Federal Habeas Corpus Lawyers - 2255 Motions

An individual convicted in federal court can use 28 U.S.C. § 2255 as a post-conviction tool after losing their direct appeal or after entering a guilty plea which waived their right to a direct appeal. These "2255 Motions" or "2255 Petitions" seek to undo the conviction or sentence of an individual and are usually based on the denial of a constitutional right. 2255 Motions are subject to a number of procedural hurdles, including a one-year time limit in most cases. For this reason, an experienced federal criminal appeals attorney should be consulted before pursing a 2255 Motion.

What is a 2255 Motion?

A 2255 motion is a motion brought under 28 U.S.C. § 2255 to "vacate, set aside or correct the sentence." The motion allows a prisoner to undo a conviction or to change the prisoner's sentence if there was a violation of the U.S. Constitution or federal law, if the district court was without jurisdiction, or if the sentence was in excess of the statutory maximum. 

Who can file a 2255 Motion?

Only prisoners who were convicted of a federal crime can file a 2255 Motion. If an individual was convicted of a state crime and seek to appeal the conviction in federal court, they will need to file a motion pursuant to 28 U.S.C. § 2254.

What issues do you raise in a 2255 Motion?

The most common issues to raise in a 2255 Motion are as follows:

• Ineffective assistance: In most 2255 motions, you will raise ineffective assistance of counsel. This means that your lawyer failed to do something that he or she should have done and that this failure prejudiced you somehow. This failure can occur during plea negotiations, at trial, or on appeal. For instance, if your appellate lawyer failed to raise an issue on appeal that would have reversed your conviction, you can allege this in your 2255 Motion.

• Substantive change to the law: From time to time, the U.S. Supreme Court makes changes to the law which can impact a large number of criminal case. If the Supreme Court makes changes to the law which are relevant to your case and applies the changes retroactively (to old cases), then you can raise this change in the law in your 2255 Motion.

• New evidence. Sometimes the defense discovers new evidence long after a defendant has been sentenced. If this newly discovered evidence has a bearing on guilt and innocence, you may be able to raise this issue in a 2255 Motion.

• Misconduct by the Government. Criminal cases are highly adversarial, and the defense may come to learn after a defendant has been sentenced that the U.S. Attorney's Office failed to turn over exculpatory evidence or otherwise engaged in misconduct. Sometimes these violations are enough to bring a successful 2255 Motion.

What is the time limitation for filing a 2255 Motion?

In most cases, there is a strict one-year period of imitation to file a 2255 Motion. This means that you must generally file the 2255 Motion within one year of the date of your judgment becoming final. In practice, this one-year deadline is complicated and an experienced federal appeal lawyer should be consulted to determine the exact deadline. 

For defendants who filed a direct appeal and lost, the deadline may be greater than one year from the date the Court of Appeals issued its opinion. For instance, in the Sixth Circuit, a defendant has 90 days to appeal to the U.S. Supreme Court after losing their direct appeal. For this reason, assuming the defendant does not appeal to the U.S. Supreme Court, defendants actually have have one year + 90 days to file a 2255 Motion. As a practice pointer, it is best to file a 2255 Motion as soon as practicable to avoid running into timing issues. 

How do you get around the one-year deadline for filing a 2255 Motion?

Federal law allows a defendant to bring a 2255 Motion even when the one-year deadline has passed in the following instances:

1. Government action. If the Government prevented you from filing a 2255 Motion, the law gives you one year from the removal of the impediment to file a 2255 Motion.
2. A change in law. As mentioned above, the U.S. Supreme Court will sometimes create a new rule or change the law. If the Court makes a change retroactively and applies it to 2255 proceedings, then you would have on year from the Court's ruling to file a 2255 Motion.
3. Due diligence. The law also provides that you must file a 2255 Motion within one year of the date from which the facts supporting the 2255 Motion could have been discovered through due diligence. Essentially, this exception allows you to bring a 2255 Motion where you or your lawyer did not have access to the facts at issue.

How do you file a 2255 Motion?

