Claims a 2255 Motion Cannot Fix: What Is Not Cognizable

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

Which claims will a court refuse to hear under § 2255?

A court will refuse to hear a §2255 claim that is neither constitutional, jurisdictional, nor a fundamental defect resulting in a complete miscarriage of justice. That excludes ordinary Guidelines errors, complaints that a lawful sentence is too long, Bureau of Prisons computation and placement decisions, conditions of confinement, restitution, and claims the court of appeals already decided.

Key takeaways on claims § 2255 cannot reach

• The statute has four doorways, not an open door. 28 U.S.C. §2255(a) reaches a sentence “imposed in violation of the Constitution or laws of the United States,” a court “without jurisdiction,” a sentence “in excess of the maximum authorized by law,” or one “otherwise subject to collateral attack.” Everything else is out.
• The catch-all is the narrowest doorway, not the widest. Hill v. United States, 368 U.S. 424, 428 (1962) requires “a fundamental defect which inherently results in a complete miscarriage of justice,” or “an omission inconsistent with the rudimentary demands of fair procedure.” United States v. Addonizio, 442 U.S. 178, 185 (1979) repeats it verbatim.
• An ordinary Guidelines miscalculation is not cognizable in most circuits. United States v. Folk, 954 F.3d 597 (3d Cir. 2020): “Nearly every other circuit court of appeals has held or suggested that such a claim is not cognizable.”
• BOP decisions are not §2255 matters at all. Sentence computation, jail credit, designation, discipline, and release date are execution-of-sentence questions that belong under 28 U.S.C. §2241 in the district of confinement, after administrative exhaustion.
• Non-cognizable is not the same as defaulted. A defaulted claim is one the court could hear but will not without cause and prejudice. A non-cognizable claim is one the court has no authority to reach at all — and no showing of cause, diligence, or good faith converts it.
• Every exclusion on this page has a correct vehicle. Getting turned away by §2255 is not the end of the analysis; it is the beginning of a different one.

What “cognizable” means, and why it is not the same as “barred”

Cognizability is a question about the court’s authority. It asks whether the kind of complaint you are making is one §2255 was written to remedy at all — and if you are not yet sure what the statute covers, start with what a §2255 motion is, subsection by subsection. Procedural bars are different questions, asked later, about whether this movant may press this cognizable claim now.

The distinction matters because the fixes are different. If your claim is procedurally defaulted because nobody raised it on direct appeal, you can still win by showing cause and actual prejudice, or actual innocence. If your motion is late, equitable tolling may save it. Those are doors with keys. Non-cognizability is a wall. As the Eleventh Circuit put it in Spencer, “a district court lacks the authority to review the alleged error” unless it meets the Addonizio standard — and no amount of diligence supplies authority a court does not have.

This is also why the two problems produce different orders. A default ruling reads like an analysis: the court explains what cause would have required and why the movant did not show it. A cognizability ruling reads like a jurisdictional dismissal, often under Rule 4(b) of the Rules Governing Section 2255 Proceedings, which directs the judge to dismiss without ordering a response if “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” Many of the claims below never draw a government response at all.

A separate page in this section covers the affirmative side: what claims can be raised in a §2255 motion, and which of them actually succeed. Read that one for what to file. Read this one for what to leave out.

The statutory test, and the catch-all everyone misreads

Section 2255(a) lists four grounds. Three are self-explanatory: constitutional or statutory violation, lack of jurisdiction, and a sentence above the statutory maximum. The fourth — “or is otherwise subject to collateral attack” — is the phrase that generates most non-cognizable filings, because on its face it sounds like a residual clause big enough to hold anything.

It is not. The Supreme Court has read it narrowly for more than sixty years. Hill held that a district court’s failure to give the defendant his allocution under Fed. R. Crim. P. 32 — an actual, conceded rule violation — was “neither jurisdictional nor constitutional,” “not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure.” Addonizio quoted that language and added the framing that governs today: §2255 “does not encompass all claimed errors in conviction and sentencing,” and “unless the claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained far more limited.”

The doorway is not sealed. Davis v. United States, 417 U.S. 333, 346 (1974) is the case that shows what fits through it: where an intervening decision establishes that the movant’s conduct was not a crime, “conviction and punishment are for an act that the law does not make criminal,” and “[t]here can be no room for doubt that such a circumstance ‘inherently results in a complete miscarriage of justice.'” That is the shape of a cognizable non-constitutional claim — innocence of the offense as a matter of law, not a better reading of a Guidelines application note.

