No.

21-511

In the Supreme Court of the United States

TIM SHOOP, WARDEN, PETITIONER
v.
RAYMOND A. TWYFORD, III
(CAPITAL CASE)

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING NEITHER PARTY

ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
KRISTEN CLARKE
Assistant Attorney General
BRIAN H. FLETCHER
Deputy Solicitor General
NICOLE FRAZER REAVES
Assistant to the Solicitor
General
ERIN H. FLYNN
NOAH B. BOKAT-LINDELL
Attorneys
Department of Justice
Washington, D.C. 20530-0001
[email protected]
(202) 514-2217
 CAPITAL CASE
QUESTIONS PRESENTED
1. Whether the All Writs Act, 28 U.S.C. 1651, can
authorize a federal district court to order a state pris-
oner to be transported for a medical test.
2. Whether a court asked to invoke the All Writs Act
to order the transportation of a state prisoner for a
medical test in connection with a habeas petition under
28 U.S.C. 2254 must first determine that the results of
the test could be used to establish the prisoner’s entitle-
ment to relief.

(I)
 TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
Summary of argument ................................................................. 7
Argument:
I. The All Writs Act allows a district court to order
transport of a state prisoner for a medical test in
appropriate circumstances ............................................. 9
A. The All Writs Act authorizes district courts to
issue orders that are necessary or appropriate
in aid of their jurisdiction ....................................... 10
B. An order requiring transport of a state
prisoner for a medical test may be necessary
or appropriate in aid of a district court’s
jurisdiction ............................................................... 12
C. Section 2241(c) does not prohibit orders
requiring transport of state prisoners for
medical tests ............................................................ 17
II. A transport order is not appropriate in a Section
2254 case unless, at minimum, the prisoner
establishes that the evidence may be used to show
his entitlement to relief ................................................. 25
Conclusion ................................................................................... 30

TABLE OF AUTHORITIES
Cases:
American Lithographic Co. v. Werckmeister,
221 U.S. 603 (1911).............................................................. 15
Banister v. Davis, 140 S. Ct. 1698 (2020) .............................. 2
Barber v. Page, 390 U.S. 719 (1968) ..................................... 21
Bell v. Cone, 535 U.S. 685 (2002) .......................................... 26
Bollman, Ex parte, 8 U.S. (4 Cranch) 75 (1807) ................. 19
Bracy v. Gramley, 520 U.S. 899 (1997) ....................... 2, 7, 28

(III)
 IV

Cases—Continued: Page
Carbo v. United States, 364 U.S. 611 (1961) ....................... 19
Carlisle v. United States, 517 U.S. 416 (1996) .................... 11
Christy v. Robinson, 216 F. Supp. 2d 398
(D.N.J. 2002) ....................................................................... 14
Clinton v. Goldsmith, 526 U.S. 529 (1999) .............. 10, 11, 17
Cottle v. Nevada Dep’t of Corrs., No. 12-cv-645,
2013 WL 5773845 (D. Nev. Oct. 24, 2013)......................... 15
Cullen v. Pinholster, 563 U.S. 170 (2011).................. 5, 26, 27
Delker v. Maass, 843 F. Supp. 1390 (D. Or. 1994).............. 14
DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020) .................. 18
FTC v. Dean Foods, 384 U.S. 597 (1966)............................. 12
Gonzalez v. Thaler, 565 U.S. 134 (2012) ................................ 2
Harris v. Nelson, 394 U.S. 286 (1969) ............... 12, 15, 27, 28
Ivey v. Harney, 47 F.3d 181 (7th Cir. 1995) ........................ 14
Mayle v. Felix, 545 U.S. 644 (2005) ..................................... 26
Pennsylvania Bureau of Corr. v. United States
Marshals Serv., 474 U.S. 34 (1985) ............10, 11, 14, 19, 22
Preiser v. Rodriguez, 411 U.S. 475 (1973)........................... 18
Price v. Johnston, 334 U.S. 266 (1948) .........12, 16, 17, 20, 23
Rasul v. Bush, 542 U.S. 466 (2004) ...................................... 18
Reaves v. Dep’t of Corr., 392 F. Supp. 3d 195
(D. Mass. 2019), vacated as moot, No. 19-2089
(1st Cir. Dec. 14, 2021) ....................................................... 24
Rees v. Peyton, 384 U.S. 312 (1966) ..................... 7, 12, 13, 23
Ryan v. Valencia Gonzales, 568 U.S. 57 (2013) ................. 13
Schriro v. Landrigan, 550 U.S. 465 (2007) ................... 28, 29
Syngenta Crop Prot., Inc. v. Henson,
537 U.S. 28 (2002) ............................................................... 11
United States Alkali Export Ass’n v. United States,
325 U.S. 196 (1945).............................................................. 11
United States v. Denedo, 556 U.S. 904 (2009)..................... 10
 V

Cases—Continued: Page
United States v. Hampton Rds. Reg’l Jail Auth.,
No. 20-cv-410, 2020 WL 5550918 (E.D.V.A. Aug. 5,
2020), https://go.usa.gov/xzaDv ......................................... 24
United States v. Hayman, 342 U.S. 205 (1952) ...... 12, 16, 23
United States v. Mauro, 436 U.S. 340 (1978)................ 19, 21
United States v. New York Tel. Co.,
434 U.S. 159 (1977).................................................. 11, 12, 16
Wilkins v. Gaddy, 559 U.S. 34 (2010) .................................. 13
Wisconsin Right to Life, Inc. v. FEC, 542 U.S. 1305
(2004) .................................................................................... 12
Wood v. Milyard, 566 U.S. 463 (2012) ................................... 2
Woodford v. Garceau, 538 U.S. 202 (2003) .......................... 26

Statutes and rules:

All Writs Act, 28 U.S.C. 1651(a) .................................. passim

Americans with Disabilities Act of 1990,
42 U.S.C. 12131 ................................................................... 24
Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, Tit. I, 110 Stat. 1217 ................ 9
Civil Rights of Institutionalized Persons Act,
42 U.S.C. 1997 et seq. .......................................................... 10
Judiciary Act of 1789, Act of Sept. 24, 1789, ch. 20,
§ 14, 1 Stat. 81-82 ................................................................ 10
18 U.S.C. 241-242 ............................................................... 1, 13
18 U.S.C. 3123(b)(2) ............................................................... 12
28 U.S.C. 2241(c) (1964) ........................................................ 23
28 U.S.C. 2241(c) ........................................................... passim
28 U.S.C. 2241(c)(5) ............................................. 5, 7, 8, 21, 23
28 U.S.C. 2243 ........................................................................ 21
28 U.S.C. 2254 ............................................................... passim
28 U.S.C. 2254(d) ............................................................... 4, 26
28 U.S.C. 2254(d)(1) ..................................................... 5, 26, 29
 VI

