How do you file a § 2255 motion to vacate a federal sentence?

This page is general information about how the process works. It is not legal advice about your case.

A § 2255 motion in short

• It is for a federal sentence. A state conviction uses a § 2254 petition (how to file one).
• It is a motion in your criminal case, filed in the court that sentenced you.
• There is no filing fee.
• A second motion needs permission from the court of appeals.
• There is a one-year limit.
• To appeal a loss, you need a certificate of appealability, which is the court’s permission to appeal.

For what post-conviction relief is and how it differs from an appeal, see What is post-conviction relief?

How do you file a § 2255 motion, step by step?

1. Check the timing. The committee note to Rule 5 says courts have held a motion inappropriate while the direct appeal is pending, and § 2255(f) sets a one-year limit.
2. Get form AO 243. Or the district court’s own form, if it has one. The clerk must make the forms available without charge (Rule 2(c)).
3. Set out every ground and its facts. Rule 2(b) asks for all the grounds, the facts for each, the relief requested and a signature under penalty of perjury.
4. File it with the clerk of the sentencing court. An original and two copies (Rule 3(a)), with no filing fee.
5. Watch for the court’s order. The judge reviews the motion and either dismisses it or orders the government to respond (Rule 4(b)).

Each step is explained below, with the rule text.

What can a § 2255 motion challenge?

Section 2255(a) lets “a prisoner in custody under sentence” of a federal court “move the court which imposed the sentence to vacate, set aside or correct the sentence.” To vacate means to cancel. It names these 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. it “is otherwise subject to collateral attack.”

A collateral attack is a new challenge to a final judgment, outside the direct appeal.

Many § 2255 motions claim the defense lawyer was ineffective. In Massaro v. United States, 538 U.S. 500, 504 (2003), the Supreme Court held “that an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.”

Other claims that could have been raised on direct appeal and were not face a bar called procedural default. In Bousley v. United States, 523 U.S. 614, 622 (1998), the Court said such a claim “may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’” or “that he is ‘actually innocent.’”

Step 1: Is it the right time to file?

Is your direct appeal finished?

You do not go through any state court first. The committee note to Rule 5 of the Rules Governing Section 2255 Proceedings says “there is no requirement that the movant exhaust his remedies prior to seeking relief under § 2255.” The movant is the person filing the motion.

The same note, written when the rules were adopted, says courts have held “such a motion is inappropriate if the movant is simultaneously appealing the decision.” It quotes a court that would consider one only “absent extraordinary circumstances.”

Are you within the one-year limit?

Section 2255(f) sets “a 1-year period of limitation.” It runs from the latest of four dates:

1. “the date on which the judgment of conviction becomes final;”
2. the date a government-created “impediment to making a motion” is removed;
3. “the date on which the right asserted was initially recognized by the Supreme Court,” if that right is new and made retroactive; or
4. “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.”

More detail is in the federal habeas deadline guide.

Step 2: Where do you file a § 2255 motion?

In the court that sentenced you (§ 2255(a)). Rule 3(b) says the clerk “must file the motion and enter it on the criminal docket of the case in which the challenged judgment was entered.” The criminal docket is the court’s list of filings in your case.

You do not name a respondent. The committee note to Rule 2 says “there is no requirement that the movant name a respondent.” In these rules, “respondent” means the government. Rule 3(b) says the clerk must then deliver or serve a copy of the motion on “the United States attorney in that district, together with a notice of its filing.”

Step 3: How do you fill out and file form AO 243?

Form AO 243

The national form is AO 243, “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (Rev. 09/17). Rule 2(c) says the motion “must substantially follow either the form appended to these rules or a form prescribed by a local district-court rule.” It adds that “the clerk must make forms available to moving parties without charge.”

What has to be in the motion

Rule 2(a) says it “must be in the form of a motion to vacate, set aside, or correct the sentence.” Rule 2(b) says the motion must:

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

A motion covering more than one judgment is not allowed. Rule 2(d) requires “a separate motion covering each judgment.” The AO 243 form warns: “If you fail to set forth all the grounds in this motion, you may be barred from presenting additional grounds at a later date.”

