Post-Conviction Relief for Immigrants

The defendant must file a motion under 28 U.S.C. § 2255 with the clerk of the United States District Court in which the defendant was sentenced.  Court rules require pro se petitioners (and some courts even require attorneys) to use forms supplied by the Clerk. There is no filing fee.

The motions are presented to the judge who heard the case originally, if that judge is available.  The court examines the case file and either dismisses the motion or orders the government to answer.  The court must dismiss the motion if it decides that the claims raised, even if true, would not justify relief, or where the record conclusively disproves the claims.

After the government answers the motion, the defendant may have an opportunity to reply, either automatically or after filing a motion for leave to file a reply.

After these papers have been filed, the district court will either grant or deny relief, or decide in its discretion to hold a hearing.[163]  Hearings are held only where the court feels critical facts are in dispute.  At the hearing, Rule 8(c) requires the court to appoint counsel for pro se defendants who cannot afford to hire counsel. The prisoner can be brought to court for the hearing if his or her testimony is required, or for any other reason approved by the judge.

[163] Fed.R. Gov. § 2255 Proc. 8(a).