Copyright © 2004, Jim Carter 


PART 5b:

(updated version)


The question can be raised whether an individual incarcerated on a 26 USC §7203 or §7201 charge, even if he has pled guilty, or has a suspended sentence, or has finished their sentence but has probation or other restrictions, can find relief with the legal points in Parts 1 and 4. The answer appears to be an unqualified yes.


[court caption with district court case number]






The defendant Moves this court to Order a review of the defendant’s incarceration in the nature of a Writ of Habeas Corpus, directing that the Movant be brought before the court without delay to hear and consider any objections to this Motion.

The defendant additionally Moves this court, after review, to vacate and set aside the judgment imposed by this court; to restore full civil rights; and to have notice that the conviction has been vacated and set aside to be published in all legal publications that contain a record of this conviction; for the return of all fines, penalties, and restitution ordered by the court; and for such other relief as is deemed equitable by this court; for the good and sufficient cause that the court was without jurisdiction to impose such sentence, and for the additional reason that the indictment does not identify a criminal offense, all in violation of due process

Upon review, the indictment for 26 USC §7203, commonly identified as a charge of willful failure to file, is found to be without any claim the defendant had a statutory duty to the plaintiff and defendant is therefore not charged with violating any legal requirement imposed by law. Without a claim of a statutory duty being violated by the defendant, no crime has been charged (there is no cause stated).  The Fifth Amendment mandate that judicial actions shall proceed against a citizen only by due process (the law of the land) has therefore been violated, and since any procedure which violates the constitution is not a government action, jurisdiction has not been vested.

Under penalty of perjury, all statements of fact in this Motion and the attached memorandum are declared to be true and correct.

         [signed and dated,  address and phone number suggested]

[court caption with district court case number]


This Motion is filed pursuant to statutory provisions of 28 USC §2255 for habeas corpus and FRCrP 12(b)(2) that authorizes a challenge to jurisdiction/for failure to state an offense to be noticed at any time.

The defendant is federal prisoner number ________ at _________________  prison sentenced by this court to _____ months incarceration on ________(month, day, year).

The court will take judicial notice that the indictment in this case claims the defendant violated Title 26, United State Code, Section 7203 by reason that he had gross income of $_________ for the year ______ and that he did willfully fail to make a tax return "as required by law."  There is no other statute from Title 26 mentioned in the indictment.

The court will also notice that §7203 is an administrative procedure in Subtitle F, PROCEDURE AND ADMINISTRATION that is applicable to all 80 or so taxes the IRS collects. It does not identify what tax is being enforced.

There is no statute/law cited that imposes any type of legal responsibility on the defendant. The only law cited (§7203) is that the IRS/DOJ is empowered to prosecute and punish individuals who willfully refuse to pay any taxes legally collected by the IRS. This premise is not challenged.

It appears from a generous reading of the indictment that an income tax has been pursued. The adjective ‘income’ is found before the noun ‘tax.’ Is the defendant supposed to make some legal assumption from that phrase? Defendants cannot be required to make legal assumptions from criminal process.

Does the term ‘gross income’ impose some legal responsibility? If so, the indictment does not identify it. An indictment is required to identify any legal duty allegedly violated by the offender.

In brief, the indictment does not charge the defendant with being legally responsible for any tax. This position has been obliquely observed in recent adjudication that might be best to review.

In US v Moore, 692 F2d 95, pro se Moore suggested IRC §7203 was unconstitutionally vague and additionally failed to specify who has to pay an income tax. The trial court prevented such arguments from being made to the jury and the appellate court declared IRC §l and §6012(a) made the defendants responsible for the income tax.

In three appeals by the same lawyer from tax court, the court in Lively v CIR, 705 F2d 1017 declared a claim of  "no law imposing an income tax on (Lively)" was without merit while in Ficalaro v CIR, 751 F2d 85 and Charczuk v CIR, 771 F2d 471 the court declared §§1 and 61 made the taxpayers liable for the income tax. Since all three citizens had petitioned tax court, there was no indictment served nor did the 'taxpayer' have standing to challenge the legality of the income tax. A petitioner to tax court cannot make such a challenge. To file a petition in non judicial tax court inherently assumes jurisdiction of the legislative Article I 'court' (not an Article III judicial court) and the legal position of a taxpayer. This is the Roman civil law procedure that is applicable in administrative tax court. To challenge liability for the income tax in appellate court after acquiescence to the status of taxpayer in tax court is an absurd appeal that justified personal sanctions on the lawyer. It might be in the public interest to revoke his license. Legal conclusions of the tax court are declared to be reviewed denova while factual findings are upheld unless they are ‘clearly erroneous’, but the tax court will not make any legal conclusions regarding the constitutionality of the income tax.

