Preliminary Guidelines for a §2255 Motion

1. File Your Motion While in Custody

Before you can file a motion under §2255, you must be in custody under federal law. You are in custody if you are imprisoned, on parole, on supervised probation, or released on your own recognizance. A person who has completely served his or her sentence is not in custody and is not entitled to file a motion. Whether you are in custody is determined at the time the motion is filed; if you are later released from custody, the motion is still valid.

2. File Your Motion Under the Correct Section of the Law

Three sections of the U.S. Code (federal law) are relevant to challenging a conviction or sentence. You must be sure to cite the correct section in your motion, or it may be denied.

  • Section 2255 governs an action by a person in custody under federal law who is challenging the validity of his or her conviction or sentence.
  • Section 2254 governs an action by a person in custody under state law who is challenging the validity of his or her conviction or sentence.
  • Section 2241 governs an action by a person challenging the execution of his or her sentence or for whom §2255 does not provide an “adequate and effective” way to challenge the legality of his or her detention. Section 2241 actions may include an action by a pre-trial detainee, by a person challenging the calculation of his or her sentence, or by a person challenging an action of the Bureau of Prisons.

3. File Your Motion at the Right Time

There is a time limit for filing a motion under §2255. You must file within one year of:

  • The date on which the judgment of conviction against becomes final. This is after any appeals or other post-conviction motions have been finally decided, not right after sentencing.
  • The date on which the facts supporting your claim could have been discovered with reasonable diligence. What this means is that you may not have known all the facts that support your claim within one year of the date of judgment. In that case, the one-year period begins on the date on which such facts were, or, with reasonable diligence on your part, could have been, discovered.
  • If the government prevented the filing of a motion, the date the impediment is removed.
  • If the motion is based on a new Supreme Court case that was made retroactive, the date on which the right was recognized.

If you miss this deadline, you forfeit your chance to have your motion heard. Filing at the right time is critical since you get only one chance to file a motion under §2255 except under extraordinary circumstances.

4. File Your Motion in the Right Court

A motion under §2255 must be filed in the district in which you were convicted, not in the district where you are currently detained. The motion is filed with the district court, not the Court of Appeals or the Supreme Court.

5. File Your Motion for the Right Reason

A motion under §2255 must challenge one of the following:

  • the jurisdiction of the federal court to enter the judgment or impose the sentence,
  • the validity of a judgment or sentence on the grounds that it is contrary to federal law,
  • the validity of a judgment or sentence because it is contrary to the U.S. Constitution, or
  • the validity of the length of the sentence imposed (that it exceeded the maximum).

Section 2255 also says that you may file a §2255 motion if, for some other reason, the judgment is “otherwise subject to collateral attack” that is not covered by §2254 or §2241. This may occur if there has been an obvious and substantial deprivation of your constitutional rights.

One of the most common reasons people file a §2255 motion is ineffective assistance of counsel. Under the U.S. Constitution, a person has the right to “effective” representation by an attorney at trial and on his or her first appeal. If the attorney’s performance fell below an objectively reasonable standard, that person’s Sixth Amendment right to counsel has been violated. The violation of that constitutional right would support a motion under §2255.

  1. Preliminary Guidelines for a §2255 Motion
  2. Understanding Exhaustion, Procedural Default and Procedural Bar Under §2255
  3. Rules Governing §2255 Proceedings

Understanding Exhaustion, Procedural Default and Procedural Bar Under §2255

One of the most difficult concepts to grasp in filing a motion under §2255 is the effect that prior proceedings have on the claims that may be raised. A §2255 motion is not another chance to re-litigate issues that were or should have been raised on appeal. It is a separate motion challenging the judgment or sentence on other grounds.


The concept of exhaustion means that you must have used or exhausted all available means of challenging your conviction or sentence before you have the right to file a §2255 motion. For instance, you have the right to appeal the judgment or sentence of the district court to the Court of Appeals. You are required to file an appeal to exhaust your federal remedies and raise issues that you claim render the judgment or your sentence invalid. Only after exhaustion may you file a §2255 motion.

