2255 Motions - The Litvak Law Firm

Being a defendant in a federal criminal trial is stressful and emotionally draining. You spend so much of your time looking for the end just so it will all be over, then the judge hands down the sentence and it wasn’t what you expected – or maybe it is but now you have to face it.

It can feel like you have lost the case. It can feel pretty hopeless.

You may feel that your freedom is gone. Your family may feel it as well as they experience the separation from you and that loss in their lives because your next few years will be spent behind bars. You don’t realize how precious freedom is until you lose it.

However, there are certain laws that give defendants an opportunity to challenge their convictions. It can result in their sentence being reduced or it could be that they are freed from prison completely.

It’s called the 2255 Motion and it could be just what you need to turn your case around and get your freedom back.

Here’s what you need to know.

What is a 2255 Motion?

A 2255 Motion is a statutory vehicle that makes it possible for a defendant to challenge the sentence that has been handed down or even their conviction. Under this law, 28 U.S.C. § 2255, the defendant can file the motion requestion that their sentence or conviction be vacated, or they can request resentencing.

The law gives a prisoner the ability to claim that they have a right to be released, correct the sentence, or have it set aside based on several potential grounds:

The prison sentence violates the United States Constitution
The court lacked the authority to impose the sentence given
The sentence was unlawfully excessive
The judgment lacked the proper jurisdiction
The sentence was improper
The Constitutional rights of the defendant were violated in some way
The attorney they hired or was assigned to them harmed their case in some way (Ineffective Assistance of Counsel)

Under many circumstances, the court should grant the defendant’s request for a hearing. The only notable exception is if the case shows conclusively that they are not entitled to the relief offered by the motion. If the court determines that they were right and that something was not handled properly, then the court has the ability and authority to provide resentencing, vacate the judgment, or grant the defendant a new trial.

What is a Prisoner Vacate?

A prisoner vacate is a motion that is filed with the court requesting relief from the sentence or the conviction that the defendant is under. That is what the 2255 Motion is, a prisoner vacate request.

It is only available to prisoners in federal custody under a sentence rendered by a court that was established by an Act of Congress.

A prisoner vacate is afforded by the Write of Habeas Corpus which is a fundamental right given to all American residents by the United States Constitution. It protects against indefinite and unlawful imprisonment. It can be used to bring a prisoner, detainer, or a patient in a mental institution before a judge for the court to rule on the legality of detention.

Is a 2255 Motion Criminal or Civil?

While the 2255 Motion is for resolving problems with conviction and sentencing in criminal cases, the proceedings for section 2255 are governed by the civil procedure rules.

Under civil law, a rule that is unique to federal proceedings that are criminal, there is no right to appeal that is afforded to federal prisoners in section 2255 proceedings. However, if a circuit or district court judge issues a “Certificate of Appealability,” then it allows the prisoner to move forward and appeal the denial or outcome of the original motion.

How to Appeal a Section 2255 Denial

If a defendant files a 2255 Motion and it is denied, they need to file a Notice of Appeal and a request for a Certificate of Appealability with the district court. Technically, the Certificate of Appealability request is not required but should be done so that they can argue why it should issue it.

If the district court denies the request for a Certificate of Appealability, the decision of the Motion falls to the court of appeals. This gives the defendant the opportunity to explain in detail why they deserve a Certificate of Appealability.

If both the appellate and district courts denied the request for a Certificate of Appealability, the defendant who filed the motion can turn to the Supreme Court and file a petition for a writ of certiorari. This essentially asks the Supreme Court to order a lower court to send up the information of a case so that it can be reviewed. This is a rare action, but it does happen, albeit usually if the case has national significance, could have precedential value, or may bring conflicting federal circuit court decisions into harmony.

What is the Statute of Limitations on a 2255 Motion?

As with most laws, the 2255 Motion does have a statute of limitations. Most cases have a time limit of 365 days, or one year in order to file the motion. There are several points where the clock may start but typically it begins at the latest of several events:

The date that the final judgment of conviction is rendered and all appeals have been exhausted
In a case where the government prevented the defendant from making a motion, it begins on the date that government action removed that barrier
The date a relevant right was initially recognized by the Supreme Court in which case it becomes applicable retroactively to cases that are on collateral review
The date in which prosecution or attorneys could have found facts that support the defendant’s claims in the motion had they done their due diligence

If it is less than a year since the defendant’s conviction, they should contact their attorney immediately to file the 2255 Motion before the statute of limitations runs out. However, if the statute of limitations has technically passed, the defendant may still be able to file it based on other timeline criteria.

This can make filing a 2255 Motion a bit tricky, so it is best left to a federal criminal defense attorney who is accustomed to working with federal courts and understands federal law. This typically will ensure that no mistakes will be made and increases the potential for the motion to be accepted.

28 U.S. Code § 2255

The 2255 Motion is governed by the statute 28 U.S. Code § 2255. It contains information on remedies allowed for people who are in federal custody.

28 U.S. Code § 2255 – Federal custody; remedies on motion attacking sentence

(a) A prisoner in custody under 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 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

(b) Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

(d) An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.

(e) An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of—

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

(g) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.

(h) A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—

(1) newly discovered 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 movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

If you have been convicted for a federal crime and are headed to prison, you could be entitled to a 2255 Motion. It is important to talk to your attorney as soon as possible to see if you qualify and what your next steps are.

This is why you need a seasoned federal criminal defense lawyer who can make sure that your rights are protected and help get the best possible outcome for your case.

You need The Litvak Law Firm. Mr. Litvak has worked on a number of high-profile federal criminal cases and he has a stellar track record that shows his talent, skill, and knowledge. Call today at (718) 989-2908 for your free consultation and get the justice that you deserve.