Statutes and rules—Continued: Page

28 U.S.C. 2254(d)(2) ............................................................... 26
28 U.S.C. 2254(e)(2) ............................................................... 28
28 U.S.C. 2255 ........................................................ 2, 21, 23, 27
42 U.S.C. 1983 .......................................................... 2, 7, 14, 22
Fed. R. Civ. P.:
Rule 34(a)(1)(B) ............................................................... 15
Rule 35(a)(1) ..................................................................... 15
Rule 35(a)(1) advisory committee’s note
(1970 Amendment) .................................................... 15
Rule 45(a)(1)(A)(iii) ......................................................... 15
Rule 45(a)(1)(C) ............................................................... 15
Fed. R. Crim. P.:
Rule 16(a)(1)(E) ............................................................... 15
Rule 16(b)(1)(A) ............................................................... 15
Rule 17(c)(1) ..................................................................... 15
Rule 29 ................................................................................ 1
Rules Governing Section 2254 Cases in the United
States District Courts:
Rule 6(a) ................................................................. 6, 27, 28
Rule 6(b) ........................................................................... 27
Rules Governing Section 2255 Proceedings in the
United States District Courts:
Rule 6(a) ........................................................................... 27
Rule 6(b) ........................................................................... 27
Miscellaneous:
Black’s Law Dictionary (11th ed. 2019) ............................. 20
Neil Douglas McFeeley, The Historical Development
of Habeas Corpus, 30 SMU L. Rev. 586 (1974) ............... 20
 VII

Miscellaneous—Continued: Page
Rollin C. Hurd, Treatise on the Right of Personal
Liberty, and on the Writ of Habeas Corpus and the
Practice Connected With It: With a View of the
Law of Extradition of Fugitives (1858) ..................... 18, 20
Thomas Carl Spelling, A Treatise on Extraordinary
Relief in Equity and at Law (1893) .................................. 20
3 William Blackstone, Commentaries on the Laws of
England (1768).............................................................. 18, 19
William S. Church, Treatise on the Writ of Habeas
Corpus: Including Jurisdiction, False Imprison-
ment, Writ of Error, Extradition, Mandamus,
Certiorari, Judgments, Etc. (1886) ................................... 18
In the Supreme Court of the United States
No. 21-511
TIM SHOOP, WARDEN, PETITIONER
v.
RAYMOND A. TWYFORD, III
(CAPITAL CASE)

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING NEITHER PARTY

INTEREST OF THE UNITED STATES

This case presents the question whether the All
Writs Act, 28 U.S.C. 1651, can authorize a district court
to order a state prisoner to be transported for a medical
test or examination. The United States litigates cases
that could require such orders. For example, it prose-
cutes state and local correctional and law-enforcement
officers who willfully violate, or conspire to violate, con-
stitutional rights while acting under color of law. See
18 U.S.C. 241-242. Because state prisoners may be vic-
tims of such crimes, the United States has a substantial
interest in ensuring that it would be able to obtain
transport of state prisoners for medical tests if neces-
sary. The United States also has a substantial interest
in ensuring that constitutional rights can be vindicated

(1)
 2

through private suits under 42 U.S.C. 1983, which like-

wise may require medical testing of state prisoners.
And the United States has a particular interest in op-
posing the warden’s argument that 28 U.S.C. 2241(c)’s
authorization of writs of habeas corpus in specified cir-
cumstances prohibits courts from ordering prisoner
transport in any other circumstances. That interpreta-
tion of Section 2241(c) would not only foreclose ancillary
orders like those directly at issue here, but also call into
question federal courts’ authority to grant ultimate re-
lief requiring prisoner transport—such as, for example,
for medical treatment or a transfer to a different prison.
This case also presents a question about the circum-
stances in which it is appropriate for a federal court to
invoke the All Writs Act to order a state prisoner trans-
ported for a medical test in connection with the pris-
oner’s habeas petition under 28 U.S.C. 2254. The an-
swer to that question turns in part on the standards
governing discovery in Section 2254 cases, which over-
lap with the standards that apply in postconviction pro-
ceedings for federal prisoners under 28 U.S.C. 2255.
The United States has previously participated as ami-
cus curiae in Section 2254 cases that involve the same
or similar standards as those applied in Section 2255
cases. See, e.g., Banister v. Davis, 140 S. Ct. 1698 (2020);
Wood v. Milyard, 566 U.S. 463 (2012); Gonzalez v. Tha-
ler, 565 U.S. 134 (2012).
STATEMENT
1. In 1992, respondent Raymond Twyford and a co-
conspirator lured Richard Franks to a remote location,
then shot and killed him. Pet. App. 214a-215a. Twyford
confessed to the crime, claiming that Franks had raped
his girlfriend’s daughter. Ibid. Twyford was prosecut-
ed in Ohio state court. A jury found him guilty of
 3

aggravated murder, and a penalty-phase jury recom-

mended a capital sentence, which the trial court im-
posed. Id. at 217a-218a. The Ohio Court of Appeals and
the Ohio Supreme Court affirmed the conviction and
sentence on direct appeal, id. at 149a-211a, and this
Court denied certiorari, 537 U.S. 917 (2002).
A state trial court denied Twyford’s application for
post-conviction relief, and the Ohio Court of Appeals af-
firmed. Pet. App. 212a-244a. As relevant here, the court
rejected Twyford’s argument that his counsel was inef-
fective for failing to call a psychologist during the pen-
alty phase of his trial to present a theory that head in-
juries he sustained during a teenage suicide attempt left
him “unable to make rational and voluntary choices.”
Id. at 234a; see id. at 238a. The court noted that counsel
had called a different psychologist who testified in sup-
port of a different theory: that Twyford’s “commission
of the murder was his way of protecting the alleged rape
victim from the same type of abusive behavior [he] had
experienced when he was young.” Id. at 239a; see id. at
217a. The court concluded “that a finding of ineffective
assistance cannot be based upon the trial counsel’s
choice of one competing psychological explanation over
another.” Id. at 239a. The Ohio Supreme Court denied
discretionary review. Id. at 148a.
2. In 2003, Twyford filed a habeas petition in the
United States District Court for the Southern District
of Ohio. Pet. App. 75a. In 2017, the court dismissed
most of his claims as procedurally defaulted, id. at 43a-
147a, but allowed some ineffective assistance of counsel
claims to proceed, id. at 131a-133a, 144a-147a.
In 2019, Twyford moved for an order directing peti-
tioner, the warden of his prison, “to transport [him] to
The Ohio State University Medical Center for medical
 4

testing necessary for the investigation, presentation,

and development of claims.” Pet. App. 253a; see id. at
253a-271a. Twyford attached a letter from a neurologist
stating “that a CT/FDG-PET scan would be a useful
next step to further evaluate [him] for brain injury.” Id.
at 272a. Twyford explained that such testing could not
be conducted at the prison, id. at 257a, and argued that
the testing was “necessary * * * to determine the ex-
istence, severity, and effect of brain damage and cogni-
tive impairment on [his] behavior and mental function-
ing,” id. at 262a. He asserted that his cognitive impair-
ment “must be explored both as to any ineffective assis-
tance of counsel claim as well as any substantive claim
pertaining to the head trauma.” Id. at 263a.
The district court granted the transport order. Pet.
App. 23a-33a. The court first held that it had authority
to issue the order under the All Writs Act, which em-
powers federal courts to “issue all writs necessary or
appropriate in aid of their respective jurisdictions
and agreeable to the usages and principles of law,” 28
U.S.C. 1651(a). Pet. App. 30a. The court then consid-
ered whether Twyford had “sufficiently demonstrated a
need for obtaining the testing he seeks.” Ibid. The
court concluded that Twyford had made the necessary
showing because the test “could aid the Court” in judg-
ing “the constitutionality of [his] incarceration.” Id. at
32a. The court did not, however, identify any specific
claim or legal theory to which the test results would re-
late. Ibid.
The warden had argued that the district court should
not order transport because 28 U.S.C. 2254(d) would
preclude consideration of any evidence revealed by the
test. Pet. App. 31a-32a. Section 2254(d) provides that
if a state prisoner’s claim was adjudicated on the merits
 5

