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A “collateral attack” is a challenge to a conviction or sentence brought in a separate proceeding after the case is over — like a § 2255 motion. Section 2255(a) has a catch-all ground: a sentence that is “otherwise subject to collateral attack.” It covers serious errors that are not constitutional or jurisdictional, but only if the error caused a complete miscarriage of justice.
Most § 2255 claims allege a violation of the Constitution or federal law. But a prisoner whose sentence is “otherwise subject to collateral attack” may also file. 28 U.S.C. § 2255(a).
Like other non-constitutional, non-jurisdictional claims, the error must “constitute[] a fundamental defect which inherently results in a complete miscarriage of justice.” Reed v. Farley, 512 U.S. 339, 354 (1994); Hill v. United States, 368 U.S. 424, 428 (1962).
What do these claims look like in real cases?
Here are examples of cases where prisoners argued their convictions or sentences were otherwise subject to collateral attack under § 2255.
- Siddiqi v. United States, 98 F.3d 1427, 1438 (2d Cir. 1996). When the government’s theory of guilt shifted multiple times (one theory on the evidence, another theory in closing arguments, and an entirely different theory on appeal), and the jury convicted on a theory that was put forth for the first time in closing arguments, there was no factual foundation for the conviction and it therefore “did not meet the rudimentary demands of fair procedure” and “constituted a miscarriage of justice.” The conviction was subject to collateral attack in section 2255 proceedings.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
- United States v. Tucker, 404 U.S. 443 (1972). When the defendant’s sentence was based in part on two prior felony convictions in which the defendant was not represented by counsel (in violation of Gideon v. Wainwright, 372 U.S. 335 (1963)), the sentence was subject to collateral attack in section 2255 proceedings.
- Daniels v. United States, 532 U.S. 374 (2001). While a defendant cannot use §2255 to challenge an enhanced sentence on the ground that the prior convictions were unconstitutional (with the exception of prior convictions obtained in violation of Gideon, as was the case in United States v. Tucker, above), if the prior convictions are still open to challenge, and are successfully challenged, then section 2255 relief is available.
- Bateman v. United States, 875 F.2d 1304, 1307 (7th Cir. 1989). When the defendant was convicted for conduct that does not violate federal law, the conviction was subject to collateral attack “under the Section 2255 rubric permitting motions to vacate sentences ‘otherwise open to collateral attack.'”
- United States v. Angelos, 763 F.2d 859, 861 (7th Cir. 1985). “The question what issues of nonconstitutional, nonjurisdictional character are open in a collateral attack on a criminal conviction, given that the issue of the defendant’s guilt or innocence clearly is not, is a vexing one . . . about all that can be offered as a generalization is that if the defendant can show that under no possible view of his conduct was he guilty of a federal crime, the conviction will be set aside as ‘otherwise subject to collateral attack’ under 28 U.S.C. §2255.”
How does the catch-all work?
If an error is not based on the Constitution or a federal statute, you may still argue that the conviction or sentence is “otherwise subject to collateral attack.”
But every such claim must show a complete miscarriage of justice. No matter how clear the error is, if the motion does not allege — and the court does not find — a miscarriage of justice, the claim will fail.
Common questions
I got one of the prior convictions used to enhance my federal sentence thrown out. Can I file a § 2255 motion?
Often, yes. Federal sentences are commonly increased because of prior convictions, often from state court. If you successfully get a prior conviction vacated, § 2255 may let you ask the federal court to reopen the enhanced sentence. Daniels v. United States, 532 U.S. 374, 382 (2001).
Timing is critical. The one-year clock generally starts when you receive notice of the order vacating the prior conviction — but only if you challenged it diligently after your federal judgment. Johnson v. United States, 544 U.S. 295, 310 (2005). See newly discovered facts under § 2255(f)(4).
I think I have a § 2255 claim, but I don’t know which category it falls under. What should I do?
The category matters less than the facts and the legal standard you must meet. Most people get only one full § 2255 motion, so every claim should go in the first one. Book a consultation with Brandon Sample to talk through your claims.
Related pages
Cognizable Claims: The Court Lacked Jurisdiction
Cognizable Claims: The Conviction or Sentence Violates the Constitution
Cognizable Claims: Ineffective Assistance of Counsel
Ineffective Assistance of Counsel: Pretrial
Ineffective Assistance of Counsel: Trial
Ineffective Assistance of Counsel: Sentencing
Ineffective Assistance of Counsel: Appeal
Cognizable Claims: The Conviction or Sentence Violates Federal Law
Questions about your case? Book a consultation to talk it through with Brandon Sample.