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Preparing for a Section 2255 Motion

For a federal prisoner, the initial section 2255 motion may well be the last opportunity to get back in court. Given the complexity of habeas corpus litigation, and the strict procedural rules associated with section 2255 litigation, it is critical that a federal prisoner wishing to press a collateral attack begin preparation for the 2255 filing as early as possible. In order to properly prepare and investigate, documents must be obtained and organized.

Section 2255 Motion Preparation: First Steps

The initial step is to get access to PACER, the federal court system’s electronic filing system. Prisoners cannot access PACER, so a person on the outside will need to help with this. Once an account is established, all of the publicly available documents can be downloaded and printed, for a fee.

Documents to Obtain from PACER to Prepare for a Section 2255 Motion

Ideally, the outside contact should obtain every document available on PACER, as well as the docket sheet. Because there are usually many documents associated with a federal criminal case, however, it is acceptable to limit the documents to the following:

  • The docket sheet;
  • The charging document;
  • Any available transcripts;section 2255 motion
  • All pretrial motions, responses, and court rulings;
  • Jury instructions (if there was a trial);
  • The guilty plea and plea agreement (if there was not a trial);
  • The sentencing memoranda;
  • The presentence report (PSR);
  • The statement of facts (if there was a guilty plea);
  • The judge’s statement of reasons (SOR);
  • The judgment and commitment order; and
  • Any post-trial motions, responses and court rulings.

If In Prison and No Access to PACER

For a federal  prisoner without outside access to PACER, many of these documents are available from the defense attorney. Note that prisoners very often have a difficult time getting the defense attorney to do anything after the case is closed. Public defenders are generally swamped with other clients, and private attorneys are sometimes loathe to spend time or money on a client that is no longer paying. Offering to pay for time and to cover copy costs often greases the wheels here.

Federal prisoners may also obtain transcripts of their arraignment, trial, sentencing and other proceedings pursuant to the Court Reporter Act, 28 U.S.C. §753(f). This statute authorizes free transcripts for section 2255 movants who have been granted in forma pauperis status upon certification by the “trial judge . . . that the suit . . . is not frivolous and that the transcript is needed to decide the issue presented by the suit.”

Note the language of §753(f), however. Because the statute requires a frivolity determination, the section 2255 motion must necessarily be filed before the court will provide free transcripts. This puts the prisoner who wishes to file for habeas relief in a difficult position: she may not be able to identify the issues to present in the motion without the transcripts, but she cannot obtain the transcripts (at least pursuant to §753(f)) without first filing the motion.

Documents Outside of PACER Needed to Prepare a Section 2255 Motion

Beyond transcripts and PACER documents, the federal prisoner should also try to obtain all police investigative documents, including reports and evidence. The defense attorney should have these documents. The prisoner can also use the Freedom of Information Act (FOIA), 5 U.S.C. §552, to obtain these and other documents. The FOIA request is, in fact, a powerful weapon in the federal prisoner’s arsenal. It is not unheard of for a Brady claim to arise when a FOIA response reveals exculpatory documents that were not turned over to the defense during the criminal proceeding.

If the prisoner’s case was appealed, documents related to the appeal should be obtained as well. Such documents include:

  • The notice of appeal;
  • The appellate brief;
  • The government’s response;
  • Any reply briefs;
  • The appellate court’s ruling;
  • Any post-ruling filings; and
  • The clerk’s docket sheet.

Experienced Section 2255 Motion Lawyers

Gathering the documents necessary to permit proper investigation and drafting of a section 2255 motion in a timely manner can be very difficult. At the Law Office of Brandon Sample, we know how to get every document, every time. Our professional staff will work with your defense attorney to obtain the entire file. We will gather every document from PACER — including documents not available to the public. If necessary, our experienced FOIA attorneys will go to court to secure the documents we need to perfect your section 2255 motion.

The section 2255 motion is often the last resort for federal prisoners wishing to challenge a criminal conviction. Don’t go it alone — contact us today for a consultation. We will help you get the relief you deserve.

Preparing for a Section 2255 Motion FAQs

Q: What documents will I need in order to pursue a section 2255 motion?

A: Basically, every piece of paper relating to your case that you can get your hands on. Minimally, every document available on PACER (the federal court system’s electronic filing system) should be gathered. You will also want to have your trial attorney provide you with a complete copy of your file.

Q: My attorney is refusing to help me obtain the documents I need to file my section 2255 motion. What should I do?

A: Unfortunately, many criminal defense attorneys are less than helpful after the client is sentenced and shipped to prison. There are ethical and financial reasons for this. But if you need something your attorney has in order to file a time-sensitive section 2255 motion, that attorney is obliged to turn it over. If you are getting nowhere with your trial attorney, give us a call. We speak the language, and can often help defense attorneys see things our way.

Q: How can I get documents from federal agencies, such as the FBI, ICE, or Homeland Security?

A: When it comes to preparing for a section 2255 motion, FOIA is your friend. The Freedom of Information Act, 5 U.S.C. §552, requires the federal government to turn over almost everything related to your case. The attorneys at the Law Offices of Brandon Sample have considerable experience filing and litigating FOIA claims on behalf of clients. Contact us now to discuss FOIA, your documents, and your section 2255 motion.

Related Content

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: The Evidentiary Hearing

Section 2255 Litigation: Resolution by Magistrate

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