Post-Conviction · § 2255
My Son Says He Is Innocent. What Do We Do?
Short answer: Start by gathering the facts, not the legal theory. A federal court cannot reopen a conviction just because he says he is innocent. New evidence has to be strong enough that no reasonable juror would have convicted him, and it has to point to something that went wrong at his trial or plea, such as the government holding back favorable evidence or a lawyer who did not do the work.
Watch the one-minute version
He tells you every call that he did not do it. You believe him. Here is the part nobody says plainly: a federal court cannot reopen his conviction just because he is innocent. It needs two things. New evidence strong enough that no reasonable juror would have convicted him, and something that went wrong at his trial or his plea that the new evidence points to. The government keeping back proof that helped him. A lawyer who never looked.
So the next month is about facts, not legal theories. Names, dates, paper. That work is yours to start today, and it is the part that decides whether anyone can help him later.
One thing to settle first. If he was sentenced in a federal court, the motion goes back to that same court under 28 U.S.C. § 2255. If he was convicted in a state court, the route runs through the state courts first and only then into federal court. Our guide to what a 2255 motion is covers the federal side, and the 2254 habeas articles cover the state side.
What to gather this week
None of this needs a lawyer, and none of it needs to be perfect.
Write down every person who knows something the jury never heard. Next to each name, write what that person would say, and how you know. Then ask each one to put it in their own handwriting, sign it, and date it. A signed and dated statement from a person who did not testify is worth more than ten phone calls where somebody tells you they always thought he was innocent.
Have him write to his trial lawyer and ask for his complete case file. The request has to come from him, because he is the client. He should keep a copy of the letter and note the date he mailed it. The file is where you find what the government turned over, what the lawyer did with it, and what the lawyer never chased.
Collect anything with a date on it. Work schedules. Pay records. Phone bills. Bus or rideshare receipts. Medical paperwork. Anything that puts him somewhere else, or puts someone else where the government said he was.
Finally, write a plain timeline of his case: arrest, indictment, plea or trial, sentencing, appeal, and the date the appeal was decided. Those dates set his deadline, and almost no family has them written down.
If you want someone to go through what you have found, request a free case review.
Why saying he is innocent is not enough on its own
This is the hardest paragraph in this article and the most useful one.
In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court said that "[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Read that again. Innocence, standing alone, is not the claim. It is the thing that gets a court to look at the claim.
So the new evidence has to do a job. It has to point at something the Constitution forbids. Two of those come up again and again in these cases.
The first is evidence the government had and did not hand over. In Brady v. Maryland, 373 U.S. 83 (1963), the Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Whether the prosecutor meant any harm does not matter. What matters is whether the hidden thing could have changed the result.
The second is the lawyer. A lawyer who never interviewed the witness your son named, never tested the government's story, or never told him what he was giving up, can be the constitutional error the new evidence points to. We wrote that out separately in what to do when his lawyer failed him.
How strong the new evidence has to be
Strong. The Supreme Court set the bar in Schlup v. Delo, 513 U.S. 298 (1995). A credible claim "requires petitioner to support his allegations of constitutional error with new reliable evidence" that was not presented at trial. And then the measure: "the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence."
Notice what that sentence is really asking. Not whether there is now some doubt. Whether a fair juror, told to apply proof beyond a reasonable doubt, would still have voted guilty after hearing the new proof. That is why one more person saying he seemed like a good kid does nothing, and why one lab result or one signed statement from the actual witness can do everything.
The Court has been blunt about the odds. In McQuiggin v. Perkins, 569 U.S. 383 (2013), it wrote that "tenable actual-innocence gateway pleas are rare." We put that in front of you because a family that knows the standard builds a better file than a family that is told it will be fine. Our deeper piece on the innocence gateway walks through how courts weigh the proof.