In Stelly v CIR, 761 F2d 1113, the court declared  §61(a) made the defendant responsible for the income tax.

In US v Pederson, 784 F2d 1462 (1986), the court declared liability was imposed by §§1 and 6012.

In US v Bowers, 920 F2d 220, the court declared IRC §6012 requires payment of taxes.

In US v Vroman, 975 F2d 669, the court declared it was not necessary to cite IRC §6012 to give the defendant notice of the charges filed against him. id 671.

This list is not exhaustive. District and circuit courts have in other published and in unpublished opinions denied motions during trial and by habeas corpus that challenge the adequacy of the indictment, and occasionally offer their favorite statute which the court claims to impose liability. There is no known opinion that attempts to address the Supreme Court holdings and conclusions that are presented in this Memorandum.

While not holding on this court, we can observe the Treasury Department has recently suggested several statutes impose liability on the taxpayer. At the former website, we found: "The Truth: The tax law is found in Title 26 of the United States Code. The requirement to file an income tax return is not voluntary and it is clearly set forth in the Internal Revenue Code (IRC) Sections 6011(a), 6012(a), et seq., and 6072(a)." id 7-8. {Earlier editions were at page 4} At IRS website , the publication THE TRUTH ABOUT FRIVOLOUS TAX ARGUMENTS , subsection B. Contention: Payment of Tax is Voluntary declares "the requirement to pay taxes is not voluntary and is clearly set forth in section 1 of the Internal Revenue Code, which imposes a tax …" on page 4 of 32.

It can additionally be shown that the Congressional Research Report titled FREQUENTLY ASKED QUESTIONS CONCERNING THE FEDERAL INCOME TAX prepared for members of Congress declares IRC §§1, 61, 63, 6012 and 6151 "working together, make an individual liable for income taxes."  Page numbers vary in different publication dates.

The memorandum from a district court that dismisses a challenge to the indictment will often declare: "petitioner makes the same tired argument that an indictment, citing 26 USC §7203 (or §7201), fails to identify the statute that makes an individual liable for an income tax… " and will cite a case in their circuit that may have mentioned the same issue but with little or no legal support. There is no reason to ridicule a litigant for making such a claim. As we have seen, confirmation of the claim that liability lies outside of §7203 is repeatedly acknowledged and declared by federal appellate courts. At the risk of repetition, the few known cases that have not been listed "not for publication" include:

In Ficalaro v CIR, 751 F2d 85, the 2nd Circuit declared IRC §1 and §61 was responsible for liability.

In US v Bowers, 920 F2d 220, the 4th. Circuit declared §6012 requires payment.

In Stelly v CIR, 761 F2d 1113, the 5th. Circuit declared §61(a) made the individual responsible.

In US v Pederson, 784 F2d 1462, the 9th. Circuit relied upon §1 and §6012 to make the individual liable. In US v Vroman, 975 F2d 669, the 9th. Circuit declared it was not necessary to cite IRC §6012 to impose liability.

In US v Moore, 692 F2d 95, the 10th. Circuit declared IRC §1 and §6012(a) made the defendant responsible for the income tax. In Charczuk v CIR, 771 F2d 471, the 10th. Circuit declared §1 and §61 made the taxpayers liable for the income tax.

Since different statutes are claimed by various sources to impose legal responsibility, is there any justifiable reason why legal liability was not declared in the indictment? Of more importance, is the indictment in this case, which does not include a statute declaring legal responsibility for a tax, consistent with fundamental requirements of due process as established by the Supreme Court to confer jurisdiction upon this court?

The inescapable conclusion is that various sources recognize the requirement that legal responsibility for a tax must be made by statute, and they all offer their favorite statute as the authority. It is a violation of due process if a taxpayer has to guess what law makes him responsible for a tax. "(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v General Construction Co., 269 US 385, 391 (1926). But the quotation almost misses the real point. We are not addressing a vague statute. There is no ‘statute which requires the doing of an act’ averred in the instant indictment, and that "violates the first essential of due process of law."