by a state court, a federal court may grant habeas relief

only if, as relevant here, the state court’s decision was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C.
2254(d)(1). In Cullen v. Pinholster, 563 U.S. 170 (2011),
this Court held that review under Section 2254(d)(1) “is
limited to the record that was before the state court.”
Id. at 181. Here, the district court stated that it was not
“in a position at this stage of the proceedings to make a
determination as to whether or to what extent” Pinhol-
ster would preclude the court from considering the re-
sults of the test. Pet. App. 32a.
3. The district court stayed the transport order
pending appeal, Pet. App. 35a-36a, and the court of ap-
peals affirmed, id. at 1a-22a.
a. The court of appeals first held that “a district
court has the authority under the All Writs Act to order
the state to transport a habeas petitioner for medical
imaging in aid of its habeas jurisdiction.” Pet. App. 12a.
The court rejected the warden’s contention that such an
order violates 28 U.S.C. 2241(c). Section 2241(c) pro-
vides that a writ of habeas corpus “shall not extend to a
prisoner unless” he satisfies one of five conditions, in-
cluding if “[i]t is necessary to bring him into court to
testify or for trial.” 28 U.S.C. 2241(c)(5). The warden had
argued that Section 2241(c)’s “allowance of transport or-
ders in these narrow circumstances is best read to pro-
hibit orders mandating the transportation of prisoners
in other circumstances.” Pet. App. 13a (citation omitted).
The court of appeals disagreed. It interpretated Sec-
tion 2241(c) “as limiting when the district court may is-
sue the writ of habeas corpus itself, not forbidding an-
cillary orders needed to aid in adjudicating a petitioner’s
 6

habeas petition.” Pet. App. 14a. The court reasoned that

an order requiring transportation for medical testing is
not a writ of habeas corpus covered by Section 2441(c),
but is instead an ancillary order that may be necessary
to ensure that “states cannot prevent federal habeas pe-
titioners from presenting their cases to the district
court.” Ibid.
The court of appeals next held that a transport order
was justified in the circumstances of this case. Pet. App.
14a-19a. The court reasoned that the “[r]ules limiting
habeas discovery ha[d] no bearing on the transport or-
der because Twyford’s request” for “neurological imag-
ing of his own brain” was “not a request for discovery.”
Id. at 15a. The court therefore held that Twyford was
not required to satisfy the “good cause” standard for
discovery imposed by Rule 6(a) of the Rules Governing
Section 2254 Cases in the United States District Courts
(Section 2254 Rules). Pet. App. 15a. And the court con-
cluded that the order was “necessary or appropriate”
under the All Writs Act because the requested test
“plausibly relates” to Twyford’s ineffective assistance
of counsel claims. Id. at 16a. The court declined to ad-
dress the warden’s argument that Pinholster would
preclude consideration of the test results, stating that it
“need not consider the admissibility of any resulting ev-
idence” before approving a transport order. Id. at 17a.
b. Judge Batchelder dissented. Pet. App. 19a-22a.
She agreed that “the All Writs Act empowers the dis-
trict court to issue orders that enable a habeas peti-
tioner’s collection of evidence,” including transport or-
ders. Id. at 21a; see id. at 22a. But she believed that
such an order satisfies the All Writs Act only if “(1) the
petitioner has identified specific claims for relief that
the evidence being sought would support or further; and
 7

(2) the district court has determined that if that evi-

dence is as the petitioner proposed or anticipated, then
it could entitle the petitioner to habeas relief ”—which
would require at least some showing that “Pinholster
would not bar admission” of the evidence. Id. at 21a-
22a. Judge Batchelder criticized the district court for
allowing Twyford “to proceed in reverse order by col-
lecting evidence before justifying it.” Id. at 22a.
SUMMARY OF ARGUMENT
The court of appeals correctly held that the All Writs
Act may authorize a district court to order a state pris-
oner transported in circumstances not covered by Sec-
tion 2241(c)(5), including when necessary for medical
testing. This Court should therefore reject the war-
den’s categorical argument that the All Writs Act never
authorizes such transport orders. But the court of ap-
peals erred in concluding that a transport order was
necessary or appropriate in this Section 2254 case with-
out identifying any specific claim to which the resulting
evidence would relate, or even establishing that the dis-
trict court would be able to consider that evidence.
I. The All Writs Act authorizes a district court to or-
der a state prisoner transported for a medical examina-
tion or test in appropriate circumstances. The Act per-
mits courts to issue orders that are “necessary or ap-
propriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.” 28 U.S.C.
1651(a). In some cases, an order requiring prisoner
transport for medical testing will aid a federal court in
exercising its jurisdiction; indeed, this Court has di-
rected issuance of such an order in aid of its own juris-
diction. See Rees v. Peyton, 384 U.S. 312 (1966) (per
curiam). Litigation in federal district courts may also re-
quire medical examinations or testing of state prisoners,
 8

including in suits under 42 U.S.C. 1983 or prosecutions

of state or local officials who violate constitutional
rights under color of law.
Contrary to the warden’s assertion, Section 2241(c)’s
limit on federal courts’ authority to issue writs of ha-
beas corpus does not prohibit orders requiring trans-
portation of state prisoners in other circumstances, in-
cluding for a medical test. The common law recognized
a variety of forms of the writ of habeas corpus, but all
of them addressed prisoner transportation only insofar
as they required that a prisoner be produced before a
court for specified purposes. Consistent with that un-
derstanding, the only type of transport that Section
2241(c) addresses is transport to a court for the purpose
of testimony or to be prosecuted. 28 U.S.C. 2241(c)(5).
An order directing that a prisoner be transported for
a medical test is not a writ of habeas corpus governed
by Section 2241(c). It does not direct a custodian to pro-
duce a prisoner before a court for one of the purposes
traditionally served by writs of habeas corpus. Instead,
it directs a custodian to transport the prisoner to a
third-party facility for a medical test. Nothing in the
common law or the statutory text suggests that Section
2241(c) governs all transport orders to all locations for
all purposes. The warden’s contrary reading would pro-
hibit a federal court from ordering a state prisoner
transported even as part of a final judgment granting
relief for a constitutional violation—a result that the
warden appears to recognize is untenable.
II. Although the All Writs Act can in some circum-
stances authorize a transport order, the court of appeals
erred in concluding that a transport order was neces-
sary or appropriate in this case without identifying any
specific claim to which the resulting evidence would
 9

