A § 2255 case usually moves in this order — you file the motion, the judge reviews it, the government responds, you reply, the judge may allow discovery or hold a hearing, and then the judge decides. If you lose, you need a certificate of appealability and a timely notice of appeal.
Here are the steps in more detail. This is the text version of our § 2255 process graphic.
Step 1: File the motion. The § 2255 motion generally must be filed within one year after the conviction became final, with a few exceptions. 28 U.S.C. § 2255(f). It must list all grounds for relief, the facts supporting each one, and the relief you want. Rule 2(b), Rules Governing Section 2255 Proceedings.
Step 2: The clerk files it. The clerk files the motion on the criminal docket of the case being challenged and sends a copy to the U.S. Attorney. Rule 3(b).
Step 3: The judge’s first review. The judge must “promptly” examine the motion. If it plainly appears you are not entitled to relief, the judge must dismiss it. Otherwise, the judge orders the government to respond within a deadline the judge sets, often 30 to 60 days. Rule 4(b).
Step 4: The government responds. The government will answer the motion or move to dismiss it by the deadline.
Step 5: Your reply. You may file a reply to the government’s response. The judge sets the deadline unless a local rule does, often 14 to 30 days. Rule 5(d).
Step 6: Discovery. Discovery is allowed only with the judge’s permission, for good cause. Your request must give reasons and list exactly what you want. Rule 6.
Step 7: Expanding the record. If the motion is not dismissed, the judge may have the parties add letters, documents, exhibits, and affidavits to the record. Either side may ask to expand the record. The other side gets a chance to admit or deny that the materials are correct. Rule 7.
Step 8: Waiting. After the reply is filed, the court decides when to take up the motion. It can take months, sometimes a year, before the judge acts.
Step 9: The evidentiary hearing. If the motion is not dismissed, the judge decides whether an evidentiary hearing is needed. If one is held and you cannot afford a lawyer, the judge must appoint one. A magistrate judge may conduct the hearing. The hearing must be held “as soon as practicable.” Rule 8.
Step 10: The decision. The judge decides the motion. If it was referred to a magistrate judge, the magistrate judge first issues a report and recommendation. Either side has 14 days to object. The district judge then decides the objected-to issues fresh and may accept, reject, or change the recommendation. Rule 8(b).
Step 11: The certificate of appealability (COA). When the judge denies a § 2255 motion, the judge must grant or deny a COA. Rule 11(a). A COA should issue if reasonable jurists could debate whether the motion should have been decided differently. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Step 12: Appeal. If the motion is denied, file a notice of appeal within 60 days after the judgment is entered. Fed. R. App. P. 4(a)(1)(B); Rule 11(b). You must file the notice on time even if the court grants a COA, and asking the judge to reconsider a COA denial does not extend the deadline. Rule 11.
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