Laws: Cases and Codes : U.S. Code : Title 28 : Section 2255
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U.S. Code as of:
01/19/04
Section 2255 - Notes
SOURCE
(June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139, Sec.
114, 63 Stat. 105; Pub. L. 104-132, title I, Sec. 105, Apr. 24,
1996, 110 Stat. 1220.)
HISTORICAL AND REVISION NOTES
REFERENCES IN TEXT
Section 408 of the Controlled Substances Act, referred to in
text, is classified to section 848 of Title 21, Food and Drugs.
AMENDMENTS
1996 - Pub. L. 104-132 inserted at end three new undesignated
paragraphs beginning "A 1-year period of limitation", "Except as
provided in section 408 of the Controlled Substances Act", and "A
second or successive motion must be certified" and struck out
second and fifth undesignated pars. providing, respectively, that
"A motion for such relief may be made at any time." and "The
sentencing court shall not be required to entertain a second or
successive motion for similar relief on behalf of the same
prisoner."
1949 - Act May 24, 1949, substituted "court established by Act of
Congress" for "court of the United States" in first par.
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 753, 1825, 2244, 2253,
2266 of this title; title 18 section 3006A; title 21 section 848.
APPROVAL AND EFFECTIVE DATE OF RULES GOVERNING SECTION 2254 CASES
AND SECTION 2255 PROCEEDINGS FOR UNITED STATES DISTRICT COURTS
Pub. L. 94-426, Sec. 1, Sept. 28, 1976, 90 Stat. 1334, provided:
"That the rules governing section 2254 cases in the United States
district courts and the rules governing section 2255 proceedings
for the United States district courts, as proposed by the United
States Supreme Court, which were delayed by the Act entitled 'An
Act to delay the effective date of certain proposed amendments to
the Federal Rules of Criminal Procedure and certain other rules
promulgated by the United States Supreme Court' (Public Law
94-349), are approved with the amendments set forth in section 2 of
this Act and shall take effect as so amended, with respect to
petitions under section 2254 and motions under section 2255 of
title 28 of the United States Code filed on or after February 1,
1977."
(EFFECTIVE FEBRUARY 1, 1977, AS AMENDED TO JANUARY 22, 2002)
Rule
1. Scope of rules.
2. Motion.
3. Filing motion.
4. Preliminary consideration by judge.
5. Answers; contents.
6. Discovery.
7. Expansion of record.
8. Evidentiary hearing.
9. Delayed or successive motions.
10. Powers of magistrates.
11. Time for appeal.
12. Federal Rules of Criminal and Civil Procedure; extent
of applicability.
ADVISORY COMMITTEE NOTE
The basic scope of this postconviction remedy is prescribed by 28
U.S.C. Sec. 2255. Under these rules the person seeking relief from
federal custody files a motion to vacate, set aside, or correct
sentence, rather than a petition for habeas corpus. This is
consistent with the terminology used in section 2255 and indicates
the difference between this remedy and federal habeas for a state
prisoner. Also, habeas corpus is available to the person in federal
custody if his "remedy by motion is inadequate or ineffective to
test the legality of his detention."
Whereas sections 2241-2254 (dealing with federal habeas corpus
for those in state custody) speak of the district court judge
"issuing the writ" as the operative remedy, section 2255 provides
that, if the judge finds the movant's assertions to be meritorious,
he "shall discharge the prisoner or resentence him or grant a new
trial or correct the sentence as may appear appropriate." This is
possible because a motion under Sec. 2255 is a further step in the
movant's criminal case and not a separate civil action, as appears
from the legislative history of section 2 of S. 20, 80th Congress,
the provisions of which were incorporated by the same Congress in
title 28 U.S.C. as Sec. 2255. In reporting S. 20 favorably the
Senate Judiciary Committee said (Sen. Rep. 1526, 80th Cong. 2d
Sess., p. 2):
The two main advantages of such motion remedy over the present
habeas corpus are as follows:
First, habeas corpus is a separate civil action and not a further
step in the criminal case in which petitioner is sentenced (Ex
parte Tom Tong, 108 U.S. 556, 559 (1883)). It is not a
determination of guilt or innocence of the charge upon which
petitioner was sentenced. Where a prisoner sustains his right to
discharge in habeas corpus, it is usually because some right - such
as lack of counsel - has been denied which reflects no
determination of his guilt or innocence but affects solely the
fairness of his earlier criminal trial. Even under the broad power
in the statute "to dispose of the party as law and justice require"
(28 U.S.C.A., sec. 461), the court or judge is by no means in the
same advantageous position in habeas corpus to do justice as would
be so if the matter were determined in the criminal proceeding (see
Medley, petitioner, 134 U.S. 160, 174 (1890)). For instance, the
judge (by habeas corpus) cannot grant a new trial in the criminal
case. Since the motion remedy is in the criminal proceeding, this
section 2 affords the opportunity and expressly gives the broad
powers to set aside the judgment and to "discharge the prisoner or
resentence him or grant a new trial or correct the sentence as may
appear appropriate."