relate—or even establishing that the district court

would be able to consider that evidence. The Antiterror-
ism and Effective Death Penalty Act of 1996 (AEDPA),
Pub. L. No. 104-132, Tit. I, 110 Stat. 1217, and the rules
applicable to Section 2254 cases significantly limit the
ability of habeas petitioners to develop and present new
evidence. Before using the All Writs Act to facilitate
the development of evidence in a Section 2254 case,
therefore, a court must at minimum find that the re-
quest satisfies the general standard governing discov-
ery in such cases, which requires a showing that the ev-
idence could be used to demonstrate the prisoner’s en-
titlement to relief. Absent such a showing, the order
would be neither “necessary or appropriate” nor
“agreeable to the usages and principles of law.” 28
U.S.C. 1651(a). Because the court of appeals failed to
engage in the analysis required by the All Writs Act,
this Court should vacate the judgment below and re-
mand to allow the lower courts to consider Twyford’s
transport request under the proper standard.
ARGUMENT
I. THE ALL WRITS ACT ALLOWS A DISTRICT COURT TO
ORDER TRANSPORT OF A STATE PRISONER FOR A
MEDICAL TEST IN APPROPRIATE CIRCUMSTANCES
The All Writs Act authorizes federal courts to issue
orders not specifically addressed by statute when such
orders are necessary or appropriate to the exercise of
their jurisdiction and consistent with other relevant
law. An order requiring that a state prisoner be trans-
ported for medical testing may satisfy those standards.
In fact, this Court has authorized such an order in aid
of its own jurisdiction. And those orders are entirely
consistent with Section 2241(c), which governs writs of
habeas corpus but does not limit courts’ authority to
 10

order prisoner transportation for other purposes. The

Court should therefore reject the warden’s categorical
argument that a federal court can never order a state
prisoner transported for a medical test. In so doing,
however, the Court should also reiterate the settled All
Writs Act principles that define and limit the circum-
stances in which such orders are appropriate.
A. The All Writs Act Authorizes District Courts To Issue
Orders That Are Necessary Or Appropriate In Aid Of
Their Jurisdiction
1. The All Writs Act was originally adopted in the
Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 81-82. It now
provides that “courts established by Act of Congress
may issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the us-
ages and principles of law.” 28 U.S.C. 1651(a); see
Pennsylvania Bureau of Corr. v. United States Mar-
shals Serv., 474 U.S. 34, 40-41 (1985). This Court has
long recognized that the Act serves to fill “the interstices
of federal judicial power when those gaps threaten[] to
thwart the otherwise proper exercise of federal courts’
jurisdiction.” Pennsylvania Bureau of Corr., 474 U.S.
at 41. The text of the Act and this Court’s precedents
define the scope of that gap-filling authority.
First, the All Writs Act authorizes a federal court to
issue orders “in aid of ” its existing jurisdiction, 28
U.S.C. 1651(a); “the Act does not enlarge that jurisdic-
tion,” Clinton v. Goldsmith, 526 U.S. 529, 535 (1999).
Any exercise of authority under the Act thus must be
grounded in an independent grant of subject matter ju-
risdiction. Ibid.; see United States v. Denedo, 556 U.S.
904, 913-914 (2009).
Second, the Act authorizes orders that are “agreeable
to the usages and principles of law.” 28 U.S.C. 1651(a).
 11

A court thus must ensure that any exercise of authority

under the Act is “consistent with” the governing statu-
tory scheme and other relevant laws. United States v.
New York Tel. Co., 434 U.S. 159, 176 (1977). And a party
“may not, by resorting to the All Writs Act, avoid com-
plying with” other “statutory requirements.” Syngenta
Crop Prot., Inc. v. Henson, 537 U.S. 28, 32-33 (2002).
“Where a statute specifically addresses the particular
issue at hand, it is that authority, and not the All Writs
Act, that is controlling.” Pennsylvania Bureau of
Corr., 474 U.S. at 43. The Court has held, for example,
that the Act cannot be invoked to “avoid complying with
the statutory requirements for removal,” Syngenta
Crop Prot., 537 U.S. at 32-33, to circumvent Federal
Rule of Criminal Procedure 29, Carlisle v. United
States, 517 U.S. 416, 429 (1996), or “as a substitute for
an authorized appeal,” United States Alkali Export
Ass’n v. United States, 325 U.S. 196, 203 (1945).
Third, the All Writs Act authorizes courts to issue
orders that are “necessary or appropriate.” 28 U.S.C.
1651(a). That grant of authority is “not limited to those
situations where it is ‘necessary’ to issue the writ or or-
der ‘in the sense that the court could not otherwise dis-
charge its * * * duties.’ ” New York Tel. Co., 434 U.S.
at 173 (citation omitted). But the Act confers “a power
essentially equitable and, as such, not generally availa-
ble to provide alternatives to other, adequate remedies
at law.” Goldsmith, 526 U.S. at 537. For the same rea-
son, courts invoking the Act should take into account
other equitable considerations, including any “burden[]”
imposed on third parties. New York Tel., 434 U.S. at 175.
2. Based on those considerations, this Court has ap-
proved the use of the All Writs Act in a variety of circum-
stances. The Act is the source of the Court’s authority
 12

to issue injunctions pending appeal. See Wisconsin

Right to Life, Inc. v. FEC, 542 U.S. 1305, 1306 (2004)
(Rehnquist, C.J., in chambers). The Court has also
held, for example, that the Act authorizes orders com-
pelling “telephone companies to assist in the installation
and operation of pen registers” (before Congress pro-
vided statutory authority for such orders, 18 U.S.C.
3123(b)(2)), New York Tel. Co., 434 U.S. at 177; orders
governing discovery in habeas proceedings (before the
Court issued rules governing that subject), Harris v.
Nelson, 394 U.S. 286, 299-300 (1969); orders enjoining
mergers pending review by the Federal Trade Commis-
sion, FTC v. Dean Foods, 384 U.S. 597, 603-605 (1966);
and orders requiring that a prisoner be brought to court
“to argue his own appeal,” Price v. Johnston, 334 U.S.
266, 284 (1948), or to attend a hearing, United States v.
Hayman, 342 U.S. 205, 220-222 (1952).
B. An Order Requiring Transport Of A State Prisoner For
A Medical Test May Be Necessary Or Appropriate In Aid
Of A District Court’s Jurisdiction
An order directing that a state prisoner be trans-
ported for medical testing is not categorically outside
the authority conferred by the All Writs Act. Such or-
ders should not be issued lightly, but they may in some
cases aid courts in the exercise of their jurisdiction, be
consistent with other relevant law, and qualify as “nec-
essary or appropriate” under the circumstances.
1. Ordering that a prisoner be transported for a
medical test will sometimes aid a federal court in exer-
cising its jurisdiction. This Court, for example, directed
issuance of such an order in Rees v. Peyton, 384 U.S.
312 (1966) (per curiam). Melvin Rees, a state prisoner,
filed a petition for a writ of certiorari seeking review of
the denial of his federal habeas petition. Id. at 313.
 13

