§17 Motion to Vacate, Set Aside, or Correct a Sentence

CRIMINAL DEFENDANT’S HANDBOOK – Order Now!

For a person in federal custody, this is a motion under 28 U.S.C. §2255 for federal habeas corpus relief. Common grounds include: (1) involuntariness of a guilty plea; (2) illegality of a sentence; (3) double jeopardy claims; and (4) ineffective assistance of counsel at trial, in connection with plea proceedings, or at sentencing.

There is a presumption that a trial court presented with a motion should conduct a hearing. A court can appoint counsel for an indigent seeking collateral relief, and counsel should be granted if the interests of justice so require. A prisoner who seeks the appointment of counsel must proffer the grounds for collateral relief at the time counsel is requested. The courts should fashion post-conviction discovery procedures if necessary to demonstrate that the petitioner is entitled to relief.

The motion is appealable, but requires a notice of appeal separate from the appeal of a conviction. On appeal from the denial of the motion, the prisoner may be detained in custody or may be released upon his recognizance at the court’s discretion.

For a person in state custody, the prisoner would petition under 28 U.S.C.§2254 for a writ of habeas corpus.
In the rules governing section 2255 proceedings for the United states District Courts, Rule 1 states the scope:
“These rules govern a motion filed in a United States district court under 28 U.S.C. §2255 by:
(a) a person in custody under a judgment of that court who seeks a determination that:

  1. the judgment violates the Constitution of laws of the United States;
  2. the court lacked jurisdiction to enter the judgment;
  3. the sentence exceeded the maximum allowed by law; or
  4. the judgment or sentence is otherwise subject to collateral review;

Rule 2 states the form of the motion:
(a) Applying for Relief.

The application must be in the form of a motion to vacate, set aside, or correct the sentence.

(b) Form. The motion must:

  1. (1) specify all the grounds for relief available to the moving party;
  2. (2) state the facts supporting each ground;
  3. (3) state the relief requested;
  4. (4) be printed, typewritten, or legibly handwritten; and
  5. (5) be signed under penalty of perjury by the movant or by a person authorized to sign it for the movant.

Section 2255 largely supplants the traditional remedy of habeas corpus as the means by which federal prisoners may challenge the lawfulness of their incarceration. For certain types of claims, habeas corpus review pursuant to 28 U.S.C. §224 remains the appropriate remedy. Section 2255 was designed to divert most petitions from the district of incarceration into the district in which the federal prisoner originally was tried and sentenced. See, United States v. Hayman, 342 U.S. 205, 212-214, 96 L.Ed.2d 232, 72 S.Ct. 263 (1952); Heflin v. United States, 358 U.S. 415, 417, 3 L.Ed.2d 407, 79 S.Ct. 451 (1959).

Section 2255 affords federal prisoners a “remedy exactly commensurate with that which had previously been available by habeas corpus.” Hill v. United States, 368 U.S. 424, 427, 7 L.Ed.2d 417, 82 S.Ct. 468 (1962); United States v. Addonizio, 442 U.S. 178, 185, 60 L.Ed.2d 805, 99 S.Ct. 2235 (1979). Section 2255 is “intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.” Davis v. United States, 417 U.S. 333, 343, 41 L.Ed.2d 109, 94 S.Ct. 2298 (1974).

The savings clause of section 2255 provides a section 2241 remedy for AEDPA barred claims when section 2255 remedy is inadequate or ineffective. Section 2255 movants must be “in custody” to qualify for relief. The definition encompasses almost all government-sponsored restraints on freedom “not shared by the public generally” and stem from the conviction of a crime. Parole, probation, release on bail or on the prisoners own recognizance, conditionally suspended sentences all qualify as custody.

Section 2255 claims are defined broadly in four categories: (1) court lacked either personal or subject matter jurisdiction; (2) conviction of sentence is unconstitutional; (3) conviction of sentence violates other federal law; (4) sentence of judgment is otherwise open to collateral attack because it results in a fundamental miscarriage of justice.

Section 2255 is a “flexible remedy” and provides upon finding for the movant, the court shall vacate, set the judgment aside, discharge the prisoner, re-sentence him, grant a new trial or correct the sentence as may be appropriate.

In both Section 2255 and 2241 proceedings, “[n]on-constitutional claims…can be raised on collateral review only if the alleged error constituted a ‘fundamental defect which inherently results in a complete miscarriage of justice’ … or if alleged error produced a proceeding ‘inconsistent with the rudimentary demands of fair procedure.” Reed v. Parley, 512 U.S. 339, 350, 354, 129 L.Ed.2d 277, 114 S.Ct. 2291 (1994).

