Tuesday, November 07, 2006

Habeas Petitions: The Importance of the Oath

Saidi Kafo v. United States, No. 05-3034 (November 3, 2006): Mr. Kafo submitted a petition to set aside his conviction under 28 U.S.C. sec. 2255. He alleged that his attorney had not filed a notice of appeal even though he had requested the attorney to do so. The petition was not signed under penalty of perjury, and the district court dismissed, reasoning that he had no evidence to support his claim.

Reversing, the Seventh Circuit ruled that had he signed the petition under penalty of perjury, as required by Rule 2 of the special rules for 2255 cases, he would have presented sufficient evidence to require an evidentiary hearing on this question. The district court erred in not giving him a chance to attach a sworn affirmation to his allegations. Although his petition was deficient, the advisory notes suggest that the proper course is to give leave to amend.

In the district court, Mr. Kafo was pressing his petition on a pro se basis. Sometimes 2255 petitioners start the proceedings with a pleading prepared by counsel. It is a common understanding that a petition signed by counsel does not require the signature of the client under penalty of perjury. After this decision, the better practice would be for counsel to obtain the client’s affirmation. If the one-year statute of limitations is a problem, counsel should be able to file an affirmation after the initial pleading has been filed.