Compassionate Release or a § 2255 Motion?
If your argument is that the conviction or sentence was legally wrong, it is a § 2255 claim and it has a one-year deadline. If your argument is that something about your circumstances now — illness, age, a child left with no caregiver — makes continued imprisonment unjustifiable, it is a § 3582(c)(1)(A) compassionate release claim with no deadline. Fernandez v. United States (2026) made that division binding.
On this page
Key takeaways on choosing between § 3582 and § 2255
- The Supreme Court decided this on May 28, 2026. “A prisoner who collaterally attacks the validity of his conviction must proceed through 28 U.S.C. §2255, not 18 U.S.C. §3582” (Fernandez v. United States, No. 24-556, 608 U.S. ___, 146 S. Ct. 1292 (2026), slip op. at 1). A “collateral attack” is a challenge to a conviction or sentence brought after the direct appeal is over, in a separate proceeding.
- The test is what your motion argues, not what you call it. “Whether a prisoner’s request for relief challenges a conviction turns on the nature of the arguments presented” (Fernandez, slip op. at 14). Renaming the filing does not change the routing.
- The § 2255 clock does not stop while you litigate the wrong statute. Section 2255(f) gives one year, and a compassionate release order is not a new judgment that restarts it — § 3582(b) says a judgment that includes a modifiable prison sentence “constitutes a final judgment for all other purposes.” The Sixth Circuit applied exactly that in West v. United States (Aug. 14, 2026), where a claim first raised in a compassionate release motion was, by then, “at least a decade out of time.” See our federal appeal deadline page for the full post-conviction calendar.
- If you have already filed one § 2255 motion, the door is much narrower. A second or successive motion “must be certified as provided in section 2244 by a panel of the appropriate court of appeals” and must rest on newly discovered evidence meeting a clear-and-convincing standard or on a new retroactive rule of constitutional law (§ 2255(h)). There is no equivalent gate on a second compassionate release motion.
- Compassionate release has no deadline but does have a gatekeeper. You must ask the warden first and may go to court only after full administrative exhaustion “or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier” (§ 3582(c)(1)(A)). See compassionate release request to warden.
- The two statutes deliver different things. Section 2255 can vacate the conviction. Section 3582 shortens the sentence and leaves the conviction, the restitution order, and every collateral consequence standing. Fernandez put it this way: “the remedy of a little less prison time does not redress the wrong” (slip op. at 14).
- Innocence and trial-error theories almost never worked under § 3582 even before Fernandez. Of the 631 reasons courts gave for granting compassionate release in fiscal year 2025, “conviction/sentencing errors” accounted for 2 (USSC FY2025 Compassionate Release Data Report, Table 10). If a denial has already come back on that theory, see compassionate release denial.
The Routing Table: Which Claim Belongs Under Which Statute
This is the decision tool. Find the row that sounds like your argument, then read across: the statute it belongs under, the deadline attached to that statute, and what actually happens if you file it under the other one.
| The argument you want to make | The statute it belongs under | The deadline that applies | What happens if you file it under the wrong statute |
|---|---|---|---|
| The trial was unfair — a Brady violation, an erroneous jury instruction, a constitutional error at trial | 28 U.S.C. § 2255(a) — sentence “imposed in violation of the Constitution or laws of the United States” | 1 year from the latest § 2255(f) trigger, ordinarily finality of the judgment | Filed as compassionate release, it is denied on the merits under Fernandez — “his motion suggests that his conviction is flawed” (slip op. at 14–15) — and the § 2255 clock runs the whole time the motion is pending |
| I am actually innocent | § 2255. A prisoner asserting actual innocence “challenge[s] the validity of his conviction” (Fernandez, slip op. at 17) | 1 year under § 2255(f); a credible actual-innocence showing can serve as a gateway past the time bar (McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)) | Fernandez holds squarely “that a compassionate release motion is not a vehicle for raising such a claim” (slip op. at 17). Note what the Court left open: whether a freestanding innocence claim is available under § 2255 at all is undecided |
| My lawyer was constitutionally ineffective — at trial, at the plea, at sentencing, or on appeal | § 2255, under Strickland v. Washington, 466 U.S. 668 (1984) | 1 year under § 2255(f). No procedural-default penalty for not raising it on direct appeal (Massaro v. United States, 538 U.S. 500 (2003)) | Not cognizable as compassionate release — it is an attack on the conviction. Fernandez used a Brady-plus-Strickland hypothetical as its example of what does not belong under § 3582 (slip op. at 8) |
| My guilty plea was not knowing and voluntary | § 2255 | 1 year under § 2255(f) | Same as above. And if the claim was available on direct appeal and was not raised, it is procedurally defaulted absent “cause” and “prejudice” or actual innocence (Bousley v. United States, 523 U.S. 614, 622 (1998)) |
| My sentence exceeds the statutory maximum, or the court had no jurisdiction | § 2255(a) — both are named in the statute’s text | 1 year under § 2255(f) | Denied under Fernandez. The Sixth Circuit had already adopted the rule that “sentencing errors cannot provide an ‘extraordinary and compelling’ reason for compassionate release” (West, 70 F.4th 341, 347 (6th Cir. 2023)) |
| A new Supreme Court rule, made retroactive, invalidates my conviction or sentence | § 2255 | 1 year from the date the Supreme Court initially recognized the right, not the date it was made retroactive (§ 2255(f)(3); Dodd v. United States, 545 U.S. 353 (2005)) | The window can close before the retroactivity question is settled. This is the single most commonly missed deadline in federal post-conviction practice |