So notwithstanding guilty plea and that issue was raised for the first time in post-conviction proceeding, indictment’s failure to charge offense was properly raised in section 2255 petition because alleged error is one that divests court of jurisdiction. United States v. Harper, 901 F.2d 471, 472-73 (5th Cir. 1990).

“Prisoner may attack his or her sentence pursuant to 28 U.S.C. §2255 on the ground that the sentence was imposed in violation of the Constitution or laws of the United States.” Shukwit v. United States, 973 F.2d 903, 904 (11th Cir. 1992). Due process claim that sentence was based in part on false information in pre-sentence report is cognizable in section 2255 proceedings.

Section 2255 motion is customary procedure for challenging effectiveness of counsel under 6th Amendment. United States v. Houtchens, 926 F.2d 824, 828 (9th Cir. 1991). Prejudice is not strictly construed in section 2255 motions.

A defendant has the right to sentencing on basis of accurate information is vital and may be enforced in section 2255 proceedings. United States v. Popoola, 881 F.2d 811, 812-13 (9th Cir. 1989). Section 2255 motion is proper method of challenging errors in sentencing judge’s imposition of supervised release and fines. Cox v. Warden, 911 F.2d 1111, 1114 (5th Cir. 1990).

Section 2255 based on improper construction of federal criminal statute, “proceeded on a recognized basis for seeking federal habeas corpus,…that [movant] was confined under a void conviction and therefore under a sentence not authorized by law.” United States v. Barren, 172 F.3d 1153, 1158 (9th Cir. 1999).

The purpose of federal habeas corpus review is to ensure that individuals are not imprisoned in violation of the U.S. Constitution. E, Herrera v. Collins, 506 U.S. 390, 122 L.Ed.2d 203, 113 S.Ct. 853 (1993); Barefoot v. Estelle, 463 U.S. 880, 77 L.Ed.2d 1090, 103 S.Ct. 3383 (1983).

Only federal constitutional claims are cognizable in federal habeas proceedings Walters v. McConnick, 122 F.3d 1172, 1175 (9th Cir. 1997). A petitioner must make a specific claim of violation of constitutional rights, not simply a broad claim of due process violation. Gray v. Netherland, 518 U.S. 152, 163-64, 135 L.Ed.2d 457, 471, 116 S.Ct. 2074 (1996).

The federal courts have responsibility to construe pro se prisoners vaguely framed pleadings liberally as habeas petitions where the interests of justice demand. Brown v. Vasquez, 952 F.2d 1164 (9th Cir. 1991), cert-denied, 503 U.S. 1011 (1992). A court may treat a represented party’s §1983 action as a habeas petition. Fierro v, Gomez, 77 F.3d 301, 305 (9th Cir. 1998), vacated on other grounds, remanded, 519 U.S. 918, vacated as remand on other grounds, 147 F.3d 1158 (9th Cir. 1998).

The district court should not generally entertain a habeas corpus petition in a case while there is a direct appeal pending in the Ninth Circuit or the Supreme Court. Schlup v. Delo, 513 U.S. 298, 130 L.Ed.2d 808, 115 S.Ct. 851 (1995). The Ninth Circuit only has jurisdiction to review final orders in habeas corpus proceedings. 28 U.S.C.A. §2253; Collins v. Miller, 252 U.S. 364, 64 L.Ed. 616, 40 S.Ct. 347 (1920); Farmer v. McDaniel, 98 F.3d 1548, 1552 (9th Cir. 1996), cert.denied, 520 U.S. 1188 (1997), abrogated on other grounds by Slack v. McDaniel, 529 U.S. 473, 146 L.Ed.2d 542, 120 S.Ct. 1595, 1605-06 (2000).

A claim under section 2255 is not ripe for adjudication until the defendant has been sentenced and has pursued a direct appeal. United States v. Deeb, 944 F.2d 545, 548 (9th Cir. 1991).

The Supreme Court has stated that a habeas corpus proceeding or other collateral challenge cannot be used as an alternate form of direct appeal. In addition, the court set out strict standards for trial-related issues raised in habeas corpus proceedings. In United States v. Frady, 456 U.S. 152, 71 L.Ed.2d 816, 102 S.Ct. 1584 (1982), the court stated: “We affirm the well-settled principle that to obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal … We believe the proper standard for review of motion is the ’cause and actual prejudice’ standard enunciated in David v. United States, 411 U.S. 233, 36 L.Ed.2d 208, 93 S.Ct. 1565 (1973), and later confirmed and extended in Francis v. Henderson, 425 U.S. 536, 48 L.Ed.2d 149, 96 S.Ct. 1708 (1976), and Wainwright v. Sykes, 433 U.S. 72, 53 L.Ed.2d 594, 97 S.Ct. 2532 (1977). Under this standard, to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) ’cause’ excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.”

