Contact Us for a Free Consultation 561-264-4005


What is the Difference Between a 2255 and a 2241 Habeas Petition?

Posted by Ann Fitz | Dec 03, 2018 | 0 Comments

Habeas petitions are a post-conviction remedy that you can file in federal court to claim that your imprisonment violates federal law, which includes federal statutes, and the U.S. Constitution. Whether you are a state or federal prisoner, a federal habeas petition claims that your imprisonment is illegal because your arrest, trial, or sentence violated federal law. If you believe that your imprisonment violates federal law, you can file a habeas petition regardless of whether your trial was in state court or federal court, and regardless of whether you are in a state prison or a federal prison.

A habeas petition is not a “direct appeal” of your conviction. Federal habeas is a “collateral appeal,” which is different from a direct appeal. A direct appeal challenges the merits of the judgment, but a collateral appeal challenges the procedure leading to the judgment. When you file a habeas petition, you are claiming that a mistake that violated federal law was made during your trial or sentencing. You can only make a habeas claim in federal court after making other appeals.

Habeas petitions for federal cases are made under either 28 U.S.C. § 2255 or 28 U.S.C. § 2241, depending on whether you are attacking the imposition of the sentence or the execution of the sentence.

§ 2255 Habeas Petitions

§ 2255 allows a federal prisoner to move to “vacate, set aside or correct” a federal sentence upon the ground that the sentence was imposed in violation of federal law, or “that the court was without jurisdiction to impose such a sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” Relief is available only if the error constitutes “a fundamental defect which inherently results in a complete miscarriage of justice,” or “an omission inconsistent with the rudimentary demands of fair procedure.”

What is a § 2255 petition used for?

Common examples of arguments made in § 2255 petitions include:

  • Ineffective assistance of counsel in the plea, trial, sentencing, and/or appeal process
  • Prosecutorial misconduct
  • Newly discovered evidence
  • A substantive change in the law that has been made retroactive by the U.S. Supreme Court

When and where must a § 2255 petition be filed?

§ 2255 petitions must be filed in the sentencing court and within 1 year from either:

  • The date on which the judgment of conviction becomes final – which is usually the date the Court of Appeals renders its decision
  • The date of some government action that prevented you from filing before
  • The date on which new evidence is discovered that could not have been discovered before
  • The date the law is changed by the Supreme Court

Certificate of Appealability

If your § 2255 petition is denied, you may appeal to your circuit's Court of Appeals, but only if you first obtain a certificate of appealability (“COA”) from either the district court or the court of appeals. A § 2255 petition is considered “civil” in nature and the time allowed to appeal is 60 days.

§ 2241 Habeas Petitions

Claims that attack the execution of a federal sentence by prison officials are raised by filing a § 2241 petition.

What is a § 2241 petition used for?

Common examples of arguments made in § 2241 petitions include:

  • The denial of sentence credits for items such as good time or pretrial detention
  • Transfers or other changes in the type of detention
  • Prison disciplinary procedures
  • Parole Determinations
  • Immigration detention and certain immigration orders
  • Extradition to a foreign country
  • Other detention orders issued by the Executive Branch

When and where must a § 2241 petition be filed?

§ 2241 petitions must be filed in the district of confinement and is not subject to time limitations. In addition, a federal prisoner seeking habeas corpus relief under § 2241 is not required to obtain a certificate of appealability to appeal the denial of relief.

About the Author

Ann Fitz

Attorney Ann Fitz Attorney Ann Fitz has 20 years of experience as a federal criminal attorney and appellate practice attorney.  She began her career as a prosecutor in 2003 and started her own federal criminal defense practice in 2007.  She is devoted to protecting the rights of the accused in f...


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Contact Us Today

The Law Office of Ann Fitz is committed to answering your questions about Criminal Defense law issues in Florida. We offer a Free Consultation and we'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.