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After you file, the judge first reads your motion to see if it should be thrown out right away. If not, the judge orders the government to respond, and you get a chance to reply. Then the judge decides the motion on the papers or holds a hearing.
When your motion arrives, the clerk files it on your criminal docket and sends a copy to the U.S. Attorney. Rule 3(b), Rules Governing Section 2255 Proceedings. But the government does not have to respond unless the judge orders it to. Rule 5(a).
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
What happens at the first review?
The clerk sends the motion to the judge who handled your case. Rule 4(a). Under Rule 4(b), “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.”
The Supreme Court has said summary dismissal is proper only when the “allegations, when viewed against the record, [are] so palpably incredible, so patently frivolous or false, as to warrant summary dismissal.” Blackledge v. Allison, 431 U.S. 63, 76 (1977).
Vague or conclusory claims can also be dismissed at this stage. Id. at 75 and n. 7. Some courts dismiss these without prejudice or let the movant amend instead. See, e.g., United States v. Thomas, 221 F.3d 430, 437-38 (3rd Cir. 2000). This is why specific facts matter so much.
What if the motion survives the first review?
The judge “must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.” Rule 4(b). The government may file a motion (for example, to dismiss as untimely) or an answer that responds to each claim.
What must the government’s answer include?
Under Rule 5(b), “[t]he answer must address the allegations in the motion. In addition, it must state whether the moving party has used any other federal remedies, including any prior post-conviction motions under these rules or any previous rules, and whether the moving party received an evidentiary hearing.”
If the answer refers to briefs or transcripts that are not in the court’s records, the judge must order the government to provide them. Rule 5(c).
Can you reply to the government?
Yes. “The moving party may file a reply to the respondent’s answer or other pleading.” Rule 5(d). The judge sets the deadline unless a local rule already does.
Reply whenever you can. Do not just repeat your motion. Answer the government’s specific arguments, point out what it got wrong, and flag any facts it disputes — disputed facts can be a reason for a hearing.
You can also ask for discovery (the formal exchange of evidence) with the judge’s permission. Rule 6. Read more about discovery in § 2255 cases.
Is summary judgment used in § 2255 cases?
Sometimes. The § 2255 Rules do not mention it, but the Federal Rules of Civil Procedure may be applied when they are consistent with the § 2255 Rules. Rule 12. Summary judgment is proper when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In practice, the government often moves for summary judgment in cases that have not already been dismissed. Many courts also simply decide the motion on the papers under Rule 8(a) or hold an evidentiary hearing.
Common questions
I filed my § 2255 motion. What happens now?
The judge reviews it first. If it “plainly appears” from the motion, exhibits, and record that you are not entitled to relief, the judge must dismiss it. Rule 4(b). That is reserved for claims that are “so palpably incredible, so patently frivolous or false, as to warrant summary dismissal.” Blackledge v. Allison, 431 U.S. 63, 76 (1977).
My motion was not dismissed on the first review. What’s next?
The judge will order the U.S. Attorney to respond. The response may be an answer to your claims or a motion, such as a motion to dismiss. An answer must address your allegations, and if it relies on transcripts or briefs not in the record, the judge must order the government to provide them.
I just got the government’s response. What do I do?
File a reply. You have the right to reply under Rule 5(d), and the court will set a deadline. Use it to answer the government’s specific arguments.
Once everything is filed, should I do anything else?
If you have a strong claim and the key facts are not in dispute, consider a motion for summary judgment — a request to decide the case because the facts are clear and the law is on your side. Expect the government to file one too. Watch for the court’s orders and deadlines. If important facts are disputed, ask for an evidentiary hearing. If you need records the government has, consider a motion for discovery. Keep your address current with the clerk.
I am in over my head. What can I do?
Many people feel that way — the process is complicated and the deadlines are short. If the court holds an evidentiary hearing and you qualify financially, it must appoint a lawyer. Rule 8(c). If you want to talk with a lawyer about your case, book a consultation with Brandon Sample.
Related pages
Preparing for a Section 2255 Motion
Section 2255 Litigation: The Initial Motion
Section 2255 Litigation: Amending the Motion
Section 2255 Litigation: Expanding the Record
Section 2255 Litigation: Discovery
Section 2255 Litigation: The Evidentiary Hearing
Section 2255 Litigation: Resolution by Magistrate
Questions about your case? Book a consultation to talk it through with Brandon Sample.