Post-Conviction

Direct Appeal Compared With Collateral Attack

An appeal reads the record the trial made and asks whether the court erred. A collateral motion asks whether the resulting custody is lawful, and it may build a record of its own. The difference decides where a claim belongs and often whether it survives at all.

Post-Conviction6 min readFederal lawTiming and tolling

A row of gray archive boxes stacked three high on metal shelving in a windowless storage room — What a later proceeding may examine depends on which of these boxes it is allowed to open. — Johann Jaritz, Public domain, source.

The rule in short

Direct appeal is confined to the trial record, reaches preserved error and reviews the rest for plain error, and begins with a notice of appeal filed within fourteen days. Collateral attack under section 2255 or section 2254 comes after finality, permits affidavits, an expanded record and a hearing, and reaches constitutional error, want of jurisdiction and a sentence above the statutory maximum. Claims resting on facts outside the record are saved for it.

A criminal judgment is tested twice, and the two proceedings answer different questions. Direct appeal asks whether the trial court erred on the record it made. Collateral attack asks whether the resulting custody is lawful, and it may rest on facts the record never contained. The sequence matters as much as the difference: the appeal comes first, and what it decides narrows what the later motion may raise.

What each proceeding reaches

A direct appeal in a federal criminal case begins with a notice of appeal filed within fourteen days of the entry of judgment. The court of appeals then reviews the proceedings below on the record the district court made. Error preserved by objection is reviewed on its merits. Error that was not preserved is reviewed for plain error, a far narrower inquiry that asks whether the error was clear, whether it affected substantial rights, and whether it seriously affected the fairness of the proceeding.

Collateral attack is a separate civil proceeding brought after the judgment is final. A prisoner in federal custody moves under section 2255 in the sentencing court. A prisoner in state custody petitions under section 2254 in a federal district court. Section 2255(a) states four grounds: that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose it, that the sentence exceeded the maximum authorized by law, or that it is otherwise subject to collateral attack.

Those grounds are broad in wording and narrow in application. Collateral review is not a second appeal, and ordinary trial error that could have been argued to the court of appeals is generally not a basis for vacating a final judgment. What the collateral proceeding adds is not another look at the same material but access to material the appellate court could never have seen.

The record each uses

The practical difference is evidentiary. An appellate court reads the transcript, the exhibits and the docket. It cannot receive an affidavit, hear a witness, or find a fact the district court did not find. A claim whose proof lies outside those pages has nowhere to go on appeal, and pressing it there usually produces a ruling that the record does not support it rather than a decision on the substance.

Collateral review can build a record. Section 2255(b) directs the district court to grant a prompt hearing unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. The rules governing these proceedings allow the record to be expanded by affidavit and document and permit discovery for good cause with leave of court. The opening is real but conditional: the allegations must be specific, and assertions contradicted by the existing record do not earn a hearing.

Claims held back for collateral review

Ineffective assistance of counsel is the standard example. The trial record shows what counsel did and almost never shows why, so the claim is normally reserved for collateral review, where counsel can be asked and an affidavit can answer. The elements are set out in the two-part test for ineffective assistance. A claim raised and rejected on direct appeal generally cannot be relitigated collaterally, which is why the choice of forum is effectively made once.

Raising it early can end it

An ineffective-assistance claim pressed on direct appeal is decided on a record containing no explanation from counsel and no evidence of what an investigation would have produced. If the court of appeals rejects it on that record, the claim is ordinarily spent, and the later motion cannot revive it with the affidavits that were missing the first time. Treating the appeal as a free attempt is the recurring error.

Section 2254(i) closes a related door for state prisoners: the ineffectiveness or incompetence of counsel during collateral proceedings is not itself a ground for relief. Poor representation after the judgment can sometimes excuse a claim that was never presented, but it cannot stand as a claim on its own. That distinction between an excuse and a ground is worked out under the rules on procedural default.

The standards a state prisoner meets

A section 2254 petition carries limits that a section 2255 motion does not. Where a state court adjudicated the claim on the merits, relief requires that the decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or was based on an unreasonable determination of the facts in light of the evidence presented. State factual findings are presumed correct and may be displaced only by clear and convincing evidence.

Both tracks are also time-limited, and the year runs from a set of parallel triggers described in the one-year limitation period. Because the deference standard is measured against the state record, the effective difference between the two proceedings is greater than the shared vocabulary suggests: the federal movant is arguing to a court that may take evidence, and the state petitioner is often arguing about a record that closed years earlier.