Rees later directed his counsel to withdraw the petition,

but counsel advised the Court that he had doubts about
Rees’s mental competence. Ibid. The Court explained
that whether Rees should be allowed to withdraw his
petition “is a question which it is ultimately the respon-
sibility of this Court to determine, in the resolution of
which Rees’ mental competence is of prime im-
portance.” Ibid. Echoing the All Writs Act, the Court
ordered that, “in aid of the proper exercise of [the]
Court’s certiorari jurisdiction,” the district court should
determine Rees’s competence. Id. at 313-314. The
Court further directed that, if necessary, the district
court should order Rees transported to a federal facility
for examination: “[I]t will be appropriate for the Dis-
trict Court to subject Rees to psychiatric and other ap-
propriate medical examinations and, so far as neces-
sary, to temporary federal hospitalization for this pur-
pose.” Id. at 314.1
Rees was, of course, an unusual case. But litigation
in federal district courts may also require medical ex-
aminations or testing of state prisoners. The United
States, for example, prosecutes state and local correc-
tional or law-enforcement officers who willfully violate
or conspire to violate state prisoners’ constitutional
rights. See 18 U.S.C. 241-242. In cases involving exces-
sive force, medical examinations or testing may be nec-
essary to resolve a dispute over the existence and extent
of the victim’s injuries. Cf. Wilkins v. Gaddy, 559 U.S.
34, 37 (2010) (per curiam) (“The extent of injury suf-
fered by an inmate is one factor that may suggest

1
The district court found Rees incompetent, and after discussions
with the parties this Court held his petition for a writ of certiorari
until his death several decades later. See Ryan v. Valencia Gonza-
les, 568 U.S. 57, 69 (2013).
 14

‘whether the use of force could plausibly have been

thought necessary’ in a particular situation.”) (brackets
and citation omitted). Similar issues can arise in private
excessive-force suits brought by prisoners under 42
U.S.C. 1983, or in Section 1983 suits alleging that prison
officials were deliberately indifferent to a prisoner’s
need for medical care. See, e.g., Christy v. Robinson,
216 F. Supp. 2d 398, 404 (D.N.J. 2002) (noting that the
court had ordered the state prison’s medical care pro-
vider to “arrange for” the prisoner plaintiff “to be ex-
amined by two independent doctors”); Delker v. Maass,
843 F. Supp. 1390, 1395 (D. Or. 1994) (explaining that
the plaintiff “was examined by * * * a court appointed
independent medical expert” “while the action was
pending”); see also Ivey v. Harney, 47 F.3d 181, 187-188
(7th Cir. 1995) (Rovner, J., concurring).
Simple physical examinations can be done at the
prison, but some tests may “require[] equipment that
only [is] available at an outside facility.” Ivey, 47 F.3d
at 187-188 (Rovner, J., concurring). If courts have no
authority to order transportation to those facilities,
prison officials could effectively have an unreviewable
veto over the ability of the United States and Section
1983 plaintiffs to secure important evidence supporting
their cases.
2. An order requiring that a state prisoner be trans-
ported for medical testing may also be “agreeable to the
usages and principles of law.” 28 U.S.C. 1651(a). No
statute “specifically addresses the particular issue,”
Pennsylvania Bureau of Corr., 474 U.S. at 43, of pris-
oner transportation for medical tests. A party invoking
the All Writs Act for that purpose is thus relying on the
Act as a “residual source of authority” to address a mat-
ter that is “not otherwise covered by statute.” Ibid.
 15

As this Court has long recognized, moreover, “courts

may rely upon [the All Writs Act] in issuing orders ap-
propriate to assist them in conducting factual inquir-
ies.” Harris, 394 U.S. at 299. In Harris, which the
Court decided before it issued rules governing habeas
cases, the Court held that district courts could invoke
the Act to “fashion appropriate modes of procedure”
governing discovery in those cases. Ibid. And in Amer-
ican Lithographic Co. v. Werckmeister, 221 U.S. 603
(1911), the Court held that the Act authorizes a court to
issue a subpoena duces tecum. Id. at 609.
More broadly, an order requiring a prison to make a
prisoner available for a medical examination is analo-
gous to a range of discovery provisions requiring the
production of evidence within a person’s control for in-
spection, copying, or testing. See, e.g., Fed. R. Civ.
P. 34(a)(1)(B), 45(a)(1)(A)(iii) and (C); Fed. R. Crim.
P. 16(a)(1)(E) and (b)(1)(A), 17(c)(1). 2 As the warden
recognizes, the district court’s order in this case closely
resembles a classic discovery order: Twyford “is in the

2
In civil proceedings, Federal Rule of Civil Procedure 35(a)(1) au-
thorizes a court to order a physical or mental examination of a party
to the case, or to order “a party to produce for examination a person
who is in its custody or under its legal control.” The text of Rule 35
suggests that, at least in cases in which both the prisoner and the
warden are parties, the court could order the warden to produce the
prisoner for offsite examination. But the advisory committee’s
notes provide that the rule addresses the circumstances in which a
court can compel an unwilling party to “submit to an examination”
rather than situations involving prisoner transportation. Fed. R. Civ.
P. 35(a)(1) advisory committee’s note (1970 Amendment). And courts
have generally held that the rule does not apply when a prisoner
seeks an examination of himself. See Cottle v. Nevada Dep’t of Corrs.,
No. 12-cv-645, 2013 WL 5773845, at *2 (D. Nev. Oct. 24, 2013) (col-
lecting cases).
 16

State’s possession,” and the order “required the War-

den to produce him” at a hospital where Twyford “hopes
to obtain ‘information that relates to the litigation.’ ”
Br. 49 (citation omitted). “An order requiring a party
to turn over something in its possession for an adverse
party’s review is a discovery order on any understand-
ing of ‘discovery.’ ” Ibid.
The warden nonetheless asserts that an order re-
quiring that a prisoner be transported for medical test-
ing is not “agreeable to the usages and principles of
law,” 28 U.S.C. 1651(a), because it lacks a “common-law
analogue” in the “ judicial powers exercised at the
founding.” Br. 23, 31. The warden is of course correct
that identifying an analogue in founding-era common
law is one way to show that an order is “agreeable to the
usages and principles of law.” 28 U.S.C. 1651(a); see
Hayman, 342 U.S. at 221 n.35. But this Court has re-
jected the warden’s assertion that it is the only way.
The All Writs Act “says that the writ must be agreeable
to the usages and principles of ‘law,’ a term which is un-
limited by the common law or the English law.” Price,
334 U.S. at 282. The Court has thus declined to read the
Act “as an ossification of the practice and procedure”
that prevailed “in 1789, when the original Judiciary Act
containing the substance of [the All Writs Act] came
into existence.” Ibid. The Court did not, for example,
rely on any common law analogue in approving an order
requiring transportation for medical testing, see Rees,
384 U.S. at 314, or requiring a telephone company to as-
sist in the installation and operation of a pen register,
see New York Tel. Co., 434 U.S. at 177.
3. Finally, an order requiring that a prisoner be
transported for medical testing may qualify as “neces-
sary or appropriate.” 28 U.S.C. 1651(a). Whether that
 17

