Where and How a § 2255 Motion Is Filed

For what a 2255 motion is, and when it fits, read the overview on the home page. This page is only the filing steps: the form, where to file, the copies, and the prison mailbox rule.

You file a written motion, usually on the court’s standard form (AO 243 or a local version), in the court that sentenced you. It must list every claim you have and the facts behind each one, and you sign it under penalty of perjury. There is no filing fee.

The contents of the motion are set by Rule 2 of the Rules Governing Section 2255 Proceedings. Rule 2(b) says the motion must:

• Specify all the grounds for relief available to the moving party;
• 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.

Outcomes vary. A past result does not predict or guarantee the outcome of any other case.

Is there a standard form?

Yes. Rule 2(c) says the motion “must substantially follow either the form appended to these rules or a form prescribed by a local district-court rule,” and the clerk must provide forms at no charge. The national form is AO 243, and many district courts post their own version online; the clerk’s office will mail one on request. People in federal prison can usually find the form and their court’s local rules through the prison’s electronic law library, or ask the law library clerk.

How much detail do you need?

A lot. Rule 2(b)(2) requires you to “state the facts supporting each ground.” General statements are not enough. You must give enough specific facts to show a real possibility of an error the court can fix. Hodges v. United States, 316 F.Supp.2d 688 (S.D. Ill. 2004) (a bare claim that the judge should have stepped aside was not enough).

Why must you include every claim?

Rule 2(b)(1) requires you to list all available grounds. More important, most people get only one full § 2255 motion. If you leave a claim out, the limits on second or successive motions will likely bar it later. 28 U.S.C. § 2255(h).

Should you file a memorandum of law?

It is not required, but it is a good idea. A memorandum is a written argument that connects your facts to the law and cases. It also gives the judge and the government a clear summary of what happened in your case and why you are entitled to relief.

Where and how do you file?

File in the district court that sentenced you. Rule 3(a) requires “[a]n original and two copies of the motion.” The clerk files it on your criminal docket and sends a copy to the United States Attorney. Rule 3(b). There is no filing fee.

If you are in prison, your motion counts as filed on the day you put it in the prison’s internal mail system — use the legal-mail system if there is one — on or before the deadline. Include a signed declaration stating the date you mailed it and that first-class postage was prepaid. Rule 3(d).

Will the court appoint a lawyer?

Sometimes. The court must appoint a lawyer for a person who qualifies financially if it orders an evidentiary hearing. Rule 8(c). It also must appoint one if needed for discovery. Rule 6(a). Otherwise, the court may appoint one when “the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B).

If you cannot afford costs, consider asking to proceed in forma pauperis (as a person without money to pay). That can help you get transcripts at government expense. 28 U.S.C. § 753(f).

The first § 2255 motion is often the most important document in a post-conviction case. Mistakes in its timing or content can cost good claims.

What happens right after filing?

The clerk dockets the motion on the criminal case and delivers a copy to the United States Attorney. Rule 3(b). The government does not automatically have to answer. The judge first screens the motion under Rule 4. If it plainly appears that you are not entitled to relief, the judge must dismiss it and notify you. If the motion goes forward, the judge orders the government to respond. Rule 4(b). Our page on what happens after you file walks through that stage.

Mailbox rule details

For a person confined in an institution, a motion is timely if it is deposited in the institution’s internal mailing system on or before the last day for filing. Rule 3(d). Use the legal-mail system when the facility has one. Include a declaration that states the date of deposit and that first-class postage was prepaid. Without that declaration, courts may treat the filing date as the date the clerk receives the papers.

Fact pleading and the one-motion limit

Rule 2’s fact-pleading requirement works together with § 2255(h). Because second or successive motions are tightly limited, the first motion should state every available ground with supporting facts. A vague placeholder claim may be dismissed under Rule 4, and a claim left out entirely may be barred later. If you need more time to gather proof after a timely filing, you can seek leave to amend and can ask to expand the record under Rule 7 — but those tools do not revive a late first filing.

Common questions

Related pages

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

Questions about your case? Request a consultation to talk it through with Brandon Sample.