28 U.S.C. § 2241 — Power to grant writ

Page 517 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2241 1976—Pub. L. 94–455 substituted ‘‘taxes other than ac- tions brought under section 7428 of the Internal Rev- enue Code of 1954’’ for ‘‘taxes’’. 1958—Pub. L. 85–508 struck out provisions which re- lated to District Court for Territory of Alaska. See sec- tion 81A of this title which establishes a United States District Court for the State of Alaska. 1954—Act Aug. 28, 1954, extended provisions to Alaska. 1949—Act May 24, 1949, corrected spelling of ‘‘or’’ in second sentence. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2020 AMENDMENT Amendment by Pub. L. 116–113 effective on the date on which the USMCA enters into force (July 1, 2020), but not applicable to certain determinations under sec- tion 1516a of Title 19, Customs Duties, or binational panel reviews under NAFTA, see section 432 of Pub. L. 116–113, set out as a note under section 1516a of Title 19. EFFECTIVE DATE OF 1993 AMENDMENT Amendment by Pub. L. 103–182 effective on the date the North American Free Trade Agreement enters into force with respect to the United States [Jan. 1, 1994], but not applicable to any final determination described in section 1516a(a)(1)(B) or (2)(B)(i), (ii), or (iii) of Title 19, Customs Duties, notice of which is published in the Federal Register before such date, or to a determina- tion described in section 1516a(a)(2)(B)(vi) of Title 19, notice of which is received by the Government of Can- ada or Mexico before such date, or to any binational panel review under the United States-Canada Free- Trade Agreement, or to any extraordinary challenge arising out of any such review that was commenced be- fore such date, see section 416 of Pub. L. 103–182, for- merly set out as an Effective Date note under former section 3431 of Title 19. EFFECTIVE AND TERMINATION DATES OF 1988 AMENDMENT Amendment by Pub. L. 100–449 effective on date United States-Canada Free-Trade Agreement enters into force (Jan. 1, 1989), and to cease to have effect on date Agreement ceases to be in force, see section 501(a), (c) of Pub. L. 100–449, set out in a note under section 2112 of Title 19, Customs Duties. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–598 effective Oct. 1, 1979, see section 402(c) of Pub. L. 95–598, set out as an Effec- tive Date note preceding section 101 of Title 11, Bank- ruptcy. EFFECTIVE DATE OF 1976 AMENDMENT Amendment by Pub. L. 94–455 applicable with respect to pleadings filed with the United States Tax Court, the District Court of the United States for the District of Columbia, or the United States Court of Claims more than 6 months after Oct. 4, 1976, but only with respect to determinations (or requests for determinations) made after Jan. 1, 1976, see section 1306(c) of Pub. L. 94–455, set out as an Effective Date note under section 7428 of Title 26, Internal Revenue Code. EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85–508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85–508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions. EFFECT OF TERMINATION OF USMCA COUNTRY STATUS For provisions relating to effect of termination of USMCA country status on sections 401 to 432 of Pub. L. 116–113, see section 4601 of Title 19, Customs Duties. AMOUNT IN CONTROVERSY Jurisdictional amount in diversity of citizenship cases, see section 1332 of this title. § 2202. Further relief Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been deter- mined by such judgment. (June 25, 1948, ch. 646, 62 Stat. 964.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 400 (Mar. 3, 1911, ch. 231, § 274d, as added June 14, 1934, ch. 512, 48 Stat. 955; Aug. 30, 1935, ch. 829, § 405, 49 Stat. 1027). This section is based on the second paragraph of sec- tion 400 of title 28, U.S.C., 1940 ed. Other provisions of such section are incorporated in section 2201 of this title. Provision in said section 400 that the court shall re- quire adverse parties whose rights are adjudicated to show cause why further relief should not be granted forthwith, were omitted as unnecessary and covered by the revised section. Provisions relating to submission of interrogatories to a jury were omitted as covered by rule 49 of the Fed- eral Rules of Civil Procedure. Changes were made in phraseology. CHAPTER 153—HABEAS CORPUS Sec. 2241. Power to grant writ. 2242. Application. 2243. Issuance of writ; return; hearing; decision. 2244. Finality of determination. 2245. Certificate of trial judge admissible in evi- dence. 2246. Evidence; depositions; affidavits. 2247. Documentary evidence. 2248. Return or answer; conclusiveness. 2249. Certified copies of indictment, plea and judg- ment; duty of respondent. 2250. Indigent petitioner entitled to documents without cost. 2251. Stay of State court proceedings. 2252. Notice. 2253. Appeal. 2254. State custody; remedies in Federal courts. 