The fact that a motion under Sec. 2255 is a further step in the
movant's criminal case rather than a separate civil action has
significance at several points in these rules. See, e.g., advisory
committee note to rule 3 (re no filing fee), advisory committee
note to rule 4 (re availability of files, etc., relating to the
judgment), advisory committee note to rule 6 (re availability of
discovery under criminal procedure rules), advisory committee note
to rule 11 (re no extension of time for appeal), and advisory
committee not to rule 12 (re applicability of federal criminal
rules). However, the fact that Congress has characterized the
motion as a further step in the criminal proceedings does not mean
that proceedings upon such a motion are of necessity governed by
the legal principles which are applicable at a criminal trial
regarding such matters as counsel, presence, confrontation,
self-incrimination, and burden of proof.
The challenge of decisions such as the revocation of probation or
parole are not appropriately dealt with under 28 U.S.C. Sec. 2255,
which is a continuation of the original criminal action. Other
remedies, such as habeas corpus, are available in such situations.
Although rule 1 indicates that these rules apply to a motion for
a determination that the judgment was imposed "in violation of the
. . . laws of the United States," the language of 28 U.S.C. Sec.
2255, it is not the intent of these rules to define or limit what
is encompassed within that phrase. See Davis v. United States, 417
U.S. 333 (1974), holding that it is not true "that every asserted
error of law can be raised on a Sec. 2255 motion," and that the
appropriate inquiry is "whether the claimed error of law was a
fundamental defect which inherently results in a complete
miscarriage of justice,' and whether [i]t . . . present[s]
exceptional circumstances where the need for the remedy afforded by
the writ of habeas corpus is apparent.' "
For a discussion of the "custody" requirement and the intended
limited scope of this remedy, see advisory committee note to Sec.
2254 rule 1.
SOURCE
(As amended Pub. L. 94-426, Sec. 2(3), (4), Sept. 28, 1976, 90
Stat. 1334; Apr. 28, 1982, eff. Aug. 1, 1982.)
ADVISORY COMMITTEE NOTE
Under these rules the application for relief is in the form of a
motion rather than a petition (see rule 1 and advisory committee
note). Therefore, there is no requirement that the movant name a
respondent. This is consistent with 28 U.S.C. Sec. 2255. The United
States Attorney for the district in which the judgment under attack
was entered is the proper party to oppose the motion since the
federal government is the movant's adversary of record.
If the movant is attacking a federal judgment which will subject
him to future custody, he must be in present custody (see rule 1
and advisory committee note) as the result of a state or federal
governmental action. He need not alter the nature of the motion by
trying to include the government officer who presently has official
custody of him as a psuedo-respondent, or third-party plaintiff, or
other fabrication. The court hearing his motion attacking the
future custody can exercise jurisdiction over those having him in
present custody without the use of artificial pleading devices.
There is presently a split among the courts as to whether a
person currently in state custody may use a Sec. 2255 motion to
obtain relief from a federal judgment under which he will be
subjected to custody in the future. Negative, see Newton v. United
States, 329 F.Supp. 90 (S.D. Texas 1971); affirmative, see Desmond
v. The United States Board of Parole, 397 F.2d 386 (1st Cir. 1968),
cert. denied, 393 U.S. 919 (1968); and Paalino v. United States,
314 F.Supp. 875 (C.D.Cal. 1970). It is intended that these rules
settle the matter in favor of the prisoner's being able to file a
Sec. 2255 motion for relief under those circumstances. The proper
district in which to file such a motion is the one in which is
situated the court which rendered the sentence under attack.
Under rule 35, Federal Rules of Criminal Procedure, the court may
correct an illegal sentence or a sentence imposed in an illegal
manner, or may reduce the sentence. This remedy should be used,
rather than a motion under these Sec. 2255 rules, whenever
applicable, but there is some overlap between the two proceedings
which has caused the courts difficulty.