A 2255 Motion is filed in the same district court where the defendant was convicted and sentenced. The U.S. Courts website provides a template of the motion here. The motion should inform the court of the details concerning the conviction, sentence, and any appeals which were taken. The motion must also detail the exact grounds being alleged and explain why the 2255 Motion is timely. 

While it is sufficient to simply fill out and file this form, a good federal appeals attorney will also provide a detailed memorandum or legal brief attached to the form which will provide an in-depth explanation as to why relief should be granted. You should keep in mind that most 2255 Motions are denied by the district court. Therefore, it is highly recommended that you hire an experienced federal appeals lawyer to give you the best chance of success in a 2255 proceeding?

What happens after I file my 2255 Motion?

After you file a 2255 Motion, the district court may take the following steps:

• Direct the Government to respond. The district court may ask the U.S. Attorney's Office to respond the facts and legal arguments raised in your motion or legal memorandum.
• Hold an evidentiary hearing. The district court may hold an evidentiary hearing at which time your lawyer can call witnesses and present evidence. Such hearings can be critical in determining whether your 2255 Motion is ultimately successful.
• Require additional briefing. After an evidentiary hearing, the district court may request that your lawyer and the Government's lawyer submit additional briefs which address the evidence raised at the evidentiary hearing.
• Rule on the motion. Ultimately, the district court must either grant or deny your 2255 Motion. If the district court denies the 2255 Motion if must also decide if it is going to grant a certificate of appealability (which is discussed in detail below).

What is a Certificate of Appealability in a 2255 proceeding?

If the district court denies your 2255 Motion, you will need a Certificate of Appealability (or "COA") to appeal your case to the Court of Appeals. Unlike direct appeals, you do not have an automatic right to appeal your case to the appellate court. Instead, you must first convince the district court that you should be allowed to appeal. Normally, the district court will decide if your case warrants a Certificate of Appealability when it rules on the 2255 Motion.

How do I get a Certificate of Appealability?

A district court judge may issue a Certificate of Appealability if the defendant "has made a substantial showing of the denial of a constitutional right." 

What happens if the district court denies a Certificate of Appealability?

If the district court denies a Certificate of Appealability, you will have to ask the Court of Appeals for a Certificate of Appealability. Under Rule 4(a) of the Federal Rules of Appellate Procedure, a defendant has 60 days to file a Notice of Appeal. After filing the Notice of Appeal, the Court of Appeals must decide whether to grant a Certificate of Appealability. 

How does the Court of Appeals decide whether to issue a Certificate of Appealability?

Depending on the Court of Appeals, either a single judge or a three judge panel will decide if a Certificate of Appealability should issue. In Slack v. McDaniel, the Supreme Court reasoned that the standard for issuing a Certificate of Appealability is whether "reasonable jurists could debate" whether the issues raised in the 2255 Motion should be resolved in a different manner.

How does the Court of Appeals decide if your 2255 Motion should be granted?

Assuming that you received a Certificate of Appealability, the Court of Appeals will set a briefing schedule for the parties, and your lawyer will submit a legal brief explaining why you should get a new trial or why you should get the relief you seek. The Government will have a chance to respond to these legal arguments, and the Court of Appeals may also schedule oral arguments to hear from the lawyers in person.

The Court of Appeals will then issue a written opinion which will uphold (or affirm) the district court's order or reverse the district court's order. If the Court of Appeals reverses the district court's order, the case will be sent back to the district court, and the district court will be required to follow the directives made by the Court of Appeals.

How long does a 2255 Motion and appeal take?

The final outcome of a 2255 Motion can range from a few weeks to years depending on the facts of the case. In our experience, successful 2255 Motions often take a while. This is due to the fact that the district court may need to schedule an evidentiary hearing, the legal issues will have to be fully briefed by the parties, and the defense or the Government may appeal the district court's decision. 

If you have been convicted of a federal crime and wish to appeal, you should contact an experienced federal criminal appeals lawyer who handles federal habeas corpus cases. An experienced appellate lawyer can advise you on whether you should file a 2255 Motion and ensure that your rights are protected. Our federal appellate attorneys have handled many of these cases around the country, and we invite you to contact our firm to discuss how we can be of assistance.