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Short answer. An evidentiary hearing is a court hearing where the judge takes evidence, such as witness testimony and documents, to decide facts the two sides dispute. In a federal § 2255 case, 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.
Most court hearings are arguments by lawyers about the law. An evidentiary hearing is different: witnesses testify under oath and are cross-examined, exhibits are offered, and the judge decides what actually happened. In a federal criminal case, these hearings come up before trial (for example, on a motion to suppress), at sentencing, and after conviction in § 2255 cases. This page focuses on § 2255 hearings.
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.)
What do the § 2255 Rules and the Supreme Court say?
Rule 8(a) of the Rules Governing Section 2255 Proceedings tells the judge, if the motion is not dismissed, to review the government’s answer, any transcripts and records, and any materials added under Rule 7 “to determine whether an evidentiary hearing is warranted.”
Two Supreme Court cases explain how § 2255(b) works:
- Machibroda v. United States, 368 U.S. 487 (1962). A prisoner said his guilty plea was induced by a prosecutor’s private promises. The district court denied the motion without a hearing. The Supreme Court vacated that ruling and sent the case back, because the claims “related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light.” Id. at 494-95. The judge could not resolve those facts on the files and records alone.
- Blackledge v. Allison, 431 U.S. 63 (1977). Statements you made at your plea hearing count heavily: “Solemn declarations in open court carry a strong presumption of verity,” and “conclusory allegations unsupported by specifics” can be dismissed without a hearing. Id. at 74. But the Court held that the prisoner’s specific claim of an unkept promise, which the plea record did not refute, should not have been summarily dismissed. Blackledge was a state-prisoner case, but federal courts apply its reasoning to § 2255 motions.
How do courts apply the hearing rule?
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
What is an evidentiary hearing?
It is a hearing where the judge hears evidence, usually witness testimony and documents, to decide disputed facts. It is different from a hearing where lawyers only argue about the law.
What is an evidentiary hearing in a criminal case?
In a federal criminal case, it is a hearing where the judge takes evidence to decide a factual question, such as whether a search was lawful, a disputed fact at sentencing, or, after conviction, whether the facts in a § 2255 motion are true. The judge, not a jury, decides the facts.
What is a habeas corpus hearing?
For a federal prisoner, it is usually the evidentiary hearing on a § 2255 motion. The judge hears testimony, often including from the prior defense lawyer, and then decides whether the claims are proved. 28 U.S.C. § 2255(b); Rule 8, Rules Governing Section 2255 Proceedings.
When is an evidentiary hearing required?
Under 28 U.S.C. § 2255(b), unless the motion and the files and records “conclusively show” you are not entitled to relief. A timely motion with no procedural problems that alleges specific, non-conclusory facts that, if true, would entitle you to relief should get a hearing unless the record disproves those facts. But a hearing can be denied for procedural reasons — for example, a late motion, an unauthorized second motion, or a procedurally defaulted claim — no matter how strong the merits. Hearings are most common when the motion, the government’s answer and the affidavits leave an important fact in dispute, such as what a lawyer told the client in private.
Is an evidentiary hearing a trial?
No. There is no jury and no verdict of guilty or not guilty. But it works like a small trial in front of the judge: witnesses testify under oath, the other side can cross-examine them, and exhibits are offered. The judge then makes findings of fact and conclusions of law. 28 U.S.C. § 2255(b).
How long is an evidentiary hearing?
It depends on the number of claims and witnesses. Some take part of a day; others run longer. The judge must hold it as soon as practicable after giving the lawyers adequate time to investigate and prepare. Rule 8(c). The decision often comes later, in a written order.
If I get an evidentiary hearing, will a lawyer be appointed?
Yes, if you cannot afford one. Rule 8(c) requires the judge to appoint counsel for a movant who qualifies under 18 U.S.C. § 3006A when a hearing is warranted. If you would rather hire your own lawyer, request a consultation with Brandon Sample.
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
Questions about your case? Request a consultation to talk it through with Brandon Sample.