One more foundational rule sits underneath all of this. Sunal v. Large, 332 U.S. 174, 178 (1947) states it in a sentence courts still quote: “So far as convictions obtained in the federal courts are concerned, the general rule is that the writ of habeas corpus will not be allowed to do service for an appeal.” Sunal predates the modern cause-and-prejudice framework, and the modern default doctrine does that work now, but the principle survives: collateral review is not a second appeal, and a claim that is really an appellate argument in a different envelope is treated accordingly.

Exclusion 1: An ordinary Sentencing Guidelines misapplication

This is the single most common non-cognizable claim, and the reason is structural. United States v. Booker, 543 U.S. 220 (2005) severed the provision that made the Guidelines binding and left them “effectively advisory,” with district courts required only to “consult those Guidelines and take them into account when sentencing” alongside the other factors in 18 U.S.C. §3553(a).

Once the Guidelines stopped being law, circuits concluded that misapplying them stopped being the kind of error §2255 corrects. The Third Circuit in Folk put the reasoning in one line: “Because the Guidelines are advisory and merely one factor considered within a sentencing court’s discretion, an incorrect career-offender enhancement is not a fundamental defect inherently resulting in a complete miscarriage of justice.” The Eleventh Circuit, sitting en banc in Spencer v. United States, 773 F.3d 1132 (11th Cir. 2014) (en banc), reached the same result and explained why the harm is speculative: “any miscalculation of the guideline range cannot be a complete miscarriage of justice because the guidelines are advisory. If the district court were to resentence Spencer, the district court could impose the same sentence again.” The Fourth Circuit agreed in United States v. Foote, 784 F.3d 931 (4th Cir. 2015), holding that sentencing under advisory Guidelines “based on a career offender status that is later invalidated does not meet this remarkably high bar.”

Two qualifications keep this rule from swallowing real claims. First, an error that pushes a sentence above the statutory maximum is a different animal — that is §2255(a)’s third doorway, and Spencer expressly distinguished a misapplication of the Armed Career Criminal Act, which “results in a sentence that exceeds the statutory maximum.” Second, a Guidelines error can still matter as the subject of a cognizable claim: if counsel’s failure to object was constitutionally deficient, the claim is ineffective assistance of counsel under the Strickland v. Washington two-prong test, not a freestanding Guidelines claim. That reframing is not a technicality. It changes what you must plead and prove — and because Glover v. United States, 531 U.S. 198 (2001), holds that any additional prison time is prejudice, the reframed claim carries a materially easier prejudice standard. How to plead it is covered at ineffective assistance at sentencing.

Career-offender claims and the mandatory/advisory divide

The career-offender designation under U.S.S.G. §4B1.1 deserves its own paragraph because it is where the law is genuinely unsettled, and because the answer depends on when you were sentenced.

For a defendant sentenced after Booker, under advisory Guidelines, nearly every circuit treats an erroneous career-offender designation as non-cognizable. Spencer, Foote, and Folk are the leading en banc and published statements.

For a defendant sentenced before Booker, when the Guidelines were mandatory, two circuits have held the opposite. In Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011), the Seventh Circuit held that misapplying “the then-mandatory §4B1.1 career offender categorization” was a miscarriage of justice, rejecting the government’s below-the-maximum argument: “The fact that Mr. Narvaez’s sentence falls below the applicable statutory-maximum sentence is not alone determinative.” The Third Circuit reached the same conclusion in United States v. Doe, 810 F.3d 132, 160 (3d Cir. 2015), holding that misapplication of the mandatory career-offender Guideline, where it prejudiced the defendant, “results in a sentence substantively not authorized by law and is therefore subject to attack on collateral review where the claim is not defaulted.” Doe was careful to say its holding was narrow and did not reach advisory-Guidelines claims — and four years later the same court decided Folk the other way for advisory sentences.

If you were sentenced before January 12, 2005, this distinction is worth real attention from counsel. If you were sentenced after it, a standalone career-offender claim faces adverse published authority in most circuits, and the productive framing is almost always ineffective assistance instead.

Exclusion 2: A sentence that is severe but lawful

There is no provision of §2255 that authorizes a court to reduce a sentence because it is longer than it should have been. Section 2255(a) requires a claim of “the right to be released” on one of four legal grounds. Disproportion, disparity with a codefendant, changed circumstances, rehabilitation in prison, family hardship, and a judge who was harsher than another judge would have been are all real, and none of them is a listed ground.

