How to File a 2255 Motion for Postconviction Relief

The motion to vacate, set aside or correct a sentence provided by 28 U.S.C. § 2255 is a modern descendant of the common law petition for a writ of habeas corpus. It is available only to people convicted in federal courts who are in custody. (The corresponding federal post-conviction tool for state prisoners is the habeas petition governed by 28 U.S.C. § 2254.)  The § 2255 motion is the post-conviction tool most federal prisoners turn to after they have exhausted their appeals or failed to file an appeal.  It gives courts broad discretion in fashioning appropriate relief, including dismissal of all charges and release of the prisoner, retrial, or resentencing.

Section 2255 provides that “prisoners” may move for relief “on 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.” Most Circuits of the Court of Appeals have interpreted this language to mean that defendants who meet § 2255’s custody requirement may not raise issues which challenge aspects of their sentence which are unrelated to their custody.  Most § 2255 motions allege violations of the defendant’s Sixth Amendment right to the effective assistance of counsel.

Identifying an appropriate § 2255 issue is no guarantee of success. Even prisoners who have good issues must often overcome numerous obstacles before a court will even address them.  For example, if an issue could have been raised on direct appeal, but was not, a district court will not consider the issue in a § 2255 proceeding unless the defendant can demonstrate “cause” (such as ineffective assistance of counsel) for not raising the issue earlier and “prejudice” (that is, that the error likely made a difference in the outcome).  For this reason, it is generally not a good idea to forego a direct appeal and proceed directly to a § 2255 motion.  Conversely, if an issue was raised and decided on appeal, a defendant is procedurally barred from raising it again in a § 2255 motion, absent extraordinary circumstances, such as an intervening change in the law or newly discovered evidence.

Section 2255 motions may not be used as vehicles to create or apply new rules of constitutional law. While new interpretations of substantive law may be applied retroactively in a § 2255 motion, with rare exceptions, new rules of constitutional law may not.  If you have any questions about what issues you can raise in a § 2255 motion, contact Laguzzi Law, P.C.