A petitioner must allege lack of jurisdiction or constitutional error to be granted relief, unless an error of law resulted in a complete miscarriage of justice or in a proceeding inconsistent with rudimentary demands of fair procedure. Hamilton v. United States, 67 E.3d 761, 763-64 (9th Cir. 1995).

Section 2255 proceedings are the equivalent of habeas corpus for federal prisoners. Section 2255 motions, unlike section 2241 petitions, are not separate civil actions, but a further step in the criminal action in the district court.

The Supreme Court held in Dodd v. United States, (04-5286) 545 U.S. 353, 365 F.3d 1273, affirmed, 162 L.Ed.2d 343, 125 S.Ct. 2478, 2482-83, (2005) that the one-year limitation period under 28 U.S.C. §2255(3) for a petitioner to file a motion to vacate, set aside or correct a sentence based on a new constitutional right begins when the right was “newly recognized by the Supreme Court”, not when the right is held to apply retroactively. The Court acknowledged the problems their decision creates for prisoners filing post-conviction motions. Prisoners who want to file second or successive petitions based on a new right will essentially be unable to do so. Prisoners are barred from pursuing second or successive §2255 petitions except in rare situations including when a right has been newly recognized and made retroactive. Dodd will prevent relief for such petitioners because the Supreme Court almost never announces a right and makes it retroactive within one year.

As Justice Stevens added, “…it seems nonsensical to assume that Congress deliberately enacted a statute that recognizes a cause of action, but wrote the limitation period in a way that precludes an individual from ever taking advantage of the cause of action.”

In Castro v. United States, 540 U.S. 375, 157 L.Ed.2d 778, 124 S.Ct. 786 (2003), the Supreme Court ruled that a federal court may not characterize a pro se motion as a first motion to vacate under 18 U.S.C. §2255 unless it notifies the petitioner of its intent and warns him of the consequences. Justice Scalia, concurring in the court’s conclusion separately, contended that district courts should never be allowed to characterize pro se litigants motions as petitions under §2255.

A. Post-Conviction Discovery and Evidentiary Hearing

“Post-conviction discovery may be provided and an evidentiary hearing held when specific allegations are able to show reason to believe that, once the facts have been fully developed, the defendant would be entitled to relief.” Harris v. Nelson, 394 U.S. 286, 300, 22 L.Ed.2d 281, 89 S.Ct. 1082 (1969). “In appropriate circumstances a Federal District Court, confronted by a petition for habeas corpus which establishes a prima facie case for relief, may use or authorize the use of suitable discovery procedures, including interrogatories, reasonably fashioned to eliciting facts necessary to help the court to ‘dispose of the matter as law and justice require,’ under 28 U.S.C. §2243, relating to habeas corpus hearings generally.” Harris, at 286.

“It is now established beyond the reach of reasonable dispute that the federal courts not only may grant evidentiary hearings to applicants, but must do so upon an appropriate showing.” Harris, at 290. “[W]here specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is…entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.” Harris, at 300.

Citing this standard, the Supreme Court in Bracey v. Gramley, 520 U.S. 899, 138 L.Ed.2d 97, 117 S.Ct. 1793 (1997) held that it was an abuse of discretion to deny discovery to the petitioner given the allegations in his habeas claim. Implementing the mandate of Harris, the federal system promulgated Rule 6 of Rules Governing Section 2255 Proceedings in the United States District Courts, which provides that a judge should grant discovery “for good cause shown”. Bracey, at 904.

Because the grant of discovery is within the trial court’s discretion, it is permissible to deny a post-conviction discovery request where the prisoner’s claims are overly broad and speculative.

Rule 6(a) of the Rules Governing §2255 Proceedings lets movants seek leave to employ the discovery devices in either the Fed.R.Civ.P. or the Fed.R.Crim.P.

Habeas corpus petitioners are limited by the Rules Governing §2254 Cases to the former discovery devices. The movant can seek the court’s leave to conduct discovery for “good cause shown”. The court may “expand the record” to include documentary evidence that would constitute inadmissible hearsay in other proceedings. If the prisoner is entitled to relief, the court shall grant a prompt hearing, however, the movant has no right to be present at the hearing.

