What Is a Motion Under 28 U.S.C. § 2255?

federal criminal defense attorneys - Broden Mickelsen

Even if you have been convicted of a crime in a federal court, sentenced, and denied relief on direct appeal, you may still seek post-conviction relief through a motion filed under 28 U.S.C. § 2255. In contrast to a direct appeal, this motion allows a court to consider new evidence. Relief could include a dismissal of your charges, a new trial, or resentencing.

With more than 60 combined years of experience as federal criminal defense attorneys at both the trial and appellate levels, we can provide the skilled and dedicated legal representation you need to pursue relief through a 28 U.S.C. § 2255 motion. To learn more, contact us today at Broden & Mickelsen, LLP for a free consultation about your case.

Motion Pursuant to 28 U.S.C. § 2255

Like a petition for a writ of habeas corpus, a motion filed under 28 U.S.C. § 2255 challenges a prisoner’s confinement on the ground that it is unlawful. The motion seeks to vacate, set aside, or correct the sentence. It is also called a “28 U.S.C. § 2255 Motion,” a “federal 2255 motion,” or a “motion to vacate/set aside sentence.”

A prisoner must file a 2255 motion in the U.S. District Court where the judgment against the prisoner was entered or where they were sentenced. Often, this district is not the same one in which the prisoner is serving their sentence.

To be eligible for relief under the federal statute, the prisoner must be “in custody” when they file the motion. Prisoners are considered to be in federal custody when they are incarcerated in a state or federal facility or when they are on probation, parole, or supervised release. If the prisoner is released before a ruling on the motion, the prisoner can still be granted relief.

When Can a Prisoner File a 28 U.S.C. § 2255 Motion?

The statute, 28 U.S.C. § 2255, provides four ways for a prisoner to challenge the lawfulness of the sentence entered against them in a federal court. The prisoner can assert that the sentence was imposed in any of the following ways:

At Broden & Mickelsen, LLP, our attorneys have a deep background in post-conviction, appellate, and habeas proceedings in federal courts in Dallas and throughout the country. In our experience, the claims commonly raised under these categories include:

  • Ineffective assistance of counsel — A prisoner may be deprived of effective legal assistance at the plea stage, at trial, or at sentencing. For instance, appointed counsel may have failed to advise the prisoner about the consequences of choosing to enter a guilty plea.
  • Prosecutorial misconduct — Another form of constitutional violation occurs when police and prosecutors fail to turn over evidence that would have been favorable to the prisoner, likely affected the verdict, or influenced the decision to enter a plea.
  • Newly discovered evidence — A prisoner could also seek relief by offering favorable, critical, previously unavailable evidence that they were unaware of and could not have reasonably discovered before they entered their plea, went to trial, or underwent sentencing.
  • Substantive changes to the law — If changes are made to the law by a U.S. Supreme Court decision, and those changes are made retroactively so they apply to the prisoner’s case, the prisoner may have grounds to file a federal 2255 motion.

Our criminal defense attorneys can carefully review all the grounds you may have to file a 2255 motion.

What Are Possible Outcomes of 28 U.S.C. § 2255 Motions?

After a prisoner files the motion, the U.S. District Court can summarily deny it or order the government to file a response. If the court decides that a factual issue must be resolved, the court will order an evidentiary hearing.

If the U.S. District Court denies relief, a prisoner may pursue an appeal. However, a prisoner must first receive a certificate of appealability. The court typically will grant or deny this certificate at the same time it rules on the 28 U.S.C. § 2255 motion.

If a court finds grounds for relief, such as a constitutional violation, this process provides courts broad discretion on what type of relief to grant. The court could dismiss some or all of the prisoner’s charges and grant a release from custody. A court may also vacate a prisoner’s convictions or sentence and grant a new trial or sentencing hearing. If appropriate, a court may simply modify the prisoner’s sentence without a hearing so such sentence conforms with the law.

How Long Do You Have to File a Motion Under 28 U.S.C. § 2255?

A prisoner must file a 28 U.S.C. § 2255 motion within the one-year statute of limitations period. If the prisoner misses that deadline, the motion may be dismissed. The statute of limitations begins to run on the date:

  • The conviction became final (meaning all post-trial motions and the prisoner’s direct appeal have been resolved)
  • An impediment caused by the government’s violation of the Constitution or federal law has been removed
  • The U.S. Supreme Court has recognized a new law that is retroactively applicable
  • Evidence has been newly discovered (or the date when it could have been discovered through the exercise of due diligence)

Once a prisoner files a federal 2255 motion, the prisoner cannot file a second or successive motion unless the prisoner can show:

  • The U.S. Supreme Court has announced a new, retroactive rule of constitutional law, or
  • The prisoner has discovered new evidence that establishes factual innocence, or evidence “that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found” the prisoner guilty of the charge(s) for which they were convicted.

How Can an Attorney Help with the Motion?

Filing a motion under 28 U.S.C. § 2255 requires combing through evidence, meeting strict filing deadlines, and possibly arguing your case before a U.S. District Court judge at an evidentiary hearing. For this reason, you should seek experienced legal assistance if you are in federal custody and seeking to challenge the legality of your sentence.

At Broden & Mickelsen, LLP, we work tirelessly to identify, investigate, and litigate post-conviction claims on behalf of prisoners throughout Texas. We know how to present sound, compelling arguments on behalf of our clients. We realize what is at stake for our clients and their loved ones. Throughout the process of seeking post-conviction relief, we keep our clients updated and answer any questions they may have about their case.

Contact an Experienced Texas Federal Criminal Defense Lawyer

Clint Broden and Mick Mickelsen are board-certified specialists in criminal law and criminal appellate law by the Texas Board of Legal Specialization. We have achieved extensive success for clients in Texas and throughout the country in post-conviction relief proceedings in state and federal courts. To learn more about filing a motion under 28 U.S.C. § 2255, contact us today.