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.
Nebraska Motion to Vacate, Set Aside, Modify or Correct a Sentence by a Person in Federal Custody In the state of Nebraska, individuals who are in federal custody have the option to file a motion to vacate, set aside, modify, or correct their sentence. This legal process aims to provide an avenue for individuals to challenge the validity or fairness of their sentence. By filing this motion, a person can request the court to review their case and potentially make changes to their sentence or even overturn it. There are several types of Nebraska motions to vacate, set aside, modify, or correct a sentence, each addressing different aspects of the individual's situation. Some common types include: 1. Motion to Vacate: This motion challenges the legality of the sentence based on errors committed during the trial or sentencing phase. It asserts that the sentence was imposed without proper legal authority or violated the individual's constitutional rights, such as the right to effective counsel. 2. Motion to Set Aside: This motion seeks to invalidate the conviction entirely, highlighting significant errors or misconduct that affected the fairness or integrity of the trial. A successful motion can lead to a new trial or even dismissal of the charges. 3. Motion to Modify: This motion generally requests the court to modify the existing sentence based on new evidence or changed circumstances. For example, if an individual can present evidence of rehabilitation or show that the sentence is excessive, they may seek a reduction in their sentence. 4. Motion to Correct: This motion focuses on correcting errors or omissions in the sentence itself, such as mathematical errors, incorrect application of guidelines, or clerical mistakes. A successful motion can rectify these errors and adjust the sentence accordingly. When filing a Nebraska Motion to Vacate, Set Aside, Modify or Correct a Sentence by a Person in Federal Custody, certain requirements must be met. These include adhering to specific time limits, providing valid grounds for the motion, and following proper procedural rules. It is important to consult an experienced attorney who can guide individuals through this complex process and ensure their rights are protected. Overall, the Nebraska Motion to Vacate, Set Aside, Modify or Correct a Sentence by a Person in Federal Custody serves as a significant legal recourse for individuals seeking to challenge the legality or fairness of their sentence. With the proper guidance and legal representation, individuals may be able to secure a favorable outcome, leading to a reduction or modification of their sentence, or even a new trial.
