If you have been detained and feel that there is something in your sentence or trial that has violated the rules of the United States or its constitution, contact the Clearwater federal criminal lawyers of the Law Office of Tragos, Sartes & Tragos at 727-441-9030 to discuss your concerns and any legal options that may be open to you.

Title 28, Part VI, Chapter 153, Section 2255: Federal Custody: Remedies on Motion Attacking Sentence

Individuals who are prisoners of the United States are given remedies to challenge their sentences. A prisoner who is in custody due to a sentence issued by a court that was established by an act of Congress, which includes all Federal Courts, can move that the court which originally sentenced him vacate, set aside, or correct the sentence.

An individual can attack his sentence by claiming the right to be released. The grounds for this claim include that the sentence was imposed in violation of the Constitution or the laws of the United States; that the court was without jurisdiction to impose the sentence; that the sentence is in violation of the maximum allowed by law; and other reasons as well.

Any individual being held in the custody of the federal government is entitled to relief unless the motion, the files of the case, or the records of the case conclusively show that the prisoner is not entitled to relief.

If the prisoner is entitled to relief, the court will serve notice to the U.S. attorney, grant a prompt hearing, determine the issues and make findings of fact and conclusions with respect to law. In any review of a case, the prisoner does not have to be present. If the court finds that there was something wrong with the original trial or sentence, the court will be forced to vacate and to set the judgment aside. This will result in the prisoner being discharged, resentenced, or retried. The judge may also correct the sentence in an appropriate way.

There is a one year period of limitation to attacking a sentence if it is eligible under Section 2255. The one year countdown starts at the most recent of:

  • The date on which the judgment of conviction becomes final
  • The date on which any barriers which were created by the government unconstitutionally which prevented the prisoner from filing a motion are removed
  • The date on which the Supreme Court recognized the right that is being asserted if the right is both newly recognized and made retroactively applicable
  • The date on which the facts supporting the claim could have been discovered through the exercise of due diligence

Any successive motions must be certified by a panel of the appropriate Court of Appeals to contain either newly discovered evidence that will make a guilty conviction impossible or a new rule of constitutional law that is made retroactively applicable by the Supreme Court.

It is important to note that an application for a writ of habeas corpus made on behalf of an individual who is eligible for relief will not have his application considered if he has not filed for relief by motion with the court which sentenced him. If the court which sentenced the applicant denied his motion for relief, the application for habeas corpus will not be considered unless that it appears that the remedy sought by motion is inadequate or ineffective to test the legality of his detention.

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