The clock, and the one door through it
Under 28 U.S.C. § 2255(f), a one year period of limitation applies, running from the latest of four dates:
- the date on which the judgment of conviction becomes final;
- the date on which an impediment to making a motion, created by governmental action in violation of the Constitution or laws of the United States, is removed, if that governmental action prevented him from filing;
- 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; or
- the date on which the facts supporting the claim could have been discovered through the exercise of due diligence.
For most people the first date is the one that counts, and the other three in § 2255(f) apply only in narrow situations. Read the fourth one carefully, because it says "could have been discovered," not "were discovered." A court can ask why nobody went looking sooner.
There is a door through a missed § 2255(f) deadline, and it is the innocence showing itself. McQuiggin holds that a strong enough showing "serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar" or the "expiration of the statute of limitations." It is not a free pass. The same opinion says "[u]nexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing." If the new proof has been sitting in a drawer for four years, be ready to say why.
The other door is narrow and it is not about innocence. Equitable tolling requires a showing of "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way," which is how the Supreme Court put it in Holland v. Florida, 560 U.S. 631 (2010). Not knowing the deadline existed is not an extraordinary circumstance. Our article on mail delays and the 2255 deadline gives the practical version.
If he has already filed one motion
This changes everything, so check it before you spend another dollar. Under 28 U.S.C. § 2255(h), a second or successive motion must be certified by a panel of the court of appeals, and for new evidence the panel has to find evidence that, viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found him guilty. That is a harder test than the one above, and the court of appeals says yes rarely.
The practical lesson runs backwards from there: if he has not filed yet, every claim he has belongs in that one motion. Read why the first motion is usually the only one before anything goes in the mail.
A short checklist
- Write down who was sentenced where, and the date the conviction became final. Everything turns on that date.
- Ask whether he has already filed a 2255 motion. Get the date and the outcome.
- Get signed, dated statements from every person whose account the jury never heard.
- Have him request his complete case file from his trial lawyer, in writing, and keep a copy of the request.
- Gather dated paper: work records, phone records, receipts, medical paperwork.
- List what the government turned over and anything you believe it did not.
- Write a one page timeline of the case, in order, with dates.
- If the one year mark is close or already passed, say so out loud to whoever helps him, immediately.
If you want someone to look at what you have gathered and tell you honestly whether it adds up to a claim, request a free case review, 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.
More on this subject: all articles on 2255 motions.
Common questions
He says he is innocent. Is that enough to reopen his case?
Not on its own. In Herrera v. Collins the Supreme Court said that claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying criminal proceeding. New evidence usually has to unlock a separate claim, such as evidence the government held back or a lawyer who failed him.
What counts as new evidence?
Schlup v. Delo requires a petitioner to support his allegations of constitutional error with new reliable evidence. In practice that means signed statements from people who did not testify, scientific testing, or physical proof that was not in front of the jury. His own word, repeated, is not new evidence.
How strong does the new evidence have to be?
Very strong. Under Schlup he must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence. The Supreme Court said in McQuiggin v. Perkins that tenable actual-innocence gateway pleas are rare. That is not a reason to stop. It is a reason to build the record properly the first time.
We found this out years after his trial. Is it too late?
Maybe not. The one year period of limitation in 28 U.S.C. § 2255(f) has four possible starting dates, and one of them runs from when the facts supporting the claim could have been discovered through the exercise of due diligence. Separately, McQuiggin holds that a strong enough innocence showing serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar or the expiration of the statute of limitations.
He already filed one motion. Can he file another with the new evidence?
Only with permission. Under 28 U.S.C. § 2255(h) a second or successive motion must first be certified by a panel of the court of appeals, and for new evidence the standard is clear and convincing evidence that no reasonable factfinder would have found him guilty. Because of that rule, every claim belongs in the first motion.
He was convicted in state court, not federal court. Does this apply?
The ideas carry over but the paperwork does not. A 2255 motion is only for a federal conviction. A state conviction goes through the state courts first and then, if at all, through a federal petition under 28 U.S.C. § 2254. The deadlines are different, so check which court sentenced him before anything is filed.
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