If you`re filing for post-conviction relief under 28 U.S.C. sec 2255, getting the court to grant an evidentiary hearing is a big step toward getting that relief. Successful sec 2255 motions are often based on claims asserting facts that are not in the record. Indeed, the primary purpose of an evidentiary hearing is to reconcile the facts asserted in the motion with the facts in the record. If the record doesn`t refute the facts claimed, then the court must hold an evidentiary hearing.
The standard to meet in order to get an evidentiary hearing is not a high bar:
The law is clear that, in order to be entitled to an evidentiary hearing, a petitioner need only allege — not prove — reasonably specific, non-conclusory facts that, if true, would entitle him to relief. Aron v. United States, 291 F.3d 708, 715 n.6 (11th Cir. 2002)
In other words, you don`t have to prove that you would win your claim in order to get an evidentiary hearing. The hearing is where you would offer evidence in support of your facts. That`s why it`s called an “evidentiary hearing.”
When is a Hearing Required?
“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief,” the court is required to hold an evidentiary hearing. sec 2255(b). The records of the case referred to here are the filings made in your criminal case, such as your guilty plea transcript, plus the facts you assert in your sec 2255 motion.
A common reference to the record made by the government to refute a sec 2255 claim is the plea hearing transcript (assuming you pled guilty, which 97% of federal prisoner happen to do). When a person pleads guilty, with or without a plea agreement, the court conducts a hearing under Federal Rule of Criminal Procedure 11, to ensure that the plea is knowing and voluntary. A transcript of the hearing becomes part of the criminal record.
At the hearing, the judge asks a series of questions and at the end usually asks if the person was satisfied with their lawyer`s performance. Most people say they are, because they don`t know any better. But later on, when that person learns a little about the law and discovers some major errors by their lawyer that would have changed the outcome of the case and seek sec 2255 relief, the answers they gave at the plea hearing are brought back up by the government (and the court). This is a common way of using the existing record to refute sec 2255 claims.
The Supreme Court acknowledged in Blackledge v. Allison, 431 U.S. 63 (1977), that a defendant`s statements at the plea hearing “constitute a formidable barrier in any subsequent collateral proceedings,” and that “solemn declarations in open court carry a strong presumption of verity.”
These two statements by the Court are so often cited by the government and courts in sec 2255 cases that you`d think the High Court ruled against Allison, the petitioner in that case. But keep reading and you`ll see that, in the next paragraph, the Court said that while the barrier is “imposing,” it “is not invariably insurmountable.” Allison`s case was remanded to the district court for an evidentiary hearing.
When is a Hearing Not Required?
An evidentiary hearing is not required if the record and the sec 2255 motion “conclusively” show that you`re not entitled to relief. The court also doesn`t have to hold a hearing for purely legal-based claims that don`t depend on facts, such as when the conviction or sentence is declared unconstitutional by the Supreme Court in a subsequent case. Really, unless a hearing is required as noted above, the Supreme Court has said that the district courts can use “their common sense” in deciding whether to hold a hearing. Machibroda v. United States, 368 U.S. 487 (1962). Courts have taken this as a creative license to do whatever it takes to avoid holding an evidentiary hearing.
The most common way courts avoid evidentiary hearings is by collecting affidavits from the parties involved. Some courts have even called the collection of affidavits a “limited evidentiary hearing.” Wang v. United States, 458 Fed. Appx. 44 (2d Cir. 2012). And some courts have rules requiring affidavits for claims that are outside the existing record. See, e.g., S.D. Ga. L. R. 12.1 (“Where allegations of fact are relied upon that are not supported by the existing record, supporting affidavits shall be submitted”).
Unfortunately, competing affidavits often turns into an “affidavit war.” This usually happens when a former defense lawyer gives the government an affidavit, refuting an ineffective assistance of counsel (IAC) claim, which is different from the affidavit that a movant submits asserting counsel`s errors. Can the courts give the lawyer`s affidavit more weight simply because he`s a lawyer? This isn`t allowed, and an evidentiary hearing is supposed to be held. United States v. Hall, 771 Fed. Appx. 226 (4th Cir. 2019).
And the government will try to discredit your affidavit by calling it “self-serving” and “conclusory.” But the courts typically see through this nonsense:
We take this opportunity, then, to emphasize that district courts may not discount a petitioner`s declarations simply because they may be self-serving. Sawyer v. United States, 874 F.3d 276 (7th Cir. 2017)
If an evidentiary hearing is held after affidavits are filed, the court will usually use them to corroborate the testimony at the hearing with what was claimed in the affidavits. By filing an affidavits, it`s the same as standing before the court with your right hand raised and swearing that what`s in the affidavit is the truth. This is what “under penalty of perjury” means and courts have convicted movants of perjury, sentencing them to more time in prison for lying in their sec 2255 motions. See Marshall v. United States, 2015 U.S. Dist. LEXIS 83433 (S.D. Ga. June 26, 2015).