| I have a terminal illness | § 3582(c)(1)(A)(i); USSG § 1B1.13(b)(1)(A) | No deadline. Request to the warden, then 30 days or full exhaustion, whichever is earlier. The Bureau must process a terminal-illness request within 14 days of receipt (§ 3582(d)(2)(A)(iv)) | Not a § 2255 claim at all. Fernandez: “When a prisoner moves for compassionate release based on a terminal illness, his motion does not suggest that his conviction is invalid” (slip op. at 14) |
| A serious medical condition I cannot self-manage in prison, or care the Bureau is not providing | § 3582(c)(1)(A)(i); USSG § 1B1.13(b)(1)(B)–(C) | No deadline; 30-day warden rule applies | Not cognizable under § 2255, which reaches the legality of the judgment, not conditions that arose after it |
| I am 65 or older with serious age-related decline and have served the required share of my sentence | § 3582(c)(1)(A)(i); USSG § 1B1.13(b)(2) | No deadline; 30-day warden rule applies | Not a § 2255 claim |
| The only caregiver for my minor child, spouse, or parent has died or become incapacitated | § 3582(c)(1)(A)(i); USSG § 1B1.13(b)(3) | No deadline; 30-day warden rule applies | Not a § 2255 claim. Fernandez names “a child left with no guardian” as heartland compassionate release (slip op. at 13) |
| I was sexually abused by a Bureau employee or contractor while in custody | § 3582(c)(1)(A)(i); USSG § 1B1.13(b)(4) | No deadline; 30-day warden rule applies | Not a § 2255 claim; it concerns what happened after the judgment, not the judgment |
| My sentence would be shorter under a law Congress changed but did not make retroactive | Neither, as of May 28, 2026. Rutherford v. United States, Nos. 24-820, 24-860, 608 U.S. ___, 146 S. Ct. 1320 (2026) | — | Rutherford held the resulting disparity cannot be an extraordinary and compelling reason “considered by itself or in combination with other factors,” and that USSG § 1B1.13(b)(6) is invalid to the extent it counsels otherwise (slip op. at 16). Nonretroactivity also means it is not a § 2255 claim |
| The Bureau miscalculated my jail credit, good conduct time, or First Step Act credits | 28 U.S.C. § 2241, after exhausting the Bureau’s administrative remedy process | No statutory deadline, but the petition is filed in the district of confinement, not the sentencing court (Rumsfeld v. Padilla, 542 U.S. 426 (2004)) | Filed under § 2255, it is dismissed: § 3585(b) credit is computed by the Attorney General through the Bureau, not by the sentencing court (United States v. Wilson, 503 U.S. 329 (1992)) |
| I lost good time in a prison disciplinary hearing that denied me due process | § 2241, after administrative exhaustion | No statutory deadline; district of confinement | Neither § 2255 nor § 3582 reaches a disciplinary sanction |
| Nothing about the case was legally wrong; I am asking for mercy | Executive clemency — 28 C.F.R. § 1.1 et seq., petition to the President through the Pardon Attorney | No deadline, but no commutation petition “should be filed if other forms of judicial or administrative relief are available, except upon a showing of exceptional circumstances” (28 C.F.R. § 1.3) | A court has no power to grant clemency; only the President does |
Three cautions the table cannot carry. First, a § 2255 motion you did not need still counts as your one motion in the ordinary case, and the next one requires circuit authorization under § 2255(h) — whether a particular earlier filing counts as “first” is itself a contested legal question and one to put to counsel before filing anything. Second, the guideline categories in the § 3582 rows are the Sentencing Commission’s list at USSG § 1B1.13(b); meeting one is necessary but never sufficient, because the court still weighs the § 3553(a) factors and the danger finding. Third, some people are outside the compassionate release statute entirely for reasons that have nothing to do with the merits — see who is not eligible for compassionate release. For the full menu of sentence-shortening mechanisms in federal law, including the ones neither statute covers, see federal sentence reduction.
If the terminology in the left column is unfamiliar, the compassionate release definition page defines each term of art from scratch.
What Fernandez v. United States Decided on May 28, 2026
Fernandez holds that a federal prisoner challenging the validity of his conviction must use 28 U.S.C. § 2255 and cannot repackage the same argument as a compassionate release motion under 18 U.S.C. § 3582. The Court said it in one sentence: “A prisoner who collaterally attacks the validity of his conviction must proceed through 28 U.S.C. §2255, not 18 U.S.C. §3582” (slip op. at 1).
Justice Barrett wrote for the Court, joined by the Chief Justice and Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Sotomayor, joined by Justice Kagan, concurred in the judgment on a narrower ground. Justice Jackson dissented. The Court decided the companion case, Rutherford v. United States, the same day — the two decisions together are covered on our rutherford v united states page.
The facts, because they explain the rule
Joe Fernandez was convicted in 2013 of murder for hire and a firearms offense and received two consecutive life sentences. He argued for years that the government’s cooperating witness had lied and that the prosecution had withheld interview notes. He raised it in post-trial motions. He raised it on direct appeal, and the Second Circuit rejected it. He raised it in a first § 2255 motion, which the Second Circuit called “plainly meritless.” A second § 2255 motion succeeded in vacating the firearms count, but the murder-for-hire conviction stood.
Then he filed a compassionate release motion making the same arguments, and the district court granted it — resting on “doubt that the jury’s verdict was correct.” The Second Circuit reversed. The Supreme Court affirmed the Second Circuit.
