2255s: Two Procedural Challenges to Address
As we discussed in our last post about the procedural differences between §2255 motions and direct appeals, §2255 is the primary avenue for pursuing collateral relief in a federal court. Yet there are certain procedural issues that can sink these motions and leave clients without recourse. It’s important for clients to be aware of these potential pitfalls so they know what questions to ask their attorneys when they first meet to discuss their options.
Here, we will discuss two of the most common questions clients ask about their §2255 motions: how much time they have to file, and whether (and when) they can bring an additional §2255 motion in federal court.
Understanding the Statute of Limitations for §2255 Motions
The statute of limitations for §2255 is not as straightforward as it seems at first glance. It is a relatively short one-year period, but it doesn’t necessarily just start to run on the date of conviction.
Clients have one year to file a motion and the year begins to run the later of:
1) the date of the final judgment of conviction;
2) if the client was prevented from making a motion by government action, then the date when the impediment was removed by government action;
3) the date when SCOTUS recognized a relevant right, making it retroactively applicable to cases on collateral review; or
4) the date on which facts supporting the claims presented could have been discovered.
This one-year limit is not an automatic jurisdictional bar, however. The opposing party (the U.S. government) must raise it as an affirmative defense. If it does not, then you (or the court) are not obligated to address it, unless the court brings it up and asks you to explain why your motion should not be barred.
Filing a Subsequent §2255 Motion
What if you file a timely §2255 motion and you are denied relief? Was that your last shot at this type of collateral relief? The short answer is no: you may be able to file a subsequent motion in a very narrow and specific set of circumstances. A second §2255 motion must be certified by a court of appeals panel and:
- You have to prove the existence of new evidence, or
- You must argue successfully that SCOTUS announced a retroactive rule of constitutional law that now entitles you to relief.
As to the first point, newly discovered evidence applies only to evidence that, if proven and viewed in light of the evidence as a whole, would sufficiently establish your innocence of the underlying offense. This is a stringent standard.
As to the second point, if your argument is based on a retroactive change in law, it must be a new constitutional rule made retroactive to §2255 motions by SCOTUS. A recent example is the 2019 case U.S. v. Davis, which courts have begun to apply retroactively. In Davis, SCOTUS declared the residual clause of §924(c) to be a new rule that qualifies to allow a subsequent §2255 motion. Most courts now permit inmates to file a second §2255 on these grounds.
Though not every court has ruled that Davis is retroactive, no court has yet said it is not. In fact, one recent Eleventh Circuit case explicitly held that an inmate was permitted to file a second §2255 motion based on Davis. The key is to explicitly state in your motion that Davis is a new constitutional rule that is retroactive for relief under §2255.
Courts are divided on how thoroughly litigants need to show that they are entitled to relief. The standard is a prima facie showing, but courts differ on what this means. About half of the circuits require a showing that the conviction “may have been” based on the now-unconstitutional residual clause, while the other roughly half have set a higher standard, demanding that a conviction “more likely than not” relied on the residual clause.
Here is a list of recent case outcomes for inmates seeking to bring a subsequent §2255 motion, as a point of reference and a sampling of data on how courts rule on these motions.
Seeking Counsel for Your Subsequent §2255 Motion
It can be challenging to navigate statute of limitations issues on your own when it comes to post-conviction motions. And if you are denied relief, or if new evidence comes to light, you might be left wondering if you have recourse.
Federal criminal appellate lawyer Elizabeth Franklin-Best helps individuals pursue appropriate legal remedies based on their specific cases. For more information about her practice or to set up a consultation, you may contact us at (803) 445-1333 or send us an email.