Federal 2255 Lawyers

Table of Contents: 2255 Motions

Federal 2255 Lawyers

Is your loved one in federal prison because of ineffective assistance of counsel? It is critically important to have an experienced federal criminal defense attorney fighting for you when submitting a § 2255 Motion. We have a history of successfully obtaining relief for our clients in these matters.  We will review your case to determine how we will fight on your behalf.

After your case review, should you choose to retain us to fight for your loved one, we will file all possible motions and appeals to have your loved one’s sentence reduced or vacated. If your loved one was unfairly convicted, a motion to vacate the conviction or sentence may offer a chance to get them out of jail, and back with their family.

Reach out to us today for your complimentary phone consultation to discuss your case (note that “2255” and “Motion to Vacate” are used interchangeably in this post)

What is a USC § 2255 Motion?

A motion is simply a request to a court to ask them to do something. A § 2255 motion is a motion filed by or on behalf of a defendant who has already been convicted and sentenced. This motion asks the court to vacate the judgment in the criminal case.

Depending on the issues raised in the motion, the motion would ask the court to resentence the defendant, give him a new trial, or (very rarely) enter a judgment of acquittal. The number “2255” refers to the law that allows for such motions. That law is found in § 2255 of Title 28 of the United States Code.

When it is used effectively, it can be a powerful tool to right injustices that were not or could not have been raised on direct appeal. This is because it gives courts broad discretion in fashioning appropriate relief, including dismissal of all charges and release of the prisoner, retrial, or resentencing.

What is a § 2255 Motion Used For?

Most commonly, § 2255 motions are used for:

(1) Ineffective assistance of counsel at the plea, trial, sentencing, and/or appeal levels. If an attorney representing the defendant was “ineffective” within the legal meaning of that word, then it must be complained of in a 2255 motion.

(2) Prosecutorial misconduct. If the U.S. Attorney’s office or an agent of the Government committed “misconduct” within the legal meaning of that word, and that affected the Defendant’s substantial rights and, except for that conduct, there would have been a different result in the case, then it must be raised in a 2255 motion.

(3) Newly discovered evidence. If, after sentencing, there is new evidence discovered that could not have been discovered before the sentencing, you may raise that in a 2255 motion. NOTE: This issue cannot be raised in a direct appeal because the review on appeal is limited to the record that existed at the time the sentence was imposed. (Ineffective assistance of counsel and prosecutorial misconduct cannot be raised in a direct appeal either.)

(4) A substantive change to the law that has been explicitly made retroactive by the U.S. Supreme Court.

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 to vacate their convictions or sentences. 28 U.S.C. § 2255 (emphasis added).

A person is “in custody” if they are in prison or jail.  A person can also be “in custody” if they are on probation, parole or on supervised release.”

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 can still be valid.

Is There a Time Limit on When the Motion Must Be Filed?

A one-year statute of limitations applies to § 2255 motions. In general, a § 2255 motion must be filed within one year from the date on which the judgment of conviction becomes final. Under some circumstances, a defendant may also have a year from the date new evidence is discovered, the date the Supreme Court recognizes a new right, or the date an illegal government impediment to filing the motion is removed.

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

(1) The deadline by which you have to file a direct appeal after your conviction. Technically, this means “the date on which the judgment of conviction becomes final,” but different Courts may interpret that differently.

(2) New evidence is discovered that could not have been discovered before.

(3) The date that the Supreme Court first declares that someone in your situation has a right that affects your sentence or conviction (but only if the Supreme Court specifically makes it retroactive).

(4) The date 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 raised in a Motion to Vacate?

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” is one of the most likely constitutional violations, but there are others.

How Does a Motion to Vacate Differ from a Direct Appeal?

In a direct appeal, a defendant can raise any issue, so long as it is supported by the record. Although not all issues may be raised in a § 2255 motion, § 2255 motions offer defendants the opportunity to present the court with new evidence.

Is There a Second Chance to File a § 2255 Motion?

Even if a defendant has filed a 2255 motion and was denied relief, they may still be able to try again under certain circumstances. A second or successive motion must be certified by a court of appeals panel and contain newly discovered evidence that, taken in light of the evidence as a whole, would clearly establish that no reasonable fact finder would have found the defendant guilty, or if a new rule of constitutional law would apply retroactively to cases on collateral review. [/av_textblock]

Can a Defendant File More Than One Motion to Vacate?

Yes – but only with prior permission from the Court of Appeals. The Court of Appeals is authorized to grant such permission only in two rare circumstances: (1) where there is newly discovered evidence of actual innocence that is so compelling that after seeing it, no reasonable jury would find the person guilty; or (2) where the Supreme Court has established a new rule of constitutional law that was not only previously unavailable, but which the Supreme Court itself has ruled may be applied in § 2255 motions.

Can a Denial of a Motion to Vacate be Appealed?

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

Once the Motion Has Been Filed, What Happens?

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 is held) for a court either to grant or dismiss a § 2255 motion.

The motion will be filed in the same Court in which you were sentenced. If the same Judge is there, then that Judge will normally be the one to rule on your motion.

There are several potential outcomes. First, the Judge, once he or she receives the 2255 motion, may just deny the motion. Second, the Judge may order the Government to respond to your motion, and then, after the Government responds, deny the motion. Third, 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 it is denied, you may appeal to your circuit’s Court of Appeals, but only if you meet certain technical and substantive criteria.


The most important thing to be stressed here is that seeking relief under 2255 is difficult.  The law, by nature, is quite complicated, and each law may have exceptions and limitations. Also, in most cases, a defendant only has one chance to seek relief under § 2255.

A person should not file a § 2255 motion without a lawyer who has knowledge, experience and expertise in this part of the law.  The government is going to have experienced lawyers on their side doing everything that they can to see that your loved one gets denied relief.  You should have someone on your side as well.

If you would like to know more about retaining us to work on your loved one’s § 2255 motion, please contact us.

About the Law Office of Jeremy Gordon:

Located in the Dallas/Fort Worth Area, the Law Office of Jeremy Gordon has been an award winning federal criminal defense firm since 2012.  Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve. You can also add us on Facebook or Twitter.  You can sign up for our newsletter below.

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