Where a section 2241 petition fits

Section 2255(e) forecloses habeas under section 2241 for a federal prisoner unless the section 2255 remedy is inadequate or ineffective to test the legality of his detention. The Supreme Court has held that the clause does not open section 2241 to a statutory-interpretation claim that the second-or-successive bar in section 2255(h) would keep out. The saving clause addresses the adequacy of the remedy, not dissatisfaction with the limits Congress placed on it.

Proceeding	Who uses it	What it may reach	Record available
Direct appeal	Any convicted defendant	Preserved error, and unpreserved error for plain error	The trial record as made below
Section 2255 motion	A prisoner in federal custody	Constitutional violation, want of jurisdiction, a sentence above the maximum, other collateral grounds	Existing record, affidavits, expansion, a hearing where required
Section 2254 petition	A prisoner in state custody	The same grounds, filtered through the deference standard	The state court record, with new evidence tightly limited
Section 2241 petition	A federal prisoner where the section 2255 remedy is inadequate or ineffective	Legality of detention within the saving clause	A record built in the district of confinement
Second or successive filing	A prisoner who has already litigated one	A new retroactive constitutional rule, or new evidence of innocence	Confined to the claim the court of appeals certifies

Appeal from a collateral ruling is itself restricted. No appeal lies from the final order in a section 2254 or section 2255 proceeding unless a circuit justice or judge issues a certificate of appealability on a substantial showing of the denial of a constitutional right, and the certificate must indicate which specific issues satisfy that showing. A prisoner who has already litigated one round faces a further gate described in the bar on second or successive filings, which requires authorization from a three-judge panel before the district court may consider the application at all.

Points to carry away

A notice of appeal in a federal criminal case is due within fourteen days of the entry of judgment.
Appellate review is confined to the record made below and cannot receive new evidence.
Section 2255(a) reaches constitutional error, want of jurisdiction, a sentence above the maximum authorized by law, and other grounds for collateral attack.
Section 2255(b) directs a hearing unless the motion and the files and records of the case conclusively show no entitlement to relief.
Ineffective assistance is normally reserved for collateral review because the trial record does not contain counsel's reasons.
Section 2254(i) forecloses the ineffectiveness of collateral counsel as a ground for relief.

Questions readers ask

Can a claim be raised for the first time in a collateral motion?

Some claims are expected to appear there and nowhere else. Ineffective assistance is the leading example, because the reasons behind counsel's choices are not in the transcript and an appellate court cannot take evidence about them. Other claims travel badly in the opposite direction. A claim already raised and rejected on direct appeal generally cannot be relitigated collaterally, and a state prisoner who never presented a claim to the state courts faces exhaustion and default problems before the merits are reached. The forum is chosen once, and the choice is usually final.

When does the judgment become final for collateral purposes?

Finality is measured from the end of direct review rather than from sentencing. Where certiorari is sought, the judgment becomes final when the Supreme Court rules on the petition. Where the appeal is decided and no certiorari petition follows, finality arrives when the ninety-day period for seeking certiorari expires. Where no appeal is taken at all, the judgment becomes final when the fourteen-day period for filing a notice of appeal lapses. Each of those endpoints starts the limitation period that governs the collateral proceeding, so the appellate history has to be reconstructed before anything is calculated.

Is permission needed to appeal from a denial of collateral relief?

Yes. No appeal may be taken from the final order in a section 2254 habeas proceeding or a section 2255 proceeding unless a circuit justice or judge issues a certificate of appealability, and the certificate must indicate which specific issues satisfy the standard. The applicant must make a substantial showing of the denial of a constitutional right. If the district judge denies a certificate, a circuit judge may be asked to issue one, and where no express request is filed the notice of appeal is treated as a request. No certificate is required when the government appeals.

Sources

28 U.S.C. § 2255 — Federal custody; remedies on motion attacking sentenceSupplies the grounds for collateral attack, the hearing standard and the saving clause governing section 2241.
28 U.S.C. § 2254 — State custody; remedies in Federal courtsSets the deference standard, the presumption of correctness and the bar on collateral-counsel ineffectiveness as a ground.
Fed. R. App. P. 4 — Appeal as of Right: When TakenGives a criminal defendant fourteen days to file a notice of appeal, which fixes finality where no appeal is taken.
28 U.S.C. § 2253 — AppealRequires a certificate of appealability and states the substantial showing and issue-specification rules.
Rules Governing Section 2254 and Section 2255 ProceedingsProvides preliminary review, expansion of the record, discovery for good cause and the decision whether to hold a hearing.
28 U.S.C. § 2255 (official text)The official United States Code text of the federal statute for attacking a sentence by motion.

Premier Defense Law is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.

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