B. Motion to Correct Sentence

A motion to correct an illegal sentence may be filed at any time. A sentence illegally imposed must be corrected within 120 days. A sentence is illegal when the court goes beyond its authority by acting without jurisdiction or imposing a sentence in excess of the statutory maximum. A sentence illegally imposed commits procedural error and is subject to the 120 day limitation, but an abuse of discretion or unreasonable is not subject to the 120 day limitation.

An illegal sentence is a nullity, thus can be corrected at any time. The court can consider a Fed.R.Crim.P.35(a) motion based on the Defendant’s claims. Successive motions are barred by AEDPA in a section 2255 proceeding. Ineffective assistance of counsel claims can be raised in a motion to correct sentence.

C. Motion to Reduce Sentence

A motion to reduce sentence may be filed up to the 120th day after: (1) the sentence is imposed; (2) probation is revoked; (3) the court receives the mandate on appeal affirming the judgment or dismissing the appeal. The government is entitled to respond even if it agreed as part of a plea agreement not to allocute at sentencing. The court must act on the motion within a reasonable time pursuant to Fed.R.Crim.P. 35(b). Trial judges should treat pro se letters or forms that request sentence modification as Rule 35 motions providing they are timely filed.

There is no Sixth Amendment right to counsel to pursue a motion to reduce sentence in a section 2255 proceeding. Trial judges have the discretion to appoint counsel by motion, or not.

The trial court has no jurisdiction to correct or reduce a sentence during the pendency of an appeal from the “judgment of conviction”. The trial court does have jurisdiction to entertain Rule 35 motions despite the pending appeal. If the trial court indicates willingness to grant the motion, the Court of Appeals will remand the case record to grant the requested relief.

D. Exhaustion of Remedies and Statute of Limitation

Section 2255 remedy does not require the exhaustion of remedies, but has imposed one-year statute of limitations triggered by latest of four events: (1) date on which judgment of conviction becomes final; (2) date impediment to making a motion by governmental action is removed; (3) date right asserted was initially recognized; (4) date which facts supporting claim could have been discovered.

However, an exhaustion of appellate remedies is required barring section 2255 relief that the movant could have, but did not, raise on appeal. The procedural bar is inapplicable to claims of ineffective assistance of counsel because they require development of a factual record in the district court.

During the pendency of a direct appeal, court of appeals generally ” will stay the entire appeal to permit the district court to develop a record for appeal.” United States v. Cyrus, 890 F.2d 1245, 1247 (D.C.Cir.1989).

E. Procedures and Judicial Review

Section 2255 motions are filed with the district court which sentenced the prisoner whereas section 2241 petitions are filed with the district court where the prisoner is incarcerated. There are standard forms for pro se defendant’s which are treated liberally with regard to the form and content of the pleadings.

There are restrictions on successive section 2255 motions. Section 2255 is viewed as continuing the prior criminal proceeding whereas section 2241 is an independent action. Section 2255 movants need not seek in forma pauperis status under 28 U.S.C. §1915 and not subject to provisions for dismissal of “frivolous” filings.

Motions are first presented to the judge presiding over the defendant’s trial and sentencing if that judge is available. Due to the possibility of bias and prejudice inherent in allowing judges whose rulings are under attack to review section 2255 motions invites any movant with reason to question the judge’s impartiality to file an affidavit stating the facts and asking to disqualify the trial judge.

The remedy for alleged judicial bias in section 2255 cases is a “Motion for Recusal or Disqualification.” Tripati v. Herman, 843 F.2d 1160, 1163 (9th Cir. 1988), cert.denied, 488 U.S. 982 (1988).

The judge examines the motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack. The judge’s own recollections of the proceeding may supply a basis for deciding whether or not to grant summary dismissal. If the court does not dismiss a section 2255 motion, it must call for an answer from the opposing party. The movant may, but need not, file a response to the government’s answer.

The government can assert procedural defenses including prematurity, delay, non-retroactivity, statutes of limitation, waiver by plea of guilty, procedural default, Fourth Amendment exclusionary rule claims, abuse of the remedy, successive motions and previous rejection of the claim on appeal. Stone v. Powell, 428 U.S. 465, 49 L.Ed.2d 1067, 96 S.Ct. 3037 (1976).

Upon the final order in a section 2255 proceeding, a Court of Appeals or district judge must issue a certificate of appealability for an appeal to be taken in the Ninth Circuit pursuant to 28 U.S.C.A. §2253(c)(1) See, United States v. Asrar, 116 F.3d 1268 (9th Cir .1997).

