Double Jeopardy and Due Process: The Conviction or Sentence Violates the Constitution

A federal prisoner whose conviction or sentence violates the U.S. Constitution may bring a section 2255 challenge in federal court. Given the breadth of the individual protections afforded by the Constitution, there are many potential constitutional challenges that are cognizable under 28 U.S.C. §2255. Many of these center around the Fifth Amendment’s provisions concerning Double Jeopardy and Due Process. Below we discuss a few such claims and cases.

Fifth Amendment: Double Jeopardy

  • United States v. Marroguin, 885 F.2d 1240, 1245-46 (5th Cir. 1989). A claim of multiple sentences in violation of the Double Jeopardy Clause is cognizable in a §2255 proceeding.


  • United States v. Atkins, 834 F.2d 426 (5th Cir. 1987). A claim of multiple convictions in violation of the Double Jeopardy Clause is cognizable in §2255 proceedings.double jeopardy, due process


  • United States v. Silvers, 90 F.3d 95 (4th Cir. 1996). Section 2255 relief granted when district court violated Double Jeopardy Clause by resentencing defendant on conviction for which defendant had fully discharged his sentence.


  • Brown v. United States, 34 F.3d 990 (10th Cir. 1994). Section 2255 relief was appropriate when district court violated Double Jeopardy Clause by failing to merge defendant’s two counts for sentencing, when both counts were based on the same criminal actions. See also Costa v. United States, 904 F.2d 344 (6th Cir. 1990)(same).


Fifth Amendment: Due Process


Note that the Fifth Amendment guarantee that no person shall be “deprived of life, liberty or property, without due process of law” is the basis of many, many section 2255 claims. What follows is a small sampling of the kinds of claims that can be brought under the Due Process Clause.


  • Ferrera v. United States, 456 F.3d 278 (1st Cir. 2006). Section 2255 relief was proper when the government violated due process by failing to disclose exculpatory evidence (a key witness recantation) that would have kept the defendant from pleading guilty.


  • United States v. Pelullo, 105 F.3d 117 (3d Cir. 1997). Section 2255 relief was appropriate when the government failed to disclose Brady exculpatory material (impeachment evidence), violating due process. See also Conley v. United States, 415 F.3d 183 (1st Cir. 2005)(same).


  • United States v. Weintraub, 871 F.2d 1257 (5th Cir. 1989). Due process violation was cognizable under section 2255 when the government withheld police reports that refuted the government witness’s account of the quantity of drugs involved in the underlying crime; Brady violation.


  • United States v. Biberfeld, 957 F.2d 98 (3rd Cir. 1991). When the government presents perjurious testimony, due process claim cognizable in §2255 proceedings arises.


  • United States v. De la Fuente, 8 F.3d 1333, 1336 (9th Cir. 1993). Due process implicated where government breached plea agreement by failing to recommend a sentence below the mandatory minimum, as agreed. Section 2255 relief was proper.


  • United States v. Guerra, 94 F.3d 989 (5th Cir. 1996). Due process requires that a plea of guilty be a voluntary, knowing and intelligent act. When the district court misinformed the defendant as to the maximum possible sentence, due process was violated and the plea was subject to a section 2255 challenge.


  • Shukwit v. United States 973 F.2d 903, 904 (11th Cir. 1992). Due process was violated when the defendant’s sentence was based on false information in the presentence report, rendering the sentence subject to §2255 collateral attack.


Sixth Amendment: Claims Other Than Ineffective Assistance of Counsel


  • United States v. Henry, 447 U.S. 264 (1980). Sixth Amendment right to counsel was violated when police planted a paid informant in defendant’s jail cell in order to extract pretrial statements. Section 2255 relief was proper when the district court admitted the statements at trial.


  • United States v. Fuller, 971 F.2d 993 (9th Cir. 1991). Sixth Amendment was violated when the defendant was denied the right to counsel during plea negotiations. Due process was also violated because the denial of counsel rendered the defendant unable to understand the charges and consequences. Section 2255 relief was proper.