standard is met will depend on the circumstances. As

explained below, the restrictions on discovery in Section
2254 cases call for a particularly strong showing in that
context. See pp. 25-29, infra. And in all contexts, the
inquiry should reflect the All Writs Act’s “essentially
equitable” character. Goldsmith, 526 U.S. at 537. The
relevant considerations include the requesting party’s
showing of need for the evidence sought and the availa-
bility of means for securing it. If, for example, the re-
quested test or examination could be done in the prison,
a transport order generally would not be appropriate.
See ibid. Courts should also take into account the bur-
den imposed on the prison and considerations relevant
to the security and safety of the prisoner, medical and
prison staff, and the public during the transportation
and testing. See Warden Br. 46-47; cf. Price, 334 U.S.
at 284-285 (describing the factors courts should con-
sider before invoking the All Writs Act to order a pris-
oner to be brought to court to argue an appeal).
C. Section 2241(c) Does Not Prohibit Orders Requiring
Transport Of State Prisoners For Medical Tests
In arguing that the All Writs Act can never authorize
a court to order a prisoner transported for medical test-
ing, the warden principally relies on 28 U.S.C. 2241(c).
Br. 27-30, 33-34, 35-37. The warden begins with the
premise that any order requiring the transportation of
a prisoner is a “writ of habeas corpus” within the mean-
ing of Section 2241(c). And he concludes that “[b]ecause
[Section] 2241(c) does not permit” orders requiring
transportation for medical testing, “it forbids them.”
Br. 33. But the warden’s premise contradicts the long-
settled understanding of what constitutes a writ of ha-
beas corpus. And his conclusion would call into question
courts’ authority to order the transportation of prisoners
 18

in any circumstances—including when necessary to en-

force a judgment or provide relief for a proven consti-
tutional violation.
1. This Court looks to the common law roots of ha-
beas corpus when interpreting statutes defining federal
courts’ habeas authority. See, e.g., DHS v. Thuraissi-
giam, 140 S. Ct. 1959, 1969, 1971-1974 (2020); Rasul v.
Bush, 542 U.S. 466, 473-475 (2004). The common law
recognized many forms of the writ, but the feature that
unites them is that they required that a person be pro-
duced before a court for a specified purpose.
a. The most familiar form of the writ is known as
the “ ‘great writ’ ” or the “writ of habeas corpus ad
subjiciendum.” Preiser v. Rodriguez, 411 U.S. 475, 484
n.2 (1973) (citation and emphasis omitted); see 3 William
Blackstone, Commentaries on the Laws of England 131
(1768) (Blackstone). The essence of the great writ “is
an attack by a person in custody upon the legality of
that custody.” Preiser, 411 U.S. at 484. At common law,
a court issuing such a writ addressed it to a prisoner’s
custodian, ordering him to produce (habeas) the body
(corpus) of the prisoner before the court so the court
could determine the legality of the prisoner’s detention.
3 Blackstone 131 (explaining that the writ “com-
mand[ed]” “the person detaining another” “to produce
the body of the prisoner”); see Rollin C. Hurd, Treatise
on the Right of Personal Liberty, and on the Writ of
Habeas Corpus and the Practice Connected With It:
With a View of the Law of Extradition of Fugitives 243-
244 (1858) (Hurd) (“The production of the body consti-
tutes an essential element of this proceeding.”). Once a
prisoner was produced to the court, that court retained
authority over the prisoner while considering the merits
of the prisoner’s challenge. See William S. Church,
 19

Treatise on the Writ of Habeas Corpus: Including Ju-

risdiction, False Imprisonment, Writ of Error, Extra-
dition, Mandamus, Certiorari, Judgments, Etc. 227
(1886) (explaining that at common law “the efficacy of
the original commitment was considered to be super-
seded by the writ of habeas corpus while the proceed-
ings under it were pending, and the safe keeping of the
prisoner was entirely under the authority and direction
of the court issuing it”).
The common law also recognized various forms of the
writ of habeas corpus used “for removing prisoners
from one court into another for the more easy admin-
istration of justice.” 3 Blackstone 129. Blackstone cat-
egorized those writs as writs of habeas corpus ad re-
spondendum, ad satisfaciendum, ad prosequendum,
ad testificandum, ad deliberandum, and ad faciendum
et recipiendum. Id. at 129-131. Chief Justice Marshall
identified the same traditional categories in Ex parte
Bollman, 8 U.S. (4 Cranch) 75, 97-99 (1807).
Some of those writs were unique to the English sys-
tem and do not apply in the courts of the United States.
Bollman, 8 U.S. at 97-98. But federal courts recognized
the common law writs of habeas corpus ad prosequen-
dum and ad testificandum. Ibid. The writ of habeas
corpus ad prosequendum ordered a custodian “to re-
move a prisoner” so he could be “prosecute[d] * * * in
the proper jurisdiction wherein the offense was commit-
ted.” Carbo v. United States, 364 U.S. 611, 615 (1961)
(emphasis omitted); see United States v. Mauro, 436
U.S. 340, 357-358 (1978); Bollman, 8 U.S. at 98. And the
writ of habeas corpus ad testificandum ordered a cus-
todian to produce a prisoner to “bear testimony[] in any
court.” Bollman, 8 U.S. at 98; see Pennsylvania Bu-
reau of Corr., 474 U.S. at 38-39.
 20

As this Court has recognized, “regardless of its par-

ticular form,” “[t]he historic * * * usage of the writ
* * * is to produce the body of a person before a court
for whatever purpose might be essential to the proper
disposition of a cause.” Price, 334 U.S. at 283 (emphasis
added); see Neil Douglas McFeeley, The Historical De-
velopment of Habeas Corpus, 30 SMU L. Rev. 586
(1974) (“[T]he ancestor to the modern writ was merely
a procedural order to ‘have the body’ before a court for
various reasons.”); Thomas Carl Spelling, A Treatise on
Extraordinary Relief in Equity and at Law 931 (1893)
(explaining that the term “habeas corpus” was “at [the]
common law used in a variety of writs having for their
object the production of the body of persons before
courts and judges”) (emphasis omitted); Hurd at 143
(“The same words [habeas corpus] were * * * used in a
variety of writs which had for their object the produc-
tion of a person before a court or judge.”). In all its
forms, in other words, habeas corpus is “[a] writ em-
ployed to bring a person before a court.” Black’s Law
Dictionary (11th ed. 2019). The warden identifies no
form or use of the writ that does not fit that description.
See Br. 27-30, 32-34, 35-37.
b. Section 2241 provides that “[t]he writ of habeas
corpus shall not extend to a prisoner unless” one of five
circumstances is present:
(1) He is in custody under or by color of the authority
of the United States or is committed for trial before
some court thereof; or
(2) He is in custody for an act done or omitted in pur-
suance of an Act of Congress, or an order, process,
judgment or decree of a court or judge of the United
States; or
 21

