Many section 2255 movants have run into a problem with the one-year statute of limitations period imposed pursuant to the AEDPA. This time period is inflexible, and the price a movant pays for failing to heed §2255(f) is high — often the outright dismissal of the motion. But filing the section 2255 motion too late isn’t the only timing mishap that can trip up a movant; it’s also possible to file the motion too early. This article discusses 2255 motion timing and section 2255 exhaustion issues.
How Exhaustion Impacts State Prisoners in §2254 Proceedings
The concept of exhaustion plays a significant part in federal habeas petitions brought by state prisoners, pursuant to 28 U.S.C. §2254. For state prisoners, exhaustion of remedies at the state level is required by statute; a state prisoner may not seek federal habeas relief before taking the steps required to exhaust. This is not the case for federal prisoners pursuing relief under §2255.
How Section 2255 Exhaustion Impacts Federal Prisoners in §2255 Proceedings
Even in the absence of statutory requirements, exhaustion plays a major part in §2255 proceedings, however. Federal prisoners seeking section 2255 relief should exhaust all appellate remedies prior to filing a §2255 motion. There are two reasons for this.
First, many federal courts will not entertain a section 2255 motion while an appeal is pending. Most courts do not find jurisdictional issues when an appeal is pending at the same time as a §2255 motion (although some do); the issue is instead one of judicial economy.”There is no jurisdictional bar to a district court’s adjudication of a §2255 motion during the pendency of a direct appeal,” wrote the Second Circuit in United States v. Outen, 286 F.3d 622, 632 (2003). “Any concern over such a practice is one of judicial economy and the concern that the results on direct appeal may make the district court’s efforts on the §2255 motion a nullity.”
For the most part, district courts will dismiss without prejudice any section 2255 motion filed while an appeal is pending. In some cases, the appellate court may decide that it has lost jurisdiction and dismiss the appeal. Sometimes the appellate court will simply stay the appeal pending the outcome of the §2255 motion. These are important aspects to consider in 2255 motion timing when considering section 2255 exhaustion requirements.
When a §2255 Motion is Appropriate During the Pendency of a Direct Appeal
In rare circumstances, a §2255 motion is proper while an appeal is pending. In United States v. Prows, 448 F.3d 1223, 1247 (10th Cir. 2006), for example, the court found simultaneous proceedings appropriate given the “complete dichotomy between the issues raised by the government on direct appeal and those raised by Mr. Prows in his §2255 motion, as well as the fact that the government could effectively keep Mr. Prows in custody for years while it exercises its appellate rights.” This is a good example of appropriate section 2255 motion timing when an appeal is still pending.
Why to Exhaust First: The Procedural Default Doctrine
The second, and far more important reason to exhaust, is the procedural default doctrine. The general rule is that a section 2255 motion “will not be allowed to do service for an appeal.” Bousley v. United States, 523 U.S. 614, 621 (1998). The procedural default doctrine is complex, and covered in greater detail HERE [Link], but suffice it to say that other than claims for ineffective assistance of counsel, section 2255 relief is barred for any claim that could have been brought on appeal, but wasn’t. Note that the procedural default doctrine does not bar defaulted claims that the court lacked jurisdiction or claims that require development of a record outside of the trial record.
Experienced 2255 Attorneys Who Understand Section 2255 Exhaustion Issues and 2255 Motion Timing
2255 motion timing is of supreme importance, as is section 2255 motion exhaustion requirements. At the Law Offices of Brandon Sample, we have successfully litigated countless section 2255 motions. We know when to file, and why the timing matters. If you or a family member have been convicted of a federal crime, contact us right away to discuss your options.
Section 2255 Exhaustion Issues | 2255 Motion Timing FAQs
Q: I was convicted in state court but want to file a section 2255 motion. May I?
A: No. State prisoners who wish to pursue habeas corpus relief in federal court must use 28 U.S.C. §2254.
Q: What does it mean for a federal prisoner to “exhaust” her claim?
A: In the section 2255 context, exhaustion means that all appellate remedies have been pursued prior to the filing of a section 2255 motion. In most cases, a claim should be exhausted before a section 2255 motion is filed. Note, however, that due to the nature of the habeas corpus remedy (a postconviction remedy), many section 2255 claims are not amenable to exhaustion, and will not be barred for failure to exhaust.
Q: What is the procedural default doctrine?
A: The procedural default doctrine bars the litigation of a section 2255 claim that could have been raised on appeal, but was not. The procedural default doctrine also bars section 2255 claims that were decided on the merits on appeal. If you have questions about the procedural default doctrine, section 2255 exhaustion issues, or 2255 motion timing, contact us now for a consultation.