  • United States v. Fulton, 5 F.3d 604 (2d Cir. 1993). A per se prejudicial conflict of interest arose, and violated the Sixth Amendment, when government witness reported that he had sold heroin to defendant’s counsel. Section 2255 relief (a new trial) was granted.


  • Quintero v. United States, 33 F.3d 1133 (9th Cir. 1994). When counsel, who was retained by unknown third parties to defend drug conspiracy defendant, urged defendant to reject plea and to not become a “snitch,” section 2255 evidentiary hearing was necessary to determine whether Sixth Amendment was violated.


  • United States v. Cook, 45 F.3d 388 (10th Cir. 1995). Sixth Amendment violation was cognizable under §2255 when district court ordered defense counsel to advise his client’s co-defendant to comply with a plea agreement. Conflict of interest was established.


  • United States v. Withers, 638 F.3d 1055 (9th Cir. 2009). Claim that defendant was denied his Sixth Amendment right to a public trial was cognizable in section 2255 proceedings.

Experienced Due Process and Double Jeopardy Attorneys

The writ of habeas corpus protects citizens by permitting challenges to confinement that are in violation of the Constitution. For federal prisoners, section 2255 is the vehicle to mount an attack on the constitutionality of a conviction or sentence. If you or a loved one believe that your conviction or sentence was obtained in violation of the Constitution, contact the Law Offices of Brandon Sample today. We will consult with you and help you understand how we can help you attack your conviction or sentence via a section 2255 motion.

Double Jeopardy and Due Process: The Conviction or Sentence Violates the Constitution FAQs

Q: If I was convicted or sentenced twice for the same crime, can I bring a section 2255 claim that my conviction/sentence violates the Constitution? Does this qualify as Double Jeopardy?

A: When an individual is convicted or sentenced more than once for the same offense, the Double Jeopardy Clause of the Fifth  Amendment is violated. A Double Jeopardy claim is cognizable in section 2255 proceedings.

Q: The Government withheld evidence that would have helped me.  Does that support a section 2255 claim? Does this qualify as a due process violation?

A: In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the government has a constitutional duty to disclose favorable material to the defendant. When the government fails to turn over such exculpatory material, it violates the constitutional right to due process, which gives rise to grounds for a section 2255 claim. Sadly, Brady violations have become almost commonplace in criminal prosecutions. If you have learned that the government withheld favorable evidence from you, contact us to discuss the matter. Our habeas corpus attorneys have considerable experience litigating Brady claims in the section 2255 setting.

Q: I pleaded guilty, but my decision was based on bogus information supplied by the government and the court. Can I file a section 2255 motion?

A: A plea of guilty must be a voluntary, knowing and intelligent act. When the guilty plea is obtained via false pretenses, it loses voluntary, knowing, and intelligent character. In such cases, due process may be implicated, and a section 2255 attack may be possible.

Q: The government planted a paid informant in my jail cell after I was indicted, and later used the informant as a witness. Can I claim a constitutional violation and bring a section 2255 attack?

A: The Sixth Amendment guarantees federal defendants the assistance of counsel at all critical junctures of the criminal prosecution process. When the government plants a paid informant in the jail cell of a represented pretrial defendant solely to obtain damaging information, it violates the Sixth Amendment. If this has happened to you, call us now to discuss the matter.

Q: My attorney represented me and my co-defendant, and I got a terrible deal. Can I mount a section 2255 challenge?

A: The Sixth Amendment right to the assistance of counsel guarantees conflict-free counsel. If an attorney represents two different defendants from the same case, it is highly unlikely that he could have represented both properly. If you believe that your attorney got a better deal for you co-defendant at your expense, contact us for a consultation.

Related Content

Cognizable Claims: Overview

Cognizable Claims: The Court Lacked Jurisdiction

Cognizable Claims: Ineffective Assistance of Counsel

Ineffective Assistance of Counsel: Pretrial

Ineffective Assistance of Counsel: Trial

Ineffective Assistance of Counsel: Sentencing

Ineffective Assistance of Counsel: Appeal

Cognizable Claims: The Conviction or Sentence Violates Federal Law

Cognizable Claims: The Conviction or Sentence is Otherwise Subject to Collateral Attack