28 U.S.C. § 2255 Motions: The Last Line of Defense in Federal Criminal Cases
Federal courts strongly favor finality for criminal convictions. Once a district court’s judgment is affirmed, it can become very difficult to challenge a conviction or sentence. However, there is one last line of defense that is often overlooked: a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.
A motion to vacate, or § 2255 motion, is a collateral attack on a criminal defendant’s conviction and/or sentence. But it is not a substitute for a direct appeal, nor can it be used to re-argue issues already decided by a court of appeals. Most often, 2255 motions are reserved for claims of ineffective assistance of counsel. There are a lot of nuances to 2255 motions that even experienced federal defense attorneys are not familiar with. Procedural issues, timing, and even what claims are cognizable for 2255 review are all matters that need to be considered when seeking § 2255 relief.
Why is a § 2255 motion important to federal criminal defendants? It is essentially a defendant’s last statutorily guaranteed means of challenging their conviction and sentence. A federal defendant typically only gets one shot at a § 2255 motion. If a 2255 motion is denied or the statute of limitations passes, a defendant can only challenge their case in exceeding rare situations. It is of the utmost importance that a federal criminal defendants make their 2255 motions count.
A Brief History of Habeas Corpus
The concept of habeas corpus dates back centuries into English common law. In more recent times, federal criminal defendants could utilize the writ of habeas corpus to challenge their conviction in federal court. That is until Congress passed the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) in 1996. The AEDPA made significant changes to 28 U.S.C. § 2255, including limiting a prisoner’s ability to generally only file one 2255 motion and imposing a strict statute of limitations on filing such motions. While there are some exceptions to these rules, they are extraordinary in most cases.
When to File and Determining the Statute of Limitations
Before filing a 2255 motion, the first thing a federal defendant needs to consider when to file. A 2255 motion can only be filed once a conviction is final. This means that a 2255 filed before final judgment or while a direct appeal is pending will be considered premature and typically dismissed without prejudice.
But the most common complication is defendants missing their 2255 limitations date either because they were unaware of the time limit or because the timing was miscalculated. Section 2255 provides that a motion to vacate is timely if filed within one calendar year the latest of four scenarios:
(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.
28 U.S.C. § 2255(f)(1)–(4).
The vast majority of 2255 motions will fall under 2255(f)(1)–the date on which judgment of conviction becomes final. The key, then, is determining when judgment becomes “final” for 2255 purposes.
Finality is case-specific and starts with the entry of final judgment by the district court (which is not necessarily the same date that sentencing occurred). Once the judgment has been entered by the district court, the clock starts. What happens next, however, can affect the statute of limitations date.
For example, if a defendant does not appeal, his judgment does not become final until the time to file a notice of appeal expires. In federal criminal cases, a defendant has 14 days from entry of judgment to file a notice of appeal. Fed. R. App. P. 4. If no appeal is taken, then that judgment becomes final 14 days after it was entered. As such, the defendant would have one year and 14 days from entry of judgment to file a 2255 motion.
The analysis changes when an appeal is taken. When there is a direct appeal, judgment does not become final until either (1) the Supreme Court enters an order denying certiorari, or (2) the time to petition the Supreme Court for a writ of certiorari expires.
If a case is taken all the way to the Supreme Court and certiorari is denied, then the defendant has one calendar year from the date certiorari was denied to file under 2255(f)(1). But if the defendant does not seek certiorari, then judgment does not become final until 90 days after either the judgment of the court of appeals or an order denying rehearing.
Determining the statute of limitations for filing a 2255 motion in some cases can be a little more complex. It is always best to have an attorney experienced in post-conviction matters assist you to make sure you do not miss the statute of limitations and opportunity to file a motion to vacate.
If a federal defendant does miss the 2255 statute of limitations, there are a few exceptions that could come into play, but they are typically based on extraordinary circumstances. One such exception is the doctrine of equitable tolling. Courts are generally very reluctant to grant equitable tolling unless the defendant can show that something extraordinary stood in the way of timely filing and that they have been diligently pursuing their rights. Note, that “garden variety” claims such as an attorney’s incorrect timeliness calculations usually is not enough to establish equitable tolling, but an attorney intentionally misleading a defendant may be grounds for tolling.
Types of Claims and Relief Available Under 28 U.S.C. § 2255
As noted above, a 2255 motion differs from a direct appeal in that there are limitations in the types of claims that can be raised. The statute itself provides:
A prisoner in custody under sentence of 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.
