Federal Post Conviction


Practice Area: Federal Post Conviction 2255 Motions

Overview of Federal Habeas Corpus Post Conviction Practice

Attorneys at Law

28 U.S.C. Sec. 2255 codifies the primary vehicle for federal prisoners (or those otherwise in “custody” with their liberty under restraint by order of a federal court) to challenge the legality of their federal criminal conviction and/or sentence. The statute directs the individual’s post conviction relief petition back to the sentencing district instead of the U.S. District Court sitting where the person is currently located.

This broad, powerful Sec. 2255 statute enables someone convicted of a federal crime to seek relief on challenges (after sentencing) to the government’s case such as the person is in “custody” as a result of a violation(s) of the Constitution or laws or treaties of the U.S.; the sentence was imposed in violation of the Constitution or laws of the U.S.; the sentence was imposed in excess of the maximum authorized by statutory law; the federal district court lacked jurisidiction to impose the sentence; or the conviction and/or sentence is otherwise subject to collateral attack under a standard that the defect or error (if non-jurisidcitional or non-constitutional) must be fundamental to the point that the defect constitutes a complete miscarriage of justice or is an ommission inconsistent with the basic demands of fair procedure.

Common claims raised in 2255 motions are claims of ineffective assistance of defense counsel (e.g. at the pre-trial/trial stages or at sentencing, including claims that trial counsel did not file a notice of appeal as directed or otherwise properly counsel the defendant about the risks and advantages of an appeal under the Supreme Court’s analysis in Roe v. Flores-Ortega, 528 U.S. 470 (2000)), prosecutorial misconduct, or the proper application of cases that are beneficial to the person but decided after their trial or sentencing.

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes time restrictions on 2255. There is a statute of limitations requirement for 2255 (with a body of complicated exceptions or tolling provisions) that such a motion must be filed within one year from the latest of (1) when the judgment of conviction becomes final, (2) the date that the impediment to filing the motion as a result of government action that violated the Constitution or U.S. laws was removed, (3) the date of a newly recognized right by the U.S. Supreme Court that made retroactive to cases on collateral review, or (4) the date on which the facts that support the claim could have been discovered through due diligence.

2255 is not the exclusive federal post-conviction tool or habeas corpus remedy for convicted persons.

In general, direct appeal remedies (to the proper federal circuit court of appeals and then potentially a writ of cert. to the U.S. Supreme Court) must be exhausted before filing a 2255 motion.

When 2255 is an inadequate vehicle (due to statutory or case law restrictions) to test the legailty of one’s confinement, then 28 U.S.C. Sec. 2241 may provide relief. A 2241 motion is filed in the district of confinement (unlike 2255). There is no one year statute of limitations (unlike 2255). Many times, a person’s claims that attack the execution of a sentence are brought via 2241: e.g. the improper denial of credit for good time in prison or pre-trial detention, transfers or adverse changes in the manner of detention, prison discipline, parole determinations (though parole as largely been abolished in the federal criminal justice system since the Congressional sentencing reforms that took effect in the 1980s), certain immigration orders, extradition to a foreign country, and unilateral Executive detention orders (e.g. Guantanamo Bay detainees detained as enemy combatants).

Fed. R. Crim. P. 33 is an avenue to seek a new trial based on newly discovered evidence within 3 years from the verdict or finding of guilt (and within 7 days on claims other than newly discovered evidence).

There is also a procedure to file a motion to modify a sentence under 18 U.S.C. Sec. 3582(c). This includes “compassionate release” for elderly prisoners, reduce a sentence (time cut) under Fed. R. Crim. P. 35 for substantial assistance or cooperation to authorities in their criminal investigations of other people, and implement sentencing reductions under amendments to the United States Sentencing Commission’s Federal Sentencing Guidelines that are made retroactive. Retroactive amendments include reductions in the crack cocaine (cocaine base) guidelies to reduce the disparities in punishments between crack and powder cocaine (e.g. the 2010 Fair Sentencing Act) and the new 2 point across the board reduction in the guidelines drug tables.

When no statutory basis exists for pursuing a post conviction remedy in federal court, then the common law writ of error coram norbis – an extraordinary remedy – is available to correct errors of the most fundamental character. One of the narrow situations in which this writ has been found to apply is in a situtation where the operation of the conviction continues to place a great hardship on the person but they are no longer in “custody” such that a statuory remedy is no longer available.