Newly Discovered Evidence: Rule 33, §2255(f)(4), and §2255(h)(1)

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

How do you raise newly discovered evidence in federal court?

It depends on your posture. If you went to trial and it has been under three years since the verdict, file a new-trial motion under Fed. R. Crim. P. 33(b)(1). If Rule 33 is closed or you pleaded guilty, file a § 2255 motion using the § 2255(f)(4) discovery start date. If you already filed a § 2255, you need court-of-appeals authorization first.

Key takeaways on newly discovered evidence

• Rule 33 gives you three years from the verdict, not from the appeal. Rule 33(b)(1): a new-trial motion “grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty.” Everything else gets 14 days under Rule 33(b)(2).
• Rule 33 generally requires a trial. United States v. Graciani, 61 F.3d 70, 78 (1st Cir. 1995): “A defendant who enters a guilty plea cannot thereafter use Rule 33 as a wedge to undo his acknowledgment that he committed the offense.” If you pleaded guilty, § 2255 is your vehicle.
• § 2255(f)(4) restarts the one-year clock from discovery — but from when the facts could have been discovered. The statute runs the year from “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence,” which is a diligence date, not the date you actually found out.
• A second § 2255 needs permission first, and the standard is severe. § 2255(h)(1) requires a court of appeals to certify “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.”
• Impeachment evidence usually is not enough. Circuits applying the standard five-element test require that the evidence “not be merely cumulative or impeaching,” and that it “would probably produce an acquittal.”
• The two clocks run at the same time and expire on different days. A recantation surfacing two years after a jury verdict is comfortably inside Rule 33’s three years and probably outside § 2255(f)(1)’s one year from finality — which is precisely why the vehicle question has to be answered before the merits question.

Which motion do I file? The doors, the clocks, and what each one can give you

Federal law does not have a single “new evidence” motion. It has a set of vehicles, each built for a different posture. The table below is the map. Read down the second column first — it tells you which doors are even open to you.

Table 1 — Federal vehicles for newly discovered evidence: what each one requires, when it must be filed, what you have to prove, and what the court can order.

Vehicle	You may use it only if	Deadline, and what starts the clock	Standard of proof	What the court can order
New-trial motion, Fed. R. Crim. P. 33(b)(1)	You were convicted at a trial (jury or bench). Generally unavailable after a guilty plea	3 years after the verdict or finding of guilty — not from sentencing, not from the appellate mandate	Circuits apply a five-element test: newly discovered since trial; diligence; not merely cumulative or impeaching; material; and “would probably produce an acquittal”	A new trial — the conviction is vacated and the case is retried, not dismissed
New-trial motion on any other ground, Fed. R. Crim. P. 33(b)(2)	Same trial requirement; the ground is anything other than newly discovered evidence	14 days after the verdict or finding of guilty	Rule 33(a): “if the interest of justice so requires”	A new trial
First § 2255 motion using § 2255(f)(4)	You are in custody and this is your first § 2255	1 year from “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence” — and § 2255(f) takes the latest of its four triggers	The underlying claim’s own standard — for suppressed evidence, Brady; for counsel’s failure to investigate, Strickland. New facts are the vehicle, not the claim	The sentence vacated, set aside, or corrected; a new trial; resentencing; or discharge
Second or successive § 2255, § 2255(h)(1)	You already had a § 2255 adjudicated, and a court of appeals panel certifies the motion before the district court may consider it	No fixed calendar deadline for authorization, but § 2255(f)’s one year still governs the motion itself	“[N]ewly 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”	Authorization to file; then ordinary § 2255 relief in the district court if the claim succeeds
DNA testing motion, 18 U.S.C. § 3600	Specific biological evidence exists, identity was at issue at trial, and you assert innocence under penalty of perjury	Rebuttable presumption of timeliness within 36 months of conviction; after that a rebuttable presumption against timeliness, overcome only on the § 3600(a)(10)(B) grounds	Ten statutory findings, including a theory of defense establishing actual innocence and that testing “may produce new material evidence” raising “a reasonable probability that the applicant did not commit the offense”	Testing ordered. If results exclude you, § 3600(g) allows a new-trial or resentencing motion “[n]otwithstanding any law that would bar” it as untimely
Writ of coram nobis	Your sentence — including supervised release — is completely finished, so § 2255’s custody requirement excludes you	No statute of limitations, but the delay must be justified	Fundamental error, continuing collateral consequences, sound reasons for delay, no other remedy available	The conviction vacated

