W.D. Pa. LCvR 2254

A. Scope.

1. These rules shall apply in the United States District Court, Western

District of Pennsylvania, in all proceedings initiated under 28 U.S.C.

§ 2254. In addition to these rules, all parties also should consult 28 U.S.C.

§ 2254 and the applicable provisions of the federal habeas corpus statute

at 28 U.S.C. §§ 2241-2266, as amended by the Antiterrorism and Effective

Death Penalty Act of 1996 ("AEDPA"), P.L. 104-132, effective April 24,

1996.

2. These Local Rules are intended to supplement, when necessary, the

corresponding rules promulgated by the United States Supreme Court that

are entitled "Rules Governing Section 2254 Proceedings for the United

States District Courts." Those rules are cited herein as "the Federal 2254

Rules," and a specific Federal 2254 Rule is cited as "Federal 2254 Rule

___." All parties should consult the Federal 2254 Rules at the

commencement of litigation to ensure compliance with the Federal 2254

Rules, as supplemented by these Local Rules. In filings submitted to this

Court, these Local Rules shall be cited as "LCvR 2254.__."

B. The Petition.

1. Naming the Respondent. If the petitioner is currently under a state

Court judgment and he or she is challenging the state Court

conviction/sentence, he or she must name as respondent the state officer

who has custody (i.e., the warden or superintendent). The petitioner must

also name as respondent the District Attorney of the county in which he or

she was convicted and sentenced. If a petitioner is challenging parole

proceedings, he or she must name as respondent the Pennsylvania Board

of Probation and Parole.

2. Form.

a. Form of Petitions Required. A petitioner who files a petition

seeking relief pursuant to 28 U.S.C. § 2254 may submit his or her

petition on the standard form supplied by this Court. If the petitioner

does not use the standard form, the petition must substantially

follow the standard form supplied by this Court or the form attached

to the Federal 2254 Rules. Petitions that do not utilize the standard

forms shall contain all of the information required by the standard

forms. If the petitioner is represented by counsel, the Electronic

Case Filing (ECF) procedures apply.

b. Content. The petitioner is to state all grounds for relief, provide

specific facts supporting each argument, and identify the relief

requested. An accompanying memorandum of law is not required

but will be accepted by the Clerk of Court at the time the petition is

filed.

c. Where to Get the Standard Form. The standard form supplied

by this Court for 28 U.S.C. § 2254 petitions can be obtained free of

charge from the following sources: (i) this Court's website

(www.pawd.uscourts.gov) (FORMS/MANUALS); (ii) this Court's

Office of the Clerk of Court upon request; (iii) the Federal Public

Defender's website (http://paw.fd.org); or (iv) the Federal Public

Defender's Office upon request.

d. Requirements Concerning Filing Format. All filings in 28

U.S.C. § 2254 proceedings must by typed, word-processed or

neatly written in ink. All filings must be submitted on paper sized 8½

by 11 inches. No writing or typing shall be made on the back of any

filing.

e. Return of Petitions that Do Not Substantially Comply With

Local Form Rules. If the form or other initial filing submitted by a

pro se petitioner does not substantially comply with Federal 2254

Rule 2, as supplemented by these Local Rules, the Clerk of Court

will accept the petition and file it for the sole purpose of preserving

the timeliness. If the Court so directs, the filing may be returned to a

pro se petitioner with a copy of the Court's standard form, a

statement of reasons for its return, and a directive that the petitioner

resubmit the claims outlined in the original filing on the Court's form.

A petitioner will be given 21 days to return his or her filing on the

form supplied by this Court. A petitioner may seek leave of Court

for an extension of time to return the form.

f. Certificate Required in Death Penalty Case. A petitioner

challenging the imposition of a sentence of death pursuant to a state

Court judgment shall file with the Clerk of Court a copy of the

"Certificate of Death Penalty Case" required by the Third Circuit

L.A.R. Misc. 111.2(a). The certificate will include the following

information: names, addresses, and telephone numbers of parties

and counsel; if set, the proposed date of execution of the sentence;

and the emergency nature of the proceedings. Upon docketing, the

Clerk of Court will transmit a copy of the certificate, together with a

copy of the relevant documents, to the Clerk of the Court of Appeals

as required by Third Circuit L.A.R. Misc. 111.2(a).

C. Filing the Petition. The original Section 2254 petition shall be filed with the

Clerk of Court. Section 2254 petitions must be accompanied by the applicable

filing fee or for leave to proceed in forma pauperis.

D. Preliminary Review. These Local Rules provide no supplement to Federal

2254 Rule 4. Please consult that rule regarding preliminary review.

E. The Answer and the Reply.

1. The Answer.

a. When Required. Upon the directive of the Court, the

respondent shall file an Answer to the petition in a form consistent

with LCvR 2254.E.1.b-f.

The Respondent may, within the time frame permitted by the Court

for the filing of the Answer, file a motion to dismiss if the respondent

believes that there is a clear procedural bar to the action, such as

the failure to exhaust, statute of limitations, abuse of the writ, and/or

successive petitions. A motion to dismiss need not be in a form

consistent with LCvR 2254.E.1.b-f. However, such a motion must

be accompanied by a certified copy of all relevant state Court

records.

b. Contents. The Answer is more than just a responsive pleading

that simply admits or denies the allegations contained in the petition.

