2255 Process

Note: There are few statute or rule - based timeframes. Most (if any) come from the judge's order.

Step 1

File the Motion. The section 2255 motion must be filed within one year of when the conviction became final, subject to a few exceptions. The motion must specify all grounds for relief, include supporting facts, and must state the relief requested. The motion should be made on the form provided by the court.

Step 2

Clerk Action. The clerk will file the motion on the criminal docket of the case being challenged, and will deliver a copy to the U.S. Attorney. *Note that the government need not respond at this point.*

Step 3

The Preliminary Review. The judge must "promptly" examine the motion. If it is plainly apparent the inmate is not entitled to relief, the judge must dismiss the motion. Otherwise, the judge must order the government to respond to the motion within a time fixed by the court, usually 30-60 days.

Step 4

The Government's Response. The government will move to dismiss or answer the motion within the prescribed timeframe.

Step 5

The Movant's Reply. When the court orders the government to respond, it will also permit the movant to file a reply to the government's response within a prescribed timeframe, usually 14-30 days.

Step 6

Discovery. Discovery is only available with leave of court. In the request, the inmate must provide reasons that establish good cause for an order allowing discovery. Any such request must also include a list of everything that will be requested. If discovery is authorized, the court will likely issue a scheduling order, and may appoint counsel for the inmate.

Step 7

Motion to Expand the Record. Because a section 2255 motion is collateral to the criminal case, the court may direct that the record be expanded with letters, documents, exhibits and affidavits. Any party may move to expand the record. The motion should include the expansion materials. The opposing party will be given an opportunity to admit or deny the correctness of the materials.

Step 8

Motion for Summary Judgment. At the close of the initial pleadings, motions and discovery, either party may move for summary judgment. This is a request for the judge to rule on the 2255 motion without a hearing.

Step 9

The Evidentiary Hearing. If the motion is not dismissed, the court must determine whether an evidentiary hearing is required. If a hearing is ordered, the inmate will be appointed counsel. A magistrate judge may conduct the hearing. The hearing must be conducted "as soon as practicable."

Step 10

The Certificate of Appealability. When the court enters a final order on the section 2255 motion, it must also issue or deny a certificate of appealability. In order to obtain a COA, the inmate must make a substantial showing of the denial of a Constitutional right. If the court denies a COA, the inmate may appeal the denial.

Step 11

Appeal. If a COA issues, the inmate must file a notice of appeal within 60 days. The inmate may also appeal the denial of a COA, also within 60 days.