At some point, many federal criminal defendants will find themselves asking, “What is a 2255 motion?” For such a powerful post-conviction tool, it can be surprising how often defendants are unaware of this legal procedure. One part of the problem is the strict statute of limitations on filing a 2255 motion. Many people do not find out that a 2255 motion is an option until after the time to file has lapsed. Another issue is many attorneys, even federal criminal defense attorneys, know little to nothing about this post-conviction motion. Below is what you need to know about the basics of a 2255 motion.

Background on 2255 Motions

A motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 was first codified in 1948 as a way for federal prisoners to challenge their conviction or sentence after judgment became final. In 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) made significant changes to how a 2255 motion operates today.

Under the AEDPA, a one-year statute of limitations was imposed on § 2255 motions. In addition, the AEDPA made it more difficult to appeal the denial of a 2255 motion by requiring what is known as a certificate of appealability before being able to appeal on the merits. Further, the AEDPA put stringent limitations on filing “second or successive” 2255 motions.

Statutory Text of 28 U.S.C. § 2255

The AEDPA made significant changes to how a 2255 motion proceeds in the district court. The statute itself explains what a 2255 motion is meant to accomplish:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

Deciphering the Code

As usual, the plain text of the statute takes some deciphering. The 86-word single sentence can be broken down into more easily digestible points.

1. The 2255 movant must be in custody. “In custody” means serving a sentence imposed by a federal court. This can include imprisonment, home confinement, or supervised release. However, a person who has already completed their entire sentence cannot file a 2255 motion because they are not “in custody.”
2. The conviction must be in federal court (a court established by Act of Congress) and if filed with the U.S. District Court that imposed the sentence.
3. The types of claims for 2255 relief are limited, but also vague. The statute specifies that a lack of jurisdiction or sentence above the statutory maximum are valid 2255 claims. But it also contains the vague phrase “or is otherwise subject to collateral attack.”

What is a 2255 Motion?

Put simply, a 2255 motion is a motion filed after sentencing asking the judge to vacate your conviction or sentence based on constitutional claims. The Motion to Vacate, Set Aside, or Correct Sentence is filed in the district court that sentenced the defendant. Once the motion is filed, the district judge will determine whether to order a response from the government.

The court may order an evidentiary hearing on a 2255 motion. Click here to learn more about how to get an evidentiary hearing on a 2255 motion.

After considering the arguments and any evidence or testimony provided during a hearing, the court will issue a ruling on the 2255 motion. If successful, a 2255 motion can result in vacatur of a plea or conviction, retrial, resentencing, or other appropriate relief. Because the district court has such wide latitude in granting relief, a 2255 motion is an incredibly powerful tool for post-conviction relief.

Time to File

As mentioned above, the AEDPA places strict time limitations on how long a person has to file their 2255 motion. Generally speaking, a 2255 motion must be filed within one year of a defendant’s judgment of conviction becoming final. 28 U.S.C. § 2255(f)(1). Click here for more information on how long you have to file your 2255 motion.

2255 Claims

Not every claim is cognizable in a 2255 motion. The key is that the claim must be based on a constitutional violation. If the claim is not constitutional, such as arguing the application of the U.S. Sentencing Guidelines, it will most likely be dismissed.

Typically, most every 2255 claim involves the Sixth Amendment right to the effective assistance of counsel. Why? Because any constitutional claim that could have been brought up before sentencing or on appeal is typically considered “defaulted.” The exception, however, are claims of ineffective assistance of counsel.

Ineffective assistance of counsel takes many forms. An attorney’s failure to investigate a defense or mitigating factors could be ineffective. The failure to present a defendant with a formal plea offer is below the standard guaranteed by the Sixth Amendment. Failure to argue misapplication of the Guidelines may also qualify. For most every ineffective assistance of counsel claim, you will also need to prove prejudice. Prejudice can be shown that, but for counsel’s ineffectiveness, the result of the proceedings would have been different (a plea offer would have been accepted, mitigating evidence would have lead to a lesser sentence, an objection to a Guideline enhancement would have resulted in a lower sentence, etc.).

There are few claims where prejudice is presumed. These come from the Supreme Court’s landmark case United States v. Cronic, 466 U.S. 648 (1984). Essentially, when an attorney’s performance was so deficient that it was the equivalent of no defense at all, prejudice is presumed. This holding has also been extended to situations where an attorney fails to file a notice of appeal after being told to by the client. Failure to file a notice of appeal at a defendant’s request is ineffective assistance per se.

You may only get 1 shot at 2255 relief, so make it count

Importantly, the AEDPA places a bar on filing multiple 2255 motions. For most defendants, that means they will only get one chance at receiving 2255 relief while serving their sentence. It is of the utmost importance that your 2255 motion is timely and presents the best arguments for post-conviction relief.

Contact the 2255 Lawyers at Evergreen Attorneys

The lawyers at Evergreen Attorneys have years of experience handling post-conviction proceedings, including 2255 motions. If you or a loved one are interested in discussing your options for filing a 2255 motion, contact us today. We can be reached at (303) 948-1489 or by email at info@newlandlegal.com.