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4TH CIRCUIT DECISION IS THOUGHTFUL PRIMER ON 2255 LITIGATION
Curt Flood faced a life sentence when indicted in 2003. His lawyers kicked around the idea of a plea agreement with the government, but an impasse quickly became apparent: the government would come off the life sentence only if he cooperated. Curt told them that he had no interest in doing that.
Curt went to trial instead and, after he lost, he was sentenced to life. In 2011, after the Supreme Court decided Missouri v. Frye and Lafler v. Cooper – two cases that defined a prisoner’s right to effective representation where a plea offer was concerned – Curt filed a motion under 28 USC § 2255.
After 14 years of fits and starts, the 4th Circuit last week upheld the denial of his § 2255 motion. The decision is a primer on how § 2255 motions are judged at different levels of review, as well as guidance on what a prisoner must claim to succeed and should be required reading for everyone who intends to file one.
Under Rule 4 of the Rules Governing § 2255 Proceedings, a district judge must first decide whether the motion and the trial court record “conclusively foreclose[] relief” despite the 2255’s claims. For example, if a 2255 claim was that the prisoner never signed his plea agreement, the court could safely dismiss the § 2255 motion without further ado by looking at the document and the transcript of the change-of-plea hearing. If, on the other hand, the record does not contain a signed plea agreement and the prisoner was not asked whether he had seen and agreed to its terms, Rule 8 would require the court to order additional briefing and the collection of evidence. Based on that additional record, the court may find that an evidentiary hearing is needed.
The standards by which the 2255 claims are reviewed at each stage have always seemed squishy. What is “conclusively?” And what standard applies to a court’s decision to hold an evidentiary hearing after Rule 8 briefing? Last week’s 4th Circuit decision addressed those questions, comparing Rules 4 and 8 to civil litigation and providing structure to 2255 proceedings that should benefit serious movants.
“When we review a district court’s denial of a § 2255 motion at the Rule 4 stage,” the Circuit ruled, “we are guided by the principles governing review of a [Fed.R.Civ.P.] 12(b)(6) dismissal. So we ‘accept a petitioner’s well-pleaded allegations as true,’ and ask whether the record conclusively forecloses relief notwithstanding those allegations. And when a district court denies a § 2255 motion at the Rule 8 stage—after receiving additional briefing and evidence, but without holding an evidentiary hearing—’we treat the district court’s decision like a grant of summary judgment.’ So we will affirm a district court’s denial of relief without a hearing when the record leaves ‘no genuine dispute as to any material fact.’ Fed.R.Civ.P. 56(a). In so doing, we do not weigh evidence or make credibility determinations. And at both the Rule 4 and Rule 8 stages, we draw all reasonable inferences in the movant’s favor.”
The 4th’s opinion illustrates why a 2255 movant has to ensure that his or her argument is consistent. Curt claimed in his § 2255 motion that his attorneys were ineffective because “they failed to seek a plea agreement… [and] “never even engaged in plea discussions.” But in the same filing, he acknowledged that when the government approached his lawyers about a plea, they met with the prosecutors to discuss it. “In those discussions, the government made clear ‘that in order to receive an offer, Mr. Flood would have to proffer’,” and Curt had already told his attorneys that he would never do so.
However Flood frames counsel’s alleged deficiency, the claim fails. Read as a charge that counsel ‘never even engaged in plea discussions,’ it founders on the record: By Flood’s own admission, his counsel met with the prosecutors and learned that the government’s terms required cooperation. Read instead as a charge that counsel, having met with prosecutors to discuss a plea, should have done something more or pressed harder, it identifies no act or omission that fell outside the wide range of reasonable professional assistance. ‘Try harder’ or ‘do more’ is not a Strickland theory… Absent some specification of counsel’s deficient acts or omissions, the record and filings conclusively show that Flood is not entitled to relief.
Oliver Wendell Holmes, Jr., once said, “The language of judicial decision is mainly the language of logic.” A 2255 movant should spend extra time ensuring that his or her evidence and arguments tell a coherent and substantial story.
United States v. Flood, Case No. 23-7032, 2026 U.S. App. LEXIS 24462 (4th Cir. Aug. 13, 2026)
~ Thomas L. Root