F. AEDPA

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) imposed strict limitations on prisoners ability to seek post-conviction relief. The statutory language of AEDPA teems with problems and is incoherent, elaborate and obscure. AEDPA supercedes prior federal habeas law in patches while other areas are untouched. AEDPA requires petitioners to obtain permission from an appellate panel before proceeding with second or successive petitions and prevents the Supreme Court from reviewing such decisions.

ADEPA requires petitioners file claims for post-conviction relief within one-year statute of limitations after the judgment of conviction, imposes limits upon the compensation of counsel, investigators and experts, requires a preliminary showing to justify an ex parte application for support services, limits the availability of successive notions and requires appellants obtain a “certificate of appealability” in order to appeal a denial of relief by the district court.

The Supreme Court said of AEDPA that “in a world of silk purses and pigs’ ears, the Act is not a silk purse of the art of statutory drafting…” Lindh v. Murphy, 521 U.S. 320, 336, 138 L.Ed.2d 481, 117 S.Ct. 2059 (1997). “AEDPA’s drafters probably never thought about. ..[a] situation” that should have been obvious to anyone drafting post-conviction-procedure legislation. Johnson v. United States, 544 U.S. 295, 161 L.Ed.2d 542, 125 S.Ct. 1571, 1580 (2005).

AEDPA supersedes prior federal habeas corpus law in patches. Many areas of law including some that were unsettled or arcane were left untouched. It changes aspects of the old rules without addressing how these changes should affect connected aspects that are not explicitly changed. See, Rhines v. Weber, 544 U.S. 269, 161 L.Ed.2d 440, 125 S.Ct. 1528, 1533-34 (2005).

In Felker v. Turpin, 518 U.S. 651, 135 L.Ed.2d 827, 116 S.Ct. 2333 (1996), AEDPA was read in the light of 19th century precedents about the negative implications of statutes limiting federal judicial jurisdiction. In Stewart v. Martinez-Villareal, 523 U.S. 637, 140 L.Ed.2d 849, 118 S.Ct. 1618 (1998), AEDPA was read restrictively to avoid “implications for habeas practice” that the Court concluded “would be far-reaching and seemingly perverse.”

G. Involuntariness of Guilty Plea and Government Breech of Plea Agreement

Guilty plea “is the defendant’s consent that judgment of conviction may be entered without a trial – a waiver of his right to trial before a jury or a judge.” Brady v. United States, 397 U.S. 742, 748, 24 L.Ed.2d 747, 90 S.Ct, 1463 (1970). Guilty plea waived claim of excessive pre-indictment delay. United States v. Norman, 767 F.2d 455, 456 (8th Cir. 1985). Defendant loses non-jurisdictional defects when a guilty plea is entered voluntarily.

Notwithstanding guilty plea and that issue was raised for the first time in post-conviction proceeding, indictment’s failure to charge offense was properly raised in section 2255 motion because alleged error is one that divests court of jurisdiction. United States v. Harper, 901 F.2d 471, 472-73 (5th Cir. 1990).

Challenge to voluntariness of guilty plea heard by means of section 2255 motion. See, United States v. Timmreck, 441 U.S. 780, 60 L.Ed.2d 664, 99 S.Ct. 2085 (1979); Fontaine v. United States, 411 U.S. 213, 36 L.Ed.2d 169, 93 S.Ct. 1461 (1973). Guilty plea is involuntary and sentence is subject to collateral attack when prosecution fails to fulfill its share of plea agreement. Knight v. United States, 611 F.2d 918, 921 (1st Cir. 1979).

H. Ninth Circuit Review

The standard for appealability pursuant to 28 U.S.C. §2253(c) depends upon whether the district court rejected the issue on its merits or procedural grounds. Constitutional claims rejected on their merits must show is at least “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.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 77 L.Ed.2d 1090, 103 S.Ct. 3383 (1983). The “substantial showing” standard does not require a movant prove he or she would prevail on the merits.

Claims denied on procedural grounds must allege a valid claim even though it hasn’t been proven yet and whether jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 478, 146 L.Ed.2d 542, 120 S.Ct. 1595 (2000).

Appeals can take a year or more before ruling on requests. The rules of appellate procedure provide that the notice of appeal itself “constitutes a request addressed to the judges of the court of appeals”. Fed.R.App.P. 22(b)(3).

The Government may appeal “civil” section 2255 judgment reducing sentence. Lowe v. United States, 923 F.2d 528, 528-30 (7th Cir. 1991), cert.denied, 500 U.S. 937 (1991).

