Preparing a § 2255 Motion

Start gathering the case records now — long before the one-year deadline. A family member on the outside can do much of this work. You will need the court docket, transcripts, plea papers, the presentence report, and the defense lawyer’s file.

For most people, the first § 2255 motion is the only full chance to get back in court. The rules are strict, so preparation should start early.

What is the first step?

Get access to PACER, the federal courts’ online records system (pacer.uscourts.gov). People in prison cannot use PACER, so someone on the outside will need to set up an account. Public documents can then be downloaded for a per-page fee.

Which documents should you gather?

Ideally, get every document on the docket. If that is too many, focus on these. Some — like the presentence report and statement of reasons — are usually sealed and will not be on PACER; get those from the defense lawyer or the court.

• The docket sheet;
• The charging document;
• Any available transcripts;
• 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.

Outcomes vary. A past result does not predict or guarantee the outcome of any other case.

What if no one on the outside can use PACER?

Ask the defense lawyer. Many of these documents are in the lawyer’s file. It can be hard to get a response after a case is closed — public defenders are busy, and private lawyers may not want to spend unpaid time. Offering to pay copying costs can help. Write your requests down and keep copies.

How do you get transcripts?

You can buy them from the court reporter. If you cannot afford them, the Court Reporter Act, 28 U.S.C. § 753(f), lets the government pay for transcripts for a § 2255 movant who has been allowed to proceed in forma pauperis (as a person who cannot afford costs), if the “trial judge . . . certifies that the suit . . . is not frivolous and that the transcript is needed to decide the issue presented by the suit.”

There is a catch. Because the judge must decide the motion is not frivolous, courts generally require you to file the § 2255 motion before they will order transcripts at government expense. That can leave you trying to identify issues without the transcripts. Start early and use the lawyer’s file and your own notes.

What other records help?

Try to get the investigative file: police and agent reports, lab reports, and the discovery the government turned over. The defense lawyer should have these.

You can also ask federal agencies for records under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Sometimes a FOIA response turns up favorable evidence that was never given to the defense, which can support a Brady claim.

If there was an appeal, get the appeal records too:

• 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.

Common questions

Related pages

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

Questions about your case? Book a consultation to talk it through with Brandon Sample.