Procedural Default

If you fail to appeal or raise an issue on appeal and then file a §2255 motion, any issue that could have been raised but wasn’t is subject to the procedural default rule. What this means in real terms is that if you didn’t raise the issue on appeal, you can’t raise it later in a §2255 motion.

Exceptions to this rule exist. If you are raising a claim of ineffective assistance of counsel that rises to the level of a constitutional violation, you may raise that issue in a §2255 motion. Additionally, if the evidence supporting your claim was not documented on the record of the underlying case, you may be able to raise the issue if that evidence is newly discovered evidence.

If your claim is subject to procedural default, you must show “cause and prejudice” or “actual innocence” to be able to proceed with your motion under §2255. This means that you must show a valid reason (cause) that the issue was not raised earlier and that it affected the outcome of the trial, sentencing, or appeal (prejudice). One way cause can be shown is by demonstrating the ineffective assistance of appellate counsel. If counsel should have but didn’t raise a claim, and counsel’s failure to raise it caused his or her representation to be so deficient that it violated the Constitution, you have demonstrated cause.

Prejudice is difficult to show because so many factors are in play during the trial, the sentencing phase, and the appeal. Prejudice requires you to establish that the errors you allege worked to your actual and substantial disadvantage, resulting, for instance, in a faulty verdict against you. Potential prejudice is not enough.

Actual innocence means that you are innocent of the crime with which you were charged. This requires showing more than that you were innocent of an element of the offense or that insufficient evidence existed to convict you. To establish actual innocence, you must show that, based on the testimony and/or evidence you have submitted, it is more likely than not that no reasonable juror would have found you guilty beyond a reasonable doubt. This is a difficult but not impossible standard to meet.

Procedural Bar

Procedural default occurs when you fail to raise an issue on appeal. A procedural bar exists when you did raise the issue on appeal and it was fully considered on the merits and rejected. As stated above, a §2255 motion does not give you a second chance to litigate errors in the judgment against you or the sentence imposed.

The procedural bar can be overcome in extraordinary circumstances. Ineffective assistance of appellate counsel, newly discovered evidence that supports your claim, or an intervening change in the law applicable to your issue can overcome the procedural bar. Some courts allow §2255 claims if the rejection of them would result in a complete miscarriage of justice. And claims that arise from evidence outside of the record may be considered if the evidence is newly discovered evidence.

You should not regard a motion under §2255 as an opportunity to relitigate issues you already raised and that were rejected on the merits. Additionally, you are required to exhaust all your remedies for appeal of an issue or risk defaulting on them. Ineffective assistance of counsel, newly discovered evidence, actual innocence, or an obvious complete miscarriage of justice may overcome these obstacles to your motion, but they can be difficult to prove, and it may be beneficial to hire a lawyer to assist.

  1. Preliminary Guidelines for a §2255 Motion
  2. Understanding Exhaustion, Procedural Default and Procedural Bar Under §2255
  3. Rules Governing §2255 Proceedings

Rules Governing §2255 Proceedings
[Available on the Website]

Specific rules govern the filing of a §2255 motion, and you must follow them all or risk having your application dismissed. Only limited grounds allow for a second motion, so you must make the most of your one shot.

1. The Motion

An application under §2255 must be made in the form of a motion. A motion is a document filed with a court asking the court to do something, in this case, consider your arguments that the judgment against you or the sentence imposed was unconstitutional or illegal. The motion must state:

  • All the grounds for your challenge to the judgment or sentence
  • The facts supporting each ground
  • The relief you are seeking

The district court has a blank motion form, usually on its website, that shows the information that must be included. Use this form if you do not have an attorney. The forms are available without charge.

a. Grounds for Challenge and Supporting Facts

The completeness of the motion is critical to getting a court to overturn your conviction or sentence. You must include every ground on which you are challenging your conviction or sentence. If you omit a ground or reason, you will not be able to file another §2255 motion and use that ground as a basis for overturning a conviction or sentence.