Addonizio is the cleanest illustration, because the equities there were sympathetic. The prisoners argued that a post-sentencing change in Parole Commission policy had extended their actual imprisonment beyond what the sentencing judge intended. The Court held that would not support collateral attack: “subsequent actions taken by the Parole Commission — whether or not such actions accord with a trial judge’s expectations at the time of sentencing — do not retroactively affect the validity of the final judgment itself.” The federal parole system at issue in Addonizio was abolished prospectively by the Sentencing Reform Act of 1984, but the holding’s logic is what circuits still apply: a lawful sentence does not become unlawful because of what happens to it afterward.

The correct vehicle for “too long” depends entirely on why. A retroactive Guidelines amendment runs through 18 U.S.C. §3582(c)(2). Extraordinary and compelling reasons run through §3582(c)(1)(A). A reduction for substantial assistance belongs to the government under Fed. R. Crim. P. 35(b) — a defendant cannot file one. Executive clemency runs through the Office of the Pardon Attorney. None of these is a §2255 motion, and — this is the trap — filing one does not stop the §2255 clock. The one-year period in §2255(f) runs from the latest of four trigger dates, and a pending §3582 motion is not one of them. Compute your date at the §2255 deadline calculator before you file anything else.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: When a new file comes in describing a sentence as unfair, the first thing we do is separate the two questions the word “unfair” is carrying. One is whether the sentence was imposed unlawfully — that is a §2255 question and it has to be traced to a specific constitutional or statutory defect in the record. The other is whether the sentence is longer than it should be today — that is a sentence-reduction question with an entirely different statute, a different standard, and a different filing. Clients often have both. They rarely belong in the same document, and putting them there tends to weaken the one that had a chance.

Exclusion 3: Anything the Bureau of Prisons decides

A very large share of the grievances that arrive labeled “§2255” are actually about the execution of a sentence rather than its validity — how BOP is counting it, where it is being served, or what programs the prisoner has been given or denied. Those claims are not cognizable under §2255 because §2255 attacks the judgment, and the judgment is not what the prisoner is complaining about.

The line is drawn by statute and by Wilson. United States v. Wilson, 503 U.S. 329 (1992) holds that under 18 U.S.C. §3585(b) the district court cannot award credit for prior custody at sentencing at all: “the Attorney General, through BOP, has the responsibility for administering the sentence,” and “the Attorney General has no choice but to make the determination as an administrative matter when imprisoning the defendant.” Wilson also describes the path a prisoner takes instead — administrative review under 28 C.F.R. §§542.10–542.16, then judicial review “after exhausting their administrative remedies.” Place of imprisonment is likewise committed to BOP by 18 U.S.C. §3621(b).

The advisory committee note to Rule 1 of the Rules Governing Section 2255 Proceedings says the same thing about a related category: “The challenge of decisions such as the revocation of probation or parole are not appropriately dealt with under 28 U.S.C. §2255, which is a continuation of the original criminal action. Other remedies, such as habeas corpus, are available in such situations.”

In practice that means sentence computation, jail credit, good conduct time, First Step Act time credits, RDAP eligibility, PATTERN scoring, halfway house and home confinement placement, prison discipline that costs good time, and detainers all go under §2241, filed against the warden in the district of confinement, after the BP-8 through BP-11 administrative remedy sequence — a filing whose mechanics are described at what goes in a habeas corpus petition. Which statute governs a particular grievance — and what Jones v. Hendrix did to the saving clause in 2023 — is covered at §2255 versus §2241.

Exclusion 4: Conditions of confinement and medical care

A claim about how you are being treated in prison is not a claim about the legality of your custody, and §2255 does not reach it no matter how serious the treatment is. The governing distinction is the one the Supreme Court drew in Preiser v. Rodriguez, 411 U.S. 475 (1973): habeas is the remedy when a prisoner “is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release,” while a suit is “a proper remedy for a … prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody.”

Denial of medical care, unsafe housing, excessive force by staff, failure to protect, retaliation for filing grievances, denial of religious accommodation, and mail and law-library interference are conditions claims. Winning one does not shorten a sentence, and a §2255 court cannot order BOP to change how it runs a facility. For a federal prisoner, those claims proceed as constitutional tort actions against individual officers, or under the Federal Tort Claims Act against the United States, each with its own exhaustion requirements and its own limitations period — and the Prison Litigation Reform Act’s exhaustion rule applies to all of them.