2255. Federal custody; remedies on motion attack- ing sentence. [2256. Omitted.] SENATE REVISION AMENDMENT Chapter catchline was changed by Senate amend- ment. See 80th Congress Senate Report No. 1559. Editorial Notes AMENDMENTS 1978—Pub. L. 95–598, title II, § 250(b), Nov. 6, 1978, 92 Stat. 2672, directed the addition of item 2256 ‘‘Habeas corpus from bankruptcy courts’’, which amendment did not become effective pursuant to section 402(b) of Pub. L. 95–598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy. 1966—Pub. L. 89–711, § 3, Nov. 2, 1966, 80 Stat. 1106, sub- stituted ‘‘Federal courts’’ for ‘‘State Courts’’ in item 2254. § 2241. Power to grant writ (a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the dis- trict courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the dis- trict court of the district wherein the restraint complained of is had. (b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain Page 518 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2241 an application for a writ of habeas corpus and may transfer the application for hearing and de- termination to the district court having juris- diction to entertain it. (c) The writ of habeas corpus shall not extend to a prisoner unless— (1) He is in custody under or by color of the authority of the United States or is com- mitted for trial before some court thereof; or (2) He is in custody for an act done or omit- ted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or (3) He is in custody in violation of the Con- stitution or laws or treaties of the United States; or (4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, au- thority, privilege, protection, or exemption claimed under the commission, order or sanc- tion of any foreign state, or under color there- of, the validity and effect of which depend upon the law of nations; or (5) It is necessary to bring him into court to testify or for trial. (d) Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judi- cial districts, the application may be filed in the district court for the district wherein such per- son is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent juris- diction to entertain the application. The district court for the district wherein such an applica- tion is filed in the exercise of its discretion and in furtherance of justice may transfer the appli- cation to the other district court for hearing and determination. (e)(1) No court, justice, or judge shall have ju- risdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the deten- tion, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly de- tained as an enemy combatant or is awaiting such determination. (June 25, 1948, ch. 646, 62 Stat. 964; May 24, 1949, ch. 139, § 112, 63 Stat. 105; Pub. L. 89–590, Sept. 19, 1966, 80 Stat. 811; Pub. L. 109–148, div. A, title X, § 1005(e)(1), Dec. 30, 2005, 119 Stat. 2741; Pub. L. 109–163, div. A, title XIV, § 1405(e)(1), Jan. 6, 2006, 119 Stat. 3477; Pub. L. 109–366, § 7(a), Oct. 17, 2006, 120 Stat. 2635; Pub. L. 110–181, div. A, title X, § 1063(f), Jan. 28, 2008, 122 Stat. 323.) HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., §§ 451, 452, 453 (R.S. §§ 751, 752, 753; Mar. 3, 1911, ch. 231, § 291, 36 Stat. 1167; Feb. 13, 1925, ch. 229, § 6, 43 Stat. 940). Section consolidates sections 451, 452 and 453 of title 28, U.S.C., 1940 ed., with changes in phraseology nec- essary to effect the consolidation. Words ‘‘for the purpose of an inquiry into the cause of restraint of liberty’’ in section 452 of title 28, U.S.C., 1940 ed., were omitted as merely descriptive of the writ. Subsection (b) was added to give statutory sanction to orderly and appropriate procedure. A circuit judge who unnecessarily entertains applications which should be addressed to the district court, thereby disqualifies himself to hear such matters on appeal and to that ex- tent limits his usefulness as a judge of the court of ap- peals. The Supreme Court and Supreme Court Justices should not be burdened with applications for writs cog- nizable in the district courts. 1949 ACT This section inserts commas in certain parts of the text of subsection (b) of section 2241 of title 28, U.S.C., for the purpose of proper punctuation. Editorial Notes REFERENCES IN TEXT Section 1005(e) of the Detainee Treatment Act of 2005, referred to in subsec. (e)(2), is section 1005(e) of title X of div. A of Pub. L. 109–148, which is set out as a note under section 801 of Title 10, Armed Forces. CONSTITUTIONALITY For information regarding the constitutionality of certain provisions of this section, as added and amend- ed by section 1005(e)(1) of Pub. L. 109–148 and section 7(a) of Pub. L. 109–366, see the Table of Laws Held Un- constitutional in Whole or in Part by the Supreme Court on the Constitution Annotated website, constitu- tion.congress.gov. AMENDMENTS 2008—Subsec. (e). Pub. L. 110–181 amended directory language of Pub. L. 109–366, § 7(a). See 2006 Amendment note below. 2006—Subsec. (e). Pub. L. 109–366, § 7(a), as amended by Pub. L. 110–181, added subsec. (e) and struck out both former subsecs. (e) relating to jurisdiction to hear or consider action against United States or its agents re- lating to detention of alien by Department of Defense at Guantanamo Bay, Cuba. Subsec. (e). Pub. L. 109–163 added subsec. (e), relating to section 1405 of the Detainee Treatment Act of 2005. 2005—Subsec. (e). Pub. L. 109–148 added subsec. (e), re- lating to section 1005 of the Detainee Treatment Act of 2005. 