The structural problem the Court identified is worth quoting, because it explains why the rule had to be categorical: “Section 3582 — in sharp contrast to §2255 — imposes no time limit or numerical cap on motions. Nor is there any bar to raising issues waived or already decided on direct appeal. So a prisoner proceeding under §3582 could challenge the validity of his conviction repeatedly, for years after it became final, even if the issue had already been raised or decided in prior proceedings” (slip op. at 9).
The test: the nature of the arguments presented
The operative sentence for anyone deciding what to file is this one: “Whether a prisoner’s request for relief challenges a conviction turns on the nature of the arguments presented” (slip op. at 14). The Court then gave both poles:
“When a prisoner moves for compassionate release based on a terminal illness, his motion does not suggest that his conviction is invalid. But if a prisoner moves for relief because of alleged problems with the underlying criminal investigation or trial, his motion suggests that his conviction is flawed.”
Two features of that test matter operationally. It is about content, not caption — a filing titled “Motion for Compassionate Release” that argues the government suppressed evidence is a collateral attack, and the label does nothing. And the Court expressly rejected the idea that asking for less relief than vacatur puts you outside § 2255: “And to be clear: Fernandez is challenging the validity of his conviction, even though he is not asking to have it vacated or set aside” (slip op. at 14).
Responding to the dissent’s charge that the line is unworkable, the majority added the practical version in footnote 6: “There is an obvious distinction between a prisoner who asserts that he should not have been convicted in the first place and one who asserts that his present circumstances warrant an exercise of compassion.”
The Court also said what still counts
Fernandez is not a narrowing of compassionate release generally. The Court described what the statute is for: “The heartland ‘extraordinary and compelling reasons’ that might warrant an early release from prison — age, illness, a child left with no guardian — bear no resemblance to the grounds for relief under §2255” (slip op. at 13). Those grounds are untouched. Anyone whose motion rests on health, age, or family circumstances should read this decision as leaving their claim exactly where it was — see compassionate release attorneys for the qualifying categories in full.
What the Court expressly did not decide
One reservation matters enormously and is being misreported. The Court did not decide whether a freestanding claim of actual innocence can be brought under § 2255 at all:
“In any event, this case gives us no occasion to decide the antecedent question whether a prisoner may assert a freestanding actual innocence claim under §2255. We have never ruled that possibility out and do not do so now.” (Slip op. at 16–17, citing Herrera v. Collins, 506 U.S. 390, 417 (1993).)
The holding is narrower than the headlines: “we hold simply that a compassionate release motion is not a vehicle for raising such a claim” (slip op. at 17). The question of what § 2255 can do with an innocence claim remains open.
The circuit split Fernandez resolved
This was genuinely contested, which is worth knowing if you were told something different before mid-2026. The Second Circuit’s decision below held that conviction-validity challenges are not cognizable under § 3582, and, in the Court’s words, “seven other Circuits have reached the same conclusion, two have taken the other side” (slip op. at 5). Footnote 2 names them:
If you filed in the First or Ninth Circuit before May 28, 2026 in reliance on Trenkler or Roper, that reliance is now foreclosed, and the important question is not whether to refile — it is what the § 2255 calendar looks like today.
Which Side of the Line Is Your Claim On?
Ask one question about your own argument: am I saying I should not have been convicted or should not have received this sentence, or am I saying that something about my situation now makes this sentence unjustifiable? The first is § 2255. The second is § 3582. That is the whole test, and Fernandez framed it in almost those words in footnote 6.
Where people get it wrong is in the middle, so here are the traps in the order we see them.
The claim that sounds like circumstances but is really an attack on the conviction
Some arguments are dressed as hardship and are actually merits arguments. A motion saying “I have served fourteen years for a crime the evidence never proved” is not a length-of-sentence argument; it is an insufficiency-of-the-evidence argument, and Fernandez‘s own facts are the illustration. A motion saying “my co-defendant who did more got less because the government hid what it knew about him” is a Brady argument. A motion saying “my lawyer never told me the plea carried a mandatory minimum” is a Strickland argument. Each belongs in a § 2255 motion, and each will now be denied on the merits if filed as compassionate release.
Ineffective assistance of counsel is always a § 2255 claim
This is the single most common post-conviction claim in federal court, and it has a clean answer. A claim that trial, plea, sentencing, or appellate counsel was constitutionally ineffective is measured by Strickland v. Washington, 466 U.S. 668 (1984), which requires two showings: that counsel’s performance was deficient, and that the deficient performance prejudiced the defense. It is an attack on the validity of the judgment, so after Fernandez it cannot be repackaged as an extraordinary and compelling reason.
There is one procedural advantage worth knowing. Ordinarily a claim that could have been raised on direct appeal and was not is procedurally defaulted. Ineffective assistance is the exception: the Supreme Court held that “[a]n ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal” (Massaro v. United States, 538 U.S. 500 (2003)). That is a reason to bring it in § 2255 — not a reason to delay. The one-year clock applies to it like everything else. Our ineffective assistance of counsel page covers the standards and the record you need.
The claim that looks like § 2255 and is really something else entirely
The mirror-image error is filing a § 2255 motion about something the sentencing court has no power over. Sentence computation is the classic. If the Bureau of Prisons has not credited jail time, or has computed good conduct time wrong, or has not applied earned First Step Act time credits, the sentencing judge is not the decision-maker — the Supreme Court held that under 18 U.S.C. § 3585(b) “[i]t is the Attorney General who computes the amount of the § 3585(b) credit after the defendant has begun to serve his sentence” (United States v. Wilson, 503 U.S. 329 (1992)). Those disputes go through the Bureau’s administrative remedy process and then, if necessary, a § 2241 petition in the district of confinement. Filing them as § 2255 wastes the motion. See post conviction relief for the full landscape.
