The law regarding a motion attacking sentence of a federal court is set forth in 28 USC § 2255.
(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
(b) Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
(c) A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.
(d) An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.
(e) An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
(g) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.
(h) A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
North Carolina Motion to Vacate, Set Aside, Modify or Correct a Sentence by a Person in Federal Custody is a legal procedure available to individuals who are imprisoned under federal jurisdiction in North Carolina and wish to challenge the validity or fairness of their sentence. This motion provides an opportunity to seek relief from a conviction or the imposed sentence due to errors, constitutional violations, or other significant legal issues. There are several types of North Carolina Motion to Vacate, Set Aside, Modify or Correct a Sentence that individuals in federal custody can pursue, including: 1. Ineffective Assistance of Counsel: This motion alleges that the defendant's constitutional right to effective legal representation was violated during the criminal proceedings. It requires demonstrating that the attorney's performance was deficient and that it prejudiced the defendant's case. 2. Newly Discovered Evidence: This motion pertains to the introduction of significant evidence that was unavailable during the original trial or sentencing phase. The evidence must be of a nature that, had it been presented earlier, it would likely have changed the outcome of the case. 3. Violations of Constitutional Rights: This motion challenges constitutional violations committed during the trial or the imposition of the sentence. Examples include violations of the Fourth Amendment (unlawful search and seizure), Fifth Amendment (self-incrimination), or Sixth Amendment (right to counsel) among others. 4. Sentencing Errors: This type of motion seeks to correct mistakes made during the sentencing phase, such as errors in calculating the applicable sentencing guidelines, improperly imposed enhancements, or failure to consider mitigating factors. To file a North Carolina Motion to Vacate, Set Aside, Modify or Correct a Sentence, individuals in federal custody should generally follow these steps: 1. Prepare the Motion: In consultation with legal counsel, the defendant or petitioner must draft a written motion addressing the relevant legal issues and arguments supporting their claim. 2. File the Motion: The completed motion must be filed with the appropriate federal district court where the original conviction and sentencing took place. It is crucial to adhere to all court rules and deadlines when submitting the motion. 3. Serve the Government: The petitioner must also serve a copy of the motion to the U.S. Attorney's Office, allowing the government an opportunity to respond to the motion. 4. Court Review and Decision: Upon receiving the motion, the court will review the arguments presented, along with any responses from the government. The court may hold a hearing if necessary to evaluate the claims made and make a determination regarding the relief sought. It is important to note that filing a North Carolina Motion to Vacate, Set Aside, Modify or Correct a Sentence does not guarantee success. The petitioner must provide compelling legal arguments and meet certain criteria to establish a basis for relief. Assistance from an experienced attorney is highly recommended navigating through this complex legal process effectively.