(3) He is in custody in violation of the Constitution or

laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and domi-
ciled therein is in custody for an act done or omitted
under any alleged right, title, authority, privilege,
protection, or exemption claimed under the commis-
sion, order or sanction of any foreign state, or under
color thereof, the validity and effect of which depend
upon the law of nations; or
(5) It is necessary to bring him into court to testify
or for trial.
28 U.S.C. 2241(c). Paragraphs (1)-(4) essentially codify
the great writ by authorizing federal courts to deter-
mine the legality of a prisoner’s confinement (subject to
other statutory restrictions, see, e.g., 28 U.S.C. 2254,
2255). Modern practice has, however, generally dis-
pensed with the requirement that the custodian physi-
cally produce the prisoner in court. See Hayman, 342
U.S. at 222 n.38; see also 28 U.S.C. 2243.
Accordingly, Section 2241(c)(5), which permits a fed-
eral court to issue a writ of habeas corpus when “[i]t is
necessary to bring [a prisoner] into court to testify or
for trial,” 28 U.S.C. 2241(c)(5), is the only provision in
Section 2241 that directly addresses prisoner transport.
Section 2241(c)(5) authorizes writs analogous to the
common law writs of habeas ad prosequendum and ad
testificandum. See Mauro, 436 U.S. at 357-358; cf. Bar-
ber v. Page, 390 U.S. 719, 723-724 (1968). And a Section
2241(c)(5) writ bears the same hallmarks of the common
law writs of habeas corpus ad prosequendum and ad
testificandum: it orders a prisoner’s custodian to pro-
duce the prisoner to a specific court’s jurisdiction for
 22

the purpose of testimony or prosecution. See Pennsyl-

vania Bureau of Corr., 474 U.S. at 38-39.
c. To the extent that either the writ at common law
or the writ as codified in Section 2241(c) addresses
transport, therefore, it is transport of the prisoner by
his custodian to a court for specified purposes. An order
directing that a prisoner be transported for a medical
test does not fit that description. It does not direct a
custodian to produce a prisoner before a court for any
of the purposes traditionally covered by writs of habeas
corpus. Instead, it directs a custodian to transport the
prisoner to a third-party medical facility for testing or
an examination, just as the custodian would transport
the prisoner for medical treatment if he became sick or
injured and required care that could not be provided at
the prison. And no one would refer to a prisoner’s Sec-
tion 1983 suit seeking such treatment as a petition for a
writ of habeas corpus.
There is thus no basis in either the common law or
the statutory text for the warden’s contention that Sec-
tion 2241(c) effects a sort of field preemption over the
subject of prisoner transport, governing not just the is-
suance of traditional writs of habeas corpus, but also or-
ders requiring transport to all locations in all situations
for all purposes. Had Congress intended such a result,
it would have used language addressing prisoner
transport in general rather than writs of habeas corpus
in particular.
The warden’s broader conception of Section 2241(c)
also contradicts this Court’s precedents. The Court’s
decision in Rees neither described the contemplated
court-ordered transfer of the prisoner to a federal med-
ical facility as a writ of habeas corpus nor considered
the limits in Section 2241(c), which was the same in 1966
 23

as it is today. 384 U.S. at 313-314; see 28 U.S.C. 2241(c)

(1964). And the Court has twice held that the All Writs
Act authorizes the issuance of orders requiring prison-
ers to be transported to court for purposes not covered
by 28 U.S.C. 2241(c)(5) or its predecessors—a circum-
stance far closer to the historical writ of habeas corpus.
See Price, 334 U.S. at 284 (order that a prisoner be
brought to the court of appeals to argue his own appeal);
Hayman, 342 U.S. at 220-221 (order that a prisoner be
brought to court for a hearing on his motion under 28
U.S.C. 2255).3
2. The warden’s interpretation of Section 2241(c)
would also have disruptive consequences extending far
beyond the specific question presented here. The war-
den asserts that Section 2241(c) “forbids orders requir-
ing prisoner transportation in ‘other circumstances’ ”
not specifically described in that provision. Br. 33 (cita-
tion omitted). Under that reading, Section 2241(c) would
prohibit not just ancillary transportation orders issued
under the All Writs Act, but any other federal court or-
der requiring a state prisoner to be transported—
even as final relief after finding a violation of the

3
The warden errs in asserting (Br. 37) that the limits in Section
2241(c) are particularly salient here “given that this is a habeas
case.” As discussed, see pp. 20-22, supra, Section 2241(c) does not
limit prisoner transport orders for medical testing or examinations
in any type of case—including habeas cases under Section 2254.
The mere fact that such an order is issued in a habeas proceeding
under Section 2254 does not transform the order into a writ of ha-
beas corpus. Cf. Hayman, 342 U.S. at 220 (explaining that an order
requiring “the presence of [the habeas petitioner] confined in an-
other district” at a Section 2255 hearing would “not be * * * an
original writ of habeas corpus” and that “[i]ssuance of ” such an or-
der “is auxiliary to the jurisdiction of the trial court over [the peti-
tioner] granted in Section 2255 itself ”).
 24

Constitution or a federal statute. A court could not, for

example, order that a prisoner be transferred to a “fa-
cility [with a] specialist on staff with the appropriate
training to care for his medical needs.” Reaves v. De-
partment of Corr., 392 F. Supp. 3d 195, 200 (D. Mass.
2019), vacated as moot, No. 19-2089 (1st Cir. Dec. 14,
2021).
That result is of particular concern to the United
States. Pursuant to its authority under the Civil Rights
of Institutionalized Persons Act, 42 U.S.C. 1997 et seq.,
and Title II of the Americans with Disabilities Act of
1990, 42 U.S.C. 12131, the United States seeks and ob-
tains consent judgments and other orders governing
the conduct of state and local prisons. Those judgments
may require the prison to transport prisoners for off-
site medical treatment. See, e.g., United States v.
Hampton Roads Regional Jail Authority, No. 20-cv-
410, Doc. 2-1, at 7 (E.D.V.A. Aug. 5, 2020), https://go.
usa.gov/xzaDv (requiring the prison to “ensure timely
medical specialist appointments * * * including those
scheduled outside of the [prison]”); id. at 4 (requiring
the prison to “increase security staffing to ensure that
there are sufficient staff to * * * transport prisoners to
outside medical appointments”). But under the war-
den’s interpretation, a court would lack authority to en-
ter such a judgment or to issue an order enforcing the
judgment once entered, because any such judgment or
order would involve transport for purposes other than
those explicitly covered by Section 2241(c).
Even the warden appears to recognize that such a
result would be untenable. In a conclusory paragraph,
the warden asserts that this case “does not present the
question whether other statutes or rules or equitable
principles might entitle courts to order an inmate’s
 25

transportation in specific contexts.” Br. 38. It is true

enough that the specific question presented here is
more limited. But the warden’s central statutory argu-
ment is that Section 2241(c) “forbids orders requiring
prisoner transportation” in “circumstances” not “enu-
merated” in that provision. Br. 33; see Br. 15, 18-19.
And the warden does not explain how the Court could
accept that premise without holding that Section
2241(c) forbids transport orders in other contexts. That
provides further reason to reject the warden’s interpre-
tation.
II. A TRANSPORT ORDER IS NOT APPROPRIATE IN A
SECTION 2254 CASE UNLESS, AT MINIMUM, THE
PRISONER ESTABLISHES THAT THE EVIDENCE MAY
BE USED TO SHOW HIS ENTITLEMENT TO RELIEF
The court of appeals correctly rejected the warden’s
assertion that the All Writs Act can never authorize an
order requiring that a prisoner be transported for a
medical test. But the court erred in approving the order
in this case based solely on a determination that the ev-
idence Twyford seeks to develop “plausibly relates” to
his claims and without requiring any showing that the
district court could properly consider the evidence. The
Section 2254 Rules and AEDPA strictly limit the cir-
cumstances under which a habeas petitioner may seek
and introduce new evidence. An order requiring that a
prisoner be transported for medical testing cannot be
deemed “necessary or appropriate” under the All Writs
Act where the prisoner does not at least satisfy the
“good cause” standard for discovery under the Section
2254 Rules. That standard requires a specific showing
that the evidence sought may be used to establish
the prisoner’s entitlement to relief, which necessarily
 26