Facts that support both, on different theories
A single fact can support both a § 2255 claim and a § 3582 claim without any repackaging, because the arguments are genuinely different. Advanced cancer diagnosed in prison is a compassionate release medical condition claim under USSG § 1B1.13(b)(1); it has nothing to do with the conviction. The death of a spouse who was the only caregiver for a disabled child is a caregiver compassionate release claim under § 1B1.13(b)(3). Neither one gets weaker because the same person also has a viable Strickland claim — and neither one carries that claim into the § 3582 motion. Keep them in separate filings and the separation takes care of itself.
Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The first thing we do with a post-Fernandez intake is read the draft motion out loud and mark every sentence that argues about the trial. Not the sentence — the trial. If those sentences carry the motion, it is a § 2255 motion no matter what the caption says, and the immediate question stops being “will the judge grant this” and starts being “what is the § 2255(f) date, and has it passed.” That reordering is the point of the exercise. The failure mode we see is the opposite one: months spent perfecting a compassionate release brief whose strongest paragraph is the one that puts it outside the statute.
The Trap: A Misdirected Motion Does Not Stop the § 2255 Clock
A compassionate release motion, however long it is pending, does not toll the one-year limitation period in § 2255(f). This is the most consequential sentence on this page. A person who spends a year and a half building and litigating an innocence theory inside a § 3582 motion may find, when the denial arrives, that the § 2255 door closed while they were standing at the wrong one.
What happened in West v. United States
The Sixth Circuit decided this on August 14, 2026, and the facts are a textbook illustration (West v. United States, No. 25-1660 (6th Cir. Aug. 14, 2026) (published)).
Roy West received a life sentence resting on a “death results” enhancement that the indictment did not explicitly charge and that the jury was never instructed on — an Apprendi problem, and one that no one caught at the time. His conviction became final on December 9, 2013, which made his § 2255 deadline December 9, 2014. He did not raise the issue on direct appeal. He did not raise it in his § 2255 motion. On June 17, 2022 — “seven and a half years after his conviction became final” — he raised it for the first time in a compassionate release motion under § 3582(c)(1)(A), and the district court granted him release.
The Sixth Circuit reversed. Compassionate release, it held, cannot “provide an end run around habeas,” because “§ 2255 provides a specific, comprehensive statutory scheme for post-conviction relief” and “any attempt to attack a prisoner’s sentence or conviction must abide by its procedural strictures”; the court then joined “sibling circuits [that] have held that sentencing errors cannot provide an ‘extraordinary and compelling’ reason for compassionate release” (United States v. West, 70 F.4th 341, 346–47 (6th Cir. 2023)). He then moved under Rule 60(b)(6) to reopen his old § 2255 judgment so he could bring the Apprendi claim properly. In August 2026 the Sixth Circuit affirmed the denial of that motion. Any new § 2255 claim, the court held, would be “at least a decade out of time.” Equitable tolling failed. Relation back to the 2014 motion failed. The actual-innocence gateway failed.
The Apprendi problem may well have been real. It did not matter.
Why a compassionate release order does not restart the clock
Section 2255(f)(1) runs from “the date on which the judgment of conviction becomes final.” A natural instinct is to think that when a court modifies your sentence, you get a new judgment and a new year. The statute forecloses it. Section 3582(b) provides that notwithstanding the fact that a prison sentence can later be modified under subsection (c), “a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes.”
West applied that text directly, rejecting the argument that the compassionate release order created a new final judgment: the order “reduce[d] his sentence to time served” and left the other terms unchanged, which is a modification described by § 3582(b), not a new judgment. The court added a second, independent reason — the order was reversed, and “the effect of a general and unqualified reversal . . . is to nullify it completely.”
If the wrong motion has already been filed
Three things to do at once, in this order:
- Fix the § 2255 date before anything else. Work out the § 2255(f) trigger and whether it has run. If it has not, the deadline is now the governing fact of the case.
- Do not withdraw the compassionate release motion reflexively. If it also contains a genuine health, age, or family ground, that part of it may be good; the problem is the conviction-validity part. See can you file compassionate release twice for what a clean refiling looks like.
- Get the record moving now. Transcripts, plea colloquy, sentencing transcript, and the appellate record take weeks to assemble, and § 2255 motions must “specify all the grounds for relief available to the moving party” and “state the facts supporting each ground” (Rule 2(b) of the Rules Governing Section 2255 Proceedings). A placeholder filing is not a strategy. If timing is the whole problem, our post conviction attorney page explains how the pieces sequence, and how long does compassionate release take sets realistic expectations for the § 3582 side.
