2255 Motion

Need help filing a 2255 motion? Let Strickland Webster, LLC walk you through the filing process. Give us a call today.

What Is a 2255 Motion?


Section 2255 motion, as outlined in Title 28 of the United States Code, is a Federal law that allows convicted defendants to challenge their conviction or sentence. This law is a modern version of the writ of habeas corpus and goes beyond the limitations of a direct appeal.

You can file this motion when:

  • The court that sentenced you lacks jurisdiction.
  • Your conviction or sentence violates the U.S. Constitution.
  • You suffered ineffective assistance of counsel at any point in the legal process.
  • Your conviction or sentence exceeds the maximum authorized by law.
  • You were subject to an error that caused a miscarriage of justice, whether unconstitutional or otherwise.

When used effectively, the 2255 motion provides an avenue to correct any injustices that may have occurred during a trial or a direct appeal.

If, after the collateral review, the court finds that the sentence imposed was illegal or that the court lacked jurisdiction to impose such sentence, it can vacate the judgment and discharge the prisoner. If there had been constitutional violations during the trial or direct appeal, the court may re-sentence the defendant or grant them a new trial. It’s up to the court to decide on the appropriate relief.

Were you or a loved one unlawfully incarcerated and would like to file for 2255 motion relief? Result-driven appeal attorneys at Strickland Webster, LLC are happy to assist you.

Who Can File a 2255 Motion?


The first requirement for filing a 2255 motion is to be in custody after being sentenced by a federal court.

The in-custody requirement means that you are incarcerated or on probation, parole, or supervised release. This requirement must be satisfied at the time of filing the motion.

Federal prisoners aren’t required to file a direct appeal or other relief motions before applying for 2255 motion relief. However, it may be wise to exhaust all the appeal options you are allowed before resorting to this one. If you have already served your sentence, you can no longer challenge your conviction through this motion.

2255 relief motions are filed at the district court that convicted you, not where you are detained.

What Is the Deadline for Filing a 2255 Motion?


Generally, you have one year to file your 2255 motion after any of the following events:

  • The judgment of conviction becomes final, and all appeals have been resolved.
  • New clear and convincing evidence has emerged.
  • The Supreme Court established a new right that affects your sentence or conviction.
  • When a governmental action that prevented you from filing the motion, such as withholding exculpatory evidence, is removed.

If you plan to file your 2255 motion following any of these events, you should get advice from an experienced criminal appeals attorney. The laws governing habeas corpus, in general, are complex, and the circumstances of your case may affect your eligibility. Consult attorneys at Strickland Webster LLC for free today.

Can I Get a Second Chance to File a 2255 Motion?


If a federal prisoner or their family members want to file a second or successive 2255 motion, that may be available even if they have already filed a 2255 motion and were denied relief. However, navigating such a motion typically requires a high level of legal skill.

A second or successive motion for relief under §2255 is generally only granted in very few cases, such as newly discovered evidence or a new rule of constitutional law that is retroactively applicable.

Newly discovered evidence has to be sufficient to clearly and convincingly establish that the defendant is not guilty of the offense. In addition, if other evidence leaves guilt in doubt, the court won’t allow the second or successive 22255 motion. A new rule of constitutional law must have been previously unavailable. Moreover, it must also be made retroactive by the Supreme Court. It can be very difficult to meet that standard.

Also, you can’t simply file a 2255 motion to the district court. To file a second 2255 relief motion, you must obtain a certificate of appealability from the appropriate court of appeals. Under the Rules Governing Section 2255 Proceedings for the United States District Courts, the obtained certificate authorizes the district court to consider the motion.

Permission to file the second 22255 motion is rarely granted. But, if you are considering filing it, the help of a knowledgeable and experienced federal criminal defense attorney may be necessary to obtain the best possible result.

The 2255 Motion Process


The 2255 motion process is long and involves several steps. Here’s a quick guide to help you understand how it usually goes:

  • You file your motion with the same court that sentenced you. It must include all the necessary information, including the grounds for relief.

  • The court studies your motion and decides whether to dismiss the motion or order a response from the government.

  • The government must respond within the specified time, typically a month or two. It can either dismiss your motion or answer it.

  • You reply to the government’s answer within 14 to 60 days.

  • Depending on the specifics of the case, the court may allow a discovery hearing.

  • The court will decide whether to take up or dismiss the motion. If the motion is not dismissed, the court may order an evidentiary hearing if the submitted answer and documents are not enough to resolve the conflict.

If you don’t already have an attorney, you must hire one as soon as the evidentiary hearing is ordered. If you can’t afford one, the court can appoint counsel for you.

Possible Outcomes of a 2255 Motion


The court will decide on your motion based on the evidentiary hearing and the filed answers and documents. If the court grants your motion, it can:

  • Acquit you from the charges
  • Correct the sentence
  • Vacate the judgment and grant you a new trial

If the judge denies your motion, you can still appeal to the circuit or district court of appeals. However, you will need to meet certain criteria.

Appealing the Denial of 2255 Motions


You can appeal your 2255 motion, but only after you obtain a Certificate of Appealability (COA) from a district or circuit judge. To do that, you need to make a substantial showing of a constitutional right denial.

In theory, getting a COA shouldn’t be difficult unless your 2255 motion is deemed frivolous. However, the opposite is true in practice. Often, the litigant can only appeal the denied relief on some of the grounds raised in the motion, not all.

If you are denied a COA, you may then file a writ of certiorari with the Supreme Court.

Filing Your 2255 Motion the Right Way


A 2255 motion procedure requires a thorough understanding of the law. Having an experienced Appeal Lawyer in Atlanta, GA handle your case increases your chances of success. Appeal attorneys at Strickland Webster, LLC have helped prisoners in state and federal custody walk free.

Contact us today to file your 2255 motion!



What Is the Difference Between a 2255 Motion and a Direct Appeal?

The 2255 motion is different from a direct appeal or a motion for a new trial. It’s a collateral attack on your conviction or sentence, which means it’s a new case that challenges the validity of your conviction and incarceration. It also allows you to introduce evidence and materials that were not in the trial proceedings. An appellate review, however, is strictly based on existing court records.