Two structural points that the table cannot show. First, more than one door can be open at once, and the deadlines are independent — see the protective-filing section below. Second, Rule 35 is not on this list on purpose. A Rule 35(b) motion for a sentence reduction based on substantial assistance belongs to the government; a defendant cannot file one. And Rule 35 as a sentence-reduction remedy is covered in a different practice area entirely, at Rule 35 motion. New evidence about guilt is not a Rule 35 question.

Door one: the Rule 33 new-trial motion and its three-year clock

Fed. R. Crim. P. 33(a) is short: “Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” The timing subsections do the real work.

Rule 33(b)(1): “Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty.” Rule 33(b)(2): “Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.”

Read the trigger carefully, because a great deal of published guidance gets it wrong. The clock starts at the verdict or finding of guilty. Not at sentencing. Not at the entry of judgment. Not when the court of appeals issues its mandate. An older version of the rule keyed the period to “final judgment,” and decisions construing that older text held the period ran from the appellate mandate — the Second Circuit explained the history in United States v. Camacho, 370 F.3d 303 (2d Cir. 2004), while quoting the current rule’s “3 years after the verdict or finding of guilty” language. Those older decisions still get cited today with parentheticals that describe them as if they governed the current rule. If your case is close to the line, that distinction is the whole case, and it is worth a lawyer’s eye.

Rule 33(b)(1) also contains a jurisdictional limit that surprises people: “If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.” That does not mean you have to wait. The First Circuit set out the correct procedure in United States v. Graciani, 61 F.3d 70 (1st Cir. 1995): a defendant who wants to use Rule 33 while his direct appeal is pending “is not obliged either to file a motion for remand in the court of appeals or to seek any type of leave from that court. To the contrary, the proper procedure under such circumstances is for the defendant, without further ado, to file his Rule 33 motion in the district court.” The district court can then deny it, or signal that it would grant it so the defendant can ask the appellate court for a remand.

This also answers a question people ask constantly: can I bring new evidence up during my appeal? Not in the appeal itself. An appellate court reviews the record made below; it does not take evidence. New evidence goes to the district court — through Rule 33 while the appeal is pending, or through § 2255 after it ends.

What “newly discovered evidence” actually has to be

Every circuit uses some version of the same five-element test, and it is far more demanding than the phrase suggests. The Third Circuit’s formulation in United States v. Schneider, 801 F.3d 186 (3d Cir. 2015), is representative:

“(a) [T]he evidence must be in fact newly discovered, i.e.[,] discovered since trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.”

Four of those five are where motions die.

“Discovered since trial” is not the same as “obtained since trial.” In Schneider, evidence about witness-fee payments failed the element because it had been disclosed to trial counsel by email during trial, two days before the witness testified. Information the defense possessed and did not use is not newly discovered.

Diligence requires alleged facts, not an assertion. The court must be able to infer diligence from what the motion says — when you learned of the lead, what you did with it, why it could not have been found earlier.

“Not merely cumulative or impeaching” disposes of a large share of real-world new evidence. Proof that a government witness lied about something, or has a bad record, or contradicted himself, is classically impeachment. It can matter enormously if the witness was the case — but as a matter of doctrine it starts in the disfavored category, and a motion has to explain why this particular material is substantively exculpatory rather than merely damaging to credibility.

“Would probably produce an acquittal” is the highest bar in the list, and it is measured against the whole trial record, not against the new item standing alone. In practice, courts describe a Rule 33 grant as an extraordinary remedy — the Second Circuit’s formulation, applied in United States v. Militello, No. 1:13-cr-00165 (W.D.N.Y. Mar. 10, 2026), is that “[t]he ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice,” and that the judge must “harbor ‘a real concern that an innocent person may have been convicted.'”