What Each Statute Can Actually Give You
The remedies are not the same size, and Fernandez turned partly on that fact. Section 2255 can erase the conviction. Section 3582 shortens the time and leaves everything else standing.
| 28 U.S.C. § 2255 motion | 18 U.S.C. § 3582(c)(1)(A) compassionate release | |
|---|---|---|
| What the court can order | “[V]acate and set the judgment aside and . . . discharge the prisoner or resentence him or grant a new trial or correct the sentence” (§ 2255(b)) | Reduce the term of imprisonment; may impose or modify a term of supervised release (§ 3582(c)(1)(A)) |
| Effect on the conviction | Can be vacated | Survives, intact |
| Effect on restitution, forfeiture, collateral consequences | Fall with a vacated conviction | Unaffected |
| Who decides | The court that imposed the sentence (§ 2255(a)) | The same court (§ 3582(c)(1)(A)) |
| Deadline to file | 1 year from the latest § 2255(f) trigger | None |
| Prerequisite before filing | None; but see procedural default | Request to the warden, then full exhaustion or 30 days from receipt, whichever is earlier |
| Limit on repeat filings | Certification by a court of appeals panel under § 2255(h) | None in the statute |
| Right to appointed counsel | Discretionary, except that the court must appoint qualified counsel if an evidentiary hearing is warranted (Rule 8(c), Rules Governing § 2255 Proceedings) | No statutory right |
| Deadline to appeal a denial | 60 days, because the United States is a party (Fed. R. App. P. 4(a)(1)(B), applied by Rule 11(b)) | 14 days (Fed. R. App. P. 4(b)(1)(A)) |
| Extra step to appeal | A certificate of appealability is required, issuable only on “a substantial showing of the denial of a constitutional right” (28 U.S.C. § 2253(c); Fed. R. App. P. 22) | None |
That last pair of rows is worth pausing on, because it catches people. The appeal deadlines run in opposite directions from what you would guess. A § 2255 denial is treated as civil and gives you 60 days but requires a certificate of appealability. A compassionate release denial is a criminal order and gives you 14 days — and if you miss it, the appeal is gone. The full map is on our federal appeals lawyer page.
Fernandez leaned on the remedy mismatch as evidence that Congress never intended § 3582 to carry innocence claims: “when a prisoner persuades a court that his conviction is invalid, the remedy of a little less prison time does not redress the wrong. If a conviction is invalid, the fitting remedy is to vacate it, as §2255 allows” (slip op. at 14). The practical corollary is worth stating plainly. If your real objective is to clear the conviction — because of immigration consequences, a professional license, firearm rights, or simply because it is not true — compassionate release cannot deliver that outcome even if it is granted. See what is a compassionate release for what a grant does and does not change.
The Constraints on a § 2255 Motion
Section 2255 is not a second appeal. The Supreme Court described it in Fernandez as a “reticulated scheme” that “imposes tight procedural constraints” (slip op. at 5). Four of them do the work, and each one can end a case on its own.
1. The one-year limitation and its four trigger dates
“A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of” four dates (§ 2255(f)):
| Trigger | The text | What it means in practice |
|---|---|---|
| § 2255(f)(1) | “the date on which the judgment of conviction becomes final” | The default. For someone who appealed and lost, finality attaches when the time to petition for certiorari expires — 90 days after entry of the court of appeals’ judgment (Clay v. United States, 537 U.S. 522 (2003); Sup. Ct. R. 13.1). The Sixth Circuit states the general rule as final “when all avenues of direct appeal are exhausted, either because a higher court affirmed the judgment, denied review, or the time to seek review elapsed” (West, citing Clay) |
| § 2255(f)(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” | Rare and fact-specific. The impediment must be unlawful governmental action and must actually have prevented the filing |
| § 2255(f)(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” | The most dangerous of the four. The clock runs from the date of the Supreme Court’s decision, not the date retroactivity was established (Dodd v. United States, 545 U.S. 353 (2005)). The one-year window can expire before anyone has resolved whether the new rule is retroactive at all |
| § 2255(f)(4) | “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence” | Runs from when the facts could have been discovered with diligence, not from when they actually were. Waiting is not diligence |
Two more timing rules belong in the same calculation. Filing from inside a prison is measured by deposit, not by receipt — a paper filed by an inmate “is timely if deposited in the institution’s internal mailing system on or before the last day for filing,” and “[i]f an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule,” with a 28 U.S.C. § 1746 declaration or notarized statement giving the deposit date and stating that first-class postage was prepaid (Rule 3(d), Rules Governing § 2255 Proceedings). And equitable tolling exists but is narrow: § 2255(f) may be tolled where a movant shows “that he has been pursuing his rights diligently” and “that some extraordinary circumstance stood in his way and prevented timely filing” (Holland v. Florida, 560 U.S. 631, 649 (2010), applied to § 2255(f) in West). West is also a warning about what does not qualify: “an attorney’s failure to detect a meritorious objection or issue for appeal, while certainly regrettable, is not an ‘extraordinary circumstance.'”
Because the four triggers interact and because the finality date depends on exactly what happened at the end of your direct appeal, do not calculate this from a web page, including this one. Our federal appeal deadline page walks through the full sequence, and the calculation still needs to be done against the actual docket.
2. The second-or-successive gate
If you have already had a § 2255 motion decided, the next one is not filed — it is requested. “A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain” either “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 “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” (§ 2255(h)).
The mechanics are in 28 U.S.C. § 2244(b)(3): you move in the court of appeals before filing in the district court; a three-judge panel decides; it may authorize only on a prima facie showing; it must rule “not later than 30 days after the filing of the motion”; and the grant or denial “shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” Rule 9 of the Rules Governing § 2255 Proceedings says the same thing from the district court’s side.
Read those two subsections together and the shape of the problem is clear. A claim of ineffective assistance — the most common federal post-conviction claim there is — fits neither § 2255(h)(1) nor § 2255(h)(2) unless it comes with genuinely new evidence of innocence. That is why a first § 2255 motion is not a filing to make casually, and why Fernandez matters so much to people who already used theirs.
