INFORMATION AND INSTRUCTIONS
FOR FILING A MOTION TO VACATE SENTENCE
PURSUANT TO 28 U.S.C. § 2255
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
You should follow these instructions carefully. The failure to do so may result in your motion not being filed and considered by the court, or at least being delayed. If you add additional pages, be sure to identify what is being continued or the number of the additional ground(s).
- The attached form is designed to assist you in preparation of a Motion to Vacate, Set Aside, or Correct Sentence. In order for your motion to be considered by the district court, it must be typewritten or legibly handwritten. All questions must be answered concisely in the appropriate spaces on the form. The motion must be signed and include a declaration under penalty of perjury. You are cautioned that any false statement of material fact may serve as basis for prosecution and conviction for perjury. You should, therefore, exercise care to assure that all answers are true, correct and complete.
- Extra pages are not permitted, except that up to two additional pages (8½” by 11″) may be attached, if necessary, to complete your answers to question #17. A copy of an appellate court opinion or order specifically concerning your conviction may also be attached. Citation of legal authority is not necessary and no briefs or argument are to be submitted unless specifically requested by an order of the court.
- In your motion, you should raise all available grounds for relief. If you fail to do so, you may be barred from presenting additional grounds at a later date. Rule 9 of the Supreme Court Rules governing §2255 proceedings provides that, before presenting a second or successive motion, you must obtain an order from the court of appeals authorizing the district court to consider the second or successive motion.
- The following list of the most frequently raised grounds for relief in post-conviction proceedings is furnished for your information only. This list is not complete and you may raise any other grounds for relief you may have.
- denial of effective assistance of counsel;
- denial of right of appeal;
- conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily with understanding of the nature of the charge or the consequences of the plea;
- conviction obtained by use of coerced confession;
- conviction obtained by use of evidence obtained pursuant to an unlawful search and seizure;
- conviction obtained by use of evidence obtained pursuant to an unlawful arrest;
- conviction obtained by a violation of privilege against self-incrimination;
- conviction obtained by the unlawful failure of the prosecution to disclose evidence favorable to the defendant;
- conviction obtained by a violation of the protection against double jeopardy;
- conviction obtained by the action of a grand or petit jury which was unconstitutionally selected and impaneled;
- conviction obtained by the knowing use of perjured testimony;
- denial of compulsory process to obtain witnesses favorable to the defendant;
- sentence imposed is cruel and unusual punishment;
- conviction obtained by the use of evidence obtained pursuant to an unlawful lineup or identification procedure;
- denial of speedy trial; and
- conviction obtained as a result of a plea of guilty or trial while the defendant was mentally incompetent.
- On a single motion, you may challenge the judgments of only one court. If you seek to challenge the judgments entered by different judges, either in the same or different districts, you must file separate motions as to each judgment in the appropriate district.
- When your motion is fully completed, the original and three copies must be mailed to the clerk of the United States District Court, whose address is:
Clerk, U.S. District Court
District of Nevada
400 South Virginia Street
Reno NV 89501
Clerk, U.S. District Court
District of Nevada
333 Las Vegas Boulevard South
Las Vegas NV 89101
- No filing fee is required. However, if you do not have the necessary funds for transcripts, counsel, appeal or other costs associated with a motion of this type, you may request permission to proceed in forma pauperis. To do this, you must execute the attached motion and declaration setting forth information regarding your inability to pay costs and fees. You must also have an authorized officer of the penal institution complete the certificate indicating the amount of money or securities on deposit to your credit in any account in the institution.
- Motions which do not conform to these instructions will not be filed, and will be returned by the clerk with a notation as to the deficiency.
- If you wish to have a file-stamped copy of any filed document returned to you, you must furnish one additional copy of the document to the clerk with your filing.
- Once the respondent has appeared in the case, you need not serve the respondent copies of documents you file in the case. Any document you file after the respondent has appeared will be considered served on the respondent when it appears on the district court docket.
- You must immediately notify the clerk in writing of any change in your mailing address. (See LR IA 3-1.)
- The judges of this court, the clerk of court, deputy clerks and other court staff are officers of the court, and as such they are prohibited from giving legal advice. Questions of this nature should be directed to an attorney who is not a member of the court’s staff.