS 2006—Pub. L. 109–177 designated first par. of existing provisions as subsec. (a)(1) and inserted headings, added pars. (2) and (3), and designated second par. of existing provisions as subsec. (b) and inserted heading. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–177, title V, § 507(d), Mar. 9, 2006, 120 Stat. 251, provided that: ‘‘(1) IN GENERAL.—This section [enacting section 2265 of this title, amending this section and sections 2261 and 2266 of this title, and repealing former section 2265 of this title] and the amendments made by this section shall apply to cases pending on or after the date of en- actment of this Act [Mar. 9, 2006]. ‘‘(2) TIME LIMITS.—In a case pending on the date of en- actment of this Act, if the amendments made by this section establish a time limit for taking certain action, the period of which began on the date of an event that occurred prior to the date of enactment of this Act, the period of such time limit shall instead begin on the date of enactment of this Act.’’ § 2252. Notice Prior to the hearing of a habeas corpus pro- ceeding in behalf of a person in custody of State officers or by virtue of State laws notice shall be served on the attorney general or other appro- priate officer of such State as the justice or judge at the time of issuing the writ shall di- rect. (June 25, 1948, ch. 646, 62 Stat. 967.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 462 (R.S. § 762). Section 462 of title 28, U.S.C., 1940 ed., was limited to alien prisoners described in section 453 of title 28, U.S.C., 1940 ed. The revised section extends to all cases of all prisoners under State custody or authority, leav- ing it to the justice or judge to prescribe the notice to State officers, to specify the officer served, and to sat- isfy himself that such notice has been given. Provision for making due proof of such service was omitted as unnecessary. The sheriff’s or marshal’s re- turn is sufficient. Changes were made in phraseology. § 2253. Appeal (a) In a habeas corpus proceeding or a pro- ceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (A) the final order in a habeas corpus pro- ceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under sec- tion 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under para- graph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). (June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139, § 113, 63 Stat. 105; Oct. 31, 1951, ch. 655, § 52, 65 Stat. 727; Pub. L. 104–132, title I, § 102, Apr. 24, 1996, 110 Stat. 1217.) HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., §§ 463(a) and 466 (Mar. 10, 1908, ch. 76, 36 [35] Stat. 40; Feb. 13, 1925, ch. 229, §§ 6, 13, 43 Stat. 940, 942; June 29, 1938, ch. 806, 52 Stat. 1232). This section consolidates paragraph (a) of section 463, and section 466 of title 28, U.S.C., 1940 ed. The last two sentences of section 463(a) of title 28, U.S.C., 1940 ed., were omitted. They were repeated in section 452 of title 28, U.S.C., 1940 ed. (See reviser’s note under section 2241 of this title.) Changes were made in phraseology. 1949 ACT This section corrects a typographical error in the sec- ond paragraph of section 2253 of title 28. Editorial Notes AMENDMENTS 1996—Pub. L. 104–132 reenacted section catchline without change and amended text generally. Prior to amendment, text read as follows: ‘‘In a habeas corpus proceeding before a circuit or dis- trict judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit where the proceeding is had. ‘‘There shall be no right of appeal from such an order in a proceeding to test the validity of a warrant to re- move, to another district or place for commitment or trial, a person charged with a criminal offense against the United States, or to test the validity of his deten- tion pending removal proceedings. ‘‘An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.’’ 1951—Act Oct. 31, 1951, substituted ‘‘to remove, to an- other district or place for commitment or trial, a per- son charged with a criminal offense against the United States, or to test the validity of his’’ for ‘‘of removal issued pursuant to section 3042 of Title 18 or the’’ in second par.