How to File a § 2255 Motion

You start by filing a written motion, usually on the court’s standard form, 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. Many district courts post their form online, and 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.

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? Book a consultation to talk it through with Brandon Sample.