Any doubts about whether habeas petitioner met standard for obtaining certificate of appealability (COA) will be resolved in his favor. Where district court dismisses claims in habeas petition based on procedural grounds, appellate court must engage in a two-part inquiry in determining whether to grant certificate of appealability (COA); first, the court must decide whether jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right; second, the court must decide whether jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Lambright v. Stewart, 220 F.3d 1022 (9th Cir. 2000).

Final orders in a habeas corpus proceeding are subject to the following standards of review:

  • Denial of motion for an evidentiary hearing (abuse of discretion)
  • Decision on petition for habeas corpus (de novo)
  • Factual findings in petition for habeas corpus (clear error)
  • Denial of writ of habeas corpus for lack of jurisdiction (de novo)
  • Whether proper party is named as respondent (de novo)
  • Challenge to whether the prejudice of the evidence outweighed its probative value (abuse of discretion)
  • Appeals from section 2255 motion to vacate, set aside or correct sentence (de novo)
  • Findings on questions of law (de novo)
  • Findings on mixed questions of law and fact (de novo)
  • Claim of ineffective assistance of counsel (de novo)
  • Factual findings in claim of ineffective assistance of counsel (accepted unless clearly erroneous)
  • Whether the Double Jeopardy Clause has been violated (de novo)
  • Claims guilty plea was the basis of ineffective assistance of counsel (de novo unless petitioner did not raise basis for claim in district court, then plain error)

Based on Supreme Court precedent, the Ninth Circuit has held trial-type constitutional errors are harmless, unless they had a substantial and injurious effect in determining the jury’s verdict. The Ninth Circuit has affirmed the district court’s refusal to consider successive habeas petitions which raised the same grounds for relief as raised in previous petitions. Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994), cert.denied, 511 U.S. 1119 (1994). The Ninth Circuit employs an abuse of discretion standard in reviewing whether the district court erred in refusing to consider successive habeas petitions. Paradis v. Arave, 130 F.3d 385, 390 (9th Cir. 1997).

I. Section 2255 Form

1. (a) Name and location of court that entered the judgment of conviction:
(b) Criminal docket or case number:

2. (a) Date of judgment of conviction:
(b) Date of sentencing:

3. Length of Sentence:

4. Nature of crime (all counts):

5. (a) What was your plea?
(1) Not guilty
(2) Guilty
(3) Nolo contendere
(b) If you entered a guilty plea to some counts and not guilty to others, which was which?

6. If you went to trial, was it before a:
(a) jury
(b) judge

7. Did you testify at a pretrial hearing, trial or post-trial hearing? Y or N?

8. Did you appeal from the judgment of conviction? Y or N?

9. If you did appeal, what was the:
(a) name of court
(b) docket or case number
(c) result
(d) date of result
(e) citation to the case
(f) grounds raised
(g) did you file a petition for certiorari in the U.S. Supreme Court? Y or N?
If yes, what was the:
(1) docket or case number
(2) result
(3) date of result
(4) citation to the case
(5) grounds raised

10. Other than the direct appeals above, have you filed any other motions, petitions, or applications concerning the judgment of conviction with any other court? Y or N?

11. If the answer to question ten was yes, what was the:
(a) (1) name of court;
(2) docket or case number;
(3) date of filing;
(4) nature of the proceeding;
(5) grounds raised;
(6) did you receive an evidentiary hearing? Y or N?
(7) result;
(8) date of result.

(b) If you filed any second motion, petition or application, what was the:
(1) name of court;
(2) docket or case number;
(3) date of filing;
(4) nature of the proceeding;
(5) grounds raised;
(6) did you receive an evidentiary hearing? Y or N?
(7) result;
(8) date of result.

(c) Did you appeal to a federal appellate court having jurisdiction over the action? Y or N?
(1) First petition? Y or HI
(2) Second petition? Y or N?

(d) If you did not appeal from the action, explain why not?

12. For this claim, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. State the facts supporting each ground and additional pages as needed.

GROUND ONE:
(a) Supporting and specific facts (do not argue or cite law):
(b) Did you raise this issue on direct appeal? Y or N?
If you did not, explain why:
(c) Did you raise this issue in any other post-conviction proceeding? Y or N?
If the answer is yes, state:
(1) type of motion or petition
(2) name and location of court were filed
(3) docket or case number
(4) date of court’s decision
(5) result
Did you receive a hearing? Y or N?
Did you appeal from the denial of your motion? Y or N?
If the motion was denied, did you raise this issue on direct appeal? Y or N?
If you appealed from the denial of your motion, what was the:
(1) name and location of court
(2) docket or case number
(3) date of court’s decision
(4) result.
If you did not appeal the denial of the motion, explain why:

13. Is there any ground that you have not previously presented in a federal court? Y or N? Is so, which ground or grounds and explain why you have not presented them?

