Post-Conviction · § 2255
My Husband Lost His Appeal. Is It Over?
Short answer: Usually not. A denied appeal ends the direct appeal, and it opens the window for a motion under 28 U.S.C. § 2255 in the court that sentenced him. That motion is where a claim about his own lawyer belongs. There is a one year clock, and the first thing to work out is the date his conviction became final.
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No. In most federal cases a denied appeal is not the end, and the letter saying so is written in a way that makes it sound like one. The direct appeal is the first review. There is a second one, and it happens somewhere else: back in the district court that sentenced him, in a motion under 28 U.S.C. § 2255. The thing to do today is find out the date his conviction became final, because a one year clock almost certainly started running on it.
The second review is narrower than the appeal was. It is not a second chance to argue the same points to a friendlier panel. It is for the problems the appeal could not reach, and the biggest one of those is his own lawyer.
What you can do this week
You do not need to understand the law to do any of this, and nobody needs to grant you permission.
- Find the date. Ask the appellate lawyer, in writing, for the date the court of appeals issued its decision and the date the judgment became final. Ask whether a petition for certiorari was filed in the Supreme Court, and if so, when it was decided or when the time to file ran out. That one date sets the deadline for everything that follows.
- Get the file. Ask the appellate lawyer and the trial lawyer, each in writing, for a complete copy of the file: transcripts, the plea agreement if there was one, the sentencing papers, the briefs, and their correspondence with him. Send the letters by certified mail and keep a copy of each one.
- Write down the people. Sit down and write out the name of every person who could have testified and did not, every piece of evidence he says nobody looked at, and the date he first told the lawyer about it. Put it in his words, with dates. This is the raw material of the motion and it is the part only your family can supply.
- Send him the dates. He is the one who has to sign and file. He needs the finality date in his hands.
If you want someone to go through this with you, send us a message or call the Prisoner Legal Aid Family Help Line at 786-408-5073 or text 727-635-0600. We prepare the paperwork and connect families with independent civil rights attorneys.
What the second filing can actually reach
Section 2255 lets a federal prisoner move the court that sentenced him to vacate, set aside or correct the sentence. The statute says it covers a sentence "imposed in violation of the Constitution or laws of the United States", one where "the court was without jurisdiction to impose such sentence", one "in excess of the maximum authorized by law", or one "otherwise subject to collateral attack". That is the whole list.
The claim families ask about most is the lawyer, and it is the one that fits here best. In Massaro v. United States, 538 U.S. 500 (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." Read that twice if the appellate lawyer told him he gave something up by not raising it. For this one kind of claim, he did not.
Proving it is a second matter. Strickland v. Washington, 466 U.S. 668 (1984), sets two parts. "First, the defendant must show that counsel's performance was deficient." Then he has to show that the deficient performance changed the outcome, and the Court defined the standard this way: "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Showing the lawyer was careless is half the job. Connecting it to the verdict or the sentence is the half that wins.
Claims that are not about the lawyer are harder, because he had a chance to raise them on appeal and did not. That is called procedural default. Bousley v. United States, 523 U.S. 614 (1998), states the rule: "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either" cause and actual prejudice, or that he is actually innocent. So the questions to ask about any other complaint are why it was not raised before, and what harm it caused.
One piece of good news that almost nobody tells families. Under 28 U.S.C. § 2255(b), "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." A motion with real facts in it, sworn to, is harder for a judge to end on the papers than a motion that only argues.
The clock, and the three other starting dates
This is the trap. Under 28 U.S.C. § 2255(f) a one year period of limitation applies, and the year runs from the latest of four dates.
The first is "the date on which the judgment of conviction becomes final". For most people that is the one that governs.
The second is "the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action".
The third is "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review". Both halves are required. A new Supreme Court decision in his favor does nothing for him on this clock unless it has also been made retroactively applicable on collateral review, and most are not.
The fourth is "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence". Note the words. The clock runs from when the facts could have been discovered, not from the day he actually learned them, so sitting on a suspicion is expensive.
If the year looks like it has already run
Two narrow doors, and it is honest to say they are narrow.
Equitable tolling. Holland v. Florida, 560 U.S. 631 (2010), requires a showing "that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" and prevented a timely filing. Ordinary miscalculation does not qualify. A lawyer who abandoned him, or mail that the facility held for months, is the sort of thing courts look at.
Actual innocence. In McQuiggin v. Perkins, 569 U.S. 383 (2013), the Court held that "actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar" or the expiration of the limitation period. The Court was blunt about how often this works: "tenable actual-innocence gateway pleas are rare." It takes new, reliable evidence, not a new argument about the old evidence.
If the judge says no
He cannot simply appeal. Under 28 U.S.C. § 2253(c)(2), "A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473 (2000), explains what that means in practice: a certificate should issue when "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." The district judge rules on the certificate first, and if that judge refuses it, he can ask the court of appeals. A certificate of appealability is a real obstacle and he should know about it before he files, not after.
And he usually gets one motion. A second or successive motion has to be certified by a panel of the court of appeals under 28 U.S.C. § 2255(h), and only for newly discovered evidence of the strength the statute describes or a new rule of constitutional law made retroactive by the Supreme Court. So the first motion needs to carry everything. Filing a thin one quickly is worse than filing a complete one on time.
Checklist
- Write down the date the judgment of conviction became final, and the deadline one year later.
- Ask both lawyers in writing for the complete file, and send the letters by certified mail.
- Keep a copy of everything you send and everything that comes back.
- List every witness, document and fact the trial lawyer never followed up, with dates.
- Ask him whether anything outside his control kept him from filing, and write down when it started and when it ended.
- Decide whether any claim is about something other than the lawyer, and be ready to explain why it was not raised on appeal.
- Put every available transcript and order in one place before anyone starts drafting.
- Do not let the year run while you wait for the file to arrive.
The date is the thing. Find it this week, then call the Prisoner Legal Aid Family Help Line at 786-408-5073 or text 727-635-0600 or send us a message, and bring what you have to the section 2255 guides.
Common questions
My husband lost his appeal. Is the case really over?
Usually not. The direct appeal is only the first review. A federal prisoner can still ask the sentencing court to vacate, set aside or correct the sentence under 28 U.S.C. § 2255. It is a different filing, in a different court, with its own one year clock.
Can he complain about his lawyer now, even though he did not raise it on appeal?
Yes. In Massaro v. United States the Supreme Court held that an ineffective assistance claim may be brought in a 2255 motion whether or not the petitioner could have raised it on direct appeal. That is the one kind of claim the courts expect to see for the first time at this stage.
How long does he have to file?
One year, under 28 U.S.C. § 2255(f). For most people the year runs from the date the judgment of conviction became final. The statute lists three later starting dates, and they only apply in narrow situations. Work out his date now rather than later.
What happens if the year has already run out?
There are two narrow ways past it. Equitable tolling under Holland v. Florida requires that he was pursuing his rights diligently and that some extraordinary circumstance stood in his way. A credible claim of actual innocence can also open the door, though the Supreme Court said in McQuiggin v. Perkins that those pleas are rare.
If the judge denies the 2255 motion, can he appeal that?
Only with permission. Under 28 U.S.C. § 2253(c)(2) a certificate of appealability may issue only if he has made a substantial showing of the denial of a constitutional right. Without that certificate the court of appeals will not hear it.
What can I do from out here?
Quite a lot. Find the date his conviction became final, get a complete copy of his file from the appellate lawyer, write down the names of anyone the trial lawyer never contacted, and keep a copy of everything you send. Send anything important by certified mail.
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