includes a showing that the court will be able to consider

that evidence.
A. “Congress enacted AEDPA to advance the final-
ity of criminal convictions,” Mayle v. Felix, 545 U.S.
644, 662 (2005), and to “reduce delays in the execution
of state and federal criminal sentences,” Woodford v.
Garceau, 538 U.S. 202, 206 (2003). Congress furthered
those goals “in large measure [by] revising the stand-
ards used for evaluating the merits of a habeas applica-
tion.” Ibid.
This Court has recognized that, in adopting Section
2254, Congress “modified a federal habeas court’s role
in reviewing state prisoner applications in order to pre-
vent federal habeas ‘retrials’ and to ensure that state-
court convictions are given effect to the extent possible
under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). To
accomplish that goal, AEDPA cabins a district court’s
ability to develop and consider new evidence. As par-
ticularly relevant here, Section 2254(d) provides that if
a claim was adjudicated on the merits in state court, a
federal court cannot grant relief unless the state court’s
adjudication:
(1) resulted in a decision that was contrary to, or in-
volved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evi-
dence presented in the State court proceeding.
28 U.S.C. 2254(d). By its terms, Section 2254(d)(2) is
limited to the evidence presented in state court. And in
Cullen v. Pinholster, 563 U.S. 170 (2011), this Court
held that review under Section 2254(d)(1) is also
 27

“limited to the record that was before the state court.”

Id. at 181. As the Court explained, “AEDPA’s statutory
scheme is designed to strongly discourage” state pris-
oners from “submit[ting] new evidence in federal
court.” Id. at 186.
The Section 2254 Rules also limit discovery. They
specify that “leave of court [is] required” for discovery;
that a party requesting discovery “must provide rea-
sons for the request”; and that a “ judge may, for good
cause, authorize a party to conduct discovery.” Section
2254 Rule 6(a) and (b) (capitalization and emphasis omit-
ted); accord Rules Governing Section 2255 Proceedings
in the United States District Courts, Rule 6(a) and (b).
This Court has explained that a habeas petitioner shows
“ ‘good cause’ for discovery under Rule 6(a)” when he
makes “specific allegations” that “show reason to be-
lieve that the petitioner may, if the facts are fully devel-
oped, be able to demonstrate that he is . . . entitled to
relief.” Bracy v. Gramley, 520 U.S. 899, 908-909 (1997)
(quoting Harris, 394 U.S. at 300).
B. Before using the All Writs Act to order or permit
the development of evidence in a Section 2254 case, a
district court must—at minimum—find that the evi-
dence the prisoner anticipates obtaining could be used
to demonstrate his entitlement to relief. That require-
ment follows naturally from the application of general
All Writs Act principles in the specific context of a Sec-
tion 2254 case.
First, an All Writs Act order must be “necessary or
appropriate” to the resolution of the case before the
court. 28 U.S.C. 1651(a). Ordering transportation to
allow a habeas petitioner to develop evidence that could
not establish an entitlement to relief—even if the
 28

evidence were precisely as the petitioner anticipates—

would be neither necessary nor appropriate.
Second, an All Writs Act order must be consistent
with applicable law and cannot be used to circumvent
other statutory requirements. A court thus should not
allow a petitioner to use the Act to obtain evidence
based on a lesser showing than the good cause the Sec-
tion 2254 Rules require for ordinary discovery.
Twyford objects (Br. in Opp. 8-9) that Rule 6(a)’s
good cause standard does not expressly apply to a
transport order like the one at issue here. But even if
that is correct, this Court has explained that when a
court is acting under the All Writs Act to “fashion ap-
propriate modes of procedure,” it should do so “by anal-
ogy to existing rules or otherwise in conformity with ju-
dicial usage.” Harris, 394 U.S. at 299. Here, Rule 6(a)’s
good cause requirement supplies the most analogous
standard even if it does not apply by its terms. And ad-
herence to that standard is especially appropriate be-
cause it codifies the approach this Court articulated in
Harris, which invoked the All Writs Act to authorize
discovery in habeas cases before there were rules ad-
dressing that subject. See Bracy, 520 U.S. at 908-909.
Requiring a district court to find that evidence could
be used to demonstrate a prisoner’s entitlement to re-
lief before permitting development of the evidence is
consistent with the approach that this Court endorsed
in a similar context in Schriro v. Landrigan, 550 U.S.
465 (2007). There, the Court held that “[i]n deciding
whether to grant an evidentiary hearing” under 28
U.S.C. 2254(e)(2), “a federal court must consider
whether such a hearing could enable an applicant to
prove the petition’s factual allegations, which, if true,
would entitle the applicant to federal habeas relief.”
 29

Schriro, 550 U.S. at 474. The Court explained that this

approach “accords with AEDPA’s acknowledged pur-
pose of ‘reducing delays in the execution of state and
federal criminal sentences.’ ” Id. at 475 (brackets and
citation omitted). That logic applies equally here: If
the anticipated evidence would not support a claim for
relief, court-sanctioned development of that evidence
would be inconsistent with AEDPA.
C. To conclude that evidence could be used to
demonstrate a habeas petitioner’s entitlement to relief
in a given case, a district court necessarily must deter-
mine that the evidence would support relief on a partic-
ular claim or theory. And in making that determination,
the court must take account of AEDPA’s substantive
and procedural limitations, including the limitation on
new evidence imposed by Section 2254(d)(1) as inter-
preted in Pinholster. Cf. Schriro, 550 U.S. at 474 (“Be-
cause the deferential standards prescribed by [Section]
2254 control whether to grant habeas relief, a federal
court must take into account those standards in decid-
ing whether an evidentiary hearing is appropriate.”).
The court of appeals failed to engage in the analysis
required by the All Writs Act before ordering Twyford
transported for testing. Instead of identifying particu-
lar claims that neurological imaging evidence could be
used to prove, the court found that “imaging establish-
ing the extent of [Twyford’s] neurological deficits plau-
sibly relates to” his ineffective assistance of counsel
claims. Pet. App. 16a. That “plausibly relates” stand-
ard has no basis in the All Writs Act, AEDPA, or the
Section 2254 Rules. And the court compounded its er-
ror by failing to consider AEDPA’s limits, including
those set forth in Pinholster, when deciding that
transport for imaging was necessary or appropriate.
 30

This Court should vacate the court of appeals’ judgment

so the court can reconsider Twyford’s transport request
under the correct legal standards.
CONCLUSION
The judgment of the court of appeals should be va-
cated, and the case should be remanded for further pro-
ceedings.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
KRISTEN CLARKE
Assistant Attorney General
BRIAN H. FLETCHER
Deputy Solicitor General
NICOLE FRAZER REAVES
Assistant to the Solicitor
General
ERIN H. FLYNN
NOAH B. BOKAT-LINDELL
Attorneys
MARCH 2022