Under 28 U.S.C. § 2255(a), a prisoner in custody under sentence of a federal court may move the court that imposed the sentence to vacate, set aside, or correct the sentence upon four statutory grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack (a narrow category requiring a 'fundamental defect which inherently results in a complete miscarriage of justice' under Hill v. United States, 368 U.S. 424, 428 (1962)).
Governing Authority
28 U.S.C. § 2255 · Rules Governing § 2255 Proceedings · Massaro v. United States
Standard of Review
District Court: De Novo on legal/constitutional claims with mandatory hearing unless conclusively refuted; Appeal: De Novo (law) / Clear Error (facts) after COA
Primary Record Focus
Prior trial and appellate records, defense counsel's file, sworn declarations, investigator findings, and expert reports
Direct Appeal Over or Waived? How a 28 U.S.C. § 2255 Motion Works
Unlike a direct criminal appeal—which is decided by the regional Court of Appeals strictly on the existing trial and sentencing transcripts—a § 2255 motion is filed in the originating United States District Court and is governed by the Rules Governing Section 2255 Proceedings for the United States District Courts. Crucially, a § 2255 proceeding permits the prisoner to expand the record under Rule 7 and introduce evidence that never appeared in the original district court record: sworn declarations from witnesses who were never called, defense counsel emails and notes, unobtained financial or medical records, forensic analysis, and testimony at an evidentiary hearing under § 2255(b).
Under Massaro v. United States, 538 U.S. 500 (2003), Sixth Amendment claims of ineffective assistance of counsel may be brought in a collateral proceeding under § 2255 whether or not the petitioner could have raised the claim on direct appeal. Conversely, non-ineffective-assistance claims that could have been raised on direct appeal but were not are subject to the procedural-default bar of Bousley v. United States, 523 U.S. 614 (1998), and claims that were already decided on direct appeal cannot be relitigated in a § 2255 motion absent an intervening change in controlling law.
Why You Essentially Get Only One Full § 2255 Opportunity
Because Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) gatekeeping provisions in 28 U.S.C. §§ 2255(f) and 2255(h), a federal prisoner generally has only one strict one-year window to file an initial § 2255 motion, and second or successive § 2255 motions are strictly barred unless the Court of Appeals certifies newly discovered clear-and-convincing evidence of factual innocence or a new rule of constitutional law made retroactive by the Supreme Court.
That means the initial § 2255 motion is the single most consequential filing after direct review concludes. Filing a rushed, conclusory, pro se form motion—or allowing a non-§ 2255 post-judgment motion to be recharacterized as a first § 2255 motion without warning (Castro v. United States, 540 U.S. 375 (2003))—can permanently consume the prisoner's one collateral-review opportunity.
Mistakes to Avoid Before Filing a 28 U.S.C. § 2255 Motion
Collateral review under 28 U.S.C. § 2255 and related statutes is governed by strict procedural gatekeeping. Mistakes to avoid include:
- Missing or miscalculating the one-year statute of limitations under 28 U.S.C. § 2255(f)(1), which runs from the date the judgment of conviction becomes final—not from the date the appellate mandate issues.
- Filing bare, conclusory allegations without sworn declarations, exhibits, or specific factual proffers; under Rule 2(b) of the § 2255 Rules, vague assertions are summarily dismissed under Rule 4(b) without an evidentiary hearing.
- Attempting to relitigate issues already rejected on direct appeal by merely repackaging them, rather than developing outside-the-record constitutional or Strickland claims.
- Filing an unstyled post-conviction letter or motion that could be recharacterized as a first § 2255 motion, triggering the § 2255(h) bar on second or successive motions.
- Failing to request leave for discovery under Rule 6 (upon a showing of 'good cause') or record expansion under Rule 7 when critical documents are in the possession of prior counsel or the government.
How Post-Conviction Counsel Evaluates and Builds a § 2255 Case
Evaluating and building a federal post-conviction claim requires investigating both the existing court record and crucial evidence outside the trial transcript:
- 01Calculate the exact § 2255(f) one-year finality date (checking judgment entry, direct-appeal disposition, and the 90-day Supreme Court certiorari window under Clay v. United States).
- 02Obtain the complete file from prior trial, plea, and appellate counsel—including discovery productions, correspondence, plea offers, investigation notes, and draft filings.
- 03Audit the entire trial, plea, sentencing, and direct-appeal record to separate procedurally defaulted claims from cognizable Sixth Amendment ineffective-assistance, Brady/Napue, or retroactive statutory/constitutional claims.
- 04Conduct an independent factual investigation outside the record—interviewing uncalled witnesses, securing sworn declarations under 28 U.S.C. § 1746, and retaining forensic or guidelines experts where needed.
- 05Draft the § 2255 motion and supporting memorandum of law to establish specific contested facts that cannot be conclusively refuted by the existing files and records, compelling an evidentiary hearing under § 2255(b).
Frequently Asked Questions
Which court decides a 28 U.S.C. § 2255 motion?
Unlike a direct appeal (which goes to the regional U.S. Court of Appeals), a § 2255 motion is filed in the United States District Court that imposed the sentence and is ordinarily assigned to the original sentencing judge under Rule 4(a) of the Rules Governing § 2255 Proceedings. If the district court denies the motion, the prisoner may seek a Certificate of Appealability to appeal that denial to the Court of Appeals.
What remedies can a federal court grant under 28 U.S.C. § 2255(b)?
If the court finds that the judgment was rendered without jurisdiction, that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been a denial or infringement of the constitutional rights of the prisoner, § 2255(b) directs the court to vacate and set the judgment aside and to discharge the prisoner, resentence the prisoner, grant a new trial, or correct the sentence as may appear appropriate.
Can I raise ineffective assistance of counsel in a § 2255 motion if I did not raise it on direct appeal?
Yes. In Massaro v. United States, 538 U.S. 500 (2003), the Supreme Court held that an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255 regardless of whether the petitioner could have raised the claim on direct appeal, because the trial record is rarely developed to evaluate counsel's performance and prejudice.
Can a § 2255 motion be filed while my direct appeal is still pending?
Ordinarily no. Absent extraordinary circumstances, district courts will not entertain a § 2255 motion while a direct appeal from the same judgment is pending in the Court of Appeals or the Supreme Court, because the disposition of the direct appeal may render the § 2255 motion moot.
Attorney Review & Contribution
Erik Friis — Federal & California Criminal Defense Attorney
California State Bar No. 189830 · Admitted to the U.S. Court of Appeals for the Ninth Circuit and U.S. District Court for the Southern District of California.
Erik Friis contributes legal expertise and attorney oversight to Federal Criminal Appeals Group, supporting content concerning federal criminal appeals, post-conviction relief, and related federal criminal proceedings.