§ 2255 Motion: Common Questions

A § 2255 motion asks the federal judge who imposed a sentence to vacate, set aside, or correct it. It can argue that the sentence violates the Constitution or federal law, that the court had no jurisdiction, or that the sentence is longer than the law allows. 28 U.S.C. § 2255(a). It is a new filing in the court that sentenced the person, not a second appeal.

A person serving a sentence from a federal court who is still “in custody” under that sentence. 28 U.S.C. § 2255(a). Custody can mean more than prison: the Supreme Court has held that parole is a form of custody. Jones v. Cunningham, 371 U.S. 236 (1963). Once a sentence has fully expired, the person is no longer in custody under it. Maleng v. Cook, 490 U.S. 488 (1989).

No. Section 2255 is only for sentences imposed by federal courts. 28 U.S.C. § 2255(a). A person in custody under a state-court judgment uses 28 U.S.C. § 2254 instead.

Usually not. The advisory committee note to Rule 5 of the Rules Governing Section 2255 Proceedings says courts have held that a § 2255 motion is inappropriate while the same decision is on appeal. The one-year clock usually does not start until the appeal process is over, so waiting for the appeal does not use up your time. 28 U.S.C. § 2255(f)(1); Clay v. United States, 537 U.S. 522 (2003).

One year, usually counted from the date the conviction became final. 28 U.S.C. § 2255(f)(1). With no appeal, that is usually 14 days after the judgment, when the time to appeal runs out. Fed. R. App. P. 4(b)(1)(A). After an appeal, it is usually 90 days after the appeals court’s judgment, when the time to ask the Supreme Court for review runs out. Clay v. United States, 537 U.S. 522 (2003); Sup. Ct. R. 13.1.

The year runs from the latest of four dates, so three events can start it later. Those are: the government removes an illegal roadblock that kept you from filing; the Supreme Court recognizes a new right and it applies retroactively; or the facts behind your claim could first have been found with reasonable effort. 28 U.S.C. § 2255(f)(2)–(4). For a new right, the clock starts on the date of the Supreme Court’s decision, not a later ruling on retroactivity. Dodd v. United States, 545 U.S. 353 (2005).

Not always. First check whether one of the later start dates in § 2255(f)(2)–(4) applies. If not, a court may still excuse a late filing through equitable tolling, or because of a convincing showing of actual innocence. Holland v. Florida, 560 U.S. 631 (2010); McQuiggin v. Perkins, 569 U.S. 383 (2013). Both exceptions are narrow, so act quickly.

It is a court’s power to extend a filing deadline for fairness reasons. The Supreme Court held that the one-year federal habeas deadline can be tolled when the person shows two things: they pursued their rights diligently, and some extraordinary circumstance stood in their way and prevented a timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). Both parts are required.

An ordinary mistake, like miscalculating the deadline, is not enough. Lawrence v. Florida, 549 U.S. 327, 336 (2007). Far more serious lawyer misconduct can be an extraordinary circumstance, depending on the facts. Holland v. Florida, 560 U.S. 631, 651–52 (2010).

It is a claim that the defense lawyer’s work fell below the Sixth Amendment standard. You must show two things: the lawyer’s performance was unreasonable, and there is a reasonable probability the result would have been different without the errors. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). Feeling that a lawyer did a poor job is not enough by itself.

No. A claim of ineffective assistance can be raised for the first time in a § 2255 motion, even if it could have been raised on direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003).

A lawyer who ignores a client’s instruction to file a notice of appeal acts unreasonably, and the client does not have to show the appeal would have won. Roe v. Flores-Ortega, 528 U.S. 470, 477, 483–84 (2000). This is true even if the plea agreement contains an appeal waiver. Garza v. Idaho, 586 U.S. 232 (2019).

It depends on the exact words of the plea agreement, so read it closely. Many plea agreements waive both a direct appeal and a later § 2255 motion, and whether a § 2255 waiver can be enforced against a particular claim depends on its wording and on the law of the circuit. For waivers of a direct appeal of the sentence, the Supreme Court held in 2026 that the waiver cannot be enforced when enforcing it would result in a miscarriage of justice. Hunter v. United States, No. 24-1063 (U.S. June 18, 2026). That exception is narrow and covers egregious errors, such as a sentence longer than the statute allows, not ordinary mistakes in applying the Sentencing Guidelines. Id.

A claim that could have been raised on direct appeal but was not is usually “procedurally defaulted.” It can be heard in a § 2255 motion only if you show cause for the default and actual prejudice, or that you are actually innocent. Bousley v. United States, 523 U.S. 614, 622 (1998). Ineffective-assistance claims are the main exception. Massaro v. United States, 538 U.S. 500 (2003).

The judge reviews it first. If it plainly shows you are not entitled to relief, the judge dismisses it; otherwise the judge orders the government to respond. Rules Governing Section 2255 Proceedings, Rule 4(b). You may then file a reply within the time the judge sets. Rule 5(d).

Only if the motion raises facts that the record does not already disprove. The court must hold a hearing unless the motion, files, and records “conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). After reviewing the answer and the record, the judge decides whether a hearing is warranted. Rules Governing Section 2255 Proceedings, Rule 8(a).

If the judge holds an evidentiary hearing, the judge must appoint a lawyer for a person who qualifies financially. Rules Governing Section 2255 Proceedings, Rule 8(c); 18 U.S.C. § 3006A. Otherwise, the court may appoint one when the interests of justice require it. 18 U.S.C. § 3006A(a)(2)(B).

Yes, but not without warning a person who has no lawyer. Before it does, the court must say it plans to do so, warn that later § 2255 motions will be restricted, and give the person a chance to withdraw or add claims. Castro v. United States, 540 U.S. 375, 383 (2003). If the court skips that warning, the motion does not count as a first § 2255 motion. Id.

Only with a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B). The district judge must grant or deny one when ruling against you. Rules Governing Section 2255 Proceedings, Rule 11(a). The notice of appeal is due 60 days after the judgment, because the United States is a party. Fed. R. App. P. 4(a)(1)(B); Rule 11(b).

You must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That means reasonable jurists could debate whether the motion should have been decided differently. Slack v. McDaniel, 529 U.S. 473, 484 (2000). If the district judge says no, you can ask a judge of the court of appeals. Fed. R. App. P. 22(b)(1).

Only with permission from the court of appeals, and only on one of two grounds. 28 U.S.C. § 2255(h). The motion must rely on newly discovered evidence that would show by clear and convincing evidence that no reasonable factfinder would have found you guilty, or on a new rule of constitutional law that the Supreme Court has made retroactive. Id. You ask for permission in the court of appeals before filing in the district court. 28 U.S.C. § 2244(b)(3)(A).

A § 2255 motion challenges the conviction or sentence itself and is filed in the court that imposed the sentence. 28 U.S.C. § 2255(a). A § 2241 petition is filed in the district where the person is held. Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004). It is used for problems with how a sentence is carried out, such as credit for time served. See Reno v. Koray, 515 U.S. 50 (1995).

Usually not. A prisoner cannot use § 2241 to raise a claim based on a new reading of a criminal statute just because § 2255(h) bars a second motion. Jones v. Hendrix, 599 U.S. 465 (2023). The “savings clause” in 28 U.S.C. § 2255(e) is for unusual cases, such as when the sentencing court no longer exists. Id.