Written by attorney Kevin Louis Schriener

Federal Postconviction Relief - The Basics of a Section 2255 Motion

Federal law provides for several remedies that a convicted defendant can use to either challenge his conviction and sentence or to seek a reduction in his sentence. Postconviction relief should not be confused with appealing a conviction and sentence. A sentence is considered final either upon the exhaustion of all appellate remedies (direct appeal, rehearing, petition for writ of certiroari) or upon the expiration of the time for seeking such relief. This legal guide will address the most frequently used federal postconviction remedy, a motion to vacate, set aside or correct sentence brought pursuant to 28 U.S.C. Sec. 2255.


Any convicted federal defendant, who is considered to be in custody (serving a sentence of imprisonment or probation or on parole or supervised release), can file a Sec. 2255 motion challenging his conviction and sentence. A Sec. 2255 motion is considered to be a contiuation of the defendant's criminal proceedings and is filed without a filing fee.


Sec. 2255 provides that: " A prisoner in custody under a 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 Constiution 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 othewise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct sentence." The most conmmon ground that is raised in a Sec. 2255 motion is that counsel provided ineffective assistancel in violation of the Sixth Amendment. Other claims that are raised include violations of due process or prosecutorial misconduct. A claim that could have been raised on appeal, however, is usually not permitted to be raised in a Sec. 2255 motion.


A Sec. 2255 motion must be filed within one year of the sentence becoming final. The one-year limitation period begins either upon the exhaustion of all appellate remedies or upon the expiration of the time for seeking such relief. For example, if a defendant does not appeal his sentence and conviction, his one year limaition period begins to run fourteen days after his sentencing, the time provided for filing a notice of appeal. The motion must be filed in the trial court and will be assigned to the judge who presided over the criminal case.


Once the motion is filed, the court will usually issue an order to show cause to the government why relief should not be granted. The court could, however, dismiss the motion before ordering the government to respond. If a show cause order is issued, the government will be given a time period in which to respond. After the government files its response, the movant may file a reply within the time provided by the court. Movant can also request to conduct discovery in the case but must first get permission from the court. In addition, the court will make a determination whether an evidentiary hearing is necessary. Usually the judge will not hold an evidentiary hearing unless there are facts in dispute that are not refuted by the record. If the court holds an evidentiary hearing, the movant can call witnesses to support his claims. A movant can also file supporting materials with his Sec. 2255 motion and reply that can include affidavits and evidence that is not in the court file. After reviewing all pleadings and after having an evidentiary if one is held, the court will make a decisoin whether to grant or deny relief.


If the court grants the motion, it has a number of options as to relief. The court can vacate and set the judgment aside and discharge the prisoner or it can resentence him or it can grant a new trial or correct the sentence as may appear appropriate. If the court denies the Sec. 2255 motion, the movant does not have an automatice appeal. He must first obtain an certificate of appealability from either the district court or court of appeals. A certificate may be granted if the movant can make a substantial showing of the denial of a constiutional right. Reasons for granting the certificate can include a finding that reasonable jurist can differ over the outcome of the claim or that the claim is in need of further proceedings.


A Sec. 2255 motion is an important remedy for a convicted federal prisoner that may help reduce his sentence, get him a new trial, or result in release from prison or supervision.

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