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2255 Habeas Petitions


What are 2255 Habeas Petitions?

2255 habeas petitions are a post-conviction remedy (also known as a Motion to Vacate, Set Aside, or Correct a Sentence) and are available to defendants who were convicted in federal court and are currently in custody - either in prison or on supervised release.

Pursuant to 28 U.S.C. § 2255, a defendant may seek relief on grounds that “the sentence was imposed in violation of the Constitution or laws of the United States."

2255 habeas petitions are most commonly used to argue ineffective assistance of counsel in violation of the 6th Amendment.

To warrant relief under § 2255, the errors of which the movant complains must amount to a fundamental miscarriage of justice.

Are 2255 Habeas Petitions the Same as an Appeal?

No.  A direct appeal is based on error in the district court and is filed in the United States Circuit Court of Appeals.  The Court of Appeals reviews the record as it exists as of the time the notice of appeal is filed.

2255 habeas petitions are considered to be a "collateral attack" and is used by federal prisoners after they have exhausted their case on direct appeal.

Where is a 2255 Habeas Petition Filed?

A motion under § 2255 is filed in the U.S. District Court where the conviction was entered.

District courts have broad discretion in fashioning appropriate relief, including dismissal of all charges and release of the prisoner, retrial, or resentencing.  2255 habeas petitions also offer defendants the opportunity to present the court with new evidence.

Time Limits for Filing a 2255 Habeas Petition

2255 habeas petitions must be filed in the district court within one year from the following:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

What is Ineffective Assistance of Counsel?

The Sixth Amendment to the United States Constitution guarantees that criminal defendants have the right to effective assistance of counsel.

To establish ineffective assistance of counsel, a defendant must show that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. This is known as the Strickland test, named after the U.S. Supreme Court's ruling in Strickland v. Washington, 466 U.S. 668, 687 (1984).

Deficient Performance

Under the first requirement of Strickland, the defendant must demonstrate that counsel's performance was unreasonable under prevailing professional norms.

Examples of deficient performance include giving erroneous advice, failing to know or learn about the relevant law and evaluate its application to the facts of the case, and failing to conduct a substantial investigation into any of his client's plausible lines of defense.


If counsel was deficient, the defendant must then show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  This requires proving that either the result of the trial would have been different or that the defendant would not have entered a guilty plea and would have instead proceeded to trial.

What Happens After I File?

Once filed, a 2255 habeas petition goes to the judge who presided over the defendant's trial and sentencing.

The judge reviews the motion and either dismisses the motion or orders the government to file an answer.

Dismissal is required where the court concludes that the claims raised in the motion, even if true, would not provide a ground for 2255 relief, or where the claims are conclusively refuted by the files and records of the case.

If the 2255 habeas petition is not dismissed, the government is given the opportunity to file a response brief, and the defendant can file a reply to the government's response.

Evidentiary Hearing

After briefing, an evidentiary hearing will be held unless the motion and the files and records of the case conclusively show that the defendant is entitled to no relief.

An evidentiary hearing in open court is required when a defendant presents a colorable Sixth Amendment claim showing disputed facts beyond the record or when a credibility determination is necessary in order to resolve the issue.

Magistrate's Report and Recommendation

The Magistrate Judge will then issue a detailed Report and Recommendation (“R&R”) of factual and legal findings, which the parties are able to object to.  The R&R and the objections are then submitted to the District Court Judge for ruling.

Appealing the Denial of a 2255 Habeas Petition

If the 2255 motion is denied, the defendant may appeal to the Circuit Court of Appeals, which has jurisdiction pursuant to Federal Rule of Appellate Procedure 22(a) and 28 U.S.C. § 2253, if a Certificate of Appealability (“COA”) is granted.

In order to obtain a COA a defendant must make “a substantial showing of the denial of a constitutional right.”

This standard is not onerous: the Supreme Court has held that the defendant need show only that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further.

Don't Wait - Get Help Now

Federal criminal defense attorney Ann Fitz has the experience and strategic abilities to successfully handle 2255 habeas petitions.  Call us today at 561-932-1690 to schedule a free, confidential consultation to discuss your case. We are also available by email.

The Difference Between 2255 and 2241 Habeas Petitions

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 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."

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

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

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

§ 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.

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