Wednesday, October 17, 2007

Petition or Motion - Any difference?

I was recently at a bench / bar conference where the judges involved talked about the difference between a petition and a motion. They quite clearly said they were different, and required different procedures and notice to file. Asked for examples, things broke down from there. 100 lawyers and a few Judges couldn't pin it down.

So I looked around on the web, and I find myself concurring with the North Carolina Court of Appeals, who in their FAQ, say :

Motion. A written application requesting the Court to make a specific ruling or order. The requirements for a motion are set out in Rule 224.

Petition. A written application requesting the Court to make a specific ruling or order. There is no practical difference between a petition and a motion.


Of course according to the Sixth Circuit Court of Appeals in In re: Rory Allen Gregory 1999 FED App. 0227P (6th Cir.) - No. 99-5602, there is a distinction to be found:

"The difference between a § 2255 motion and a petition under § 2241 is important for jurisdictional purposes. The former must be filed in the district court which sentenced the movant, whereas a petition for habeas corpus under § 2241 may be filed in the district court having jurisdiction over the petitioner’s custodian. See In re Hanserd, 123 F.3d 922, 925 (6th Cir. 1997); United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991); Cohen v. United States, 593 F.2d 766, 770-71 (6th Cir. 1979); Wright v. United States Board of Parole, 557 F.2d 74, 77 (6th Cir. 1977)."

There the inmate had styled it one way, and it was treated another. ut did the style of the pleading matter? Or just the applicable section? That fact is lost to posterity.

If you have any ideas on the difference between a motion and a petition, let me know!


At 10/24/2007 07:39:00 AM, Anonymous said...

As I see it a Motion is a right to do something.

However a petition is more of a request.


At 10/29/2007 09:17:00 AM, Cristy Li said...

Motion is an application made to a Court to obtain an Order pursuant to a specific rule where there are parties involved while a Petition is an application made to a Court ex-parte where there are no parties.


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