Criminal Defense Lawyers

Using 28 USC § 2255 Motions to Vacate Federal Convictions

Using 28 USC § 2255 Motions to Vacate Federal Convictions

So you got convicted of a federal crime and you want to get that conviction overturned. One way to do that is to file a motion under 28 USC § 2255 to vacate the conviction. This article will walk you through the basics of what a § 2255 motion is, when you can file one, and how to put together a strong motion.

What is a 28 USC § 2255 Motion?

A motion under § 2255 allows federal prisoners to challenge their conviction or sentence if it was imposed illegally or in violation of the Constitution. It’s basically a way to get back in front of the judge who handled your criminal case and argue that you should be released because your rights were violated.Section 2255 is like a federal version of habeas corpus, which we talk about here. It lets you go directly to the federal court that handled your case instead of starting from scratch in district court.These motions are filed directly with the sentencing court, not with the court of appeals. The goal is to vacate, set aside, or correct the sentence you’re serving. If the court grants your 2255 motion, your conviction or sentence will be tossed out and you’ll either be released or get a new trial.

When Can You File a § 2255 Motion?

You can’t just file a 2255 motion anytime you want. There are limits on when and how often you can use this process to challenge your conviction.

After Direct Appeal

First, you usually can’t file a 2255 motion until after you’ve gone through your direct appeal. The motion is not a substitute for a direct appeal. It’s an extraordinary remedy that comes into play after you’ve exhausted your other options.So if you pled guilty and didn’t file an appeal, or if you went through your direct appeal and lost, then you can start thinking about a § 2255 motion.

Within One Year of Conviction

Second, you need to file your 2255 motion within one year of the date your conviction became final. This is known as the statute of limitations.For example, if you lost your direct appeal on January 1, 2020, you’d have until January 1, 2021 to file your 2255 motion. This deadline can be extended or waived (“tolled”) in certain circumstances, which we’ll get to in a minute.

Only One Motion Unless Exception Applies

Finally, you are limited to one § 2255 motion in most cases. The law says you need permission from the court of appeals before filing a “second or successive” motion. So you need to include all possible arguments in your first motion.There are two exceptions where you can file a second 2255 motion:

1. If there is new evidence that you’re actually innocent of the crime.
2. If there is a new rule of constitutional law made retroactive by the Supreme Court that affects your case.

Outside of these two situations, you get only one bite at the 2255 apple so make it count!

Grounds for Relief Under § 2255

Now that you know when you can file a 2255 motion, what can you actually argue in the motion?There are four main grounds for relief under § 2255:

• Lack of jurisdiction: The federal court that convicted you lacked jurisdiction over your case. For example, your crime occurred totally outside the United States.
• Constitutional violation: Your conviction or sentence violated one of your constitutional rights, like your right to effective counsel. This is the most common argument.
• Sentence exceeds maximum allowed: The sentence you received goes beyond the maximum allowed by law. For example, you were sentenced to 50 years for a crime with a 10 year maximum sentence.
• Prejudicial error: There was an error in the court proceedings, like the jury selection process, that caused you substantial prejudice.

Unless you can show that one of these errors occurred, you won’t be able to get relief under § 2255. The motion can’t be used to just re-argue issues that were already decided on direct appeal.

How to File a § 2255 Motion

If you think you have grounds for a 2255 motion, here are the steps to file:

Get the Right Forms

First, you need to download and fill out AO 243, which is the standard § 2255 motion form provided by the courts. You also need AO 240, which asks the judge for permission to proceed in forma pauperis (without paying fees) if you can’t afford the filing fee.

Fill Out the Forms

Next, you need to fill out these forms completely and accurately. The AO 243 has instructions for what to include. At minimum, you need to state what conviction you are challenging, the grounds for your challenge, and the facts supporting your legal arguments.You don‘t need to make elaborate legal arguments, but you need enough details so the court understands what errors you are alleging. Any arguments not made in the motion will likely be waived.

File with Sentencing Court

Once your motion and supporting documents are ready, make at least two copies. Mail the originals to the clerk of the court that handled your criminal case. This is the court that sentenced you.Send the copies to the U.S. Attorney for that district so they are served notice of your motion. Keep one copy for your records too.

Comply with Deadlines

As mentioned earlier, you need to file within one year of your conviction becoming final unless you have a valid reason for delay. The court can deny your motion if you miss this deadline, so calendar it appropriately.

How the Government Responds

Once you file your 2255 motion, the U.S. Attorney’s office will likely file a response opposing it. They will argue that your claims lack merit or that your motion should be denied for procedural reasons.For example, they may claim you missed the one-year deadline or that you failed to raise issues on direct appeal. Or they will argue that the alleged errors you raised are harmless or not serious enough to warrant reversing your conviction.The government has 60 days to file a response but can ask for more time. After their response comes in, you may have a chance to file a reply brief rebutting their arguments.

Evidentiary Hearing

One of the main benefits of filing a 2255 motion is the chance to get an evidentiary hearing before the judge. This allows you to present testimony and other new evidence supporting your claims.Whether you get a hearing is up to the judge. Under the law, the court must hold a hearing unless your motion and the case record “conclusively show” you are not entitled to relief.So if your motion alleges facts that, if true, would justify vacating your sentence, you have a good shot at a hearing. That’s your chance to prove those facts through live testimony and documentary evidence.

The Court’s Decision

After the briefing is complete and any evidentiary hearing is held, the judge will rule on your 2255 motion. There are three basic outcomes:

• Motion granted: Your conviction or sentence is vacated and you are released or get a new trial.
• Motion denied: Your motion failed and your conviction stands. At this point, you will need permission from the court of appeals to file a second 2255 motion.
• Evidentiary hearing ordered: The court wants more evidence before deciding, so it orders the government to respond and schedules a hearing.

If your motion is denied, you can seek a certificate of appealability from the district or circuit court to appeal the denial. Appeals of 2255 rulings go to the federal circuit court covering the district where you were sentenced.

Success Rates and Tips

Only a small fraction of 2255 motions succeed. A 2005 study found that only 3.5% of federal prisoners who filed 2255 motions got any kind of relief. So the odds are stacked against you.That said, well-prepared motions with solid constitutional or jurisdictional claims do sometimes win. Here are some tips for boosting your chances:

• Get an attorney – Having a lawyer who knows this area of law will help avoid procedural pitfalls and frame your arguments effectively. If you can’t afford a lawyer, groups like the Innocence Project or your state public defender may be able to help.
• Focus on your best claims – Lead with your strongest constitutional or jurisdictional arguments. Don’t throw in weaker claims as “kitchen sink” arguments. Stick to the issues most likely to persuade the judge.
• Use the hearing wisely – If you get an evidentiary hearing, work with your lawyer to gather affidavits, documents, and testimony that back up your claims. Use the hearing to create a strong factual record.
• Check deadlines – File the motion within one year of your conviction becoming final and comply with all filing deadlines. Courts are very strict about time limits.
• Be thorough – Follow all the form requirements and include all relevant facts, exhibits, and details to support your claims. Don’t assume the judge remembers everything about your case.
• Tell your story – Use the motion to explain who you are and why your conviction was fundamentally unfair in light of the errors that occurred. Make it personal.

The bottom line is 2255 motions are always an uphill battle. But they remain an important safeguard for federal prisoners to seek justice if their conviction or sentence violated the Constitution. With commitment and attention to detail, some prisoners do prevail and get their convictions overturned. So don‘t be afraid to file a 2255 motion if you have a compelling case, but understand the challenges involved.