3. The bar on relitigating what direct review already decided
Claims already raised and rejected on direct appeal ordinarily cannot be raised again in a § 2255 motion. Fernandez states the rule and its source: such claims “typically cannot be relitigated in §2255 motions,” citing Kaufman v. United States, 394 U.S. 217, 227 n.8 (1969) (slip op. at 5). This is one of the constraints Fernandez worried § 3582 was being used to evade, because § 3582 has no equivalent bar. If your issue lost on direct appeal, § 2255 is usually not the second bite — see 2255 vs direct appeal for how the two proceedings divide up.
4. Procedural default
The flip side: claims that could have been raised on direct review and were not are procedurally defaulted. To get past the default, the movant must “demonstrate ’cause’ and ‘prejudice,’ or else actual innocence” (Bousley v. United States, 523 U.S. 614, 622 (1998), as quoted in Fernandez, slip op. at 6).
Two things about the innocence escape hatch. “‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency” (Bousley, 523 U.S. at 623) — an argument that the evidence was legally inadequate is not the same as a showing that you did not do it. And the gateway is narrow: actual innocence, if proved, “serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or expiration of the statute of limitations,” but the category of people who can use it is “severely confined,” available only in “cases in which new evidence shows it is more likely than not that no reasonable juror would have convicted the petitioner” (McQuiggin v. Perkins, 569 U.S. 383, 392, 395 (2013)). New evidence is the operative requirement. Rearguing the trial record is not a gateway.
One more constraint that is not procedural but is real: a district judge “must promptly examine” the motion and, “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief,” must dismiss it (Rule 4(b), Rules Governing § 2255 Proceedings). A thin motion can be gone before the government ever answers.
The Constraints on a Compassionate Release Motion
Compassionate release trades a deadline for a gatekeeper and a much narrower substantive theory. The constraints are different in kind, not in severity.
No deadline, but a request to the warden and a 30-day wait
There is no statute of limitations on a compassionate release motion. There is a mandatory first step. A court may act on a defendant’s own motion only “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier” (18 U.S.C. § 3582(c)(1)(A)).
That is two routes, not one, and the 30-day route is the one most people use. What the request to the warden must contain is set by regulation — at a minimum “[t]he extraordinary or compelling circumstances that the inmate believes warrant consideration” and a release plan covering where the person will live and how they will be supported, including, for medical requests, where treatment will come from and how it will be paid for (28 C.F.R. § 571.61(a)). Get that step wrong and the motion never reaches the merits: failure to exhaust was cited 447 times among the reasons courts gave for denying compassionate release in fiscal year 2025 (USSC FY2025 Compassionate Release Data Report, Table 11). The procedure, including how to document the warden’s receipt date, is on our compassionate release request to warden page, and the release plan itself has its own requirements — see compassionate release plan.
After Rutherford, a nonretroactive change in law is not a reason
Decided the same day as Fernandez, Rutherford v. United States held that where Congress declines to make a sentencing amendment retroactive, the resulting disparity cannot be an extraordinary and compelling reason — “considered by itself or in combination with other factors” — and that USSG § 1B1.13(b)(6) “is invalid” to the extent it counsels otherwise (slip op. at 16).
Two cautions, because both directions of overstatement are circulating. Rutherford did not hold that only personal circumstances can qualify: “We need not decide whether there are reasons beyond personal circumstances that could qualify as ‘extraordinary and compelling'” (slip op. at 10–11), and “[w]e need not nail down the precise boundaries” (slip op. at 16). And it did not strike § 1B1.13(b)(6) in its entirety — the provision is invalid to the extent described, and it still appears unamended in the printed Guidelines Manual, which means a reader looking it up will not see the problem. Full treatment is on the unusually long sentence page.
What still qualifies, and the two findings that come after eligibility
The Sentencing Commission’s categories at USSG § 1B1.13(b) — medical circumstances, age, family circumstances, abuse in custody by a Bureau employee or contractor, and other reasons of similar gravity — are untouched by both 2026 decisions. Fernandez named them as the heartland.
Eligibility is only the first step. The court must also find that release is consistent with the policy statement, which incorporates a danger assessment under 18 U.S.C. § 3142(g), and must weigh the sentencing factors in 18 U.S.C. § 3553(a). Those two findings, not eligibility, are where most motions actually fail — § 3553(a) was cited 1,260 times among reasons for denial in FY2025 (Table 11). See 3553(a) factors and danger to the community. One statutory limit applies in every case: “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason” (28 U.S.C. § 994(t)).
Grant rates vary sharply by court — nationally 394 of 2,795 motions decided in FY2025, or 14.1% (Tables 2–3), with wide spread between circuits and districts. Where the sentencing court sits is a real variable, and compassionate release grant rate has the numbers.
Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: Fernandez contains a passage that people in Bureau custody will recognize immediately. The Court asked why Congress would route compassionate release through the Bureau of Prisons if the statute were meant to carry trial-error claims, and answered that the Bureau’s expertise “lies in the daily lives of prisoners” — safekeeping, care, discipline — so “it makes little sense to have the Bureau evaluate legal arguments and comb trial records.” That is exactly right as a description of how these requests are actually handled inside an institution. A warden’s office is staffed to assess a medical file, a Care Level, a duty status, a home plan, a release address. It is not staffed to assess a Brady claim, and a request built around one will read to the reviewer as a request with no recognizable category. Whatever the legal argument, that is the practical reason the routing matters at the first step, not just the last one. The legal work on any motion is handled by Elizabeth Franklin-Best and the firm’s attorneys.