There is one important caveat. Conditions evidence is not useless in post-conviction work; it is simply not a §2255 ground on its own. Deteriorating health, inadequate care, and facility conditions are squarely relevant to a compassionate release motion under §3582(c)(1)(A), and they can be relevant to the equities a judge weighs at resentencing if a §2255 succeeds on some other ground. The mistake is using them as the ground itself.

Exclusion 5: A claim the court of appeals already decided

If you raised an issue on direct appeal and lost, a §2255 motion is not the place to raise it again. This is not procedural default — default is about claims you did not raise. This is the mandate rule, sometimes called the relitigation bar, and it is a separate obstacle with a separate exception.

The Second Circuit’s statement in Yick Man Mui v. United States, 614 F.3d 50 (2d Cir. 2010) is the clearest: “the so-called mandate rule bars re-litigation of issues already decided on direct appeal,” and it “prevents re-litigation in the district court not only of matters expressly decided by the appellate court, but also precludes re-litigation of issues impliedly resolved by the appellate court’s mandate.”

The exception comes from Davis, which held that “law of the case,” as decided on an earlier direct appeal, does not preclude §2255 relief “on the basis of an intervening change in law” — quoting Kaufman for the rule that a movant may get a new hearing “if new law has been made … since the trial and appeal.” So a claim the circuit rejected in 2019 can be revived if the Supreme Court adopted your reading in 2025, subject to retroactivity. Note the difference between this bar and the one that applies after a §2255 is denied, which is a question about appealing rather than relitigating — see the certificate of appealability. Whether a particular decision applies to an already-final conviction is its own analysis, covered at retroactive Supreme Court decisions.

Yick Man Mui also contains the trap that makes this exclusion dangerous rather than merely inconvenient, and it is discussed on the page that owns it: choosing between a direct appeal and a §2255 motion. In short, a movant who raised an ineffective-assistance claim on direct appeal on an undeveloped record, and lost, “is precluded from raising new or repetitive claims based on the same strategies, actions, or inactions in a Section 2255 proceeding.” Massaro removed the default penalty for waiting; it did not remove the mandate-rule penalty for going early and losing.

Exclusion 6: A claim a valid collateral-attack waiver forecloses

Most federal plea agreements now contain a paragraph in which the defendant gives up the right to file a §2255 motion, usually with carve-outs. Where that waiver is valid and covers the claim, the district court will enforce it and never reach the merits — which functions as an exclusion even though the underlying claim would otherwise be perfectly cognizable.

Two things about waivers are worth stating carefully, because the government’s brief will usually state them broadly. First, enforceability turns on whether the waiver was knowing and voluntary, which is a question about the plea colloquy and the agreement’s actual text, not a rubber stamp. Second, the carve-outs are real and they matter: a waiver frequently does not bar a claim that counsel was ineffective in negotiating or advising on the plea itself, because such a claim attacks the validity of the very agreement containing the waiver. Courts also generally decline to enforce a waiver against a claim that the sentence exceeded the statutory maximum. Do not treat the government’s characterization of your waiver as settled fact; the scope question is litigated and it is often the whole case. The full analysis — what makes a waiver enforceable and precisely what survives it — belongs to appeal waivers and collateral-attack waivers.

Exclusion 7: Restitution, fines, and money

A challenge to a restitution order or a fine is not cognizable under §2255, and this surprises people, because restitution is unquestionably part of the criminal judgment. The reason is that §2255 is a custody remedy: the statute speaks of a prisoner “claiming the right to be released,” and a money judgment does not hold anyone.

The Second Circuit’s decision in Kaminski v. United States, 339 F.3d 84 (2d Cir. 2003) squarely holds that §2255 “may not be used to bring collateral challenges addressed solely to noncustodial punishments,” and reports the consensus: “Nearly every circuit to consider the issue has concluded that an order of restitution may not be attacked in a §2255 petition, even if the petition also alleges error in the sentence of imprisonment.” Kaminski also forecloses the obvious workaround of bundling the restitution claim with a custody claim, quoting the rule that a court looks “to the relief sought in the claim itself, not on relief sought in other claims mentioned elsewhere in the motion. Non-cognizable claims do not morph into cognizable ones by osmosis.”

