by Dale Chappell

If you’re filing for post-convictionrelief under 28 U.S.C. § 2255, getting the court to grant an evidentiary hearing is a big step toward getting that relief. Successful § 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 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. § 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 § 2255 motion.

A common reference to the record made by the government to refute a § 2255 claim is the plea hearing transcript (assuming you pleaded guilty, which 97% of federal prisoners 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. [Editor’s note: See article in this issue of CLN on Seventh Circuit’s opinion in United States v. Goliday for an extensive discussion on the District Court’s obligation to ensure the defendant’s guilty 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 defendant was satisfied with their lawyer’s performance. Most defendants say they are, because they don’t know any better. But later on, when the defendant learns a little about the law and discovers some major errors committed by their lawyer that would have changed the outcome of the case and seek § 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 deny § 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 Allison Court are cited so often by the government and courts in § 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 § 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. Basically, unless a hearing is required as noted above, the Supreme Court has said that district courts can use “their common sense” in deciding whether to hold a hearing. Machibroda v. United States, 368 U.S. 487 (1962). Unfortunately, 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.”).

Competing affidavits often turn into an “affidavit war.” This usually happens when a former defense lawyer gives the government an affidavit, refuting an ineffective assistance of counsel 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).

The government will try to discredit your affidavit by calling it “self-serving” and “conclusory.” But 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 affidavit, 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 § 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 § 2255 Case

The rules allow for different types of hearings in a § 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 in order 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 requires 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 § 2255(b), most courts will not hold one sua sponte (on its own motion) and will 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 the 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. § 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 does not go in your favor and your motion is denied, don’t assume that appointed counsel will handle the appeal. A § 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. § 3006A(c), which courts use to appoint counsel in § 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 § 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). Due 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, 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.

Conclusion

The evidentiary hearing is a critical component of the § 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.

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