Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody

Introduction

If you are currently serving or will serve a sentence under the judgment of a federal court and seek relief from your conviction or sentence, you may file a motion under 28 U.S.C. § 2255. This motion allows you to challenge the legality of your detention. However, it is crucial to understand the specific requirements and procedures involved in filing this motion.

1. Use The Appropriate Form

The form is intended for individuals currently serving or set to serve a sentence under a federal court judgment filing pro se (without an attorney). It is your motion for relief. You must file this motion in the United States district court that entered the judgment you are challenging. Note that you can only challenge the judgment entered by one court per motion. If you wish to challenge judgments from different courts, you must file separate motions.

Do Not Use This Form If:

You are challenging the constitutionality of your state court conviction or sentence. Instead, use the form entitled “Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody.”
You are a pretrial detainee challenging your pre-conviction custody, a federal prisoner challenging the execution of your sentence or an action taken by the Bureau of Prisons, or a person in custody challenging an immigration-related order (other than a removal order). In these cases, use the form entitled “Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 by a Person in Custody.”

2. Readable

You may either type or neatly handwrite the information on the form. Ensure that it is readable.

3. Signed Under Penalty of Perjury

To submit your motion, you must sign it. Your signature indicates that the motion is signed “under penalty of perjury.” which means that any false statement of a material fact presented in your motion may serve as a basis for prosecution and conviction for perjury. Your signature does not need to be witnessed by a notary public. The motion may also be signed by a person authorized to sign it for you, such as an attorney.

4. Copies and Proper Court

When the motion is fully completed, you must mail the original and two (2) copies to the Clerk of Court at the United States District Court that entered the judgment you are challenging.

5. All Grounds

You must include all grounds for relief in this motion and the facts supporting each ground for relief. Failure to do so may prevent you from presenting additional grounds at a later date.

Here are some common grounds for relief under 28 U.S.C. § 2255, including ineffective assistance of counsel:

Violation of the Constitution or Federal Law: If the conviction or sentence violates the U.S. Constitution or federal law
Lack of Jurisdiction: If the court that imposed the sentence did not have the jurisdiction to do so.
Excessive Sentence: If the sentence exceeds the maximum authorized by law.
Collateral Attack: If the sentence is otherwise subject to collateral attack, meaning other legal reasons make the sentence invalid.
Ineffective Assistance of Counsel: If the defendant’s attorney provided ineffective assistance, the attorney’s performance was deficient, and that deficiency prejudiced the defense, resulting in an unfair trial or sentencing.

These grounds provide a basis for challenging the legality of a federal conviction or sentence. If you have any specific questions or need further assistance, feel free to ask!

6. Legal Citations and Arguments

It would be best if you answered all applicable questions. However, you should not cite legal authorities (i.e., case law or statutes) on this form. If you submit a supporting memorandum in addition to this form, it must not exceed fifteen (15) pages. Excess pages will not be considered.

7. Fee

No fee is required for this motion. If you cannot pay for the costs of this motion, such as costs for an attorney or transcripts, you may ask to proceed in forma pauperis (as a poor person). To do so, you must complete and sign the petition and affidavit attached to this motion and have an authorized officer at the penal institution complete and sign the attached certificate. You must also have an authorized officer attach a printout of your prison trust account activity statement for the six months prior to the filing of your motion.

8. Capital Cases

If you are under a sentence of death, you are entitled to the assistance of counsel and should request the appointment of counsel.

Conclusion

Filing a motion under 28 U.S.C. § 2255 is a critical step for individuals seeking relief from their federal convictions or sentences. It is essential to follow the guidelines and procedures outlined above to ensure your motion is adequately considered. If you have any questions or need further assistance, consider consulting with Hall’s Paralegal Solutions or an attorney of your choosing who specializes in post-conviction relief.

Hall's Paralegal Solutions