It is manifestly obvious the defendant cannot violate IRC §7203. The section reads: "Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof …"     emphasis added. The requirement is clearly outside §7203; the defendant cannot violate §7203. If the defendant is required "under/by this title", then the punishment of §7203 can be pursued by the prosecutor. §7203 is statutory authorization to prosecute putative taxpayers.  What law "under/by this title" requiring the payment of a tax and making the defendant into a 'taxpayer' has been violated? The indictment has no answer.  Concurrence that legal responsibility is acknowledged to be outside §7203 is evidenced in the circuit court opinions, Congressional Report, and government websites listed above.

Federal Rules of Criminal Procedure 7(c)(1) requires the indictment to "state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated." The notification of legal responsibility "or other provision of law which the defendant is alleged therein to have violated"  is not found in the indictment. Criminal process must allege every essential element of the offense. Evans v US, 153 US 584; Hagner v US, 285 US 427; Hamling v US, 418 US 87. Notification of legal responsibility is "the first essential of due process of law." Connally v General Construction Co., 269 US 385, 391 (1926).

The memorandum by the district court that dismisses a challenge may reproduce §7203 and declare an indictment must contain the "statute, rule, regulation, or other provision of law that the defendant is alleged to have violated" [FRCP 7(c)(1)] and conclude §7203 informs the petitioner of "his specific tax obligation (required to pay income tax)." How the court can additionally quote the nebulous statement in the indictment---"(defendant) did willfully fail to make an income tax return as required by law and regulations"---and make such a conclusion is incomprehensible. Is the ‘law’ the indictment is referring to §7203? Section 7203 is the only law cited in the indictment. Such a position is untenable with the knowledge §7203 has been used to prosecute other than income taxes.

In Grosso v US, 390 US 62, the Supreme Court addressed an issue of willful failure to pay wagering tax (IRC 4401) and willful failure to pay an occupational license tax (IRC §4411). ‘Willful failure’ is not described in either of the two cited statutes. Willful failure came from §7203.

In Ingram v US, 360 US 672, the Supreme Court case utilized §7201 and §7203 to punish violators of §4401, §4411, and §4421. Ref. Footnote 1.

In Tyler v US, 397 F2d 565, §7203 was used to convict the defendant of willful failure to file excise tax returns required by §4401 and §4411. The same or similar result is in US v Stavros, 597 F2d 108; Edwards v US, 321 F2d 324; US v Sams, 340 F2d 1014; Scaglione v US, 396 F2d 219; US v Magliano, 336 F2d 817; Rutherford v US, 264 F2d 180; US v Gaydos, 310 F2d 833; US v Sette, 334 F2d 267; US v Simon, 241 F2d 308; US v Wilson, 214 FSup 629.

In US v Willoz, 449 F2d 1321, §7206 was relied upon for a conviction of willfully making a false statement on a wagering form required by §4412 and §4401.

Are wagering and occupational tax violations the only cases in addition to income tax cases that can be brought by provisions of Chapter 75 (including §7201 through §7209)? Of course not. §4071 imposes a tax on tires, §4081 imposes a tax on gasoline and diesel fuel, §4091 imposes a tax on aviation fuel, §4121 imposes a tax on coal mining, §4161 imposes a tax on sporting goods, but the entire list would be very lengthy. The statutory provisions in §7203 that apply to "Any person required under this title to…" authorizes punishment for violators of sections listed in this paragraph, and other tax violations, or there is otherwise no penalty for such offense---with a few specific exceptions. The criminal penalties of Chapter 75 for the above mentioned taxes may be seldom filed, but if there were no penalties, the manufacturers would surely cease paying the taxes.

It is submitted a lone citation of Section §7203, or §7201, within an indictment has been conclusively confirmed by federal appellate courts to not include the statute imposing liability for an alleged income tax nor does §7203 identify what tax of many potential taxes is being pursued. "(T)he court in effect rendered judgment against him upon a matter that was not within the pleadings and was not in fact litigated. To do this without his consent---and the record shows no consent---is contrary to fundamental principles of justice." Coe v Armour Fertilizer, 237 US 413, 426 (1915). The question becomes one of the legal standing of an indictment that does not aver a statute that imposes liability or identify what tax is being pursued.

