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2255 Motions to Vacate

After your case review we will file all possible motions and appeals to have your loved one’s sentence reduced or vacated. If your loved one faces an unfair conviction, then a motion to vacate the conviction or sentence may offer a chance to get them out of jail, and back with their family.

What is a 2255 Motion?

A § 2255 motion applies to a defendant who has already undergone conviction and sentencing. This motion asks the court to vacate the judgment in the criminal case. Depending on the issues raised in the motion, the motion asks the court for various things. If granted, a § 2255 motion may allow the court to re-sentence the defendant, give them a new trial, or (very rarely) enter a judgment of acquittal. The number “2255” refers to the law that allows for such motions. § 2255 of Title 28 of the United States Code outlines this law. When used effectively, it can serve as a powerful tool to right injustices that were not or could not have been raised on direct appeal. Because it gives courts broad discretion in fashioning appropriate relief, including dismissal of all charges and release of the prisoner, retrial, or re-sentencing, motions to vacate, or § 2255 motions can offer incredible results.

What is a 2255 Motion Used For?

Most commonly, § 2255 motions raise issues of:

1. Ineffective assistance of counsel at the plea, trial, sentencing, and/or appeal levels. If an attorney representing the defendant proved “ineffective” within the legal meaning of that word, then a § 2255 motion can raise this issue.

2. Prosecutorial misconduct of the U.S. Attorney’s office or an agent of the Government that affected the Defendant’s substantial rights and arguably affected the outcome of the case constitutes an issue raised in a § 2255 motion.

3. Newly discovered evidence. If, after sentencing, new evidence emerges that could not have emerged before the sentencing, you may address that in a § 2255 motion. 

4. A substantive change to the law that the U.S. Supreme court explicitly made retroactive.

Examples of 2255 motions:

Examples that we have seen include the following:

A Supreme Court case makes certain crimes or enhancements no longer valid.  
A confession was coerced by a police officer. 
A lawyer did not inform the client about the right to appeal.
A lawyer made a promise to a client about the amount of time they would receive.  
Many more things can constitute grounds for a 2255 motion so please consult an attorney

You cannot raise these issues on direct appeal because direct appeal reviews are limited to the record at the time of sentencing.


Who Can File a 2255 Motion?

Only individuals who are “in custody under sentence of a court established by Act of Congress” may file motions pursuant to 28 U.S.C. § 2255. 28 U.S.C. § 2255 (emphasis added).

The law designates a person in jail, prison, on probation, on parole or on supervised release as “in custody”.

The “in custody” requirement only applies at the time of filing the § 2255 motion.  If your loved one files their 2255 motion while they are “in custody” and then they are released then their motion remains valid.

When Must My Motion to Vacate be Filed?

A one-year statute of limitations applies to § 2255 motions. In general, you must file a § 2255 motion within one year from your case’s finalization.

The deadline to file a § 2255 motion is 12 months after the latest of the following:

1. “The date on which the judgment of conviction becomes final:” a case does not become “final” until all of the appeals have been resolved.  Here are the deadlines in some common scenarios:

  • No appeal filed: A § 2555 motion must be filed within one year and 14 days after the entry of judgment by the District Court.
  • Direct appeal filed: A § 2255 motion must be filed within one year and 90 days after the appeals court enters its opinion.
  • Direct appeal filed and rehearing sought: A § 2255 motion must be filed within one year and 90 days after the appeals court denied rehearing.
  • Direct appeal filed, rehearing sought, and Supreme Court review sought: A § 2255 motion must be filed within one year that the Supreme Court declines to hear the case.

2. New evidence emerges that could not have emerged before.

3. The date that the Supreme Court first declares that someone in your situation has a right that affects your sentence or conviction. This only applies if the Supreme Court specifically makes it retroactive.  This can be a tricky area and we advise you to seek counsel before filing based on this.  

4. The ending of some government action that prevented you from filing before. If you believe that this happened, definitely have an attorney advise you.  Arguing these issues are very technical and depend heavily on the circumstances of the particular case.

What Issues Can be Brought in a 2255 motion?

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.”

Ineffective Assistance of Counsel” proves one of the most likely and common constitutional violations, but others do exist.

Frequently Asked Questions

How does a motion to vacate differ from a direct appeal?

In a direct appeal, a defendant can raise any issue, so long as the record supports it. Although you cannot raise all issues in a § 2255 motion, § 2255 motions offer defendants the opportunity to present the court with new evidence.

Can I get a second chance to file a § 2255 motion?

Even if a defendant filed a § 2255 motion and was denied relief, they may still be able to try again under certain circumstances. The court of appeals panel must certify a second or successive motion. It must contain newly discovered evidence that, taken in light of the evidence as a whole, clearly establishes that no reasonable fact finder would have found the defendant guilty. Additionally, if a new rule of constitutional law would apply retroactively to cases on collateral review, a second motion might benefit you. 

Can I appeal the denial of my motion to vacate?

You can appeal a § 2255 motion – but only if the defendant obtains a certificate of appealability (COA). District court judges, circuit court judges, and Supreme Court justices can grant COAs. A circuit justice or judge may issue a certificate of appealability only if the applicant makes a substantial showing of the denial of a constitutional right.

What happens after the motion has been filed?

Once a defendant files a § 2255 motion, it can take anywhere from several weeks (in the event of a summary dismissal) to over a year (if the government is ordered to respond, and a hearing occurs) for a court either to grant or dismiss a § 2255 motion.

You will file the motion in the same Court in which you were sentenced. If the same Judge still presides, then that Judge will normally rule on your motion.

You will face several potential outcomes. Firstly, the Judge may just deny the motion. Secondly, the Judge may order the Government to respond to your motion, and then, after the Government responds, deny the motion. Thirdly, the Judge may order the Government to respond and then, after reviewing its response, grant a hearing at which you and the Government will be allowed to offer evidence. At that point, the Judge may grant or deny the motion.

If the judge denies your motion, you may appeal to your circuit’s Court of Appeals, but only if you meet certain technical and substantive criteria.

Can I get sentenced to more time on my case if I win my 2255?  What about if I lose my 2255 motion?

We have never seen someone get more time from a motion to vacate either being granted or denied.  If the motion is denied then the case is over unless an appeal is taken.  

If the motion is granted then there may be subsequent steps or legal proceedings that come into play, but again, we have never seen a person get more time after a 2255 motion is granted.

Can I file 2255 motion if the law changed and affected my guideline range?  

Possibly, but you may be subject to the statute of limitations.  Compassionate Release may be better here.  The best way to handle this would be to contact our office.  

If you believe you or your loved one could benefit from a 2255 motion, contact us to talk more about your options.

If anything here applies to you, contact us today.

At The Law Office of Jeremy Gordon, we fight aggressively for our clients. We are experienced, and know what it takes to present a successful defense in a federal criminal case. For prompt, courteous and skilled representation as your federal criminal defense attorney, contact us today to schedule a free phone consultation.
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