One of the most common questions we receive is whether a federal defendant should hire a lawyer to file their 28 U.S.C. § 2255 motion. We at Evergreen Attorneys believe having counsel on your side is imperative to protecting your rights and fighting for your freedom. However, we also understand that not everyone has the resources to hire counsel for post-conviction relief.

A 2255 motion is often a federal defendants last line of defense and, if successful, can result in vacating a guilty plea, a new trial, or resentencing. It is a critical step in the federal criminal justice system that is far too often overlooked. Below are the most common difficulties that arise when seeking 2255 relief, and why you should strongly consider having an experienced federal criminal defense attorney fight for your life.

The Last Line of Defense

Federal courts favor finality. A judgment becomes final after a direct appeal or when no appeal is taken. Once final, overturning your case can be a difficult task. That is where a 28 U.S.C. § 2255 motion comes in. United States law allows for federal criminal defendants to challenge unconstitutional convictions and sentences after a judgment of conviction has become final.

Unfortunately, there is a lot of nuance to successfully litigating a 2255 motion. Many pro se defendants and even criminal defense attorneys are not familiar with the intricacies of Section 2255. Below are the five most common issues we see in 2255 cases.

1. Timeliness

A 28 U.S.C. § 2255 motion has a very strict statute of limitations. If the deadline to file passes, even by one day, a person may be forever barred from seeking 2255 relief. However, the statute of limitations is not always a simple calculation.

Generally speaking, a federal defendant has one year from the date his conviction becomes final to file a 2255 motion. But what exactly does that mean? It depends entirely on the individual case.

The difficulty comes from determining when the 1-year period actually begins. A defendant who is sentenced and never appeals will have a much different starting date than a defendant who appeals their case all the way to the United States Supreme Court. To further complicate things, 28 U.S.C. § 2255(f) list four different scenarios for when the one-year clock begins ticking.

It is crucial that you consult with an experienced federal defense attorney to determine the statute of limitations in your case so that you do not miss the opportunity to seek 2255 relief.

2. Procedural Bar

Like I said above, the courts really favor finality. One way this comes out is the concept of a “procedural bar.” Put simply, a procedural bar is a judge-made rule that says you cannot make an argument in a 2255 motion that has been previously argued and ruled on before the district court or court of appeals.

For example, if you argued that certain evidence should have been suppressed and the district judge or court of appeals ruled against you, you are procedurally barred from raising that same argument again in a 2255 motion. This is a common pitfall for those who are inexperienced with 2255 proceedings.

3. Procedural Default

Procedural default operates as the opposite of a procedural bar. This judge-made doctrine holds that if you failed to raise a claim before the district court or on direct appeal, then you are barred from raising it in a 2255 motion.

You are probably wondering, if you can’t raise an argument that’s already been made, and you can’t raise an argument that hasn’t been previously made, then what good is a 2255 motion? Well, you’re not alone. Fortunately, there are some caveats to these rules.

For one, claims of ineffective assistance of counsel are not governed by procedural default. In fact, the courts expressly encourage ineffective assistance of counsel claims to be raised in a 2255 motion instead of on appeal.

There are also some ways around procedural default, though they can be difficult. You need to show cause and prejudice for the default. Again, this is a very nuanced area of the law that is beyond a short blog post. This is why we strongly encourage you consult with a federal defense attorney familiar with the 2255 process.

4. Constitutional Claims

A 2255 motion is also limited in the types of claims that can be raised. Generally, these claims must be constitutional in nature (such as ineffective assistance of counsel under the Sixth Amendment).

We will often see 2255 claims regarding application of the U.S. Sentencing Guidelines. These claims are not cognizable in a 2255 proceeding.

5. You Only Get One Shot

Most importantly, you generally only get one shot at 2255 relief. Given the strict time frame and rules surrounding 2255 proceedings, it is absolutely crucial that you make this one chance count.

Now, rarely there are chances to file what are known as “second or successive” 2255 motions. However, these only occur with permission from the court of appeals and are almost always based on U.S. Supreme Court cases that announce a new rule of constitutional law. These are few and far between and do not apply to the vast majority of cases.

Contact the Experienced 2255 Lawyers at Evergreen Attorneys Today

We cannot stress enough how important it is to make your one chance at a 2255 motion your best shot at receiving relief. The lawyers at Evergreen Attorneys are experienced in 2255 litigation and are happy to provide a free initial consultation. Contact us today at (303) 948-1489 or by email at [email protected] to discuss your case.