"Law is something more than mere will exerted as an act of power...Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law...the limitations imposed by our constitutional law upon the action of the governments...are essential to the preservation of public and private rights...the enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities... against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding  the force of the government."  

Hurtado v California, 110 US 516, 536 (1884).

The phrase "as required by law" within the indictment is a conclusion of law that is unacceptable in criminal process. "(A)s required by law" is an implicit acknowledgment that responsibility for an income tax is not within §7203. Due process is violated if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.  Snyder v Massachusetts, 291 US 97, 105 (1934).  After reciting several constitutional restrictions that can be side-stepped, the court declares: "What may not be taken away is notice of the charge and an adequate opportunity to be heard in defense of it."  id 105. Of what use is process if it does not tell the defendant what he has done wrong?  In Boyd v US, 116 US 616 (1886), the court observed the succinct statement by Lord Camden: "If it is law, it will be found in the books; if it is not to be found there, it is not law." id 627. All the IRS must do is cite their favorite statute. An indictment without specifics of the case is invalid. Russell v US, 369 US 749.

Without a statutory claim that the defendant is legally responsible for paying a tax, the defendant has not been charged with the performance of a legal duty. If he is not charged with violating a legal duty, no crime has been alleged. If no crime is alleged, there is no case. If there is no case, there is nothing for this court to have jurisdiction over. The above steps are the fundamental requirements of due process. If due process is not followed, the court does not have jurisdiction. "A judgment rendered in violation of due process is void." World Wide Volkswagen v Woodsen, 444 US 286, 291 (1980); National Bank v Wiley, 195 US 257 (1904); Pennoyer v Neff, 95 US 714 (1878).


"(T)he record of his conviction should show distinctly, and not by inference merely, that every step involved in due process of law, and essential to a valid trial, was taken in the trial court; otherwise, the judgment will be erroneous." 

Crain v US, 162 US 625, 645.

Due process requires the government to affirmatively evidence their authority to tax:  "...jurisdiction of the Courts of the United States means a law providing in terms of revenue; that is to say, a law which is directly traceable to the power granted to Congress by §8, Article I, of the Constitution, 'to lay and collect taxes, duties, imposts, and excises.'"  US v Hill, 123 US 681, 686 (1887). US v Hill, read simply, declares the court does not have jurisdiction unless the law cited in the indictment reflects a constitutional authorization. In the instant case, there is no law cited that claims to impose statutory responsibility on the defendant, which is far less than the required averment of constitutional authorization.

The Supreme Court, in reversing a conviction that did not identify the defendant as the guilty culprit, stated: "It is beyond question, of course, that a conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged violates due process." Vachon v New Hampshire, 414 US 478 (1973) citations omitted. The instant application is not to mere evidence as in the Vachon case; it is to accusing the defendant of violating a law, and that accusation is never made. It is inconceivable that there is a more 'crucial element of the offense.'  Without a claim of a lawful duty being violated, there is no offense; the requirement for evidence is superfluous. A substantive violation of due process nullifies any claim to lawful action.

In condemning an ambiguous indictment, the court declared: "A cryptic form of indictment in cases of this kind requires the defendant to go to trial with the chief issue undefined. It enables his conviction to rest on one point [law] and the affirmance of the conviction to rest on another. It gives the prosecution free hand on appeal to fill in the gaps of proof [law] by surmise or conjecture. The Court has had occasion before now to condemn just such a practice." Russell v United States, 369 US 749, 766. We have seen the circuit courts in the income tax cases listed above cite whatever statute they choose to ‘fill in the gaps’ and conclude a law has been violated. The practice is not compatible with Supreme Court holdings.

The Supreme Court again reversed a conviction of a crime that was not charged in the indictment. "No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. If, as the State Supreme Court held, petitioners were charged with a violation of §1 [and convicted of §2], it is doubtful both that the information fairly informed them of that charge and that they sought to defend themselves against such a charge; it is certain that they were not tried for or found guilty of it. It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made." Cole v Arkansas, 333 US 196, 201 (1947), citations omitted.

The present situation is not of charging the defendant under one statute and convicting him under another as in the Cole case; it is a situation of convicting him under an unidentified statute---of  "a charge that was never made." The IRS has not charged the defendant with being legally responsible for an income tax. The present situation is precisely the example envisioned by the court as a most egregious violation of due process. Defendant must be given adequate notice of the offense charged against him and for which he is to be tried. Smith v O'Grady, 312 US 329 (1941). "This Court has repeatedly stated that criminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law." Jordan v De George, 341 US 223, 230 (1951). And again: "Conviction upon a charge not made would be sheer denial of due process." De Jonge v Oregon, 299 US 353, 362. (1937).

