2255 Motions


Motion to Challenge a Defendant's Sentence

After a judge hands down a criminal sentence in a federal criminal trial, the defendant may feel like they've lost their case. The defendant and their family may believe their chance at freedom is over, and they will have to spend the next few years behind bars. However, a defendant may still have a chance to challenge their conviction, to have their sentence reduced or be freed from prison altogether.

2255 Motions

After a judge hands down a decision, the defendant may still be able to challenge their conviction or prison sentence. Through filing a 2255 motion, a defendant can move to have their sentence vacated, conviction vacated, or request a resentencing.

Under federal code 28 U.S.C. § 2255, a prisoner who claims the right to be released on the grounds that their prison sentence was imposed in violation of the Constitution, the court did not have the authority to impose such a sentence, or the sentence was unlawfully excessive, may file a motion to set aside or correct the sentence.

Except where the case conclusively shows the defendant would not be entitled to relief under the motion, the court should grant the defendant a hearing on the matter. If the court finds that either the defendant was right and the sentence was not proper, the judgment was rendered without proper jurisdiction, or there were other constitutional rights violations, the court can vacate the judgment, resentence the defendant, or even grant a new trial.

Ineffective Assistance of Counsel

One of the most common 2255 motions is based on the claim that the defendant's 6th Amendment constitutional right to counsel was violated through “ineffective assistance of counsel.” Many defendants feel like their trial lawyer let them down, did not listen to their claims, or made them plead guilty even if the defendant was innocent. This may be a basis for moving to vacate their sentence or conviction.

An ineffective assistance of counsel motion can be difficult to win. The defendant may have a high bar to reach in order to convince the court that their trial lawyer's action or inaction led to a constitutional violation. In order to prove a case of ineffective assistance of counsel, a defendant must show that their lawyer's performance fell below an objective standard of reasonableness, and that but for their deficiency, the defendant's case would have ended differently.

Statute of Limitations on a 2255 Motion

In general, most cases will have a one-year time limit within which to file a 2255 motion. The time begins to run from the later of:

  1. The date of the final judgment of conviction;
  2. If the defendant was prevented from making a motion by government action, the date when the impediment was removed by government action;
  3. The date when the Supreme Court initially recognized a relevant right, making it retroactively applicable to cases on collateral review; or
  4. The date on which facts could have been discovered through due diligence which support the claims presented.

If the date of final conviction passed more than a year prior, a defendant may still be able to file a 2255 motion through one of the other exceptions. If it has been less than a year since conviction, contact your attorney as soon as possible so they can be sure to file your claim before the statute of limitations has run out.

Second Chance to File a 2255 Motion

Even if a defendant has filed a 2255 motion and was denied relief, they may still be able to try again under certain circumstances. A second or successive motion must be certified by a court of appeals panel and contain newly discovered evidence that, taken in light of the evidence as a whole, would clearly establish that no reasonable fact finder would have found the defendant guilty, or if a new rule of constitutional law would apply retroactively to cases on collateral review.

Federal Criminal Defense Attorney

Experienced federal criminal defense attorneys with a history of successfully obtaining relief for their clients will be able to evaluate your case, and file all possible motions and appeals to have your sentence reduced or vacated. If your loved one was unfairly convicted, a motion to vacate the conviction or sentence may offer a chance to get them out of jail, and back with their family. Your lawyers will review the case, identify all possible ways to reduce a prison sentence, and represent their clients in court. It is important to have the right lawyers on your side with the experience getting their clients out from behind bars as quickly as possible.

What Happens Now?

If you are incarcerated, we will contact you in the jail where you are held, and we will remain in contact throughout the pendency of your case. If you are able to come in to the office, we will ask you to come meet in person as soon as possible. Our approach to defense is zealous, organized, and fast-paced, and we look forward to helping you.


Carmichael Ellis & Brock, PLLC is committed to representing you in criminal, military, security clearance, medical malpractice, personal injury, and product liability cases.