Filing the motion with the clerk

Rule 3(a) says “an original and two copies of the motion must be filed with the clerk.” The committee note to Rule 3 says “There is no filing fee required of a movant under these rules.” Read your district court’s local rules for any other filing requirements.

If you are in prison, Rule 3(d) says a paper “is timely if deposited in the institution’s internal mailing system on or before the last day for filing.” If the prison has a legal mail system, “the inmate must use that system to receive the benefit of this rule.” The date can be shown by “a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement” giving the date of deposit and stating that first-class postage was prepaid.

What happens after you file a § 2255 motion?

Screening. Under Rule 4(b), the judge examines the motion. “If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.” Otherwise the judge orders the U.S. attorney “to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.”

The answer and reply. The government answers only if ordered (Rule 5(a)). The answer “must address the allegations in the motion” and say whether you used other federal remedies (Rule 5(b)). You may file a reply (Rule 5(d)).

A hearing. Section 2255(b) calls for “a prompt hearing.” The exception is when “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”

The result. If a ground is proven, the court “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate” (§ 2255(b)).

A lawyer. The court “may appoint counsel” (§ 2255(g)). If an evidentiary hearing is warranted, Rule 8(c) says “the judge must appoint an attorney to represent a moving party who qualifies to have counsel appointed under 18 U.S.C. § 3006A.”

What is the one-motion rule for a § 2255 motion?

Rule 9 says that before “presenting a second or successive motion, the moving party must obtain an order from the appropriate court of appeals authorizing the district court to consider the motion.” Under § 2255(h), the court of appeals may certify one only if it contains:

1. “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense;” or
2. “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”

Can you appeal if the § 2255 motion is denied?

Only with a certificate of appealability. Without one, no appeal may be taken from “the final order in a proceeding under section 2255” (28 U.S.C. § 2253(c)(1)(B)). It “may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right” (§ 2253(c)(2)). The district court “must issue or deny” one when it rules against you (Rule 11(a)). Rule 11(a) also says “A motion to reconsider a denial does not extend the time to appeal.” If the district court denies the certificate, the court of appeals may be asked under Appellate Rule 22. “If no express request for a certificate is filed, the notice of appeal constitutes a request” (FRAP 22(b)(2)).

The time to appeal is 60 days. Rule 11(b) says Appellate Rule 4(a), the civil appeal rule, sets the time, even though the motion is filed in the criminal case. The committee note to Rule 11 says this means “60 days when the government is a party.” Under FRAP 4(a)(1)(B), that is “within 60 days after entry of the judgment or order appealed from.” “A timely notice of appeal must be filed even if the district court issues a certificate of appealability” (Rule 11(b)). From prison, FRAP 4(c)(1) treats a notice as timely “if it is deposited in the institution’s internal mail system on or before the last day for filing,” with the declaration or proof that rule describes.

What mistakes are common with a § 2255 motion?

• Filing where the prison is instead of in the sentencing court.
• Filing while the direct appeal is still pending, which the Rule 5 committee note says courts have held inappropriate.
• Leaving out a ground, then trying to add it in a second motion.
• Putting two different judgments in one motion.

More questions about filing a § 2255 motion

Statutes, rules and cases cited on this page

28 U.S.C. §§ 2253, 2255 · Rules Governing Section 2255 Proceedings, Rules 2, 3, 4, 5, 8, 9 and 11, with their committee notes · Fed. R. App. P. 4, 22 · Massaro v. United States, 538 U.S. 500 (2003) · Bousley v. United States, 523 U.S. 614 (1998)

Guides related to a § 2255 motion

What is post-conviction relief? · How to file a habeas corpus petition · The federal habeas corpus deadline · How do I write an appellate brief? · Can’t afford a lawyer? Free legal help