2255 Motion Attorney
What is a 2255 Motion?
When a defendant is incarcerated in federal prison, their sentence may have been unjust. This could be due to ineffective counsel—their attorney made serious mistakes or failed to present crucial evidence, and these mistakes led directly led to a conviction. In other cases, the defendant’s attorney may have failed to fully explain a plea deal that included incarceration. In still other cases, a defendant may have been given a sentence that is not allowed under the law. In each of these cases, a 2255 motion allows an incarcerated defendant convicted of a federal crime to challenge the conviction. The challenge could be based on the injustice of the sentence, or on the actual conviction.
A 2255 motion is used to seek release from a sentence imposed following a conviction as a “collateral attack on the sentence,” rather than a direct attack on the conviction. Rules that govern 2255 motions are complex, with the procedures and limitations often contradictory, thus confusing. Generally speaking, you only have one chance to bring a 2255 motion, and if mistakes are made or the motion is lost, it is unlikely you will be allowed to file a second motion.
A 2255 motion attorney from Burns &Davis is highly-skilled, bringing a wide range of criminal law experience for your 2255 motion. We have trial, federal, and appellate level experience along with a unique depth of experience in niche areas of the law including 2255, 11.07, and 2254 writs of habeas corpus. Do not trust your future to an inexperienced attorney—a Burns & Davis attorney is ready to fight on your behalf for the best outcome possible.
What Are the Grounds for Filing?
Grounds for filing a 2255 motion include five types of claims including the following:
- The court did not have jurisdiction to impose the sentence
- Laws of the United States or the Constitution were violated during sentencing
- The sentence exceeded the maximum allowable sentence under current laws
- The sentence or conviction is unconstitutional due to a lack of effective counsel
- There are other reasons the conviction or sentence is subject to attack
What is the 2255 Motion Process?
While your attorney will explain the 2255 motion process to you, it will essentially follow these steps:
- Your attorney files the 2255 motion within one year of your conviction becoming final, barring exceptions.
- The Clerk files the motion on the criminal docket of the challenged case.
- A judge promptly reviews the motion, dismissing it if clearly meritless or ordering the government to respond within 30-60 days.
- The government responds by answering or moving to dismiss the motion.
- Your attorney replies to the government's response, typically within 14-30 days.
- Discovery may begin if the court permits, requiring your attorney to justify the request with specific items.
- The court may expand the record with discovery items through a Motion to Expand the Record.
- All parties await the court’s decision, which could take months or longer.
- If not dismissed, the court decides whether to schedule an evidentiary hearing.
- The court rules on the 2255 motion.
- If denied, objections can be filed within 14 days via a Certificate of Appealability.
- A denial can be appealed after the Certificate of Appealability is issued.
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What if Your 2255 Motion is Denied?
Although there are barriers to appealing a 2255 motion denial, if you are given permission to appeal, you can do so. Permission to appeal is granted through a Certificate of Appealability. At the time a 2255 motion is denied, the court must grant or deny the Certificate of Appealability. If this Certificate is not issued at the time of the denial, it should be requested via the filing of a Notice of Appeal.
The Certificate of Appealability is obtained by showing your constitutional rights were denied. Many district court judges will grant the Certificate unless they have reason to believe the 2255 motion is frivolous. If a Certificate is denied by a district court judge that denial cannot be appealed, but the court of appeals can still be asked to issue a Certificate of Appealability.
The appeal will only be granted if you can substantially show your constitutional rights were denied. Each issue your attorney raises in your 2255 motion must be addressed separately in a Certificate of Appealability. This means you might be allowed to appeal a motion denial on certain grounds raised, but not others.
It is not necessary for you to prove you will win the appeal in order to be granted the right to appeal. Your attorney needs only prove that reasonable judges could potentially have differing opinions regarding the merits of your claim. Having a knowledgeable 2255 motion attorney who has experience handling this type of motion and appeal is crucial.