Can a § 2255 Motion Challenge Restitution or a Fine?

Usually not. A § 2255 motion is for a prisoner "claiming the right to be released" from custody. Federal courts of appeals have held that restitution orders, fines and special assessments are not custody, so a claim that attacks only the money part of a sentence can't be brought under § 2255. Those challenges generally have to be raised at sentencing and on direct appeal.

What the statute says

28 U.S.C. § 2255(a) lets "a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released" ask the sentencing court to vacate, set aside or correct the sentence. Two things have to be true: you are in custody, and your claim seeks release from that custody. Our page on the in-custody rule explains what counts as custody.

How the courts read it

In United States v. Ross, 801 F.3d 374 (3d Cir. 2015), the Third Circuit held that a $100 special assessment was not "custody" and ordered the § 2255 motion dismissed. The court surveyed other circuits and found broad agreement that "fines, restitution orders, and other monetary penalties are insufficient to meet the 'in custody' requirement." Among the cases it cited:

• Kaminski v. United States, 339 F.3d 84 (2d Cir. 2003): a $21,000 restitution order is not custody under § 2255.
• United States v. Bernard, 351 F.3d 360 (8th Cir. 2003): a federal prisoner "cannot challenge the restitution portion of his sentence" under § 2255, because the statute gives relief only to prisoners claiming a right to be released from custody.
• Mamone v. United States, 559 F.3d 1209 (11th Cir. 2009): a claim to discharge or reduce restitution doesn't seek release from custody, even when it is filed alongside claims that do.
• United States v. Segler, 37 F.3d 1131 (5th Cir. 1994): a $30,000 fine was not enough of a restraint on liberty.
• United States v. Michaud, 901 F.2d 5 (1st Cir. 1990): "A monetary fine is not a sufficient restraint on liberty."

Two points follow from these cases.

Being in prison doesn't fix it. A person serving a prison term is in custody, but a claim about restitution still doesn't seek release from that custody. Under Mamone, adding the restitution claim to a motion that also attacks the prison term doesn't make it cognizable.

Framing it as ineffective assistance usually doesn't either. Ross argued that his lawyers' errors led to a conviction that carried the $100 assessment. The Third Circuit held that the claim still failed the custody requirement. The court noted two older cases from other circuits that had treated a special assessment as prejudice under Strickland, but it did not follow them.

What can be done instead

The time to fight restitution or a fine is before the judgment is final:

• Object at sentencing. Challenge the loss figures, the victims, and the payment terms in the presentence report and at the hearing.
• Appeal. A restitution order can be "appealed and modified" under 18 U.S.C. § 3742, as 18 U.S.C. § 3664(o) recognizes. Check whether your plea agreement's appeal waiver covers restitution.
• Ask to change the payment schedule. If your finances change, § 3664(k) lets the court "adjust the payment schedule" after notice of a "material change" in your economic circumstances. That changes how you pay, not how much you owe.

What it means for a § 2255 motion

If the real problem in your case is the money judgment, a § 2255 motion is probably the wrong tool. If you also have claims that attack the conviction or the prison term, those can go forward on their own. Our guide to cognizable § 2255 claims covers what a motion can raise.

Courts outside these circuits may frame the rule differently, so check your circuit's cases before filing.