The practical consequences follow from the rule. Direct appeal is the primary route for a restitution challenge. Where the amount or schedule needs adjusting after judgment, 18 U.S.C. §3664(k) allows a court to modify a payment schedule on a material change in the defendant’s economic circumstances. And where the error is fundamental and the person is out of custody, coram nobis is the remaining possibility — an extraordinary writ, granted rarely, addressed at coram nobis.

Exclusion 8: A rule violation with no prejudice

Federal criminal procedure contains dozens of requirements the district court must satisfy. Violating one is error. It is usually not a §2255 claim, because Hill’s test asks about the magnitude of the defect rather than the existence of it.

United States v. Timmreck, 441 U.S. 780 (1979) is the controlling application. The district court had failed to comply with Fed. R. Crim. P. 11 in taking the plea — the government conceded the violation — and the Supreme Court still held the claim not cognizable: “Such a violation is neither constitutional nor jurisdictional,” and no claim could “reasonably be made that the error here resulted in a ‘complete miscarriage of justice’ or in a proceeding ‘inconsistent with the rudimentary demands of fair procedure.'” The Court added the framing that runs through this whole page: the claim “could have been raised on direct appeal … [a]nd there is no basis here for allowing collateral attack ‘to do service for an appeal.'”

What converts a rule violation into a cognizable claim is prejudice tied to a constitutional right. A Rule 11 defect that actually rendered a plea unknowing — the defendant did not understand an element of the offense, or was misinformed about the maximum penalty and would not have pleaded guilty — is a due process claim about the validity of the plea, and it is cognizable. The difference is not the rule cited; it is whether the motion pleads facts showing the error changed something.

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: The most common version of this problem we see is a motion that is genuinely well researched and points at the wrong institution. Someone spends months documenting that BOP miscalculated their release date, or denied First Step Act credits they earned, and files it as a §2255 in the sentencing court. The district judge has no authority over any of it, and the order says so in a paragraph. The same work, filed as a §2241 against the warden in the district of confinement after the BP-8 through BP-11 remedies are exhausted, is a real case with a real record. The research was never the problem. The forum was.

Exclusion 9: Freestanding actual innocence — reserved, not established

This one has to be stated with care, because the law here is genuinely unresolved and both overstatements are wrong.

Innocence is overwhelmingly used as a gateway — a key that unlocks a procedural door so a separate constitutional claim can be heard. Herrera v. Collins, 506 U.S. 390, 404 (1993) says so directly: “a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Herrera also stated that innocence claims based on new evidence “have never been held to state a ground for federal habeas relief absent an independent constitutional violation,” while assuming without deciding that a “truly persuasive demonstration” in a capital case might warrant relief under an “extraordinarily high” threshold.

That reservation is still open, and in 2026 the Supreme Court said so again. Fernandez v. United States, 608 U.S. 411, 146 S. Ct. 1292 (2026), holding that a conviction-validity attack must proceed through §2255 rather than §3582, expressly declined to foreclose a freestanding innocence claim: “We have never ruled that possibility out and do not do so now.” Do not read any page that tells you freestanding innocence is settled law, and do not read any page that tells you it is foreclosed. Neither is true. What is true is that a §2255 motion resting on innocence alone, with no independent constitutional violation, is asking a district court to recognize a claim the Supreme Court has never recognized — and the far stronger posture is to plead the innocence evidence as a gateway around a procedural bar while pleading the constitutional violation as the ground. The standards, which differ depending on which bar the innocence showing is passing, are set out at actual innocence, and the realistic path in a genuine innocence case is mapped at wrongful conviction. Note also that Bousley v. United States, 523 U.S. 614 (1998) defines the term strictly: “Actual innocence means factual innocence, not mere legal insufficiency.”

Exclusion 10: You are no longer in custody

Section 2255 opens with a jurisdictional fact: it is available to “[a] prisoner in custody under sentence of a court established by Act of Congress.” Custody is measured when the motion is filed. Supervised release and probation count as custody; a completed sentence does not. Each of those fact patterns — supervised release, a detainer, consecutive sentences, an expired sentence — is worked through at the §2255 custody requirement.

This excludes an entire population, and often the one with the most sympathetic facts — the person who served the sentence, came home, rebuilt a life, and is now facing an immigration consequence, a professional licensing bar, a firearms disability, or a sex-offender registration obligation traceable to a conviction obtained through constitutionally defective process. Section 2255 has nothing to offer them, and no amount of merit changes that.

