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 Virginia Motion to Vacate, Set Aside, Modify, or Correct a Sentence by a Person in Federal Custody Keywords: Virginia motion to vacate, Virginia motions to set aside, Virginia motions to modify, Virginia motion to correct a sentence, federal custody Introduction: In Virginia, individuals in federal custody have the ability to seek relief through various motions to address potential errors or injustices in their sentencing. This article will provide a comprehensive overview of the different types of motions available to individuals, namely the Virginia motion to vacate, set aside, modify, or correct a sentence by a person in federal custody. Understanding these motions is crucial for navigating the legal process and ensuring justice is served. 1. Virginia Motion to Vacate: A Virginia motion to vacate requests the court to overturn or render void a previously rendered sentence. If granted, it essentially erases the original conviction and sentence, providing an opportunity for individuals to address legal errors, constitutional violations, or newly discovered evidence that can substantially impact the case outcome. 2. Virginia Motion to Set Aside: Similar to the motion to vacate, a Virginia motion to set aside aims to invalidate a conviction or sentence. However, this motion is typically filed on grounds different from those of a motion to vacate. It usually focuses on procedural errors, jurisdictional issues, or constitutional violations that may have occurred during the trial or at the time of sentencing. 3. Virginia Motion to Modify: A Virginia motion to modify a sentence seeks to alter or amend the terms of an existing sentence. It is often requested when circumstances change, or new information arises, making the current sentence unduly harsh or unjust. Individuals may file this motion to secure a reduced sentence, probation, or alternative sentencing arrangements. 4. Virginia Motion to Correct a Sentence: The Virginia motion to correct a sentence is typically used to rectify clerical errors, computational mistakes, or factual inaccuracies found within the original sentence. It allows individuals to bring attention to any issues that may have affected the accuracy or legality of the imposed sentence, ensuring a fair and just outcome. Conclusion: When individuals in federal custody believe they have been unjustly sentenced, various motions can be filed in Virginia to challenge the conviction or modify the sentence. Understanding the distinctions between motions to vacate, set aside, modify, or correct a sentence is essential for those seeking legal redress. By utilizing these motions effectively, individuals can pursue justice and potentially secure fairer outcomes within the federal criminal justice system.