The movant should not be barred from an appropriate remedy
because he has misstyled his motion. See United States v. Morgan,
346 U.S. 502, 505 (1954). The court should construe it as whichever
one is proper under the circumstances and decide it on its merits.
For a Sec. 2255 motion construed as a rule 35 motion, see Heflin v.
United States, 358 U.S. 415 (1959); and United States v. Coke, 404
F.2d 836 (2d Cir. 1968). For writ of error coram nobis treated as a
rule 35 motion, see Hawkins v. United States, 324 F.Supp. 223
(E.D.Texas, Tyler Division 1971). For a rule 35 motion treated as a
Sec. 2255 motion, see Moss v. United States, 263 F.2d 615 (5th Cir.
1959); Jones v. United States, 400 F.2d 892 (8th Cir. 1968), cert.
denied 394 U.S. 991 (1969); and United States v. Brown, 413 F.2d
878 (9th Cir. 1969), cert. denied, 397 U.S. 947 (1970).
One area of difference between Sec. 2255 and rule 35 motions is
that for the latter there is no requirement that the movant be "in
custody." Heflin v. United States, 358 U.S. 415, 418, 422 (1959);
Duggins v. United States, 240 F.2d 479, 483 (6th Cir. 1957).
Compare with rule 1 and advisory committee note for Sec. 2255
motions. The importance of this distinction has decreased since
Peyton v. Rowe, 391 U.S. 54 (1968), but it might still make a
difference in particular situations.
A rule 35 motion is used to attack the sentence imposed, not the
basis for the sentence. The court in Gilinsky v. United States, 335
F.2d 914, 916 (9th Cir. 1964), stated, "a Rule 35 motion
presupposes a valid conviction. * * * [C]ollateral attack on errors
allegedly committed at trial is not permissible under Rule 35." By
illustration the court noted at page 917: "a Rule 35 proceeding
contemplates the correction of a sentence of a court having
jurisdiction. * * * [J]urisdictional defects * * * involve a
collateral attack, they must ordinarily be presented under 28
U.S.C. Sec. 2255." In United States v. Semet, 295 F.Supp. 1084
(E.D. Okla. 1968), the prisoner moved under rule 35 and Sec. 2255
to invalidate the sentence he was serving on the grounds of his
failure to understand the charge to which he pleaded guilty. The
court said:
As regards Defendant's Motion under Rule 35, said Motion must
be denied as its presupposes a valid conviction of the offense
with which he was charged and may be used only to attack the
sentence. It may not be used to examine errors occurring prior to
the imposition of sentence.
ADVISORY COMMITTEE NOTE
There is no filing fee required of a movant under these rules.
This is a change from the practice of charging $15 and is done to
recognize specifically the nature of a Sec. 2255 motion as being a
continuation of the criminal case whose judgment is under attack.
The long-standing practice of requiring a $15 filing fee has
followed from 28 U.S.C. Sec. 1914(a) whereby "parties instituting
any civil action * * * pay a filing fee of $15, except that on an
application for a writ of habeas corpus the filing fee shall be
$5." This has been held to apply to a proceeding under Sec. 2255
despite the rationale that such a proceeding is a motion and thus a
continuation of the criminal action. (See note to rule 1.)
A motion under Section 2255 is a civil action and the clerk has
no choice but to charge a $15.00 filing fee unless by leave of
court it is filed in forma pauperis.
McCune v. United States, 406 F.2d 417, 419 (6th Cir. 1969).
Although the motion has been considered to be a new civil action
in the nature of habeas corpus for filing purposes, the reduced fee
for habeas has been held not applicable. The Tenth Circuit
considered the specific issue in Martin v. United States, 273 F.2d
775 (10th Cir. 1960), cert. denied, 365 U.S. 853 (1961), holding
that the reduced fee was exclusive to habeas petitions.
Counsel for Martin insists that, if a docket fee must be paid,
the amount is $5 rather than $15 and bases his contention on the
exception contained in 28 U.S.C. Sec. 1914 that in habeas corpus
the fee is $5. This reads into Sec. 1914 language which is not
there. While an application under Sec. 2255 may afford the same
relief as that previously obtainable by habeas corpus, it is not
a petition for a writ of habeas corpus. A change in Sec. 1914
must come from Congress.
