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Short answer. The Rules Governing Section 2255 Proceedings are 12 short court rules that control how a § 2255 motion moves through federal district court: what the motion must say, how the judge screens it, when the government answers, discovery, hearings, appeals and second motions. They have been in effect since 1977 and were last amended effective December 1, 2019.
The statute, 28 U.S.C. § 2255, says what a federal prisoner can challenge and sets the deadlines. The Rules fill in the procedure. Where the Rules are silent, Rule 12 lets the court borrow from the Federal Rules of Civil Procedure and Criminal Procedure. Below is one short section for each rule, in plain English, with links to the pages on this site that go deeper. The text quoted here is from the Rules as amended to December 1, 2019, as published by the federal courts.
Rule 1: Who the Rules cover
The Rules apply to a § 2255 motion filed in federal district court by a person in custody under that court’s judgment. Rule 1(a). They also cover a person serving another sentence (state or federal) who faces future custody under the district court’s judgment. Rule 1(b). The grounds match the four in § 2255(a): the judgment violates the Constitution or federal law, the court lacked jurisdiction, the sentence exceeded the legal maximum, or the judgment is otherwise subject to collateral review. See who can file a § 2255 motion.
Rule 2: What the motion must contain
The filing must be a “motion to vacate, set aside, or correct the sentence.” Rule 2(a). It must list every ground for relief, state the facts supporting each ground, state the relief you want, be typed or legibly handwritten, and be signed under penalty of perjury by you or someone authorized to sign for you. Rule 2(b). One motion covers one judgment. Rule 2(d).
The motion must “substantially follow” the official form or a form required by a local district-court rule, and the clerk must make forms available without charge. Rule 2(c). The national form is AO 243, Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. Many districts publish their own version, so check the local rules of the court that sentenced you. Our page on how to file a § 2255 motion walks through the form.
Rule 3: Filing the motion and the prison mailbox rule
You file an original and two copies with the clerk, and the clerk dockets the motion in your criminal case and serves the United States attorney. Rule 3(a)-(b). The filing deadline is the one in the statute (now § 2255(f)). Rule 3(c); see our page on the one-year deadline.
If you are in prison, your motion is timely if you put it in the institution’s internal mail system on or before the last day. If the prison has a legal-mail system, you must use it. You can prove the date with a sworn declaration under 28 U.S.C. § 1746 or a notarized statement that gives the date of deposit and says first-class postage was prepaid. Rule 3(d).
Rule 4: Preliminary review
The clerk sends the motion to the judge who handled the trial and sentencing, or another judge if that judge is unavailable. Rule 4(a). The judge must “promptly examine” it. If it “plainly appears” from the motion, its exhibits and the record that you are not entitled to relief, the judge must dismiss it. Otherwise, the judge orders the government to file an answer or other response. Rule 4(b).
That is why the motion itself must state specific facts. A motion that offers only conclusions can be dismissed at this first step.
Rule 5: The government’s answer and your reply
The government does not have to answer unless the judge orders it. Rule 5(a). When it does, the answer must respond to your allegations and say whether you have used other federal remedies, including earlier post-conviction motions, and whether you had an evidentiary hearing. Rule 5(b). If the answer relies on transcripts or briefs that are not in the court’s records, the judge must order the government to provide them. Rule 5(c).
You may file a reply to the government’s answer. The judge sets the time to file it unless a local rule already does. Rule 5(d). This wording took effect December 1, 2019. Read the government’s answer closely; the reply is your chance to respond to it.
Rule 6: Discovery
There is no automatic right to discovery in a § 2255 case. A judge may authorize it “for good cause.” Rule 6(a). Your request must give reasons and include any proposed interrogatories, requests for admission, and the specific documents you want. Rule 6(b). If discovery is needed and you qualify for appointed counsel under 18 U.S.C. § 3006A, the judge must appoint a lawyer. Rule 6(a). More on our page about discovery in § 2255 proceedings.
Rule 7: Expanding the record
If the motion is not dismissed, the judge may direct the parties to add materials to the record, such as letters, documents, exhibits, sworn answers to the judge’s written questions, and affidavits. Rule 7(a)-(b). The other side gets a chance to admit or deny that the materials are correct. Rule 7(c). Expanding the record can sometimes resolve a claim without a hearing. See expanding the record under Rule 7.
Rule 8: Evidentiary hearing
If the motion is not dismissed, the judge reviews the answer, transcripts, records and any Rule 7 materials “to determine whether an evidentiary hearing is warranted.” Rule 8(a). The judge may refer the motion to a magistrate judge to hold hearings and recommend findings; either side may object within 14 days, and the district judge decides any objected-to point de novo (fresh). Rule 8(b).
If a hearing is warranted, the judge must appoint a lawyer for a movant who qualifies under 18 U.S.C. § 3006A, and must hold the hearing as soon as practicable after the lawyers have adequate time to prepare. Rule 8(c). Witness statements must be produced under Fed. R. Crim. P. 26.2. Rule 8(d). See what an evidentiary hearing is and when one is required.
Rule 9: Second or successive motions
Before filing a second or successive motion, you must get an order from the court of appeals authorizing the district court to consider it, as the statute (now § 2255(h)) requires. Rule 9. Filing without that order usually leads to dismissal or transfer. See second or successive § 2255 motions.
Rule 10: Magistrate judges
A magistrate judge may perform the duties of a district judge under these Rules, to the extent 28 U.S.C. § 636 allows. Rule 10. In practice, magistrate judges often handle the early steps and write a report and recommendation. See magistrate judges in § 2255 proceedings.
Rule 11: Certificate of appealability and time to appeal
When the district court enters a final order against you, it “must issue or deny a certificate of appealability.” Rule 11(a). If it grants one, it must name the specific issues. If it denies one, you cannot appeal that denial, but you can ask the court of appeals for a certificate. A motion to reconsider the denial does not extend the time to appeal. Id.
Fed. R. App. P. 4(a) governs the time to appeal, and you must file a timely notice of appeal even if the district court grants a certificate. Rule 11(b). Because the United States is a party, that is 60 days after the judgment. Fed. R. App. P. 4(a)(1)(B). See our page on the certificate of appealability.
Rule 12: Borrowing the civil and criminal rules
The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure may be applied in a § 2255 proceeding, to the extent they are not inconsistent with a statute or these Rules. Rule 12. This is how motions to amend (Civil Rule 15) and motions for reconsideration (Civil Rules 59 and 60) come into § 2255 practice. See Rule 59 and Rule 60 motions and amending a § 2255 motion.
Common questions
What are the 2255 rules?
They are the Rules Governing Section 2255 Proceedings for the United States District Courts, a set of 12 procedural rules for motions under 28 U.S.C. § 2255. They cover the form of the motion, screening, the government’s answer, discovery, hearings, second motions and appeals.
Where can I read the official text?
The federal courts publish the current Rules on uscourts.gov, and they also appear after § 2255 in title 28 of the U.S. Code. The official motion form, AO 243, is on uscourts.gov.
Do the Federal Rules of Civil Procedure apply to a § 2255 motion?
Sometimes. Under Rule 12, the civil and criminal rules may be applied when they do not conflict with a statute or the § 2255 Rules.
Does the judge have to hold a hearing?
Not always. Under Rule 8(a) the judge decides whether a hearing is warranted, and § 2255(b) requires one unless the motion and the record conclusively show you are not entitled to relief.
Can someone help me follow these Rules?
Many people file on their own, and these Rules are written to allow that. If you or someone you love wants a lawyer to review the case and the deadline, book a consultation and tell us what happened.
Related pages
Section 2255 Litigation: The Initial Motion