New opinion — hearing required in 2255

United States v. Tolliver — 2255 — reversal — Greenaway

Today the Third Circuit vacated a district court ruling that had adjudicated a motion under 28 U.S.C. 2255 (the analog to habeas corpus for prisoners who were prosecuted in federal court) without holding an evidentiary hearing. The court remanded for a hearing and the opinion contains strong language supporting the need for 2255 hearings:

A district court considering a § 2255 motion “‘must accept the truth of the movant’s factual allegations unless they are clearly frivolous on the basis of the existing record.’”  Id. at 545 (quoting Gov’t of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). In the IAC context, a movant need only “raise[] sufficient allegations” that his counsel was ineffective in order to warrant a hearing. Id. at 549.

Also the court did not apply plain-error review, even though the lack of a hearing was not raised in district court: ““It is irrelevant whether the Government or [movant] requested the hearing.'” And the only disputed facts went to prejudice, not deficient performance.

All that is likely to be helpful for many prisoners seeking hearings to challenge their federal convictions, but it was bad news for the prisoner here because the district court had granted her 2255 relief without a hearing.  Full disclosure: I am the prisoner’s CJA-appointed counsel.

Joining Greenaway were Fuentes and Nygaard. I argued for the prisoner, Robert Zauzmer argued for the government.