14. Are there any motions pending (filed and not decided yet)? Y or N?
If yes, state the name and location of the court, docket or case number, type of proceeding and the issues raised.

15. Give the name and address of each attorney who represented you in the following stages of the judgment you are challenging:
(a) preliminary hearing
(b) arraignment and plea
(c) trial
(d) sentencing
(e) on direct appeal
(f) any post-conviction proceeding
(g) on appeal from any ruling against you in a post-conviction proceeding

16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court, and at the same time? Y or N?

17. Do you have any future sentence to serve after you complete the sentence for the judgment you are challenging? Y or N?
If so, what was the:
(a) name and location of court
(b) date other sentence imposed
(c) length of other sentence
(d) have you filed, or plan to file any challenges to the judgment of conviction in that case? Y or N?

TIMELINESS OF MOTION:
18. If the judgment of conviction became final over one year ago, explain why the one-year statute of limitations as contained in 28 U.S.C. §2255 does not bar
your motion?

RELIEF:
Therefore, movant asks the court grant the following relief, or any other relief to which movant may be entitled.
Signature of Attorney (if any)

PERJURY JURAT:
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct and that this motion under 28 U.S.C. §2255 was placed in the prison mailing system on (month, date, year).

Executed (signed) on (date).

Signature of Movant

If the person signing is not movant, state relationship to movant and explain why movant is not signing this motion.

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21 thoughts on “§17 Motion to Vacate, Set Aside, or Correct a Sentence

  1. I know someone who have been wrongfully convicted and is in federal costody. So many evidences and testimonies of “codefendant” proved his innocence but still have been trowed in jail for yrs cuz the police office in montgomery county , MD who started the case wanted to seized his house .
    I need information about how to complain about abuse or wrongfull use of power. Plus I need a lawyer who can take a case for the 2255 in DC area.
    Thank you

    • Hi,
      I was curious if you found any. Info on your question? I am looking for the same type of help that u are,,,I plan to post a comment today real soon , plz email me at my address I have in this location,,forgive me I’m still learning this darn thing lol

  2. I have more of a question than acomment. I was sentenced under PA 35 780-118 Disposition In Lieu of Trial. The sentencing guidelines,as per statute, called for a treatment and supervision for a period not to exceed either the max penalty that could be imposed, or the app. statute of limitations, WHICHEVER is the lesser of the two. Well, the Judge sentenced myself to supervision for more than twice the statute of limitations. When this happened, my attorney told me to not rock the boat and appeal later. Well, it is later, the statute of limitations has run its course months ago and I would like to know what my appeal options could be? Thank You

  3. The injustice of the “criminal courts,” is everywhere. (How else would so many attorneys keep themselves employed?) The late Chief Justice of the U.S. Supreme Court once stated, “90% of all attorneys are incompetent!” I am now an innocent survivor of this corrupt “legal” system. I was thrown into prison for four years (for exercising my First Amendment constitutional rights to freedom of speech and religion.) Basically, I was praying to God in a post office!!! I used Imprecatory Prayer!! Wow, I’m such a dangerous C-R-I-M-I-N-A-L! The government maliciously prosecuted me under Title 18 U.S.C. 2332a – Use of Weapons of Mass Destruction. Who is keeping these overzealous prosecutors from abusing their positions of power? Who stops misapplication of federal laws and prosecutorial abuse?? Where is an innocent citizen’s protections from an insane government?? The corrupt courts???? Ya, right! schipkemary@AOL.com

  4. Hi my name is sonia i wanted to know where am i able to get forms for motion to reduce sentencing in texas.Please reply to this message as soonest possible.

    Thank you

  5. IF YOUR 2255 WAS FILED AND YOU DID NOT MEET ALL THE REQUIREMENTS AND THE APPEAL WAS DENIED…HOW DO YOU APPEAL THE DECISION OF THE DENIAL OF THE 2255 MOTION….