You must also include all facts on which your claims are based. Including all facts will assist the district court in its decision on whether to dismiss your motion outright or hold an evidentiary hearing on it. You want the court to see that your challenge to the judgment or conviction has merit, and including all facts will help convince the court to consider your motion. Being thorough increases your chances of being heard.

b. Seeking Specific Relief

The rules permit you to ask the court to vacate (dismiss) the judgment or sentence against you, to set aside the judgment or sentence and order a re-trial, or to resentence you. Be specific about what you want the court to do. The court has discretion in fashioning a remedy, and you want to influence the court to do what is best for your case.

c. Signing Under Penalty or Perjury

All the information that you provide to the court must be given under penalty of perjury, meaning that you must swear to the truth of the facts you have provided in the application. If the court determines that the application contains falsehoods, you may be prosecuted for perjury, and your application will be denied.

2. Exhibits and Other Documents Attached to the Motion

In deciding whether to dismiss a motion under §2255 or grant a hearing on the motion, the court may consider the motion, attached exhibits, and the record of the trial or sentencing. So in addition to the information listed above, you should attach any and all documentary evidence you have that is favorable to your claim. While these documents may be submitted later in the process, making them exhibits to the motion gets them in front of the court earlier and may influence the judge to grant a hearing on the motion.

You will also want to attach a “memorandum in support” of your motion. This is a written argument detailing why you are entitled to relief, that is, why the court should grant your motion and hold a hearing on your case. This memorandum should be heavily factual, not legal. Facts make the motion. Unless you can direct the court to the relevant facts, your motion will likely fail.

3. Referral and Preliminary Review

Once the motion is filed, the court must “promptly” examine it. If the court decides that the motion, any attached exhibits, and the record of the trial or sentencing proceedings “plainly” show that you are not entitled to relief, the judge must dismiss the motion.

4. The Government’s Response to Your Motion and Your Reply to That Response

Unless the court finds that it “plainly appears” from the motion and documents you submitted that you are not entitled to relief, it will order the U.S. Attorney to file a response, answer, or motion within a certain amount of time. The answer, response, or motion of the government must address the allegations in your motion.

After the U.S. Attorney files an answer or other response, you have the opportunity to reply to the response. This reply addresses only the issues raised in the response; you do not get a second chance to raise issues that were not included in your original motion.

5. Discovery and Expansion of the Record

Some documents that support your motion will be found in the record of the proceedings in the trial court. However, you often need other documents to prove your case. In that instance, you may ask the court to allow “discovery,” which means requesting documents and testimony from those who have information relevant to your claims. The court may grant your request for “good cause.” Be aware that the government may also be entitled to discovery upon request, including requests for admissions and depositions (taking live testimony).

In addition to the information you may gather from discovery, the court may order expansion (supplementation) of the record by directing you or the government or both to submit materials relating to your motion. These materials can include letters, documents, exhibits, and answers under oath to questions asked by the judge. The court may also require that a written, sworn statement (an affidavit) of a person be submitted and considered as part of the record.

6. Ecidentiary Hearing

Once the court has all the information and documentation it needs, it will review them and decide whether an evidentiary hearing should take place. The judge has to conduct the hearing as soon as practicable after giving the attorneys time to investigate and prepare.

The court does not have to order an evidentiary hearing. It may decide the motion on the information before it.

7. The Court’s Decision on the Motion

The court will make its decision on the motion after the evidentiary hearing or, if it did not hold a hearing, after the motion, the response, the reply, any discovery documents, and any documents ordered by the court have been filed. If the court agrees with you that the judgment or sentence was rendered without jurisdiction, that the sentence or judgment was not authorized by law, or that there was a denial or infringement of your constitutional rights, it must do one of the following:

  • vacate and set the judgment aside and discharge you,
  • vacate and set aside the judgment and resentence you,
  • grant a new trial, or
  • correct the sentence.

The action the court takes is whatever the court deems “appropriate” under the circumstances.

Filing a §2255 motion takes skill, strategy, and a thorough understanding of the law related to the motion, such as the procedural default rule and the procedural bar rule. Having an experienced attorney handle the motion may help to increase your chances of success. To see how the team at Spolin Law may be able to help you get the relief you deserve, please contact us for a free consultation.