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You can file a § 2255 motion only while you are “in custody” on the federal sentence you want to challenge. Prison counts. So do supervised release, probation, and parole. Once the whole sentence is over, § 2255 is generally no longer available.
Only a person who is “in custody” under a sentence of a court may file a section 2255 motion. 28 U.S.C. §2255(a).
A person is generally considered in custody when he suffers from a government-ordered restraint on physical movement — such as physical confinement — or when he suffers from other restraints on freedom that are “not shared by the public generally,” but extend from the conviction of a crime. Jones v. Cunningham, 371 U.S. 236, 240 (1963).
When must you be in custody?
The custody rule is “jurisdictional,” meaning the court has no power to hear the motion without it. You meet the rule if you are in custody on the day you file.
Being released later does not automatically end the case. But the case can become “moot” — no longer a live dispute — unless the conviction still causes you some ongoing harm. Under the Constitution, “some concrete and continuing injury other than the now-ended [custody] — some ‘collateral consequence’ of the conviction — must exist if the suit is to be maintained.” Spencer v. Kemna, 523 U.S. 1, 7 (1998).
What counts as custody?
The Supreme Court has said the “in custody” requirement should be read broadly. Maleng v. Cook, 490 U.S. 488, 492 (1989). Courts have found these kinds of restraint are custody:
- Physical confinement. See Duncan v. Walker, 533 U.S. 167 (2001)(Incarceration pursuant to a criminal conviction satisfies the custody requirement); Brock v. Weston, 31 F.3d 887 (9th Cir. 1994)(Confinement in commitment center for sexually violent predators constitutes custody); Francois v. Henderson, 850 F.2d 231 (5th Cir. 1988)(Person committed to mental institution as a result of a verdict of not guilty by reason of insanity is in custody).
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
- Supervised release. See United States v. Cervini, 379 F.3d 987, 989 n. 1 (10th Cir. 2004)(Movant who had served prison sentence but was still on supervised release was “in custody” for purposes of §2255); United States v. Scruggs, 691 F.3d 660, 662 & n. 1 (5th Cir. 2012)(same).
- Parole. See United States v. Drobny, 955 F.2d 990, 995-96 (5th Cir. 1992)(One on parole is “in custody” within the meaning of §2255).
- Probation. See United States v. Lopez, 704 F.2d 1382, 1384, n. 2 (5th Cir. 1983)(Probation is a sufficient restraint on liberty to support a habeas corpus action under §2255).
- Pretrial release. See Hensley v. Municipal Court, 411 U.S. 345 (1973)(Person on pretrial release is “in custody” for purposes of habeas corpus litigation).
- Community service. See Barry v. Bergen County Probation Dept., 128 F.3d 152, 162 (3rd Cir. 1997)(Interpreting Jones, 371 U.S. at 243, to find community service a restriction on liberty amounting to custody).
What if you have consecutive sentences?
If you are serving sentences back-to-back (“consecutive” sentences), you are “in custody” on each of them, including the ones you have not started yet. Peyton v. Rowe, 391 U.S. 54, 67 (1968)(“[A] prisoner serving consecutive sentences is ‘in custody’ under any one of them”).
This is true even if you are serving a state sentence now and a federal sentence is set to run after it. You can file a § 2255 motion on the future federal sentence now. See Ward v. Knoblock, 738 F.2d 134, 139-140 (6th Cir. 1984)(Relying on Peyton to conclude that a state prisoner with a consecutive federal sentence is in custody on the federal sentence for purposes of §2255).
Do not wait for the federal sentence to start. The one-year statute of limitations runs from when the federal conviction became final, not from when you begin serving it. See Ospina v. United States, 386 F.3d 750 (6th Cir. 2004) (state prisoner who waited until his consecutive federal sentence began was time-barred).
The reverse situation — challenging a sentence you already finished while you serve a later consecutive one — is more complicated. The Supreme Court has held that a prisoner serving consecutive sentences can still challenge an earlier, already-served sentence if success would move up the release date, because the sentences are viewed together. Garlotte v. Fordice, 515 U.S. 39, 45-47 (1995) (a state-prisoner case). But a sentence that has fully expired and is used only to enhance a later, separate sentence generally does not count as custody. Maleng v. Cook, 490 U.S. 488, 492 (1989).
Common questions
I am out of prison but want to challenge my conviction. Can I file a § 2255 motion?
Maybe. Prison is not the only kind of custody. If you are on supervised release, probation, or parole, you are “in custody” for § 2255 purposes. You are also in custody while in a halfway house or on home confinement under your sentence.
If your entire sentence, including supervised release, is over, § 2255 is generally not available. Another remedy, such as coram nobis, may be possible in rare cases.
Remember that the one-year deadline still applies, no matter your custody status.
I have a consecutive sentence I am not serving yet. Am I “in custody” on it?
Yes. You can challenge it before you start serving it — and you usually must. If you wait until you are serving it, and more than a year has passed since that conviction became final, the deadline may bar your motion.
I am now serving the consecutive part of my sentence. Can I still challenge the part I already served?
Possibly. Under Garlotte v. Fordice, 515 U.S. 39 (1995), consecutive sentences are viewed as a whole, so you may still be “in custody” on the earlier one if winning would shorten your total time. This is a fact-specific question, and the one-year deadline still applies. Book a consultation with Brandon Sample to talk through your situation.
Related pages
Section 2255 Motions: The Statute of Limitations
Equitable Tolling Applies to the Section 2255 Statute of Limitations
Actual Innocence Can Overcome the Section 2255 Statute of Limitations
Section 2255(f)(3): A Newly Recognized Right Restarts the One-Year Clock
Section 2255(f)(4): Newly Discovered Evidence Restarts the One-Year Clock
Section 2255 Exhaustion Issues
Questions about your case? Book a consultation to talk it through with Brandon Sample.