When Is a § 2255 Hearing Required?

An evidentiary hearing is a court hearing with witnesses and evidence, like a small trial before the judge. The court must hold one unless the motion and the record “conclusively show” you are not entitled to relief. If you get a hearing and cannot afford a lawyer, the court must appoint one.

Section 2255 says 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 conclusions of law with respect thereto.” 28 U.S.C. § 2255(b).

In an older habeas case, the Supreme Court held that a court must hold a hearing when the petitioner “alleges facts which, if proved, would entitle him to relief,” and did not get a full and fair hearing on them before. Townsend v. Sain, 372 U.S. 293, 312-13 (1963). (Parts of Townsend were later limited for state-prisoner cases; § 2255(b) supplies the rule for federal prisoners.)

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). That makes sense: the hearing is where you prove the facts.

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).

When the two sides’ sworn statements conflict on an important fact, courts generally hold a hearing to settle it. See Bender v. United States, 387 F.2d 628, 630 (1st Cir. 1967) (Affidavit/counter affidavit established a disputed fact, hearing required).

Will the court appoint a lawyer for the hearing?

Yes, if you qualify financially. “If an evidentiary hearing is warranted, the judge must appoint an attorney to represent a moving party who qualifies to have counsel appointed under 18 U.S.C. §3006A.” Rule 8(c), Rules Governing Section 2255 Proceedings.

The hearing must be held “as soon as practicable after giving the attorneys adequate time to investigate and prepare.” Rule 8(c). The Advisory Committee Notes to Rule 8 of the Rules Governing Section 2254 Cases, 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 happens at an evidentiary hearing?

Think of it as a small trial in front of the judge, with no jury. Witnesses testify and are cross-examined, and the Federal Rules of Evidence generally apply. If “there are substantial issues of fact as to events in which the prisoner participated,” the prisoner must be present. 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.”

When have courts ordered hearings?

Here are examples where appeals courts ordered evidentiary hearings in § 2255 cases. The common thread: the motion alleged specific facts that, if true, would show a violation, and the record did not disprove them.

• 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).

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

• Evidentiary hearing ordered to determine whether counsel was ineffective when he overestimated defendant’s sentence exposure under an offered 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).

Common questions

Related pages

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

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