  6. I know someone who have been wrongfully convicted and is in federal costody. So many evidences and testimonies of “ co-defendant” proved his innocence but still remains incarcerated today after 6yrs served , this man has 3 kids still at home who need him , at the time of arrest x-wife and husband were separated ,,,, the defendant is in prison b/cuz police office in small town who works hand in hand with injustice , unlawful, fellow officers of Hamilton mt,police department who started the case wanted to seized his x-wifes house, not his house ….
    I need information about how to complain about abuse or wrongful use of power. Plus I need a lawyer who can take a case for the 2255 in MT area.
    Thank you

    ALSO DO YOU HAVE A HAND BOOK THAT WILL HELP WITH FILING A CERTIFICATE OF APPEALABILTY ? SUM THING THAT WILL BENEFIT THIS PRISONER IN MORE DEPTH FOR A 2255
    PLEASE ANSWER ASAP NOT MUCH TIME REMAINS TO FILE 😦

    • We are in Texas but we take cases and attempt to tear them apart. WE look at all the records and find the ineffectiveness of the attorney, and the prosecutorial and judicial misconduct (if any). We find the constitutional error and we help file the 2255 motion or the writ of habeous corpus. The feds do not play failr and there is normally many indescressions on the governments part. It does not matter if you are not in Texasm Federal Law is Federal Law. If you are interested email me at beth.maxwell39@yahoo.com…ASAP There is not many attorneys that do this and do it well. WE do…..

  7. I also wanted to add to the above plea for help on the 2255 , the federal Montana judge handling this case in court has denied every motion w/out hearing or seeing evidence or reading decelerations of any kind , this judge has no grounds to do such a dirty act ,,, forgive me for saying this but what has happened to this justice system i once thought was JUSTICE !
    when dealing w/ a small town i have seen with my own eyes personally how they handle there law, ( carefully corrupt and bias ) judges and district attorneys , and even the attorneys on your side all drink together at the family bar down the street and co-inspire , if they dont like you then its out of your hands,,, right now there is over 10 ( suicides) in the Ravalli county SHERIFF DEPARTMENT jail ruled out suspicious among ……… Ravalli county woman sued the city and won lawsuit for malicious conduct and unlawful treatment … still didn’t bring back her child’s father or her husband .. how do you find sum one to help you out with this type of situation ?? where do i complain? i also need to find out how to complain against police department involved in separate issue , my son was struck by a moving vehicle on hwy ands life flighted one hour to hospital on deaths way, person who hit my son was a 16 yr olds w/out license and father was a fire fighter who works with police dept , nothing could be done do to a police report carefully written i had scrutinized by a friend who was hwy patrol.. he is dumbfounded , as i am ,,,
    sorry to get off subject of 2255 this is my main asking of help please , i had to throw in ther the misconduct of it all… 😦

  8. I know someone who have been wrongfully convicted and is in federal costody. So many evidences and testimonies of “ co-defendant” proved his innocence but still remains incarcerated today after 6yrs served , this man has 3 kids still at home who need him , at the time of arrest x-wife and husband were separated ,,,, the defendant is in prison b/cuz police office in small town who works hand in hand with injustice , unlawful, fellow officers of Hamilton mt,police department who started the case wanted to seized his x-wifes house, not his house ….
    I need information about how to complain about abuse or wrongful use of power. Plus I need a lawyer who can take a case for the 2255 in MT area.
    Thank you

    Gina Ritchie

    ALSO DO YOU HAVE A HAND BOOK THAT WILL HELP WITH FILING A CERTIFICATE OF APPEALABILTY ? SUM THING THAT WILL BENEFIT THIS PRISONER IN MORE DEPTH FOR A 2255
    PLEASE ANSWER ASAP NOT MUCH TIME REMAINS TO FILE 😦

  9. most 2255’s are denied at the district court level, if one can present the issues in a motion for certificate of appealabiity and prevail, the fairer chance to prevail will be with the appellate court.

    • IF by chance you are an Attorney. If a person was sentenced to FLORIDA STATE..prison time (not Federal) would they file their Motion To Vacate Guilty Plea with their County District or would it be with the Federal Supreme Court? ANYONE OUT THERE….PLEASE HELP ME OUT, Thank You

  10. I would like help and or assistance on the following issue. Can I still get relief from the convCan a law student defend a defendant without the presence of a licensed lawyer. And what can be done when the transcript displays the name of a lawyer who the defendant never saw, or had any conversation with.
    also, is it ineffective assistant of counsel when after conviction hearing, they never submitted notice of motion to dismiss, or notice of appeal, and never not consulted with client about option after conviction.
    I’ve appealed all the way to supreme court, with it being dismissed in june of 2010. What are my options. I was hood wink, and cocerced in taking a plea.
    I’ve been trying to clear the wrong arrest, conviction since october 2004

    iction, and the ineffectiveness of counsel by the appointed lawyer, and law student acting as lawyer without license. ?

  11. In light of the amendment to Rule 35(a), effective Nov. 1, 1987, to remove he language that an illegal sentence can be corrected “at any time,” can an illegal federal sentence still be corrected at any time? Does the Government have the right to file a Motion to Correct Illegal Sentence “at any time”?

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