Who Can File a 2255 Motion in Texas

Exposing the Truth book

Get Your FREE Copy of the Book by Stephen Hamilton Exposing the Truth

Secrets of the Texas Criminal Justice System and Your Rights

A 2255 motion can be filed by any individual who meets all of the following requirements:

  • A prisoner in custody
  • Serving a sentence
  • Imposed by a federal court
  • Claiming the right to release
  • On certain specified grounds

To help you understand whether you are eligible to file a 2255 motion. We will explore each of the requirements in more detail.

A Prisoner in Custody

A prisoner in custody is usually someone who is serving a sentence in a federal prison or correctional facility. However, the definition of “custody” is complicated and the word “prisoner” is not given its literal meaning. People are in custody, within the meaning of section 2255, if their freedom is restrained in a significant way. You will generally satisfy the “in custody” requirement if you are confined to a halfway house or a treatment center. Are serving a sentence under electronic monitoring, or are subject to the restrictions of probation, supervised release, or parole.

If you are one of those lucky but rare federal defendants who was ordered to pay a fine at sentencing while being spared any other form of punishment, you are not eligible to file a 2255 motion because you do not satisfy the “in custody” requirement.

If you are in custody at the time you file your 2255 motion, your release from custody while the motion is pending will not usually require a dismissal of your 2255 proceeding. There are times when it benefits you to vacate a sentence even if you have completed the sentence, so it might be worthwhile to file a 2255 motion even if you are approaching the end of your sentence. Once you finish your sentence (including any term of supervised release), you lose your right to file a 2255 motion.

A Prisoner in Custody (Continued)

If you are serving consecutive or concurrent sentences imposed in different cases and are only challenging one of them, determining whether you are in custody on the challenged sentence can be difficult. If you have not yet started serving the sentence that you want to challenge, you can still file a 2255 motion attacking that sentence. In fact, you are required to challenge it within one year after your conviction becomes final, even if you have not started serving it.

If the sentence you are challenging has already expired and you are serving a consecutive sentence, you are generally allowed to challenge the expired sentence because, if that sentence is vacated, you will be released from confinement earlier. If you want to challenge a concurrent sentence that has already expired, however, you might not be allowed to do so if vacating the concurrent sentence would have no effect on your release date.

Corporations are sentenced for federal crimes but they are never “in custody.” A corporation can pursue a direct appeal from a federal criminal conviction, but a corporation is not eligible to file a 2255 motion.

Serving a Sentence

As is true of the “in custody” requirement, “serving a sentence” does not mean “behind bars.” For the purpose of a 2255 motion, you are serving a sentence if you satisfy the “in custody” requirement and if your custody results from a sentence. If you are in custody for some reason other than a sentence, you cannot seek relief in a 2255 motion. For instance, if you have been detained pending trial and are unable to post bail, or if the court has detained you without bail, you are “in custody” but you are not “serving a sentence.” There are alternative ways to seek review of pretrial detention orders. But 2255 relief is only available to people who have been sentenced.

Imposed by a Federal Court

Section 2255 provides a remedy only to defendants who were sentenced by a federal court. If you have been sentenced for a state crime by a state court. You are not eligible for relief under section 2255. You may be eligible for relief under a similar federal statute, 28 U.S.C. § 2254. A 2254 motion is a means of seeking habeas corpus review of state convictions in federal court.

Claiming the Right to Release

A 2255 motion is available to convicted defendants who are seeking release from custody. Even if you are in custody, a 2255 motion is not the appropriate avenue to challenge fines. Restitution orders, most conditions of probation or supervised release, or other forms of noncustodial punishment. You must be seeking release from custody if you want to file a 2255 motion.

On Certain Specified Grounds

Section 2255 specifies the grounds upon which a defendant may claim the right to be released from custody. They include:

  • the sentence was imposed in violation of the Constitution or laws of the United States;
  • the court was without jurisdiction to impose the sentence;
  • the sentence was in excess of the maximum authorized by law; or
  • the sentence is otherwise subject to collateral attack.

At first glance, the language of section 2255 might suggest that you can only challenge the sentence you received. However, a sentence is “imposed in violation of the Constitution” when the conviction for which you were sentenced resulted from a constitutional violation. To learn more about the grounds that can lead to your release from custody, see What issues can I raise in a 2255 motion?