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Keywords

subpoenadiscoveryhearingtestimonymotioncriminal procedurecivil procedurerelevance

subpoenadiscoverymotioncriminal procedurecivil procedure

Related Cases

Durham v. United States, Not Reported in Fed. Supp., 2022 WL 1555215

Facts

Timothy Durham filed a motion to vacate his sentence under 28 U.S.C. § 2255 and requested to issue subpoenas for witnesses for an upcoming evidentiary hearing. He argued that applying the civil rules would prevent him from compelling testimony from essential witnesses. The government opposed this, asserting that the proceedings were civil in nature and that Durham had already benefited from the civil rules during discovery. The court noted that the case had seen three years of discovery under civil rules and that allowing criminal subpoenas would impose significant inconvenience on the witnesses.

This case has seen three years of discovery (though not continuous) under the civil rules. The court has inferred from the periodic status conferences that Mr. Durham has conducted the lion's share of the discovery.

Issue

Whether Federal Rule of Criminal Procedure 17(e)(1) or Federal Rule of Civil Procedure 45(c)(1)(A) should apply to the issuance of subpoenas for witnesses in a § 2255 evidentiary hearing.

The government opposes Mr. Durham's motion, saying that this § 2255 proceeding is a civil collateral attack of a completed criminal matter—so only the civil rules should apply to § 2255 motions.

Rule

Federal Rule of Civil Procedure 45(c)(1)(A) allows subpoenas for witnesses residing within 100 miles of the hearing, while Federal Rule of Criminal Procedure 17(e)(1) permits subpoenas to be served anywhere in the United States.

Rule 12 of the Rules Governing Section 2255 Proceedings in United States District Courts provides: 'The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.'

Analysis

The court analyzed the nature of § 2255 motions, recognizing that they possess characteristics of both civil and criminal proceedings. However, it concluded that the civil rules should govern the issuance of subpoenas in this case, as the proceedings were fundamentally civil. The court highlighted the potential inconvenience to witnesses and the lack of clarity regarding the relevance of the proposed witnesses' testimonies to Durham's case.

The court disagrees with the government that there are never occasions in which a court deciding a § 2255 motion might apply a civil rule on one topic and a criminal rule on another.

Conclusion

The court denied Durham's motion to apply Criminal Rule 17(e)(1) for issuing subpoenas, ruling that Federal Rule of Civil Procedure 45 would apply instead. The court emphasized the need to respect the procedural framework established for civil proceedings.

The court DENIES Mr. Durham's motion [Doc. No. 114], and Federal Rule of Civil Procedure 45 shall apply to all subpoenas issued.

Who won?

The government prevailed in this case as the court sided with their argument that the civil rules should apply to the § 2255 proceedings, thereby denying Durham's request for criminal subpoenas.

The court has inferred from the periodic status conferences that Mr. Durham has conducted the lion's share of the discovery.

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