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The element that decides most of these motions is the third one, and it is decided by how the evidence is framed rather than by what the evidence is. The same recanting witness can be presented as “the witness now says he lied,” which is impeachment, or as “the only evidence placing my client at the scene has been withdrawn by the person who gave it, and here is what the remaining record does and does not contain without it,” which is a materiality argument about the government’s proof. We build that second version by mapping the trial transcript element by element and showing what is left standing. That work happens before anything is filed, because the framing is not something a court will do for you.

Rule 33 generally requires a trial — which is why most readers are in § 2255 territory

The overwhelming majority of federal convictions are guilty pleas, and for those defendants Rule 33 is usually closed.

Graciani states the rule and collects the authority: “A defendant who enters a guilty plea cannot thereafter use Rule 33 as a wedge to undo his acknowledgment that he committed the offense,” because Rule 33 “applies only to cases in which a trial, either to the court or to a jury, has taken place,” quoting United States v. Lambert, 603 F.2d 808, 809 (10th Cir. 1979). Courts continue to apply that rule; Militello (2026) collects decisions from several courts of appeals reaching the same result and notes that the Second Circuit has apparently not squarely decided the question.

If you pleaded guilty and you have new evidence, that does not end the inquiry — it changes the vehicle. Your route is a § 2255 motion, and what the evidence has to show is different: not “a new trial is warranted,” but that your conviction or sentence violates the Constitution or laws of the United States. New facts that show the government suppressed exculpatory material, or that counsel’s advice about the plea was unreasonable, are constitutional claims. New facts that merely suggest you might have won at a trial you never had are much harder, because a valid guilty plea forecloses most challenges to what came before it. If your plea agreement contains a waiver, read our page on appeal waivers and collateral-attack waivers before assuming the door is shut — waivers are narrower than people are told.

Door two: a § 2255 motion with a § 2255(f)(4) start date

Section 2255(f) gives the one-year limitation period four possible start dates and directs that the year runs from “the latest” of them. The fourth is the one that matters here: “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.”

Three features of that sentence decide cases.

It is a diligence date, not a discovery date. The clock starts when the facts could have been found by a reasonably diligent person — which can be earlier, sometimes much earlier, than the day you actually learned them. A movant who sat on a lead for two years does not get the later date.

It runs claim by claim, not motion by motion. Different claims in one motion can have different trigger dates, so a motion can be timely as to a newly discovered Brady claim and untimely as to an ineffective-assistance claim that was knowable at sentencing. The full four-trigger analysis is on our § 2255 statute of limitations page.

It restarts nothing about the claim’s own merits standard. Section 2255(f)(4) is a timing rule. It gets you through the door; it does not lower the bar inside. New evidence that the government suppressed favorable material is judged under Brady — see Brady violation. New evidence that counsel failed to investigate is judged under Strickland — see ineffective assistance of counsel. New evidence that simply suggests the jury got it wrong, with no constitutional violation attached, is the hardest posture of all, and it is the subject of the innocence section below.

If the year has already run, the remaining timing arguments are equitable tolling and the innocence gateway — both covered on our equitable tolling page. And if you are incarcerated, the date you hand a filing to prison officials can control instead of the date the clerk stamps it; see the prisoner mailbox rule.

Door three: § 2255(h)(1), if you already filed a § 2255

If a § 2255 motion of yours has already been adjudicated, you cannot simply file another one. Section 2255(h) requires that “[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals” before a district court may consider it, and the newly-discovered-evidence route requires:

“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”

Notice how much heavier that is than Rule 33. Rule 33 asks whether the new evidence would probably produce an acquittal. Section 2255(h)(1) asks for clear and convincing evidence that no reasonable factfinder would have convicted — the same architecture as the innocence gateway, but with a higher burden of persuasion. It is also a showing about guilt of the offense, which means evidence going only to the sentence generally does not qualify.