The remedy that remains is the writ of error coram nobis, available in federal court to correct fundamental errors in a conviction where the movant is out of custody, sound reasons exist for the failure to seek relief earlier, and the conviction continues to produce adverse consequences. It is extraordinary relief and it is granted rarely. It is also frequently the only door left, which makes getting to it quickly important. The full treatment is at coram nobis, and the timing consequences of waiting are at post-conviction deadlines.

The “not a §2255 claim” table

Each row states the complaint as clients actually describe it, why §2255 cannot reach it, the controlling authority, and where the claim belongs instead.

Table 1. Complaints that are not cognizable under 28 U.S.C. §2255, with the correct vehicle for each.

The complaint	Why §2255 cannot reach it	Controlling authority	The correct vehicle instead
My Guidelines range was calculated wrong	Advisory Guidelines error is not a fundamental defect; the court could impose the same sentence on remand	Spencer, 773 F.3d 1132 (11th Cir. 2014) (en banc); Foote, 784 F.3d 931 (4th Cir. 2015); Folk, 954 F.3d 597 (3d Cir. 2020)	Direct appeal; or reframe as ineffective assistance for failing to object
I should not have been a career offender (sentenced after Booker)	Same — an advisory §4B1.1 designation is not a miscarriage of justice in most circuits	Folk, 954 F.3d 597 (3d Cir. 2020); Spencer, 773 F.3d at 1141	Direct appeal; ineffective assistance; §3582(c)(2) if an amendment applies retroactively
I should not have been a career offender (sentenced before Booker)	Cognizable in the 3d and 7th Circuits; contested elsewhere — this is the live exception, not the rule	Narvaez, 674 F.3d 621 (7th Cir. 2011); Doe, 810 F.3d 132 (3d Cir. 2015)	§2255 in those circuits, subject to default and timeliness
My sentence is longer than it should be	Not a listed §2255 ground; a lawful sentence does not become unlawful later	Addonizio, 442 U.S. at 186–87	§3582(c)(2); §3582(c)(1)(A); Rule 35(b) (government only); clemency
BOP computed my sentence or jail credit wrong	Execution of the sentence, not validity of the judgment; BOP computes credit, not the court	Wilson, 503 U.S. 329 (1992); 18 U.S.C. §3585(b)	BP-8 through BP-11, then §2241 in the district of confinement
BOP denied me FSA credits, RDAP, or halfway house	Same — a program and placement decision committed to BOP	18 U.S.C. §3621(b); 28 C.F.R. §§542.10–542.16	BP-8 through BP-11, then §2241
I lost good time in a disciplinary hearing	Execution of sentence; the judgment is not challenged	Rule 1 advisory committee note, Rules Governing §2255 Proceedings	Administrative appeal, then §2241
I am being denied medical care / conditions are unsafe	Conditions of confinement, not the fact or duration of custody	Preiser, 411 U.S. 475 (1973)	Constitutional tort action or FTCA claim, after PLRA exhaustion
The court of appeals already rejected this argument	Mandate rule bars relitigation of issues expressly or impliedly decided	Yick Man Mui, 614 F.3d 50 (2d Cir. 2010)	Only if an intervening change in law applies — Davis, 417 U.S. 333 (1974)
My plea agreement waived collateral attack	A valid, knowing waiver covering the claim is enforced without reaching the merits	Plea agreement text; colloquy record	Litigate scope and validity; IAC-in-the-plea claims often survive
The restitution order is wrong	§2255 is a custody remedy; a money judgment is not custody	Kaminski, 339 F.3d 84 (2d Cir. 2003)	Direct appeal; 18 U.S.C. §3664(k) modification; coram nobis if out of custody
The judge violated Rule 11 or Rule 32 at my plea or sentencing	A formal rule violation without prejudice is neither constitutional nor jurisdictional	Timmreck, 441 U.S. 780 (1979); Hill, 368 U.S. at 428	Direct appeal; §2255 only if the defect made the plea unknowing
I am innocent and that is my whole claim	Freestanding innocence has never been recognized — but has not been foreclosed either	Herrera, 506 U.S. at 404; Fernandez, 608 U.S. 411, 146 S. Ct. 1292 (2026) (reservation)	Plead innocence as a gateway plus an independent constitutional claim
My sentence is over and I have collateral consequences	§2255 requires custody at filing	28 U.S.C. §2255(a)	Coram nobis; immigration relief; expungement where available

What to do with a claim §2255 cannot reach

Being told a claim is not cognizable is a routing instruction, not a verdict on the merits. Three practical points follow.

