Evidentiary Hearing in 2255 Proceedings

Section 2255 provides that “[ u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusion of law with respect thereto.” 28 U.S.C. 2255(b). The United States Supreme Court held in Townsend v. Sain, 372 U.S. 293, 312-13, that a district court must hold an evidentiary hearing when a habeas petitioner “alleges facts which, if proved, would entitle him to relief,” and “the habeas applicant did not receive a full and fair evidentiary hearing” on the issue.

Evidentiary Hearing: When is a Hearing Required?

The movant need not prove the facts that would entitle him to relief in order to receive an evidentiary hearing. Aron v. United States, 291 F.3d 708, 715 n. 6 (11th Cir. 2002) (“The law is clear that, in order to be entitled to an evidentiary hearing, a petitioner need only allege — not prove — reasonably specific, nonconclusory facts that, if true, would entitle him to relief.”)(emphasis in original). This of course makes sense — if the movant was required to prove the facts that would entitle him to relief before being granted an evidentiary hearing, the hearing itself would be superfluous.evidentiary hearing

Courts have taken a relatively expansive view of when a hearing is required. See United States v. Lilly, 536 F.3d 190, 195 (3rd Cir. 2008)(The standard is not a “high bar for habeas petitioners to meet”); Government of Virgin Islands v. Weatherwax, 20 F.3d 572, 573 (3rd Cir. 1994)(Allegations that are not conclusively refuted by the record warrant evidentiary hearing); Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)(Where allegations were not “contradicted by the record, inherently incredible, or conclusions rather than statements of facts,” evidentiary hearing should have been held).

Indeed, if a factual dispute exists at all, a hearing must be held. See Bender v. United States, 387 F.2d 628, 630 (1st Cir. 1967) (Affidavit/counter affidavit established a disputed fact, hearing required). Again, this makes sense. Evidentiary hearings are designed to settle factual disputes.

Appointment of Counsel for Evidentiary Hearing

If an indigent section 2255 movant is granted an evidentiary hearing, counsel  will be appointed. Rule 8(c). The hearing itself is to be conducted “as soon as practicable;” though the timeframe is flexible. The Advisory Committee Notes to Rule of the Rules Governing Section 2254 Proceedings, which are adopted in the Notes to Rule 8 of the Rules Governing Section 2255 Proceedings, state that Rule 8(c) “provides . . . flexibility to take account of the complexity of the case, the availability of important materials, the workload of the attorney general, and the time required by appointed counsel to prepare.”

What is an Evidentiary Hearing?

The evidentiary hearing itself is best thought of as a mini bench trial. The Federal Rules of Evidence apply in full. If “there are substantial issues of fact as to events in which the prisoner participated,” his presence is required at the hearing. United States v. Hayman, 342 U.S. 205, 223 (1952). Otherwise, §2255(c) allows the court to “entertain and determine [the section 2255] motion without requiring the production of the prisoner at the hearing.”

Examples of Cases in Which an Evidentiary Hearing Was Ordered

Below we have profiled a few examples where section 2255 movants were granted evidentiary hearings. As you can see, there are a number of reasons why such hearings are granted. The key is to draft and file a quality 2255 motion which shows the need for such a hearing.


  • Evidentiary hearing ordered to determine whether counsel was ineffective when he failed to communicate a plea offer. United States v. Bonnister, 467 Fed.Appx. 175, 175-76 (4th Cir. 2012).


  • Evidentiary hearing ordered to determine whether counsel was ineffective when he overestimated defendant’s sentence exposure under a proferred plea deal, leading defendant to reject the plea and stand trial. United States v. Rivas-Lopez, 678 F.3d 353, 358-59 (5th Cir. 2012).


  • Evidentiary hearing ordered to determine whether counsel was ineffective when he failed to file a suppression motion. Gardner v. United States, 680 F.3d 1006, 1013 (6th Cir. 2012).


  • Evidentiary hearing ordered to determine whether counsel was ineffective when he failed to investigate and cross-examine a key government witness. De La Rosa v. United States, 481 Fed. Appx. 480, 483 (11th Cir. 2012).


  • Evidentiary hearing ordered when third-party payment arrangement may have created a conflict of interest. Quintero v. United States, 33 F.3d 1133, 1135 (9th Cir. 1994).

Experienced 2255 Evidentiary Hearing Attorneys

Section 2255 motions often turn on disputed facts. As such, it is crucial that the initial motion and filings clearly establish facts that would entitle the movant to an evidentiary hearing. At the Law Offices of Brandon Sample, we ensure that clients with factual disputes get their day in court. Our experienced habeas attorneys know how to prepare for and litigate an evidentiary hearing. If you or a loved one are considering a section 2255 motion based on ineffective assistance of counsel or any other fact-specific issue, contact us today for a consultation.

Evidentiary Hearing in 2255 Proceedings FAQs

Q: I have filed a section 2255 motion. Will I get an evidentiary hearing?

A: A properly filed section 2255 motion that does not face any procedural bars and alleges reasonably specific, nonconclusory facts that, if true, would entitle the movant to relief should be scheduled for an evidentiary hearing. The substantive bar to an evidentiary hearing is not high, but there are numerous procedural reasons that an evidentiary hearing may be denied. As such, no matter how good the merits of your motion are, if you have a statute of limitations problem, are filing your second section 2255 motion, or are procedurally defaulted, you may not get a hearing. A qualified habeas corpus attorney can help you avoid  procedural traps. Contact us now to discuss your 2255 motion.

Q: If I am granted an evidentiary hearing, will I be appointed counsel?

A: If you haven’t already retained an attorney, and you cannot afford one, counsel will be appointed to represent you at an evidentiary hearing. If you would like to discuss retaining one of our experienced section 2255 litigators to draft your motion and represent you from start to finish, contact us to set up a consultation. Our firm has considerable experience with such hearings and a proven track record of success.

Q: What are some examples of when an evidentiary hearing was granted?

A: Evidentiary hearings are ordered when the motion, answer and affidavits fail to resolve factual disputes. When a claim is based on the ineffective assistance of counsel, factual disputes are typically not resolved on the documents, so evidentiary hearings are relatively common. If you believe that your attorney was not effective at trial, contact us to discuss a section 2255 motion. Our experienced and professional staff have helped federal prisoners from across the country draft, file and litigate section 2255 motions. Whether you were convicted of fraud, money laundering or conspiracy, we can help you get the relief to which you are entitled.

Related Content

Preparing for a Section 2255 Motion

Section 2255 Litigation: The Initial 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: Resolution by Magistrate