Two further points that readers routinely get wrong. Authorization is a prima facie screening decision by the panel, not a merits ruling; if the panel certifies, the district court still decides the claim, and it can dismiss. And the Supreme Court’s decision in Bowe v. United States, 607 U.S. 13 (2026), did not loosen this gate. Bowe held that § 2244(b)(3)(E)’s certiorari bar and § 2244(b)(1)’s old-claim bar do not apply to federal prisoners — the Court may review a denial of authorization, and a federal prisoner is not statutorily barred from re-presenting a previously raised claim — but the opinion itself quotes Jones v. Hendrix, 599 U.S. 465, 477, for the “two—and only two—conditions in which a second or successive § 2255 motion may proceed.” Those two remain § 2255(h)(1) and § 2255(h)(2). The full mechanics of authorization live on our second or successive 2255 page, and how to appeal if you lose is on certificate of appealability.

Is a witness recantation enough?

Usually not by itself, and it is important to understand why before building a case around one.

Federal courts approach recantations with open skepticism. The Eighth Circuit stated the rule plainly in United States v. Miner, 131 F.3d 1271 (8th Cir. 1997): “Courts look upon recantations with suspicion.” Miner held that a post-trial recantation “will warrant reversal only if it raises a strong enough inference of innocence to warrant a new trial on the ground of newly discovered evidence under Rule 33,” and observed that skepticism “is especially applicable in cases of child sexual abuse where recantation is a recurring phenomenon,” particularly “when family members are involved and the child has feelings of guilt or the family members seek to influence the child to change her story.”

The reasoning is structural rather than cynical. A recanting witness is necessarily admitting to having lied under oath at least once. The court must decide which statement was the lie, and it must do so knowing that the recantation arrives after the pressures of trial have been replaced by different pressures — family, incarceration, time, sometimes payment. Nothing about the later statement is inherently more credible than the earlier one.

What moves a recantation from suspicion toward credibility is corroboration and an explained motive to have lied the first time. A recantation supported by a documented reason for the original false testimony — a cooperation deal, a threat, a benefit conferred — and consistent with independent evidence is a different filing from a bare affidavit. And a recantation that also shows the government knew the testimony was false is not really a recantation case at all: knowing use of perjured testimony is its own due-process violation, and United States v. Agurs, 427 U.S. 97 (1976), describes that line of cases as requiring reversal “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” That claim belongs with prosecutorial misconduct.

How a Brady discovery is different from ordinary new evidence

If the new evidence was in the government’s possession and was never turned over, you are in a materially better position, and the reason is a Supreme Court holding that competitor pages almost never surface.

Agurs drew the distinction directly. Evidence “available to the prosecutor and not submitted to the defense,” the Court said, is “in a different category than if it had simply been discovered from a neutral source after trial. For that reason the defendant should not have to satisfy the severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal.” The Court explained the consequence of the opposite rule: “[i]f the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State’s possession as when it was found in a neutral source, there would be no special significance to the prosecutor’s obligation to serve the cause of justice.”

That is why the source of the evidence is the first question to answer. Neutral-source evidence has to clear Rule 33’s “probably produce an acquittal” element. Suppressed evidence is judged by the Brady materiality standard instead, which is less demanding — the modern formulation of that test, and how to plead a suppression claim, are covered on our Brady violation page, and how to find out whether such material exists in your case on Brady list and exculpatory evidence.

A suppression claim also has a timing advantage. Because the claim is that the government concealed the facts, § 2255(f)(4)’s discovery trigger — and sometimes § 2255(f)(2)’s governmental-impediment trigger — fit the fact pattern naturally, in a way they do not fit evidence that was always publicly available.

Can I get DNA testing in a federal case?

Yes, under 18 U.S.C. § 3600, but it is a demanding statute with ten findings the court must make, and its clock is unlike any other on this page.

The core requirements: you must assert under penalty of perjury that you are actually innocent of the federal offense; the specific evidence must not have been previously tested (and you must not have knowingly failed to request testing before), or you must be seeking “a new method or technology that is substantially more probative than the prior DNA testing”; you must identify “a theory of defense that … is not inconsistent with an affirmative defense presented at trial” and “would establish the actual innocence of the applicant”; if you were convicted at trial, “the identity of the perpetrator was at issue in the trial”; and the proposed testing “may produce new material evidence” that supports the theory and “raise[s] a reasonable probability that the applicant did not commit the offense.”

