Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255

After being convicted of a federal crime, an individual can challenge his conviction or sentence in two ways: 1) with a direct appeal and 2) with a post-conviction motion.

Post-conviction motions filed pursuant to 28 U.S.C. § 2255 to vacate a conviction or sentence can only be filed by a defendant that is incarcerated or under some form of restriction as part of a federal sentence.

Section 2255 permits “prisoners” to move for relief “on the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”

A defendant has one-year to file the motion. This is triggered by the following four events:

  1. the date on which the judgment of conviction becomes final;
  2. 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;
  3. 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
  4. the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

The motion is filed with the district court which sentenced the defendant and will be heard by the same judge that sentenced the defendant.

At the Law Offices of Paul D. Petruzzi, P.A. we have litigated dozens of Motions to Vacate throughout our more than 20 year experience. Contact us today to see if your case qualifies for the filing of a Motion to Vacate.

Law firm staff photo