Other Types of Hearings in a Sec 2255 Case
The rules allow for different types of hearings in a sec 2255 case that don`t amount to a formal evidentiary hearing. These may go by different names, such as “prehearing conference,” and do not require your presence. Sometimes these hearings are held to sort out issues prior to an evidentiary hearing, to save some time during the actual hearing.
For example, the court may want to hold a hearing to determine whether your motion was filed on time. Since this has nothing to do with the substance of your motion, it`s not an evidentiary hearing. However, evidence can be reviewed in support of equitable tolling to allow your motion to proceed even though it`s late.
But any hearing that addresses the merits of your claims is an evidentiary hearing, no matter what the court calls it. This would require the appointment of counsel and all the formalities of an evidentiary hearing. If this doesn`t happen, the hearing is scratched and another hearing must be held in accordance with the evidentiary hearing rules. Bucci v. United States, 662 F.3d 18 (1st Cir. 2011).
Requesting an Evidentiary Hearing
If an evidentiary hearing isn`t required under sec 2255(b), most courts will not hold one sua sponte and instead insist that a movant formally request a hearing. Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017) (movant failed to request a hearing to develop the record, so he failed to carry his burden to obtain relief).
When you do request a hearing, you must be specific about why you want a hearing. It can be part of your motion, such as in your reply, or it could be a separate motion setting out the reasons why a hearing is needed. The government is also permitted to request an evidentiary hearing, though neither the statute nor the rules expressly say so. Nunez v. United States, 2018 U.S. Dist. LEXIS 79342 (S.D. Fla. May 9, 2018).
Who Conducts the Hearing?
Originally, the district judge was required to conduct the evidentiary hearing under the Federal Magistrate`s Act, according the to Supreme Court`s interpretation of the Act in Wingo v. Wedding, 418 U.S. 461 (1974). But two years later, Congress amended the Act to allow magistrate judges to conduct evidentiary hearings and then report their findings to the district judge in a “report and recommendation.” 28 U.S.C. sec 636(b)(1)(B).
If the district judge disagrees with the magistrate judge`s findings, he must either hold a new hearing himself, or “recommit” the case back to the magistrate for another hearing. But this is only if the magistrate`s report is adverse to you. If the district judge rejects the findings of the hearing and decides to grant you relief, no further hearing is required.
Appointment of Counsel for the Evidentiary Hearing
If the court grants you an evidentiary hearing for any reason, it must appoint counsel. Should the court fail to do this, it is never a “harmless error,” no matter how well the hearing went. The remedy is a new hearing with counsel appointed. United States v. Lasiello, 166 F.3d 212 (3d Cir. 1999).
If the hearing goes south and your motion is denied, don`t assume that appointed counsel will handle the appeal. A sec 2255 case is a civil case and counsel is not required to file any sort of appeal, unless the court specifies so. However, the Criminal Justice Act, 18 U.S.C. sec 3006A(c), which courts use to appoint counsel in sec 2255 cases, says that counsel is typically appointed up “through appeal, including any ancillary matters appropriate to the proceedings.” But be ready to file your own notice of appeal within 60 days of the denial.
Your Presence at the Hearing
It`s true that sec 2255(c) says that you don`t have to be there, but the Supreme Court has said more than once that your presence is required in order to give you an “opportunity to be heard.” United States v. Hayman, 342 U.S. 205 (1952). Thanks to the coronavirus pandemic, video conferencing has become rather popular for court hearings. Some judges also see the cost savings with video hearings, if the prison will support this method. According to the Bureau of Justice Statistics website, www.bjs.gov, every federal prison has the ability to use video conferencing for court hearings. But those inside the prisons know it`s very difficult to get staff to agree to these hearings.
IN CONCLUSION, the evidentiary hearing is a critical component of the sec 2255 case. It`s the first big step toward obtaining relief and understanding the role of the hearing, as well as your obligations during the hearing, will go a long way in getting the post-conviction relief you deserve.
Note: A separate column will be offered reviewing evidentiary hearing procedures for state prisoners, since the rules and standards for state prisoners vary widely from those for federal prisoners.
Dale Chappell has written hundreds of published articles on federal habeas corpus and is the author of several post-conviction books, including Habeas Corpus for Federal Prisoners: An Insider`s Guide.