Do not let the wrong filing consume the right deadline. The §2255(f) one-year clock runs on its own schedule regardless of what else is pending, and neither a §3582 motion, nor a BOP administrative remedy, nor a §2241 petition tolls it. This is the trap Fernandez created a great deal of new traffic for in 2026: people who took a conviction-validity argument to the compassionate release statute, lost on vehicle grounds, and discovered the §2255 year had run in the meantime. That specific sequence has its own page: filing a §2255 after a compassionate release denial.

Do not assume §2241 is the fallback for a validity claim. For execution-of-sentence complaints, §2241 is exactly right. For a claim that the conviction itself is invalid, Jones v. Hendrix, 599 U.S. 465, 471 (2023), closed that route: “§2255(e)’s saving clause does not permit a prisoner asserting an intervening change in statutory interpretation to circumvent [the] restrictions on second or successive §2255 motions by filing a §2241 petition.” A great deal of published guidance still describes the pre-2023 circuit tests as live law. They are not — and the restrictions doing the work here all trace to the 1996 statute described at what AEDPA changed.

Do not assume a second §2255 will fix an omission. Because §2255(h) permits a successive motion only on newly discovered evidence meeting a clear-and-convincing innocence standard, or a new rule of constitutional law made retroactive by the Supreme Court, a claim left out of the first motion is usually gone permanently. Bowe v. United States, 607 U.S. 13 (2026), removed two §2244 bars that had been applied to federal prisoners — the certiorari bar and the old-claim bar — by holding that §2255(h)’s cross-reference incorporates §2244’s certification procedures only. It did not loosen the §2255(h) gate itself; Bowe quotes Jones v. Hendrix, 599 U.S. at 477, for the “two—and only two—conditions in which a second or successive §2255 motion may proceed,” and a Seventh Circuit judge read it narrowly, in chambers, in Upchurch v. United States, No. 26-1114 (7th Cir. Aug. 4, 2026) (“At several points, the majority opinion noted that its holding was limited to the certiorari bar alone.”). The gate is described in full at second or successive §2255 motions.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: In our practice the cognizability screen comes before the merits screen, and it is done on the judgment, the plea agreement, the presentence report, and the appellate mandate rather than on the client’s narrative. Three documents answer most of it: the judgment tells us the statutory maximum and whether the sentence exceeds it; the mandate tells us what the circuit already decided; the plea agreement tells us what was waived. Only after that do we ask whether a claim is strong. It is an uncomfortable order of operations, because it means sometimes explaining that a genuinely wrongful thing has no §2255 remedy — but it is the order that keeps a one-year clock from being spent on a motion the court cannot grant.

Why work with Elizabeth Franklin-Best, P.C.

Elizabeth Franklin-Best, P.C. is a boutique federal criminal defense and appellate firm founded in 2019, with offices in Columbia and Mount Pleasant, South Carolina, serving clients nationwide. Elizabeth Franklin-Best has more than 20 years of federal and appellate criminal defense experience, has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record, and is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit. She is recognized by Best Lawyers in America 2026 for Appellate Practice and by Chambers USA 2026 for Litigation: White-Collar Crime & Government Investigations, and is the author of Reversing Your Criminal Conviction: Develop Your Winning Strategy (2023).

The firm runs a national federal practice on an intentionally small caseload and has been admitted pro hac vice in federal courts from Montana to Florida. Sorting a cognizable claim from a non-cognizable one requires reading the whole record — judgment, plea agreement, presentence report, sentencing transcript, and appellate mandate — before deciding what to file and where. That is document work, not intake work, and it is the reason the caseload stays small.

Talk to a federal post-conviction lawyer

If you have a grievance about your federal case and you are not certain whether it belongs in a §2255 motion, a §2241 petition, a sentence-reduction motion, or an administrative remedy, that question is worth answering before the one-year clock does it for you.

Schedule a consultation · Phone: (843) 620-1100 · Offices: Columbia and Mount Pleasant, South Carolina — federal practice nationwide.

You can also start with the hub for this practice area: federal 2255 motion lawyer.

Frequently Asked Questions About Non-Cognizable Claims

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026