NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
Go to Federal Manuals Table of Contents - Go to Capital Punishment Table of Contents

Chapter 6: Capital Punishment Handbook: Habeas Corpus Proceedings

        6.4  Section 2255 Review: Habeas Corpus Review Of Federal Convictions
               6.4.1  No Fourth Amendment Claims
               6.4.2  Exhaustion And Procedural Bar
               6.4.3  Successive Petitions

For habeas relief from a federal conviction, a federal prisoner must make a motion to vacate, set aside, or correct the sentence pursuant to 28 USC § 2255. The procedural rules governing § 2255 motions differ in some respects from those governing habeas corpus petitions under §§ 2241-2254.

A federal district court has jurisdiction to entertain a § 2255 motion only if the movant is in custody under federal court sentence. Motions must be filed in the district court in which the prisoner was sentenced. Section 2255 provides four grounds justifying relief for a federal prisoner who challenges the imposition or length of federal detention: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States,” (2) “that the court was without jurisdiction to impose such sentence,” (3) “that the sentence was in excess of the maximum authorized by law,” or (4) that the sentence is “otherwise subject to collateral attack.”

In 1996, the AEDPA amended § 2255 to include a filing deadline and restrictions on filing successive petitions. See supra §§ 6.2.1, 6.2.2. In United States v. Valdez, 195 F.3d 544 (9th Cir. 1999), the Ninth Circuit held that § 2255 is not limited to constitutional relief, but includes statutory relief as well. The Valdez court also held that the one year statute of limitation for a § 2255(3) claim begins to run on the date the Supreme Court determines retroactivity, not on the date the Court initially recognizes the asserted right.

Clay v. United States, 537 U.S. 522 (2003) (holding in noncapital case that when a defendant in a federal prosecution takes an unsuccessful direct appeal from a judgment of conviction, but does not petition for a writ of certiorari from the Supreme Court, for purpose of starting the clock on § 2255's one-year limitation period, the judgment becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction).

Bousley v. United States, 523 U.S. 614 (1998) (accepting district court’s treatment of pre-AEDPA petition filed pursuant to § 2241 as a § 2255 motion).

Kaufman v. United States, 394 U.S. 217, 221 (1969) (clarifying that § 2255 revised procedure by which federal prisoners seek relief but did not restrict scope of habeas corpus writ).

Matus-Leva v. United States, 287 F.3d 758 (9th Cir. 2002) (holding in noncapital case that petitioner may not resort to coram nobis because a petition under section 2255 is time barred due to the petitioner’s failure to meet the AEDPA’s gatekeeping requirements), cert. denied, 537 U.S. 1022 (2002).

United States v. Seesing, 234 F.3d 456 (9th Cir. 2000) (stating that when a federal prisoner files a pro se request of the court, the court cannot recharacterize the request as a § 2255 motion without giving the prisoner either the option to consent or the option to withdraw the motion so that the prisoner does not lose the right to file a comprehensive first motion).

United States v. Martin, 226 F.3d 1042 (9th Cir. 2000) (holding that district court has jurisdiction to reconsider order granting § 2255 motion when court initially ordered a new sentencing hearing which had not occurred; holding Fed. R. Civ. P. 59(e)’s 10 day time limit–governing motions to alter or amend judgments–does not divest district court of jurisdiction to reconsider because order initially granting petitioner’s motion was not a final order), cert. denied, 532 U.S. 1002 (2001).

United States v. Garcia, 210 F.3d 1058 (9th Cir. 2000) (holding that the one year limitation period– for a federal prisoner who does not file a certiorari petition to the Supreme Court–begins to run when the time for filing the petition (90 days) expires).

United States v. Colvin, 204 F.3d 1221 (9th Cir. 2000) (holding that a judgment becomes final for a federal prisoner who was resentenced after appeal–triggering the one year filing deadline under § 2255–when the time passes for appealing from the district court’s entry of judgment).

United States v. Valdez, 195 F.3d 544 (9th Cir. 1999) (holding that the “right” initially recognized under §2255(3) need not be a constitutional right; holding that one year statute of limitation for § 2255(3) claim begins to run on the date retroactivity is determined, not on date that right initially recognized).

United States v. Pirro, 104 F.3d 297, 297 (9th Cir. 1997) (holding that a federal habeas petitioner authorized to seek relief under § 2255 may not petition for habeas relief pursuant to § 2241 unless it appears that the § 2255 motion is inadequate or ineffective to test the legality of petitioner's detention).

Tripati v. Herman, 843 F.2d 1160, 1162 (9th Cir. 1988) (stating that the authority of federal courts under § 2241 is limited by § 2255).

28 USC 2255 (2000) (providing mechanism for habeas relief from federal conviction).

28 USC 2241 (2000) (providing for writ of habeas corpus).

Matthew S. O’Connell, Habeas Relief for Federal Prisoners, 84 Geo. L.J. 1451 (1996) (summarizing procedural rules for § 2255 motions).

NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006

In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court held that when a state prisoner has a full and fair opportunity to litigate Fourth Amendment claims, a federal court will not grant a § 2254 petition based on those claims. See supra § § 6.3.2.3. The Ninth and Tenth Circuits have extended the Stone holding to federal prisoners petitioning for relief under § 2255. Other circuits have declined to do so.

Stone v. Powell, 428 U.S. 465 (1976) (holding that where state has provided an opportunity for full and fair litigation of Fourth Amendment claims, federal habeas corpus relief is not available for Fourth Amendment claims).

United States v. Hearst, 638 F.2d 1190, 1196 (9th Cir. 1980) (holding prisoner’s Fourth Amendment claim not cognizable under § 2255 when federal prisoner had full and fair opportunity to litigate claim at trial and on direct appeal).

United States v. Cook, 997 F.2d 1312 (10th Cir. 1993) (holding that invalid search warrant claim is not cognizable under § 2255).

Campino v. United States, 968 F.2d 187, 189 (2d Cir. 1992) (rejecting Fourth Amendment claim under § 2255 for failure to raise on direct appeal or show cause and prejudice).

Matta-Ballesteros v. Henman, 896 F. 2d 255, 262 n.8 (7th Cir.) (limiting Stone to Fourth Amendment claims under § 2254), cert. denied, 498 U.S. 878 (1990).

Section 2255 does not contain a provision requiring a prisoner to exhaust other available remedies. Nevertheless, a movant must usually complete a direct appeal as a prerequisite to filing a § 2255 motion. In limited circumstances, courts do not enforce this requirement. Failure to raise a claim at trial or on direct appeal generally results in a waiver of the claim, necessitating a showing of cause and prejudice or miscarriage of justice to obtain collateral review of such claims. See supra § § 6.2.5.

Massaro v. United States, 538 U.S. 500 (2003) (holding in noncapital case that failure to raise ineffective assistance of counsel claim on direct appeal does not bar claim from being brought in a later, appropriate proceeding under § 2255).

United States v. Frady, 456 U.S. 152, 162–66 (1982) (stating that a claim is waived unless presented at trial or direct appeal; holding that to obtain habeas review of a waived claim, a federal prisoner must show cause for the failure to object at trial and actual prejudice resulting from the alleged error).

Sunal v. Large, 332 U.S. 174, 179, 181 (1947) (stating that federal prisoner may obtain habeas corpus relief without exhausting direct appeals only in exceptional circumstances when an error is flagrant and no other remedy is available).

United States v. Montgomery, 998 F.2d 1468, 1472 (9th Cir. 1993) (consolidating direct appeal and appeal of § 2255 motion when both appeals contained same issue).

United States v. Deeb, 944 F. 2d 545 (9th Cir. 1991) (holding that a prisoner may not file a habeas motion when direct appeal is pending).

Moore v. Reno, 185 F.3d 1054 (9th Cir. 1999) (per curiam) (extending Greenawalt v. Stewart, 105 F.3d 1287, 1287–88 (9th Cir.)–which holds that state prisoner may not avoid the limitations imposed on successive petitions by styling his petition as one pursuant to § 2241 rather than § 2254–and holding that dismissal of a successive § 2255 motion does not render federal habeas relief an ineffective or inadequate remedy so as to allow petitioner to bring claim under § 2241), cert. denied, 528 U.S. 1178 (2000).

United States v. Lorentsen, 106 F.3d 278 (9th Cir. 1997) (denying to certify post-AEDPA successive § 2255 motion but suggesting without deciding that a petitioner could use § 2241 to make a newly available Bailey claim).

Charles v. Chandler, 180 F.3d 753 (6th Cir. 1999) (distinguishing Davenport, Triestman and Dorsainvil, but avoiding the issue of whether § 2241 is available for a successive motion otherwise barred under § 2255).

United States v. Barrett, 178 F.3d 34 (1st Cir. 1999) (holding that § 2241 habeas relief remains available for federal prisoners in limited circumstances).

Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999) (declining to allow § 2241 petition to escape procedural bar under § 2255).

In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998) (holding that a § 2255 motion does not become inadequate or ineffective so as to permit the use of § 2241 merely because a prisoner cannot meet the AEDPA's successive petition requirements).

Triestman v. United States, 124 F.3d 361 (2d Cir. 1997) (holding that the AEDPA bars successive § 2255 motions under the guise of § 2241; holding, however, that where the underlying claim was actual innocence a prisoner could bring a successive § 2241 petition despite the fact that prisoner could not, for whatever reason, bring a successive § 2255 motion).

In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997) (stating that inadequacy or ineffectiveness is not established by mere inability to meet the AEDPA's gatekeeping  requirements; holding that § 2241 relief is available to federal prisoner in the unusual circumstance where application of the AEDPA's successive filing restrictions would result in a “complete miscarriage of justice”).

Wilson v. United States, 969 F. Supp. 1054 (E.D. Mich. 1997) (holding that pro se letter requesting that federal sentence run concurrently with related state sentence was properly considered a first petition, making petitioner’s subsequent petition attacking the underlying sentence a second petition barred by the AEDPA absent appellate court authorization).