In the Vachon v New Hampshire case, the court determined that a substantive violation of due process merely invalidated the judgment of the court. Other cases cited above involve the lack of a law in the indictment and failure to allege a crime. The courts therein made a clear usurpation of power by wrongfully extending its jurisdiction beyond the scope of their authority. Stoll v Gottlieb, 305 US 165, 171. That renders the adjudication a nullity and void, not merely voidable. Lubben v Selective Service Board, 453 F2d 645. A void judgment, as opposed to an erroneous one, is one that from its inception was legally ineffective. Williams v North Carolina, 325 US 226; Kalb v Feuerstein, 308 US 433.

Would the lack of a statute averring legal liability constitute harmless error? Again, let the Supreme Court address the issue. In Smith v US, 360 US 1, the court held the Fifth Amendment right to an indictment for a capital offense, as restated in Federal Rule of Criminal Procedure 7(a), could not be waived by the defendant and that a proceeding in violation of this constitutional requirement negated the jurisdiction of the court. (The Supreme Court could not have returned the case for a new trial if jeopardy had attached in the first trial.) The constitutional right to be left alone unless charged with violating a law (the essence of due process) is no less a constitutional right than being indicted for an infamous crime. The Magna Carta’s declaration of protection by "law of the land" (the historic origin of due process) arguably predates the origin of the indictment.

While all legal theory and case history given herein focus on the absence of a law within the indictment, a reflection on the history of the Magna Carta's protection in the frame of the instant application underscores why the safeguard was demanded by the Barons so many years ago.  Without a requirement that the law be cited to justify the King's seizure of the peasant's goodies, there can be no meaningful defense to arbitrary confiscation under color of law. If there is no law requiring an affirmative declaration of the law imposing the tax, the dispossessed must carry the burden of proof to show the theft is illegal; i.e., that the seizure cannot be justified under some unidentified law.  This reversal of our traditional placement of the burden of proof is impossible to overcome; it is impossible to prove that a law does not exist. It is plain that where the burden of proof lies may be decisive of the outcome. Cities Service Oil Co v Dunlap, 308 US 208. It is a violation of due process to require a defendant to prove exclusion from a tax. Unitarian Church v Los Angeles, 357 US 545.  The burden of proof must be on the party levying the tax to comply with due process.  Speiser v Randall, 357 US 513, 529 (1958).

The court has said it very well: "It is not permissible to shift the burden by arbitrarily making one fact, which has no relevance to guilt of the offense, the occasion of casting on the defendant the obligation of exculpation." Tot v US, 319 US 463, 469. Applied in the instant case, it could be read: The acknowledgement that the IRS collects taxes cannot be automatically converted into indisputable proof that anyone accused by the IRS is inherently legally responsible for an unidentified tax. "The power to create presumptions is not a means of escape from constitutional restrictions." Bailey v Alabama, 219 US 219, 239.

To be denied the opportunity to present a defense to a (supposed) criminal charge is a reversion to the barbaric days of the Salem (and continental) witch trials and the Inquisitions. The IRS has a lengthy and consistent track record of adamant refusal to declare in court documents and in testimony, in correspondence to private citizens, and to members of congress, a law that imposes an income tax and exposing it to a challenge in court while carrying the burden of proof as required by due process. It is not mere oversight on the part of the IRS to not allege a statute that imposes a legal liability on the citizen. It is a deliberate and premeditated institutional practice of more than 40 years. The statutes, prior to the 1954 revision, repeatedly required the defendant be shown "liable by law."

"...notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused..."  Cole v Arkansas, id 201, emphasis added.  In reflecting on Star Chamber proceedings, the Supreme Court quoted J. Stephen:   "There is something specially repugnant to justice in using rules of practice in such a manner as to (prevent a defendant) from defending himself, especially when the professed object of the rules so used is to provide for his defense."  

Faretta v. California, 422 U.S. 806, 822-823 (1975).  

The object in the instant procedure of the IRS "to prevent a defendant from defending himself " may be even less meritorious: to expedite the confiscation of revenue.

