28 U.S.C. § 2246
Evidence; depositions; affidavits
On application for a writ of habeas corpus, evidence may be taken orally or by deposition, or, in the discretion of the judge, by affidavit. If affidavits are admitted any party shall have the right to propound written interrogatories to the affiants, or to file answering affidavits.
Notes of Decisions
Cited in 91
cases (9 in the last 5 years), 1952–2025 · leading case: Harris v. Nelson, 394 U.S. 286 (1969).
Harris v. Nelson, 394 U.S. 286 (1969). “It held that the discovery provisions of the Federal Rules of Civil Procedure were not applicable to habeas corpus proceedings and that 28 U. S. C. § 2246 , the statutory provision specifically relating to the use of interrogatories in habeas corpus proceedings, did not…”
Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001). “The district court concluded that an affidavit was an inappropriate vehicle for adducing controverted evidence, and exercised its discretion under 28 U.S.C. § 2246 to exclude the affidavit.”
Haliburton v. Sec'y for the Dep't of Corr., 342 F.3d 1233 (11th Cir. 2003). “Therefore, pursuant to 28 U.S.C. § 2246 , 23 the court ordered Bailey to testify through interrogatories and affidavits.”
Sulayman v. Obama, 729 F. Supp. 2d 26 (D.D.C. 2010). “use of hearsay evidence in habeas corpus proceedings is nothing extraordinary, as 28 U.S.C. § 2246 (2006) explicitly contemplates the admission into the evidentiary record of sworn out-of-court statements in considering an applicant’s habeas petition.”
Carlson v. Landon, 342 U.S. 524 (1952). “§ 2248 , requires that the facts alleged in the return be taken as true unless impeached, and Young in his traverse to the return did not refute those statements, nor did he in his motion for reargument, make any offer to prove the contrary, nor did he assert new facts, which…”
Belmontes v. Ayers, 529 F.3d 834 (9th Cir. 2008). “Second, and more important, under 28 U.S.C. § 2246 , "[o]n application for a writ of habeas corpus, evidence may be taken orally or by deposition, or, in the discretion of the judge, by affidavit.”
Bostan v. Obama, 662 F. Supp. 2d 1 (D.D.C. 2009). “1101(e) (providing that the Federal Rules of Evidence apply in habeas corpus proceedings “to the extent that matters of evidence are not provided for in the statutes which govern procedure therein or in other rules prescribed by the Supreme Court pursuant to statutory…”
Brian Dorsey v. David Vandergriff, 30 F.4th 752 (8th Cir. 2022). “Therefore, even assuming arguendo that the district court erred in refusing to consider the affidavits, but see 28 U.S.C. § 2246 (providing that evidence may be submitted “by affidavit” in habeas corpus proceedings only “in the discretion of the judge”); Herrera v.”
Willie B. Brooks v. Dr. George J. Beto, Dir., Texas Dep't of Corr., 366 F.2d 1 (5th Cir. 1966). “He also considered affidavits, 28 U.S.C.A. § 2246 , of Jury Commissioners Bailey, Persons, and Cox.”
Al-Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008). “[17] See 28 U.S.C.A. § 2246 ("On application for a writ of habeas corpus, evidence may be taken orally or by deposition, or, in the discretion of the judge, by affidavit.”
Al-Bihani v. Obama, 619 F.3d 1 (D.C. Cir. 2010). “, 28 U.S.C. § 2246 (prescribing a right for petitioner to propound interrogatories or file answering affidavits); 18 U.”
Kevin Young v. Marty Sirmons, Warden, Oklahoma State Penitentiary, 486 F.3d 655 (10th Cir. 2007). “” Instead, the court chose to exercise its discretionary authority under 28 U.S.C. § 2246 to expand the record to include the submitted affidavits and materials.”
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