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: Phoenix Arizona Motion to Vacate, Set Aside, Modify or Correct a Sentence by a Person in Federal Custody: Understanding the Process and Types Introduction: A Motion to Vacate, Set Aside, Modify, or Correct a Sentence is a crucial legal procedure available to individuals in federal custody in Phoenix, Arizona. This process allows a person to challenge the legality or appropriateness of their sentence, seeking relief from a federal court. In this article, we will provide a detailed description of what a Motion to Vacate entails, its purpose, and various types of motions that can be filed in Phoenix, Arizona. 1. Understanding Motion to Vacate, Set Aside, Modify, or Correct a Sentence: A Motion to Vacate, Set Aside, Modify, or Correct a Sentence is a legal recourse under 28 U.S.C. § 2255. It allows federal prisoners sentenced by federal courts in Phoenix, Arizona, to challenge their sentence on certain grounds. These grounds may include constitutional violations, errors in sentencing procedures, ineffective assistance of counsel, newly discovered evidence, or any other circumstances that may render the sentence unlawful or unjust. 2. Major Types of Motion to Vacate, Set Aside, Modify, or Correct a Sentence: While the primary purpose of the motion remains the same, there are several specific types or grounds upon which an individual can seek relief in Phoenix, Arizona. Some common types of motions filed are: a) Ineffective Assistance of Counsel: This motion alleges that the defendant's defense attorney provided ineffective representation during the trial or sentencing phase, significantly compromising the defendant's rights, and resulting in an unjust sentence. b) Constitutional Violations: This motion challenges the constitutionality of the defendant's conviction or sentence, asserting violations of rights protected under the United States Constitution, such as due process violations, illegal searches and seizures, or denial of effective counsel. c) Sentencing Errors: This type of motion targets mistakes made during the sentencing phase, such as errors in the application of sentencing guidelines, miscalculations of the sentence, or failure to consider specific mitigating circumstances. d) New Evidence: In cases where new evidence, previously undisclosed or unavailable, arises, this motion allows the defendant to present that evidence to the court as grounds for a new trial or revising the existing sentence. e) Actual Innocence: This motion asserts that new evidence has come to light, which clearly establishes the defendant's innocence, compelling the court to reconsider and vacate the sentence. 3. Filing Process in Phoenix, Arizona: To file a Motion to Vacate, Set Aside, Modify, or Correct a Sentence in Phoenix, Arizona, individuals in federal custody must follow specific legal procedures. This typically involves drafting and submitting a formal motion to the federal district court that sentenced them. It is crucial to consult with an experienced attorney familiar with federal law and the local rules of the Phoenix, Arizona federal courts to ensure the motion is properly prepared and filed. Conclusion: A Motion to Vacate, Set Aside, Modify, or Correct a Sentence is a vital legal recourse available to individuals in federal custody in Phoenix, Arizona. Understanding the process and the various types of motions that can be filed is essential to effectively challenge an unjust or unlawful sentence. Seeking the guidance of an experienced attorney well-versed in federal law is crucial for navigating this complex legal procedure and increasing the chances of a successful outcome.
