File a Section 2255 Motion | In Custody Requirement

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).

Section 2255 In Custody Requirement: Required to File a 2255 Motion

The in custody requirement is jurisdictional. A movant satisfies the requirement if he is in custody when the motion is filed. While jurisdiction is not necessarily defeated when a movant is released from custody prior to resolution of his claim, the claim may be mooted by release. This is because the “case or controversy” requirement of Article III, Section 2 of the U.S. Constitution demands that “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).

The Supreme Court has said that the “in custody” requirement should be “liberally construed.” Maleng v. Cook, 490 U.S. 488, 492 (1989). The kinds of restraint that constitute custody include the following:


  • 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).

file a section 2255 motion, in custody

  • 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. 1987)(Interpreting Jones, 371 U.S. at 243, to find community service a restriction on liberty amounting to custody).


Section 2255 In Custody Requirement for Consecutive Sentences

Prisoners with multiple convictions who are serving consecutive sentences are “in custody” on any conviction that resulted in a future, not-yet-served portion of the consecutive sentence. Peyton v. Rowe, 391 U.S. 54, 67 (1968)(“[A] prisoner serving consecutive sentences is ‘in custody’ under any one of them”). This is the case regardless of whether the prisoner is currently serving a state or federal sentence; so long as a future federal sentence runs consecutively to the prisoner’s current sentence, the prisoner is “in custody” on the future sentence and  may file a section 2255 motion. 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).

Interestingly, if a prisoner in such a situation wishes to mount a collateral attack on the future federal sentence at all, he must file a section 2255 motion before the future sentence begins to run, if it will be outside the §2255(f) one-year statute of limitations period. See Ospina v. United States, 386 F.3d 750 (6th Cir. 2004), for a case in which a state prisoner waited to file a section 2255 motion until he was serving his consecutive federal sentence, and found himself time-barred.

It is important to note the corollary of the consecutive “in custody” rules.  That is, when a sentence has fully expired, a prisoner is no longer “in custody” under that conviction, even if he is still serving the consecutive part of his sentence. A prisoner in this situation cannot use section 2255 to attack the current portion of a consecutive sentence when the basis of the attack involves a claim relating to the conviction for which the sentence has already been served.

Experienced Habeas Corpus Attorneys Who Can Help You File a Section 2255 Motion and Understand the In Custody Requirements

Congress and the courts have not made it easy for a prisoner to understand the “in custody” requirement of §2255(a). But at the Law Offices of Brandon Sample, we know the “in custody” requirement inside and out. If you or a loved one have a section 2255 claim, but aren’t sure whether you satisfy the requirement, contact us today.  Our dedicated team of professionals will assist you with getting your section 2255 motion right, the first time.

File a Section 2255 Motion | In Custody Requirement FAQs

QI am no longer incarcerated, but want to challenge my conviction. Can I file a section 2255 motion?

A: Maybe. Section 2255 is only available to those who are “in custody” of the federal government. The most common type of custody is, of course, incarceration. But prison isn’t the only custody that can give rise to the right to file a section 2255 motion. If you are on supervised release, probation or parole, you are “in custody” for purposes of section 2255. You are also in custody while in a halfway house or on home confinement. If you aren’t sure about your custody status, contact us to discuss the matter and to see if now is the right time to file a section 2255 motion.

Q: I have a consecutive sentence that I am not yet serving. Am I “in custody” for purposes of challenging that conviction in section 2255 proceedings?

A: Yes. Not only can you challenge your consecutive sentence before you serve it, you must. If you wait until you are serving the consecutive sentence and more than one year has passed since that conviction became final, you’ll find yourself barred by the section 2255 statute of limitations.

Q: I am now serving  the consecutive part of my sentence. Am I still “in custody” for purposes of challenging the first part of my sentence? Can I now file a section 2255 motion?

A: No. If your claim relates to the conviction that resulted in a part of the sentence you have already served, you are no longer “in custody” for purposes of a section 2255 motion. There may still be ways to argue that you are in custody for that conviction, however. Contact us to discuss this with one of our section 2255 lawyers, who can help you file a section 2255 motion or discuss other options.


Related Content

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)(1): 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