On timing, § 3600(a)(10)(A) creates a rebuttable presumption of timeliness for a motion filed “within 60 months of enactment of the Justice For All Act of 2004 or within 36 months of conviction, whichever comes later.” The 60-month prong is long expired, so in practice the operative presumption is 36 months from conviction. After that, § 3600(a)(10)(B) supplies a rebuttable presumption against timeliness, which can be overcome by a finding of incompetence that contributed to the delay, that the evidence to be tested is itself newly discovered DNA evidence, that denial “would result in a manifest injustice” where the motion is “not based solely upon the applicant’s own assertion of innocence,” or “upon good cause shown.”

The payoff is written into the statute. Under § 3600(g)(1), “[n]otwithstanding any law that would bar a motion under this paragraph as untimely, if DNA test results obtained under this section exclude the applicant as the source of the DNA evidence, the applicant may file a motion for a new trial or resentencing.” The court “shall grant” that motion if the results, considered with all other evidence, “establish by compelling evidence that a new trial would result in an acquittal.” In other words, § 3600 is the one vehicle here that can reopen a clock that has otherwise run.

Innocence by itself: what Schlup and Herrera actually decide

Two Supreme Court cases define the boundary, and both are frequently misdescribed.

Schlup v. Delo, 513 U.S. 298 (1995), supplies the gateway standard: a petitioner “must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt,” and to be credible the claim “requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.” Critically, Schlup describes innocence as a key rather than a claim: it 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 v. Collins, 506 U.S. 390 (1993), addressed the other question — innocence as a freestanding claim — in the state-prisoner context, holding that “[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera also assumed, without deciding, that in a capital case “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional,” while noting that the threshold “would necessarily be extraordinarily high,” and it observed that historically “the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.”

Do not read either case as foreclosing a freestanding innocence claim for a federal prisoner. In Fernandez v. United States, 608 U.S. 411, 146 S. Ct. 1292 (2026), the Supreme Court expressly reserved the question, stating that “[w]e have never ruled that possibility out and do not do so now” and citing Herrera. What Fernandez held is narrower and is about vehicles, which is this page’s subject: “[a] prisoner who collaterally attacks the validity of his conviction must proceed through 28 U. S. C. § 2255, not 18 U. S. C. § 3582.” The three innocence standards, and which one applies to which bar, are set out on our actual innocence page. For the broader question of who takes federal innocence cases and what the realistic path looks like, see wrongful conviction attorney.

Preserving the evidence and documenting the date you discovered it

Two record-building tasks matter more than anything else in this area, and both are done before a motion is drafted.

Preserve the evidence itself. Biological material can be consumed, destroyed under routine retention schedules, or degraded. Witnesses move, die, and change their minds again. Documents get purged. If DNA testing is even a possibility, a preservation request or motion directed at the agency holding the evidence should precede a § 3600 motion, not follow it. If a witness has recanted, the priority is a sworn, detailed statement — dates, names, what was said, why the original testimony was false, who else knows — while the witness is available and willing.

Document the discovery date contemporaneously. Section 2255(f)(4) turns on when the facts “could have been discovered through the exercise of due diligence,” and a court assessing that will look at what the record shows about your efforts. Keep the dated letter, the FOIA response with its stamp, the investigator’s report, the envelope. Note when you learned of the lead and what you did in the following weeks. A motion that says “I recently learned” invites the government to argue the movant could have learned it years earlier; a motion that says “counsel received the production on March 4, wrote to the witness on March 11, and obtained the declaration on April 2” is answering the question before it is asked.

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: From inside a federal facility the practical obstacles are the ones nobody writes about — you cannot interview a witness, you cannot hire an investigator without funds, and correspondence takes weeks each way. What is achievable from inside is the record of diligence: write down the date you first heard the information and from whom, keep the incoming envelope, request the trial transcript early, and send dated written requests to former counsel for the case file. Those documents are what later supports a due-diligence argument under § 2255(f)(4), and they are far more persuasive than a reconstruction written a year later. Families on the outside can do the parts that require a telephone and a car. The legal work on every matter is handled by the firm’s attorneys.