Can You Pursue Both? Sequencing When Two Routes Are Open
Yes. Nothing in either statute makes them exclusive, and a person can have a valid § 2255 claim and a valid compassionate release claim at the same time — a wrongly obtained conviction and, years later, an end-of-life diagnosis. They are separate motions in the same court, on separate theories, and Fernandez is not a bar to filing both. What Fernandez forbids is putting the § 2255 arguments inside the § 3582 motion.
Sequencing follows from one asymmetry: only one of the two has a deadline.
- Calculate the § 2255 date first, always. Everything else is scheduled around it. If the date is close, the § 2255 motion goes first, because it is the filing that can be lost forever.
- File the compassionate release motion whenever the ground matures. There is no clock on it, but there is a 30-day warden step, so a medical or family ground that is developing now should have its request to the warden submitted now — that step costs nothing but time and it is the one thing that cannot be compressed later.
- Keep the papers separate and the theories separate. The § 3582 motion should be readable end to end without ever suggesting the conviction is wrong. The § 2255 motion should not depend on health or hardship, which are not grounds for vacatur.
- Expect the timelines to diverge. A compassionate release motion is often decided in months on the papers. A § 2255 motion may involve an answer, a reply, discovery for good cause (Rule 6), record expansion (Rule 7), and possibly an evidentiary hearing at which the court must appoint counsel for a qualifying movant (Rule 8(c), Rules Governing § 2255 Proceedings).
A denial on one side does not decide the other. A compassionate release denial that rests on the § 3553(a) factors says nothing about whether the trial was fair; a § 2255 denial says nothing about whether someone is dying. If a compassionate release motion has already been denied, compassionate release denial sets out the three routes forward, and can you file compassionate release twice covers what a materially changed second motion has to show.
Where § 2241 and Clemency Fit on the Map
Two more boxes complete the routing table, and both get mistaken for the first two.
§ 2241 is about how the sentence is being executed, not whether it was lawful
A 28 U.S.C. § 2241 habeas petition is the vehicle for challenging the execution of a sentence: sentence computation, jail credit, good conduct time, earned First Step Act time credits, the loss of good time in a disciplinary proceeding, and similar disputes with the Bureau of Prisons. Two mechanical differences from § 2255 matter immediately. It is filed in the district where the person is confined, not the sentencing district — § 2241(a) authorizes courts to grant the writ only “within their respective jurisdictions,” and “the traditional rule has always been that habeas relief is issuable only in the district of confinement” (Rumsfeld v. Padilla, 542 U.S. 426 (2004)). And it ordinarily requires exhausting the Bureau’s administrative remedy process first.
What § 2241 is not is a way around § 2255’s limits. Section 2255(e) — the savings clause — permits a § 2241 petition only where “the remedy by motion is inadequate or ineffective to test the legality of his detention,” and the Supreme Court has held that the clause “does not allow a prisoner asserting an intervening change in interpretation of a criminal statute to circumvent” the second-or-successive restrictions “by filing a §2241 habeas petition” (Jones v. Hendrix, 599 U.S. 465 (2023)). If § 2255(h) blocks the claim, § 2241 does not unblock it. Our habeas corpus attorney page covers both statutes side by side, and petition for writ of habeas corpus covers the filing mechanics.
Clemency is not a court remedy at all
Executive clemency — a commutation of sentence or a pardon — comes from the President, not from a judge. A petition is addressed to the President and submitted to the Pardon Attorney at the Department of Justice (28 C.F.R. § 1.1). There is no deadline and no legal standard a court enforces.
One regulation shapes when it makes sense to file: “No petition for commutation of sentence, including remission of fine, should be filed if other forms of judicial or administrative relief are available, except upon a showing of exceptional circumstances” (28 C.F.R. § 1.3). Read against this page, that regulation says something useful — clemency is generally the route considered after the judicial options have been used or have closed, not instead of them. Start with clemency lawyers, then what does it mean to commute a sentence and commutation eligibility.
Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The most useful hour in a post-Fernandez case is spent before anything is drafted, building a one-page grid: every theory in the case, the statute each one belongs under, the deadline attached to each, and the filing that has already been made. It is unglamorous and it prevents the two failures that actually end cases — a § 2255 clock that ran while a § 3582 motion was pending, and a first § 2255 motion spent on a claim that never needed § 2255 at all. Section 2255(h) makes that second mistake nearly as costly as the first, because the next motion requires a court of appeals panel to authorize it.
Why work with Elizabeth Franklin-Best, P.C.
Elizabeth Franklin-Best is the founder and Principal Attorney of Elizabeth Franklin-Best, P.C., a boutique firm devoted to federal criminal appeals and post-conviction relief. Over more than 20 years she has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record. She 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 has appeared pro hac vice in federal courts from Montana to Florida. She is recognized by Best Lawyers in America 2026 for Appellate Practice and by Chambers USA 2026 for Litigation: White-Collar Crime & Government Investigations, was named South Carolina Public Defender of the Year in 2010, and is the author of Reversing Your Criminal Conviction: Develop Your Winning Strategy (2023). She serves as Board Chair of Justice 360.
Christopher Zoukis, JD, MBA, is the firm’s Managing Director and a nationally recognized federal prison expert. He is 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 has been quoted as a federal prison expert by outlets including CNN, the Associated Press, and The Washington Post. He earned his J.D. at the University of California, Davis School of Law after serving roughly a decade in the federal Bureau of Prisons, where he became an award-winning incarcerated journalist.