1966—Subsec. (d). Pub. L. 89–590 added subsec. (d). 1949—Subsec. (b). Act May 24, 1949, inserted commas after ‘‘Supreme Court’’ and ‘‘any justice thereof’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2006 AMENDMENT Pub. L. 109–366, § 7(b), Oct. 17, 2006, 120 Stat. 2636, pro- vided that: ‘‘The amendment made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Oct. 17, 2006], and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.’’ TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR CERTAIN CLAIMS Pub. L. 109–366, § 5, Oct. 17, 2006, 120 Stat. 2631, pro- vided that: Page 519 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 2244 ‘‘(a) IN GENERAL.—No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories. ‘‘(b) GENEVA CONVENTIONS DEFINED.—In this section, the term ‘Geneva Conventions’ means— ‘‘(1) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, done at Geneva August 12, 1949 (6 UST 3114); ‘‘(2) the Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217); ‘‘(3) the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316); and ‘‘(4) the Convention Relative to the Protection of Civilian Persons in Time of War, done at Geneva Au- gust 12, 1949 (6 UST 3516).’’ § 2242. Application Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone act- ing in his behalf. It shall allege the facts concerning the appli- cant’s commitment or detention, the name of the person who has custody over him and by vir- tue of what claim or authority, if known. It may be amended or supplemented as pro- vided in the rules of procedure applicable to civil actions. If addressed to the Supreme Court, a justice thereof or a circuit judge it shall state the rea- sons for not making application to the district court of the district in which the applicant is held. (June 25, 1948, ch. 646, 62 Stat. 965.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 454 (R.S. § 754). Words ‘‘or by someone acting in his behalf’’ were added. This follows the actual practice of the courts, as set forth in United States ex rel. Funaro v. Watchorn, C.C. 1908, 164 F. 152; Collins v. Traeger, C.C.A. 1928, 27 F.2d 842, and cases cited. The third paragraph is new. It was added to conform to existing practice as approved by judicial decisions. See Dorsey v. Gill (App.D.C.) 148 F.2d 857, 865, 866. See also Holiday v. Johnston, 61 S.Ct. 1015, 313 U.S. 342, 85 L.Ed. 1392. Changes were made in phraseology. § 2243. Issuance of writ; return; hearing; decision A court, justice or judge entertaining an appli- cation for a writ of habeas corpus shall forth- with award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person de- tained is not entitled thereto. The writ, or order to show cause shall be di- rected to the person having custody of the per- son detained. It shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed. The person to whom the writ or order is di- rected shall make a return certifying the true cause of the detention. When the writ or order is returned a day shall be set for hearing, not more than five days after the return unless for good cause additional time is allowed. Unless the application for the writ and the re- turn present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained. The applicant or the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts. The return and all suggestions made against it may be amended, by leave of court, before or after being filed. The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require. (June 25, 1948, ch. 646, 62 Stat. 965.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., §§ 455, 456, 457, 458, 459, 460, and 461 (R.S. §§ 755–761). Section consolidates sections 455–461 of title 28, U.S.C., 1940 ed. The requirement for return within 3 days ‘‘unless for good cause additional time, not exceeding 20 days is al- lowed’’ in the second paragraph, was substituted for the provision of such section 455 which allowed 3 days for return if within 20 miles, 10 days if more than 20 but not more than 100 miles, and 20 days if more than 100 miles distant. Words ‘‘unless for good cause additional time is al- lowed’’ in the fourth paragraph, were substituted for words ‘‘unless the party petitioning requests a longer time’’ in section 459 of title 28, U.S.C., 1940 ed. The fifth paragraph providing for production of the body of the detained person at the hearing is in con- formity with Walker v. Johnston, 1941, 61 S.Ct. 574, 312 U.S. 275, 85 L.Ed. 830. Changes were made in phraseology. § 2244. Finality of determination (a) No circuit or district judge shall be re- quired to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior applica- tion for a writ of habeas corpus, except as pro- vided in section 2255. (b)(1) A claim presented in a second or succes- sive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless— (A) the applicant shows that the claim relies on a new rule of constitutional law, made ret- roactive to cases on collateral review by the Supreme Court, that was previously unavail- able; or (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitu- tional error, no reasonable factfinder would have found the applicant guilty of the under- lying offense.