Filing in more than one vehicle at once

Because the deadlines are independent, there are real situations in which the right answer is to file in two places.

A defendant convicted at trial who finds evidence at month 30 may be inside Rule 33’s three years and outside § 2255(f)(1)’s one year from finality — but potentially inside § 2255(f)(4)’s one year from discovery, if the facts genuinely could not have been found earlier. Those are two live vehicles with two different standards and two different remedies, and choosing only one forfeits the other when its clock runs.

There are cautions. A § 2255 motion filed and adjudicated is the event that makes any later motion “second or successive” and triggers the § 2255(h) gate, so filing a thin § 2255 early to preserve a date has a permanent cost. Rule 2(b) of the Rules Governing Section 2255 Proceedings requires a motion to specify all the grounds available and state the facts supporting each, which means a protective § 2255 should not be a placeholder — it should be the complete motion. And a Rule 33 motion filed while a direct appeal is pending goes to the district court, per Graciani, but the court cannot grant it until the appellate court remands.

The sequencing question is genuinely difficult and it is case-specific. What happens procedurally once a § 2255 is on file — the government’s answer, the reply, whether you get a hearing, and how long each stage takes — is set out on what happens after filing a 2255.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The decision we spend the most time on is not which motion is strongest — it is which clock expires first and what filing it costs. A § 2255 is a one-shot instrument in practical terms, because § 2255(h) makes a second one a court-of-appeals question rather than a district-court question. So the analysis runs in this order: what is closing soonest, what does the record support today, and what will filing today foreclose tomorrow. That is a different question from “do we have a good claim,” and it has to be answered first.

What if my sentence is already over?

Then § 2255 is unavailable regardless of how good the evidence is. Section 2255 requires that the movant be “in custody under sentence of a court established by Act of Congress,” and everyone whose sentence and supervised release have ended falls outside it.

The remaining judicial vehicle is a writ of error coram nobis under the All Writs Act, which has no statute of limitations but requires a justified explanation for the delay along with a fundamental error and continuing collateral consequences. That is a genuinely different filing with different elements, and it is covered in full at coram nobis. A § 3600 DNA-testing motion is available to someone “sentenced to imprisonment or death” for a federal offense, so the custody analysis for that statute is its own question.

The other route Herrera named — executive clemency — remains available and is not a judicial proceeding at all. It has no evidentiary standard and no deadline, which is both its advantage and its limitation.

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, running a national federal practice on an intentionally small caseload from offices in Columbia and Mount Pleasant, South Carolina, and serving clients nationwide. Elizabeth Franklin-Best 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 — and admitted pro hac vice in federal courts from Montana to Florida. She has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record, and is recognized by Best Lawyers in America 2026 for Appellate Practice and by Chambers USA 2026 for white-collar litigation. She is the author of Reversing Your Criminal Conviction: Develop Your Winning Strategy (2023).

New-evidence cases are investigation cases before they are motion cases. They require reading a trial transcript against a theory, tracking down the person who can say what the affidavit needs to say, and answering the diligence question with documents rather than assertions — work that a deliberately small caseload makes possible. Christopher Zoukis, JD, MBA, the firm’s Managing Director, is a nationally recognized federal prison expert and the author of the Federal Prison Handbook, Directory of Federal Prisons, Prison Education Guide, and College for Convicts, and serves as Chairman of the Board of the Human Rights Defense Center; he coordinates the facility-side communication these investigations depend on. Legal work on every matter is handled by the firm’s attorneys.

Talk to a federal post-conviction lawyer about new evidence

If something new has surfaced in a federal case, the first question is which clock is running and how much of it is left. Schedule a consultation or call (843) 620-1100. Have the judgment, the docket sheet, and the date of the verdict or plea available, along with whatever the new information is and when you learned of it. Whether you work with this firm or another federal 2255 motion lawyer, get the vehicle question answered before the deadline answers it for you.

Frequently Asked Questions About Newly Discovered Evidence

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