What Can I Argue in a 2255 Appeal?

Issues for 2255 Motions

Nearly all federal criminal defendants cannot afford to hire stellar legal representation for themselves when charged with a federal crime. A vast majority of federal defendants are assigned a federal defender to represent them.

Federal defenders are amazing at their jobs. However, they also have case loads MUCH larger than privately hired lawyers and will often make errors or be ineffective because of it. It cannot be stressed enough that great lawyers can make big mistakes when overworked, and no lawyer is more overworked than a federal defender.

That being said, one of the issues that is most often used for the basis of §2255 filings is the ineffective assistance of counsel.

**A Good Example**

A client we had in early 2017 was eligible and appropriate for a reduction in offense level points because he was a small piece in a large criminal fraud conspiracy. A “minor role” adjustment is ready and available in the Sentencing Guidelines Manual for defendants just like him. Unfortunately, this adjustment is applied very sparingly in some districts, and liberally in others.

Our client’s public defender did not mention or fight for this reduction, which was quite appropriate and would have cut a year or more off of his sentence. So here is where a 2255 works well, and for the following reasons:

  1. The client’s federal defender failed to argue for this adjustment at original sentence, but should have, and was therefore ineffective;
  2. The sixth amendment of the U.S. Constitution guarantees effective counsel, so this issues is a constitutional one, meaning a §2255 is the correct course;
  3. The issue could not be argued on direct appeal because it was not raised at the original sentencing hearing; and,
  4. The issue is timely because, last year, the Sentencing Commission recognized that this adjustment was being applied unevenly between the districts and issued a clarifying amendment to encourage a more even application, triggering a “new evidence” type of claim for our client.

There are way too many issues that could trigger a §2255 to be successfully brought and accepted by the sentencing, so we won’t make a list here. However, anything from a sentence that goes above the statutory maximum allowed by law, or issues that should have been raised during the original prosecution by defense counsel, but was not, are all covered under the §2255 umbrella.

If you would like to learn more about filing federal appeals, and what these motions can and cannot do, visit PCR Consultants for a full report.

You can also give us a call at (480) 382-9287 for a free, no obligation consultation regarding your questions about §2255 appeals.

The PCR Consultants Team
(480) 382-9287

Federal Habeas Appeals

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