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.
Title: Understanding North Dakota Motion to Vacate, Set Aside, Modify, or Correct a Sentence by a Person in Federal Custody Introduction: The North Dakota Motion to Vacate, Set Aside, Modify, or Correct a Sentence by a Person in Federal Custody provides an opportunity for individuals serving federal sentences in North Dakota to challenge their conviction or sentence. This legal process aims to correct any errors or injustices that may have occurred during the trial or sentencing phase. Let's delve deeper into the intricacies of this motion and explore its different types and procedures. Keywords: North Dakota, Motion to Vacate, Set Aside, Modify, Correct, Sentence, Federal Custody, conviction, errors, injustices, trial, sentencing phase. Types of North Dakota Motion to Vacate, Set Aside, Modify, or Correct a Sentence: 1. Motion to Vacate: This type of motion seeks to have the court set aside the judgment of conviction and any ensuing sentence due to procedural errors, constitutional rights violations, or newly discovered evidence that could impact the outcome of the case. 2. Motion to Set Aside: This motion aims to invalidate the conviction or sentence on specific grounds, such as ineffective assistance of counsel, prosecutorial misconduct, or newly discovered evidence that could have affected the verdict's fairness. 3. Motion to Modify: In this type of motion, the incarcerated individual asks the court to amend or reduce their existing sentence based on various factors, including changes in circumstances or rehabilitation efforts during their incarceration. 4. Motion to Correct a Sentence: This motion focuses on rectifying errors made during the sentencing phase, such as miscalculations in the application of sentencing guidelines, errors in judgment, or unconstitutional sentences. Procedure for Filing the Motion: 1. Consult Legal Counsel: It is advisable for individuals in federal custody in North Dakota to seek assistance from an experienced attorney who specializes in federal post-conviction matters. 2. Identify Applicable Grounds: Collaborate with the attorney to determine the most appropriate grounds for filing a motion, considering potential errors, constitutional violations, or changes in circumstances that warrant relief. 3. Draft and File the Motion: The attorney will draft a comprehensive motion, outlining the necessary legal arguments and supporting evidence. This document will be filed with the court that handled the original conviction. 4. Serve the Government: Ensure that a copy of the filed motion is properly served to the prosecuting attorney or the appropriate government representative. 5. Await Court Proceedings: After filing the motion, the court will review the arguments presented and determine whether a hearing is necessary or if the motion can be ruled upon based on the written submissions alone. Conclusion: North Dakota's Motion to Vacate, Set Aside, Modify, or Correct a Sentence by a Person in Federal Custody serves as a legal remedy for individuals seeking redress for potential errors, constitutional violations, or unjust sentences. By understanding the various types of motions available and following the prescribed procedure, inmates can present their claims effectively and pursue a fair outcome. Legal counsel can guide individuals through this process, ensuring their rights are protected and their arguments are properly presented before the court.
