James H. Feldman, Jr., Attorney - 610-649-8200

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28 USC § 2255 Motions and 28 USC § 2241 Petitions

Section 2255 motions are often a defendant's last opportunity to challenge an unjust conviction or an unfairly high sentence. The most common issue raised in § 2255 motions is “ineffective assistance of counsel.” While § 2255 motions are the best way to get relief from violations of a defendant's Sixth Amendment right to the effective assistance of counsel, § 2255 motions can also be used to challenge other constitutional or statutory violations that could not have been raised on direct appeal.

Occasionally, the remedy provided by § 2255 will be “inadequate or ineffective to test the legality of [a prisoner’s] detention.” In those rare instances, federal prisoners may petition for traditional writs of habeas corpus, sometimes called § 2241 petitions.

Since 1989, the focus of my criminal practice has been federal plea negotiations and post conviction defense – including § 2255 motions and § 2241 petitions. Because I handle only a few cases at a time, I devote the time it takes to do my best for each client. And because I have a highly focused practice, I am able to offer the quality of work normally associated with big firms, but with the personal attention and affordability expected from a small firm.

My office is located in suburban Philadelphia, but I handle § 2255 motions and § 2241 petitions throughout the United States.

If you or a loved one needs an attorney who regularly represents individuals with § 2255 motions and § 2241 petitions, please call (610) 649-8200, or click here to send an e-mail to discuss how I can help.

Frequently Asked Questions

What is a § 2255 motion?
Who can file a § 2255 motion?
What issues can be raised in a § 2255 motion?
How does a § 2255 motion differ from a direct appeal?
Is there a time limit within which a § 2255 motion must be filed?
Is the one-year rule hard and fast?
Where does a defendant file a § 2255 motion?
What happens after the motion is filed?
How long does the process take?
Can denial of § 2255 motions be appealed?
Can a defendant file more than one § 2255 motion?
What is a habeas corpus (§ 2241) petition?
What kind of issue is appropriate for a § 2241 petition?
Where should a prisoner file a § 2241 petition?
Can the denial of § 2241 relief be appealed?

Links to Articles Relevant to § 2255 Motions and § 2241 Petitions

Links to Selected Judicial Opinions

What is a § 2255 motion?

A motion is a request to a court to do something. A § 2255 motion is a motion filed by a defendant who has already been convicted and sentenced which asks the court to vacate the judgment in the criminal case. Depending on the issues raised in the motion, it would ask the court to resentence the defendant, give him a new trial, or (very rarely) enter a judgment of acquittal. The number "2255" refers to the law that allows for such motions. That law is found in § 2255 of Title 28 of the United States Code.

Who can file a § 2255 motion?

Only a “prisoner” who is "in custody" under sentence of a court established by Act of Congress may file a § 2255 motion. A defendant does not literally have to be in prison to satisfy the “custody” requirement. Defendants who are on probation, parole, supervised release, or who have been released on bail can also file § 2255 motions.

What issues can be raised in a § 2255 motion?

Section 2255 provides that “prisoners” may move for relief “on the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”

How does a § 2255 motion differ from a direct appeal?

In a direct appeal, a defendant can raise any issue, so long as it is supported by the record. Although not all issues may be raised in a § 2255 motion, § 2255 motions offer defendants the opportunity to present the court with new evidence.

Is there a time limit within which a § 2255 motion must be filed?

A one year statute of limitations applies to § 2255 motions. In general, a § 2255 motion must be filed within one year from the date on which the judgment of conviction becomes final. Under some circumstances, a defendant may also have a year from the date new evidence is discovered, the date the Supreme Court recognizes a new right, or the date an illegal government impediment to filing the motion is removed.

Is the one-year rule hard and fast?

No. The one-year statute of limitations is subject to something called "equitable tolling." Equitable tolling can excuse an untimely filing due to extraordinary circumstances that are both beyond the defendant's control and unavoidable.

Where does a defendant file a § 2255 motion?

Section 2255 motions must be filed in the District Court which sentenced the defendant. Since it is a motion in the criminal case, there is no filing fee.

What happens after the motion is filed?

Section 2255 motions are first presented to the judge who presided over the defendant’s trial and sentencing. The court will either dismiss the motion or order 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. After the government files its answer, the defendant may file a memorandum in reply. The court will then either grant or deny relief, or hold a hearing.

How long does the process take?

Once a defendant files a § 2255 motion, it can take anywhere from several weeks (in the event of a summary dismissal) to over a year (if the government is ordered to respond, and a hearing is held) for a court either to grant or dismiss a § 2255 motion.

Can denial of § 2255 motions be appealed?

A § 2255 motion can be appealed – but only if the defendant obtains a certificate of appealability (COA). District court judges, circuit court judges, and Supreme Court justices are authorized to grant COAs. A circuit justice or judge may issue a certificate of appealability only if the applicant has made a substantial showing of the denial of a constitutional right.

Can a defendant file more than one § 2255 motion?

Yes – but only with prior permission from the Court of Appeals. The Court of Appeals is authorized to grant such permission only in two rare circumstances: (1) where there is newly discovered evidence of actual innocence that is so compelling that after seeing it, no reasonable jury would find the person guilty; or (2) where the Supreme Court has established a new rule of constitutional law that was not only previously unavailable, but which the Supreme Court itself has ruled may be applied in § 2255 motions.

What is a habeas corpus (§ 2241) petition?

A § 2241 petition, also known as a petition for a writ of habeas corpus, is a civil lawsuit filed by a federal prisoner to challenge the legality of his or her custody in situations where the § 2255 motion would be inadequate or ineffective. The number "2241" refers to the law that allows for such petitions. That law is found in § 2241 of Title 28 of the United States Code.

What kind of issue is appropriate for a § 2241 petition?

The § 2241 petition is the proper vehicle for challenging the duration of a prisoner’s confinement without challenging the underlying conviction. For example, a § 2241 petition can be used to challenge a refusal by the Bureau of Prisons to release a defendant who has served his entire sentence.

Where should a prisoner file a § 2241 petition?

A § 2241 petition is a new civil lawsuit which should be filed in the district court having territorial jurisdiction over the prison or other person or agency having custody of the petitioner.

Can the denial of § 2241 relief be appealed?

Yes. Notice of appeal must be filed within 60 days of the entry of final judgment. No certificate of appealability is required.

Links to Articles Relevant to § 2255 Motions and § 2241 Petitions

A 2255 and 2241 Primer: A Guide for Clients and their Family and Friends (With Alan Ellis), The Champion, April, 2002

The Basic Tools: 2241 and 2255 Habeas Petitions (With Alan Ellis and Wayne Anderson), Criminal Justice, Summer, 1997

Links to Selected Judicial Opinions

Oakes v. United States, 400 F.3d 92 (1st Cir. 2005)

United States v. Meadows, 1997 WL 835413 (E.D.Pa., Dec. 19, 1997)


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