The ultimate question before this court is whether 800 years advancement of civilized jurisprudence must yield to the whim of the IRS for expedited extortion of revenue under color of law.  We cannot use the phrase "collection of taxes" until the citizen is confronted with a statutory duty to pay a tax and an opportunity to challenge that contention.

"…compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court’s authority to deprive an accused of his life or liberty. If this requirement of the (Bill of Rights) is not complied with, the court no longer has jurisdiction to proceed.  The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.

 Johnson v Zerbst, 304 US 458, 467, 468 (1938).  

The right to be notified of a law allegedly violated and the opportunity to defend against the charge is of no less constitutional moment than the right to counsel in the Zerbst case. Since the indictment failed to state an offense and a crime has not been charged, the judgment must be vacated and set aside. US v Osiemi, 980 F2d 344 (1993). A challenge to the jurisdiction of the court is not waived by failure to raise the issue in trial court or on direct appeal.  Kaufman v US, 394 US 217, 222.

Even the IRS is required to conform their prosecutions to actions that are clearly defined in the statutes or face dismissal of indictments. US v Carroll, 345 US 457 (1953). There may be a heavy presumption against validity where a right is explicitly secured by the constitution.  Harris v McRae, 448 US 297 (1979); Capital Cities Media v Toole, 463 US 1301 (1983).

An indictment is an emissive of the grand jury; it cannot have substantive issues altered by the prosecuting attorney. Rabe v Washington, 405 US 313 (1972). Nor can a bill of particulars save an invalid indictment. Russell v United States, 369 US 749, 770. A bill of particulars relates only to issues of fact--it is not relevant to issues of law. Nor does the lack of an appeal prevent a challenge to a defective indictment. FRCrP 12 (b)(2).

Habeas corpus will lie where no offense has been committed.  Strauss v US, 516 F2d 980; Martency v US, 216 F2d 760;  Robinson v US, 313 F2d 817;  Roberts v US, 331 F2d 502;  Martyn v US, 176 F2d 609.  An indictment that does not charge an offense can be discharged by habeas corpus.  Roberts v Hunter, 140 F2d 38; Brock v Hudspeth, 111 F2d 447; White v Levine, 40 F2d 502.  Lack of a valid indictment is cause for release by habeas corpus. Ex parte Bain, 121 US 1; Ex parte Wilson, 114 US 417. The court has a responsibility in a habeas corpus action to review the record and, if the record shows a violation of a constitutional mandate, declare the trial was absolutely void. Moore v Dempsey, 261 US 86; Patton v US, 281 US 276.

            [signed and dated ?? ]



Statutory federal habeas corpus procedure is codified at 28 USC §§2241 to 2255. Extensive analysis can be found in Federal Practice and Procedure by Wright  {KF9619, W7} Criminal Procedure, volume 3, Habeas Corpus §589-602.  The one hundred pages include copious annotations.  Federal Procedure, Lawyers Edition {KF 8835, F43} volume 16 Habeas Corpus §§41.372 to 41.544 is also informative. Hard core students will find Moore's Federal Practice {KF8820, A313} volume 28, chapter 672, contains detailed citations.   More information is at 39AmJur2d Habeas Corpus §§145-154 {KF154 A42}.

A motion filed by a federal prisoner is pursuant to §2255 rather than §2241. Hey, this modern method of filing a motion in the court that imposed sentence as a continuation of the old case rather than filing a Petition for a Writ does not require a filing fee.  A habeas corpus motion is a continuation of the criminal prosecution. US v Levi, 111 F3d 955; McIntosh v US Parole, 115 F3d 809. However, the court will immediately initiate a civil case and issue a case number.

The 'file at any time provision' of §2255 was changed to a one year period of limitation for relief in 1996. 28 USC §2255(4)  tolls the period from the event when facts supporting the claim could have been discovered through the exercise of due diligence.  If the violation has been a standing procedure by the IRS for 40 years and recently discovered, the time could be claimed to have just started.   28 USC  §2255(3)  alternatively starts the time when the right asserted was initially recognized by the Supreme Court.  The future will tell if this provision is applicable.  Since §2255 is extensively used to challenge grand jury composition, prosecutorial misconduct, prison conditions, unconstitutional searches, etc.,  the limitation can be understandable for those conditions.  In a challenge to jurisdiction where the evidence is in the court file and does not deteriorate with age, and goes to a fundamental constitutional right, it is reasonable to push the issue a bit.