In plain English, this means that a 2255 is most often reserved for constitutional claims. Constitutional claims can vary widely, but the most common in criminal defense cases relate to the Fourth, Fifth, Sixth, and Eighth Amendments. However, because of the doctrines of procedural bar and procedural default, the vast majority of 2255 claims involve the Sixth Amendment’s guarantee of effective assistance of counsel.
As such, most 2255 motions raise claims of ineffective assistance of counsel during pretrial, plea bargaining, trial, sentencing, or appeal. What constitutes ineffective assistance of counsel? The Supreme Court’s landmark decision in Strickland v. Washington, 466 U.S. 668 (1984) held that ineffective assistance of counsel occurs when two prongs are met: (1) counsel’s performance was below that guaranteed by the Sixth Amendment, and (2) but for counsel’s deficiency, there is a reasonable probability the case would have resulted in a different outcome.
Strickland remains the standard for evaluating claims of ineffective assistance of counsel to this day. However, the Supreme Court has decided numerous cases since Strickland expanding its holding to issues such as plea negotiations, see Hill v. Lockhart, 474 U.S. 52 (1985); Missouri v. Frye, 556 U.S. 134 (2012); Lafler v. Cooper, 566 U.S. 156 (2012); and and counsel’s duty to meaningfully consult regarding an appeal. Roe v. Flores-Ortega, 528 U.S. 470 (2000).
While ineffective assistance of counsel is the most common claim made in 2255 motions, it is not necessarily the only claim that can be raised. Newly discovered evidence or retroactive changes in law could also be cognizable 2255 claims for relief. These issues occur far less often than ineffective assistance of counsel and do run into procedural hurdles.
2255 Rules and Procedure
Interestingly, although a 2255 is a challenge in a criminal case, it is technically a civil action brought in the district court. Because of their hybrid criminal-civil nature, 2255 motions are governed by their own set of rules as well as the Federal Rules of Civil Procedure (to the extent they do not conflict).
Under the Rules Governing § 2255 Cases, a 2255 proceeding is commenced with the filing of a form 28 U.S.C. § 2255 motion. Some districts will open a separate civil case where all future 2255 filings are done, others simply open a civil case for statistical purpose. It is important to know the rules of your jurisdiction to know how to proceed with your 2255 motion once it has been filed.
While the form motion is sufficient to open a 2255 proceeding, it is best to support the motion with a detailed memorandum of law and any declarations (if applicable) to support the 2255 claims. Often, 2255 motions are based on claims that exist outside the record (such as attorney communications outside the courtroom) and require more than broad allegations.
Once the motion is filed, the government is not required to respond under the Rules Governing § 2255 Cases until the judge orders it to do so (this may vary depending on the specific court’s local rules and procedures). In a typical case, the government is usually afforded 30-60 days to respond. Most jurisdictions allow for the defendant to file a reply.
28 U.S.C. § 2255(b) instructs that the district court should hold an evidentiary hearing on the motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief[.]” Accordingly, it is important when briefing your 2255 motion to be mindful of the requirements for obtaining an evidentiary hearing-especially where the claim involves contested facts of ineffective assistance of counsel.
Once a 2255 motion is fully briefed, a district judge may assign a magistrate judge to issue a Report and Recommendation. If so, and the recommendation is unfavorable, it is crucial to file specific objections to the magistrate’s findings. Objections are necessary in order to (1) receive de novo review from the district judge, and (2) preserve the issues for an appeal if the motion is denied.
If the 2255 motion is denied, the district court will often indicate whether or not it is granting or denying a certificate of appealability. In order to appeal from the denial of a 2255 motion, a certificate of appealability is required from either the district or appellate court.
On the other hand, if the 2255 motion is granted, the district court has several options in fashioning 2255 relief. For example, the court could vacate the conviction, which would essentially put the defendant back in a pretrial position; it court could vacate and resentence a defendant; or it could correct a sentence without the need for a plenary resentencing. In some situations where appellate counsel was ineffective, most courts will deny the 2255 without prejudice to future filing and re-enter final judgment in the criminal case so that the defendant may take an out-of-time appeal. The type of relief is typically tied to the nature of the claim and what the defendant specifically seeks in their 2255 motion.
Experienced 2255 Attorneys
28 U.S.C. § 2255 motions to vacate are critical in a federal criminal defendant’s last line of defense. Because most individuals only have one opportunity to file and there are strict time limitations on filing 2255 motions, it is especially important to have experienced federal criminal defense attorneys to fight for you and your loved ones. The attorneys at Newland Legal have significant federal post-conviction experience and can represent federal defendants across the country. If you are interested in speaking with a federal criminal defense attorney about filing a 28 U.S.C. § 2255 motion, call or text us at (303) 948-1489 or email us at info@newlandlegal.com.
