By Dhar Law, LLP
Federal prison sentences are often unjust. Some defendants are convicted because their lawyers failed to present evidence of their innocence or made other costly mistakes during their trial. Some defendants are convicted after an unfair trial. Some have gone to prison after entering into a plea agreement that their lawyers did not adequately explain. Some prisoners were given a sentence that the law does not allow. A 2255 motion allows an incarcerated defendant who was convicted of a federal crime to challenge the injustice of the sentence as well as the conviction upon which the sentence is based.
MOTION PROCEDURE
The procedures for bringing the motion are found in 28 U.S.C. § 2255. Most courts and criminal defense lawyers refer to the challenge as a “2255 motion” because section 2255 of the federal criminal code describes the purpose of the motion, the limits that Congress has placed upon it, and the relief that federal courts can grant to a defendant who has been unjustly imprisoned. Section 2255 allows a defendant to file a motion “to vacate, set aside or correct the sentence” imposed by a federal district court. Although section 2255 refers to a challenge to the defendant’s sentence, it can also be used to challenge the conviction that produced the sentence. A 2255 motion is usually filed after a federal defendant’s direct appeal has ended. The motion serves a different purpose than a direct appeal and is almost always a federal defendant’s last chance to be freed from custody before a sentence has ended. You may have heard the terms “writ of habeas corpus,” “post-conviction relief,” or “collateral attack.” An attack upon a conviction or sentence that is made in a 2255 motion is all of those. Congress intended section 2255 to serve the same function (and provide the same relief) as a writ of habeas corpus but the attack is presented to the court as a motion rather than a petition or application for a writ. A 2255 motion is a way to obtain post-conviction relief, meaning it is used to seek release from a sentence imposed after a conviction. It is classified as collateral attack on your sentence as opposed to a direct attack upon the conviction. The rules governing 2255 motions are complex and the cases decided by appellate courts concerning the procedures and limitations that apply to 2255 motions are often confusing and contradictory. If you are thinking about bringing a 2255 motion, you should consult with the post-conviction attorneys at Dhar Law, LLP. In nearly all cases, you only get one chance to bring a 2255 motion. If you make a mistake and lose the motion, the court will probably not allow you to file another one.
DENIAL OF A 2255 MOTION
When Congress enacted the AEDPA, it created barriers to an appeal from the denial of a 2255 motion. The short answer is, you can appeal if you are given permission to appeal. You get permission by asking for a Certificate of Appealability. When the district court denies a 2255 motion, it must also grant or deny a Certificate of Appealability. You are not required to ask for a Certificate of Appealability, although it is often good practice to do so if the court does not issue one when it denies the motion. Filing a Notice of Appeal constitutes a request for a Certificate of Appealability. To obtain a Certificate of Appealability, you must make a “substantial showing” of the denial of a constitutional right. Some district court judges think people should generally have the right to appeal and will grant a Certificate of Appealability unless they believe the 2255 motion was frivolous. Other district court judges take a harsher view and will not ordinarily grant a Certificate of Appealability. If the district court judge denies a Certificate of Appealability, you cannot appeal the denial, but you can ask the court of appeals to issue a Certificate of Appealability. The same standard applies. You need to convince the court of appeals that you made a substantial showing of the denial of a constitutional right before it will agree to hear your appeal. If your 2255 motion raised more than one issue, the Certificate of Appealability should address each issue separately. You might therefore be allowed to appeal from the denial of your motion on some of the grounds you raised but not on others.
SUBSTANTIAL SHOWING OF THE DENIAL OF A CONSTITUTIONAL RIGHT
You do not need to prove that you will win the appeal in order to bring an appeal. A Certificate of Appealability should be granted if reasonable judges could differ about the merits of your constitutional claim. This standard does not even require you to show that some judges would have agreed with your claim. Your claim merely needs to be strong enough to make the merits of the issue debatable. If your claim has arguable merit, you should be entitled to a Certificate of Appealability. While the right to appeal the denial of a 2255 motion is not automatically granted, your chance of pursuing an appeal will be greater if you are represented by an attorney who has experience handling 2255 motions and appeals.
The post-conviction attorneys at Dhar Law, LLP can represent you at all stages of the post-conviction process. Contact us today at 617 880-6155