No court has a right to imprison a citizen (or to remove civil rights) who has violated no law Such restraint, even if exercised by a court under the guise and form of law, is as subversive of the right of the citizen as if it were exercised by a person not clothed with authority.  Ex Parte Siebold, 100 US 371; 39 AmJur2d Habeas Corpus §28. Courts have held the one year limitation for relief can be equitably tolled in extraordinary circumstances. US v Kelly, 235 F3d 1238 (out of a concern for fairness); US v Patterson, 211 F3d 927 (for actively misleading the defendant); Dunlap v US, 250 F3d 1001.   A statute of limitations on a question of jurisdiction would have the effect of making legal what was an illegal procedure, in addition to running counter to supreme court holdings. 

If the time restraints of  §2255 are ruled to prevent review by a motion for habeas corpus, a Petition for a Writ of habeas corpus pursuant to the provisions of §2241 can be filed.

It is additionally noted that FRCrP 12(b)(2) authorizes "defenses that (the) indictment or information fail to show jurisdiction or to charge an offense shall be noticed by the court at any time." Jurisdictional questions are never waived; they can be made at any time. Waley v Johnston, 316 US 101 (1942); Thor v US, 554 F2d 759.

The custody requirement for §2255 has vacillated.  Suspended sentences have been included (Evitts v Lucey, 469 US 387)  and also probation.  US v Condit, 621 F2d 1096;  US v Span, 75 F3d 1383.

A guilty plea can be challenged at any time if the court did not have jurisdiction.  Machibroda v US, 368 US 487.  Jurisdiction is acquired by statutory authorization and valid process but not by a plea. A plea of guilty when the court does not have jurisdiction does not vest jurisdiction in the court nor does it bar a challenge to jurisdiction. Without jurisdiction, all orders are void (not merely voidable) and fines, penalties, restitution, etc., are refundable.

On multiple count indictments, the punishment for §7203 counts may be removed.

Photocopies of the government websites mentioned and the Congressional Report can be attached as exhibits for the convenience of the court if they are available. Any attachments should be footnoted in the Motion and the number of pages should be identified; i.e., 1 of 15, 2 of 15, etc., to prevent inadvertent loss.

A motion such as this with memorandum may be attached to a habeas form available from the warden or clerk of the court to make application for a Writ. There is some indication the form does not appear to be mandatory  (Whittemore v US, 986 F2d 575) but don‘t count on it.  The original and two conforming copies are filed in the sentencing court.  If the clerk finds the paper work to be improper, it is to be returned with a note of the flaw. The court should notify you within a week that a civil case has been initiated and give you the new number. The clerk will serve the DA if the court orders a hearing.  

It is not unknown for a district court to ignore a filing from a prisoner, even in a transcript to the circuit court, until confronted with a photocopy of a green return receipt.  A prisoner cannot even obtain a receipt from a guard/post office that a package has been mailed to the court nor do prisoners have access to word processors nor are legal resources above basic. A friend can be useful for reproducing documents and filing papers if inconvenient for the prisoner and for obtaining a file-marked copy either by return mail or by physical filing with the clerk.

28 USC 2242 requires the application be "signed and verified by the person for whose relief it is intended or by someone acting in his behalf." Rule 11 of FRCvP requires that parties without a lawyer must sign the pleadings. However, motions are not pleadings. Nothing has been found in FRCvP that requires motions filed by a non-lawyer to be signed---by a party or by ‘next-friend.’ If the clerk objects to this procedure, the prisoner might notarize a power of attorney to ‘next friend’ authorizing the filing of papers and signing of motions. "Next friend’ habeas actions have been received by the Supreme Court. US ex rel Toth v Quarles, 350 US 11. The court will insist that only members of the bar may represent inmates. The position is not supported by the Supreme Court. The status of ‘next friend’ is clearly accepted by the Supreme Court for non-lawyers. Whitmore v Arkansas, 495 US 149; Demosthenes v Baal, 495 US 731. The Whitmore court documented the practice of non-lawyers representing inmates for more than three centuries. Do not anticipate the court will readily accept the signature of a non-lawyer, but they should. The court will try to slow the habeas action in any way they can.