Both a § 2255 motion and a compassionate release motion are filed in the federal district court that imposed the sentence, wherever in the country that court sits, and the firm runs a national federal practice on an intentionally small caseload from offices in Columbia and Mount Pleasant, South Carolina. Christopher Zoukis leads the firm’s prison consulting work — designation, sentence computation, medical-care advocacy, First Step Act credits, and reentry planning. The legal work on any motion, brief, or appeal is handled by Elizabeth Franklin-Best and the firm’s attorneys. If you are weighing which statute a case belongs under, the practical entry points are federal 2255 motion lawyer and federal compassionate release lawyers.
Talk to a federal post-conviction lawyer
If you are on this page because a deadline might be running, that is the thing to resolve first, and it is resolved by looking at the docket — the date of the court of appeals’ judgment, whether a certiorari petition was filed, whether a § 2255 motion has already been decided, and what any pending motion actually argues.
Call (843) 620-1100 or schedule a consultation directly. We handle federal § 2255 motions, compassionate release motions, and appeals in district courts and U.S. Courts of Appeals nationwide.
Frequently Asked Questions About Compassionate Release vs. § 2255
What is the difference between compassionate release and a § 2255 motion?
A § 2255 motion attacks the legality of the conviction or sentence and can result in the judgment being vacated; it carries a one-year deadline under § 2255(f). Compassionate release under § 3582(c)(1)(A) asks the court to shorten a lawful sentence for extraordinary and compelling reasons such as illness, age, or family circumstances; it has no deadline but requires a request to the warden first. Fernandez (2026) made the division mandatory.
Can I use compassionate release to challenge my conviction?
No. “A prisoner who collaterally attacks the validity of his conviction must proceed through 28 U.S.C. §2255, not 18 U.S.C. §3582” (Fernandez, slip op. at 1). That covers innocence claims, Brady claims, ineffective assistance, and trial or sentencing error. The Court noted the test looks to “the nature of the arguments presented,” so relabeling the motion changes nothing. See rutherford v united states for both 2026 decisions.
What is the deadline for a § 2255 motion?
One year, running from the latest of four dates in § 2255(f): finality of the judgment; removal of an unlawful government-created impediment; the date the Supreme Court initially recognized a new right later made retroactive; or the date the supporting facts could have been discovered with due diligence. For someone who appealed and did not seek certiorari, finality attaches 90 days after the court of appeals’ judgment (Clay v. United States, 2003). Have the date calculated against your actual docket.
What happens if I file under the wrong statute?
Two bad outcomes, depending on direction. A conviction-validity claim filed as compassionate release is denied on the merits under Fernandez, and the § 2255(f) clock keeps running the entire time it is pending — a compassionate release order is not a new judgment, because § 3582(b) makes the original a “final judgment for all other purposes.” A circumstances claim filed as § 2255 is not cognizable and may spend your one motion, after which § 2255(h) requires circuit authorization.
Can I file both a § 2255 motion and a compassionate release motion?
Yes. They are different claims under different statutes, and nothing makes them exclusive — a person can have a viable ineffective-assistance claim and, separately, a terminal diagnosis. File them as separate motions on separate theories, and calculate the § 2255 deadline first, because it is the only one of the two that can expire. The compassionate release attorneys page covers the § 3582 grounds in full.
Does a pending compassionate release motion pause the § 2255 clock?
No. Nothing in § 2255(f) tolls the limitation period while another motion is pending, and a granted compassionate release order does not create a new judgment that restarts it (§ 3582(b)). In West v. United States (6th Cir. Aug. 14, 2026), a claim first raised in a compassionate release motion more than eight years after finality was held time-barred, with no tolling available.
Which one applies to ineffective assistance of counsel?
Section 2255, always. Ineffective assistance is judged under Strickland v. Washington, 466 U.S. 668 (1984) and is an attack on the validity of the judgment, so it cannot be an extraordinary and compelling reason after Fernandez. It may be raised in a § 2255 motion “whether or not the petitioner could have raised the claim on direct appeal” (Massaro v. United States, 538 U.S. 500 (2003)) — but the one-year clock still applies. See ineffective assistance of counsel.
What is a “2255 charge”?
There is no such thing. Section 2255 is not an offense and nobody is charged with it. It is the statute a person already convicted in federal court uses to ask the sentencing court to vacate, set aside, or correct the judgment — the form is captioned “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody,” and Rule 2(c) of the Rules Governing Section 2255 Proceedings requires the standard form or a local equivalent.
What is the difference between habeas under § 2241 and § 2255?
Section 2255 challenges the validity of the judgment and is filed in the sentencing court. Section 2241 challenges the execution of the sentence — computation, credits, good time, disciplinary sanctions — and is filed in the district of confinement (Rumsfeld v. Padilla, 2004). Section 2241 is not a workaround: Jones v. Hendrix (2023) held the savings clause does not let a prisoner use § 2241 to escape § 2255(h). See post conviction relief.
How do I know whether my argument attacks the conviction?
Ask whether you are saying you should not have been convicted or should not have received this sentence, or whether you are saying your circumstances now make continued imprisonment unjustifiable. Fernandez footnote 6 puts it as “an obvious distinction between a prisoner who asserts that he should not have been convicted in the first place and one who asserts that his present circumstances warrant an exercise of compassion.” If the answer is the first, it is § 2255 and there is a deadline. The compassionate release definition page defines the underlying terms.
Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026