In habeas petitions challenging a state conviction/sentence, the

Answer shall contain a discussion of the relevant procedural and

factual history of all state proceedings, including the state Court trial,

direct appeal, and post-conviction proceedings. In habeas petitions

challenging state parole proceedings, the Answer shall contain the

relevant procedural and factual history of the parole proceedings

and any state Court proceedings which related to the parole

proceedings.

The Answer also shall address procedural issues, the merits of the

petition, and shall contain accompanying legal argument and

citation to appropriate authorities. All assertions of historical or

procedural facts shall be accompanied by citations to the state

Court record and shall appear in a style comporting with the

designations employed in the index of materials prepared in

accordance with LCvR 2254.E.1.d.

c. The respondent must also provide the Court with a certified copy

of all relevant transcripts of the state trial and post-conviction

proceedings; relevant documentary evidence admitted at those

proceedings; briefs submitted by either party to any state Court

relating to the matter; opinions and dispositive orders of the state

Court or agency; other relevant state Court/agency records; and a

certified copy of the docket sheets of all the state Courts/agencies

involved. Care should be taken so that all items are photocopied

accurately, legibly, and in full.

d. The respondent shall also submit an index of all material

described in LCvR 2254.E.1.c. The pages of the records must be

sequentially numbered so that citations to those records will identify

the exact location where the information appears.

e. If any item identified in LCvR 2254.E.1.c is not available at the

time the respondent submits an answer, the respondent shall notify

the Court that the item is unavailable. Once the item becomes

available, the respondent shall provide a supplemental lodging of

the item and index within 21 days of its availability.

f. As set forth in this Court's "Electronic Case Filing Policies and

Procedures," in addition to the items that must be filed electronically

with the Answer, a respondent shall also submit the original state

Court records, or a certified complete copy of those records. The

records shall be submitted in the traditional manner on paper. The

Clerk of Court shall note on the docket that the original state Court

records have been received. State Court records are not part of this

Court's permanent case file and will be returned to the appropriate

state Court upon final disposition, including appeals.

2. The Reply. Although not required, the petitioner may file a Reply (also

known as "a Traverse") within 30 days of the date the respondent files its

Answer. If the petitioner wishes to file a Reply after 30 days have passed,

he or she must file a motion requesting leave to do so. An extension may

be granted only for good cause shown.

F. Discovery. These Local Rules provide no supplement to Federal 2254 Rule

6. Please consult that rule regarding discovery.

G. Expanding the Record. If either party intends to rely on any document(s)

that are not a part of the state Court record, such party must include those

documents in a separate appendix attached to the pleading by which those

documents are being submitted. In addition, that party should address, in its

documents filed with the Court, why reliance on those documents is proper under

the federal habeas statute and Federal 2254 Rule 7.

H. Evidentiary Hearing. These Local Rules provide no supplement to Federal

2254 Rule 8. Please consult that rule regarding evidentiary hearings.

I. Second or Successive Petitions. These Local Rules provide no supplement

to Federal 2254 Rule 9. Please consult that rule regarding second or successive

petitions.

J. Powers of a Magistrate Judge. Within 21 days of commencement of a

Section 2254 proceeding in the Erie or Pittsburgh Divisions, the petitioner shall

execute and file a "CONSENT TO JURISDICTION BY UNITED STATES

MAGISTRATE JUDGE" form, either consenting to the jurisdiction of the

Magistrate Judge or electing to have the case randomly assigned to a District

Judge. Respondent shall execute and file within 21 days of its appearance a

form either consenting to the jurisdiction of the Magistrate Judge or electing to

have the case randomly assigned to a District Judge. If all parties do not consent

to Magistrate Judge jurisdiction, a District Judge shall be assigned and the

Magistrate Judge shall continue to manage the case consistent with 28 U.S.C.

§ 636.

The "CONSENT TO JURISDICTION BY UNITED STATES MAGISTRATE

JUDGE" form is available on this Court's website (www.pawd.uscourts.gov)

(CASE ASSIGNMENT SYSTEM). If a party elects to have the case assigned to

a District Judge, the Magistrate Judge shall continue to manage the case by

deciding non-dispositive motions and submitting reports and recommendations

on the petition and on dispositive motions, unless otherwise directed by the

District Judge.

K. Applicability of the Federal Rules of Civil Procedure. These Local Rules

provide no supplement to Federal 2254 Rule 11. Please consult that rule

regarding applicability of the Federal Rules of Civil Procedure.

L. Appeals.

1. Upon entry of a final decision decided pursuant to 28 U.S.C. § 2254,

the Court shall set forth the judgment on a separate document and enter

the judgment on the civil docket as required under Fed. R. Civ. P. 58(a)(1).

2. The time for filing a notice of appeal is governed by Fed. R. App. P.

4(a) and such time commences when the Court enters the judgment as

described above in said Rule.

M. The Appointment of Counsel. There is no constitutional right to counsel in

proceedings brought pursuant to 28 U.S.C. § 2254. Financially eligible

petitioners may, however, request that counsel be appointed at any time. See 18

U.S.C. § 3006A. Pursuant to Federal 2254 Rule 6(a), the Court may, if

necessary for effective discovery, appoint counsel for a petitioner who qualifies to

have counsel appointed under 18 U.S.C. § 3006A. Pursuant to Federal 2254

Rule 8(c), if an evidentiary hearing is warranted, the Court must appoint counsel

to represent a moving party who qualifies to have counsel appointed under 18

U.S.C. § 3006A. This Local Rule is not intended to alter or limit the appointment

of counsel available pursuant to Federal 2254 Rule 6(a), Federal 2254 Rule 8(c),

or 18 U.S.C. § 3006A