The Supreme Court has declared that prisoners have the right to unfettered access to the courts. To hold otherwise would be to offend the traditional notions of justice and fair play that underlie the due process clause. Hannah v Larche, 363 US 420, 422. The court has declared that habeas corpus relief may not be denied because of a four dollar filing fee. Smith v Bennett, 365 US 708. To restrict access to the courts by an inmate to membership in a labor union that has successfully lobbied for exclusive privileges to a dues-paying membership in a quasi-governmental state controlled agency, demanding from $5000 to $80,000 to assert a basic fundamental constitutional right, would make the Smith v Bennett holding pale in comparison. Access to the fundamental right of a trial by jury cannot be conditioned to payment of a fee for the trial; neither can the basic right to habeas corpus be restricted to a monopolistic trade group.

The Supreme Court has addressed situations where ‘laws’ restricted assistance in situations of habeas corpus to lawyers and they have rejected the restrictions. "There is no higher duty than to maintain [access to habeas corpus] unimpaired." Bowen v Johnston, 306 US 19, 26. The court has declared that restricting habeas corpus assistance only to lawyers may result in the unacceptable practice of denial of access to the courts. Gibbs v Hopkins, 10 F3d 373, 378 (6th. Circuit). "The right of the (individuals) to advice concerning the need for legal assistance…is an inseparable part of this constitutionally guaranteed right (of habeas corpus) to assist and advise each other. Brotherhood of R. Trainmen v Virginia State Bar, 377 US 1, 6.

The practice of jail-house lawyers was declared indispensable to provide access to the courts, with the limited legal resources in prisons and lack of legal experience of inmates: "This Court has constantly emphasized the fundamental importance of the writ of habeas corpus in our constitutional scheme…" Johnson v Avery, 393 US 487, 485. The meager legal resources available to an inmate, when compared to a library of digests, annotations, legal encyclopedias, Hornbooks, journals, commercial professional publications, and online resources that are available to adverse governmental agencies reduces the ‘fair play’ between parties to a figment of the imagination. Is a spouse to be prevented from assisting an inmate because she is only on the other side of the prison wall? Such a position would be clearly incongruous with Supreme Court holdings that have not involved jail-house lawyers. "Laymen cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries and for them to associate together to help one another to preserve and enforce rights granted them under federal laws cannot be condemned as a threat to legal ethics." Brotherhood of R. Trainmen v Virginia State Bar, 377 US 1, 7. Citations omitted.

The court is required to rule on a habeas motion "forthwith" and "immediately" (Barefoot v Estelle, 463 US 880; Ruby v US, 341 F2d 585; Granberry v Greer, 481 US 129; Wingo v Wedding, 418 US 461; Harris v Nelson, 394 US 286; Price v Johnston, 334 US 266; Townsend v Sain, 372 US 293) but will delay until prodded. A motion to expedite? The court is also required to grant or deny a Certificate of Appealability (COA). Denial of habeas relief (the Writ) cannot be appealed but the denial of a COA (the usual claim is lack of a constitutional issue) can be appealed. Hohn v US, 524 US 236 (1998).  The procedure is to request a COA from the circuit court in the Memorandum detailing the constitutional issue as an integral component of the Notice of Appeal filed in the district court. 28 USC §2253, recently revised.

Prisoners with informa pauperis status are not required to file the $100 and $5 fees for appeal. Initial application for IFP should be made to the district court. The mandatory payments from prisoner accounts (28 USC §1915(b)(4)) apply to civil rights actions only. US v Levi, 111 F3d 955. It could also be challenged that a fee to pursue a habeas action is the exacting of a charge for a constitutional right. Constitutional rights cannot be conditioned upon the exacting of a fee. U.S. v Texas, 252 FSup 234, 255; affirmed 384 US 155; Smith v Bennett, 365 US 708.

It is noteworthy that the IRS claims to prosecute about 2000 criminal cases per year but the published trial court opinions appear to be about ten per year. Courts have now started citing unpublished opinions. This is justice when even their selected cases are not available? How does a person rebut an unavailable case? Are the cases being deliberately hidden from review?

The above information is mentioned to show an interested individual the academic information available in the library and the procedural options that are available. Generic motions must be adapted to fit circumstances. For legal advice, consult your friendly franchised barrister. Union busting is not allowed.



This article is not to be considered as legal advice. The case analysis is considered to be accurate but the writer is not responsible for any use made of the information.

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