ADVISORY COMMITTEE NOTE
Rule 4 outlines the procedure for assigning the motion to a
specific judge of the district court and the options available to
the judge and the government after the motion is properly filed.
The long-standing majority practice in assigning motions made
pursuant to Sec. 2255 has been for the trial judge to determine the
merits of the motion. In cases where the Sec. 2255 motion is
directed against the sentence, the merits have traditionally been
decided by the judge who imposed sentence. The reasoning for this
was first noted in Currell v. United States, 173 F.2d 348, 348-349
(4th Cir. 1949):
Complaint is made that the judge who tried the case passed upon
the motion. Not only was there no impropriety in this, but it is
highly desirable in such cases that the motions be passed on by
the judge who is familiar with the facts and circumstances
surrounding the trial, and is consequently not likely to be
misled by false allegations as to what occurred.
This case, and its reasoning, has been almost unanimously endorsed
by other courts dealing with the issue.
Commentators have been critical of having the motion decided by
the trial judge. See Developments in the Law - Federal Habeas
Corpus, 83 Harv.L.Rev. 1038, 1206-1208 (1970).
[T]he trial judge may have become so involved with the decision
that it will be difficult for him to review it objectively.
Nothing in the legislative history suggests that "court" refers
to a specific judge, and the procedural advantages of section
2255 are available whether or not the trial judge presides at the
hearing.
The theory that Congress intended the trial judge to preside at
a section 2255 hearing apparently originated in Carvell v. United
States, 173 F.2d 348 (4th Cir. 1949) (per curiam), where the
panel of judges included Chief Judge Parker of the Fourth
Circuit, chairman of the Judicial Conference committee which
drafted section 2255. But the legislative history does not
indicate that Congress wanted the trial judge to preside. Indeed
the advantages of section 2255 can all be achieved if the case is
heard in the sentencing district, regardless of which judge hears
it. According to the Senate committee report the purpose of the
bill was to make the proceeding a part of the criminal action so
the court could resentence the applicant, or grant him a new
trial. (A judge presiding over a habeas corpus action does not
have these powers.) In addition, Congress did not want the cases
heard in the district of confinement because that tended to
concentrate the burden on a few districts, and made it difficult
for witnesses and records to be produced.
ADVISORY COMMITTEE NOTE
Unlike the habeas corpus statutes (see 28 U.S.C. Secs. 2243,
2248) Sec. 2255 does not specifically call for a return or answer
by the United States Attorney or set any time limits as to when one
must be submitted. The general practice, however, if the motion is
not summarily dismissed, is for the government to file an answer to
the motion as well as counter-affidavits, when appropriate. Rule 4
provides for an answer to the motion by the United States Attorney,
and rule 5 indicates what its contents should be.
There is no requirement that the movant exhaust his remedies
prior to seeking relief under Sec. 2255. However, the courts have
held that such a motion is inappropriate if the movant is
simultaneously appealing the decision.
We are of the view that there is no jurisdictional bar to the
District Court's entertaining a Section 2255 motion during the
pendency of a direct appeal but that the orderly administration
of criminal law precludes considering such a motion absent
extraordinary circumstances.
SOURCE
(As amended Pub. L. 94-426, Sec. 2(6), Sept. 28, 1976, 90 Stat.
1335; Pub. L. 94-577, Sec. 2(a)(2), (b)(2), Oct. 21, 1976, 90 Stat.
2730, 2731; Apr. 22, 1993, eff. Dec. 1, 1993.)
SOURCE
(As amended Pub. L. 94-426, Sec. 2(9), (10), Sept. 28, 1976, 90
Stat. 1335.)
SOURCE
(As amended Pub. L. 94-426, Sec. 2(12), Sept. 28, 1976, 90 Stat.
1335; Apr. 30, 1979, eff. Aug. 1, 1979.)
CHANGE OF NAME
Reference to United States magistrate or to magistrate deemed to
refer to United States magistrate judge pursuant to section 321 of
Pub. L. 101-650, set out as a note under section 631 of this title.
SOURCE
(As amended Apr. 30, 1979, eff. Aug. 1, 1979.)
REFERENCES IN TEXT
The Federal Rules of Criminal Procedure, referred to in text, are
classified generally to the Appendix to Title 18, Crimes and
Criminal Procedure.
The Federal Rules of Civil Procedure, referred to in text, are
classified generally to the Appendix to this title.
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