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28 U.S.C. 2255 Motion | 2255

For a federal prisoner who wishes to vacate, set aside, or correct her sentence, the first step is to file a 28 U.S.C. 2255 motion. The contents of the motion are governed by Rule 2 of the Rules Governing Section 2255 Proceedings. Rule 2(b) says that the motion must:

  • Specify all the grounds for relief available to the moving party;2255, 28 U.S.C. 2255 motion
  • State the facts supporting each ground;
  • State the relief requested;
  • Be printed, typewritten, or legibly handwritten; and
  • Be signed under penalty of perjury by the movant or by a person authorized to sign it for the movant.

Sample 28 U.S.C. 2255 Motion

To make matters easier for section 2255 movants, Rule 1(c) provides for a standard form, which is appended to the rules. Click here for a copy of the form. Inmates in federal custody can print off this form via the TRULINCS law library computers. There they will also find the local rules of court for their specific district court. If they are not experienced with legal research, their law library clerk should be able to provide them with this form.

Fact Pleading: Detailing the Facts Required for Relief

Section 2255 motions require the use of "fact pleading." This means that, just as stated in Rule 2(b)(2), a movant must include a statement of fact sufficient to show entitlement to relief. Generalized statements are not enough. A section 2255 motion must set forth facts with sufficient detail to point the court to a real possibility of true cognizable error. Hodges v. United States, 316 F.Supp.2d 688 (S.D. Ill. 2004)(bald assertion that judge should have recused himself was insufficient).

State All Available Grounds for Relief

It is crucially important that a section 2255 movant follow Rule 2(b)(l) very carefully -- all available grounds for relief must be included in the initial motion. This is less a matter of complying with Rule 2(b)(l) than a necessity of post-AEDPA habeas corpus practice. As a rule, federal prisoners get exactly one chance to file and argue a section 2255 motion. If a movant misses a claim, the restrictions on second or successive motions are likely to prohibit bringing the claim later. Movants need to ensure to do this the right way the first time.

Memorandum of Law: Not Required, but a Smart Idea

While not required by the Rules, it is a good idea to file a memorandum of law in support of the 28 U.S.C. 2255 motion. A memorandum can be used to support factual claims with legal argument and case law. Moreover, given the many procedural niceties associated with section 2255 motion practice, it is likely that the court (and the government) will benefit from a clear and concise statement of the case, both procedurally and substantively.

The Particulars of Filing a 28 U.S.C. 2255 Motion: Filing, Copies, and Appointed Counsel

A section 2255 motion is filed in the court of sentencing. Rule 3(a) requires the movant to file the original and two copies of the motion with the clerk. The clerk will then docket the motion and deliver a copy to the United States Attorney. There is no filing fee for filing this motion.

Despite the lack of a filing fee, it may make sense for an indigent prisoner to file a request to proceed in forma pauperis when initiating  a section 2255 claim. If the court grants in forma pauperis status, transcripts and other documents will be free to the movant, and the court may be more likely to appoint counsel.  The appointment of counsel is only required when an evidentiary hearing is ordered, but the court can appoint counsel when the movant is indigent and ''the interests of justice" so require. See 18 U.S.C. §3006A(a)(2)(B).

The initial section 2255 motion is quite possibly the most important document produced in the postconviction context. The penalties for a mistake in the timing or contents of the initial motion tend to be severe. Meritorious claims have been lost due to errors made at this crucial stage.

Experienced 28 U.S.C. 2255 Motion Lawyers

At the Law Offices of Brandon Sample, we have extensive experience with 28 U.S.C. 2255 motions. Whether you want to fight a §924(c) conviction or a career offender enhancement, we have the skills and competence to get your initial section 2255 motion put together perfectly -- the first time. Don't take chances: if you or a loved one want to pursue section 2255 relief, contact us today for a consultation. Our experienced attorneys are available to talk to you today.

28 U.S.C. 2255 Motion FAQs

Q: How do I get started with my 28 U.S.C. 2255 motion? What are the fist steps? What do I need to know?

A: The first thing to do is download the standard form for a section 2255 motion. You should then fill the form out with enough factual detail so that the court will understand your claim, and see the real possibility of a cognizable error. You must include all available grounds for relief in your motion. Failure to do so may cause you to run afoul of the bar on second or successive section 2255 motions.

In addition to the form, you should include a memorandum of law in which you explain the law that applies to your claims. Once you have completed the form and the memorandum, mail the original and two copies to the clerk of court for the district court in which you were convicted. There is no filing fee.

You should also consider hiring an experienced and competent 28 U.S.C. 2255 attorney to assist you with your motion. Federal habeas corpus is an extraordinarily complex area of the law, and when your liberty is on the line, it makes sense to hire a professional. Contact us now to discuss your case.

Q: If I can't afford an attorney, will the court appoint me counsel?

A: Sometimes. The court has discretion to appoint counsel, but is only required to do so if you are granted an evidentiary hearing. If you are indigent, you should consider filing a request to proceed in forma pauperis. This way, if the court decides that you need an attorney to represent you, they will appoint one.

Q: Why should I hire an attorney for my 28 U.S.C. 2255 motion? Does your firm handle such matters?

A: Congress and the courts do not favor motions filed by prisoners, and have erected barriers and traps for the unwary throughout the section 2255 process. There are simply an enormous number of ways in which the movant can fumble the ball. At the Law Offices of Brandon Sample, we routinely handle 28 U.S.C. 2255 motions. Our experienced attorneys and staff will work with you every step of the way to ensure that you have the best chance of success with your section 2255 motion.

Related Content

Preparing for a Section 2255 Motion

 

Section 2255 Litigation: Post-Filing Proceedings

 

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

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