There are many things that happen after you file your federal 2255 Writ application that you should know about to better your chances of success in seeking freedom for your loved one. Usually, the first step that occurs after the 2255 Writ is filed is that the court examines the writ.
The examination is usually performed by law clerks, but sometimes a magistrate judge will examine the federal 2255 Writ if the case was assigned to them.
The purpose of the examination is to determine if the writ is frivolous, meaning that the court can easily determine if the federal 2255 will fail because the allegations are unbelievable or because the 2255 Writ’s claims of the records are outlandish. In this case, the application may just be denied by the court, but if the writ is not declared frivolous then the writ will proceed to the next step.
If the court does not find the 2255 Writ to be frivolous, it will order the government to respond. Usually, courts give between 30 and 60 days for the government to respond to the allegations that you’ve brought in your 2255 Writ.
The government then will file a lengthy response that addresses the merits of the grounds that you’ve brought forward. At this point, you will be given an opportunity to respond to the government’s response. The court will set some timeline, like 20 days and in that time you can reply.
It is important to ensure you don’t simply restate your previous grounds and allegations. You want your reply to go to the heart of what the government has said in their response to you. In essence, your goal should be to discredit everything bad the government has said about you in their reply.
After you have replied to the government, the court will then decide whether or not there are contested issues and whether or not it needs to take in evidence of some kind. The court can take in evidence in a number of ways. It can take it in through affidavits, and it can take it in through a live hearing. This hearing could be heard by a magistrate judge or a district judge depending on how the case is assigned.
Finally, the court would make a decision in the case. Unlike in some state habeas petitions, the federal writ is something decided by the district judge, who is ultimately responsible for if you receive relief or not. However, there are some instances where you can appeal.
Oftentimes you could be in front of the same judge that you pled guilty in front of, or you were in trial in front of, and I know that can give you an uneasy feeling. Unfortunately, 2255 motions have to be brought in front of the court where you were convicted so there’s not much you can do.
Keeping that in mind, try not to make allegations that the judge knows are false or conspiratorial because they go far beyond what he believes could be possible. This judge sat on your trial or on your plea.
For this reason, he’s going to have some idea of what your case was about. Your allegations need to be based around facts outside of the record that relate to ineffective assistance of counsel, prosecutorial misconduct, a lack of court of jurisdiction or Brady violations to ensure the best chance of freedom.
About The Attorney
Jacob Blizzard is board certified in both criminal law and criminal appellate law.
He regularly practices in the areas of state and federal criminal defense, criminal appeals, post conviction writs of habeas corpus.
In Texas, there are more than 100,000 attorneys licensed to practice, but only 7,450 are board certified.
In the entire State of Texas, as of the 2019 certification year, there were only 87 attorneys board certified in both criminal law and criminal appellate law, making Mr. Blizzard one of 0.087% of attorneys in Texas to hold both of those certifications.