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  #1  
Old 09-29-2008, 02:20 PM
jen_75 jen_75 is offline
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Default 2255 motion

Does anyone know if it is possible to get an extension to file a 2255 motion and if so how do i go about it???
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  #2  
Old 09-29-2008, 02:43 PM
dvol dvol is offline
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Originally Posted by jen_75 View Post
Does anyone know if it is possible to get an extension to file a 2255 motion and if so how do i go about it???
Here are the applicable time frames for filing a 2255:

(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.


The best way to extend the time is to file for cert. with the Supreme Court, as judgment is not "final" until they rule on the cert. The downside is the effort involved in filing a petition for cert. They are very particular, and will refuse the filing for trivial matters.

I don't know of anything other than what the statute allows, and it's the first thing the government attacks, the timing. If nothing else, get something filed on time and then move to supplement the original filing. Even if that is granted, it won't be for an extended length of time.
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Old 10-28-2008, 07:10 AM
jlowther jlowther is offline
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A 2255 must be filed, in most cases, within one year after the date of conviction becomes final. This time limit is "jurisdictional," meaning that no extension can be had. If you're running out of time, it's best to file just a "skeletal" motion, alleging all ground for the 2255, and amend at a later time.
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Old 02-09-2009, 08:37 PM
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Hunnee Hunnee is offline
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Here is a PDF that may help
http://www.uscourts.gov/forms/ao243.pdf
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Old 02-10-2009, 03:28 PM
JurisDoctor JurisDoctor is offline
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Quote:
Originally Posted by dvol View Post
Here are the applicable time frames for filing a 2255:

(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.


The best way to extend the time is to file for cert. with the Supreme Court, as judgment is not "final" until they rule on the cert. The downside is the effort involved in filing a petition for cert. They are very particular, and will refuse the filing for trivial matters.

I don't know of anything other than what the statute allows, and it's the first thing the government attacks, the timing. If nothing else, get something filed on time and then move to supplement the original filing. Even if that is granted, it won't be for an extended length of time.
The best way to extend time depends on where he is along in his direct appellate process. If more than 10 days have elapsed since the entry of the judgment, except for one limitied exception, his appeal became final on the 11th day, and he is UNABLE to file a cert. petition. Now, if he filed an appeal, but 45 days have not elapsed, he then can file a cert. petition. If he did not file a cert. petition, his conviction became final for AEDPA purposes (2255 purposes) 90 days after the court of appeals entered its judgment. Now, if he applied for cert and it was denied, then it is a year from that.

Last edited by JurisDoctor; 02-10-2009 at 03:44 PM..
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Old 02-10-2009, 03:35 PM
JurisDoctor JurisDoctor is offline
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Quote:
Originally Posted by jlowther View Post
A 2255 must be filed, in most cases, within one year after the date of conviction becomes final. This time limit is "jurisdictional," meaning that no extension can be had. If you're running out of time, it's best to file just a "skeletal" motion, alleging all ground for the 2255, and amend at a later time.
This assumes: that he is attacking something arising from his conviction, but he has not told us where he is in the appellate process and much less the basis for his 2255. Without both of those things no one can tell him when his deadline is.

Additionally, in every circuit I have researched, which is most of them, the time limit is not jurisdictional. This is especially evident given that a movant can apply for equittable or statutory tolling.

The last piece of information you gave could be potentially dangerous depending on who far left-leaning his circuit is. I know that in the Fifth Circuit (Texas, Miss. Lou.), it has backfired several times. If the government can prove that you did this on purpose, it will show bad faith in filing and your motion could be denied, this is especially true when the government has already answered your first "bare-bones" response. So if you proceed under this, I can just game the system by filing on time, but filing some worthless motion, be aware that you are not necessarily entitled to amend it later.
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Old 02-10-2009, 03:36 PM
JurisDoctor JurisDoctor is offline
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I realize everyone is trying to help, but, the issues are too important to just leave them as they were.
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Old 01-01-2010, 02:52 AM
Monkey Bear Monkey Bear is offline
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Default Motion #2255

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Originally Posted by JurisDoctor View Post
I realize everyone is trying to help, but, the issues are too important to just leave them as they were.
JurisDoctor

Thank you for your information on this subject. Concidering the amount of time that has gone by since your last post on this subject, would you tell me if any changes have occurred to date?

Thank You!
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