Clarifying Evidentiary Hearing Standards in §2255 Proceedings: Tolling Agreements and Counsel Conflicts

Introduction

Donovan G. Davis, Jr. v. United States (11th Cir. 2025) addresses critical procedural safeguards in collateral attacks under 28 U.S.C. § 2255. In his § 2255 motion, Mr. Davis challenged his 2015 convictions for forex-fraud conspiracy, wire and mail fraud, and money laundering on multiple fronts:

Whether trial counsel was ineffective for failing to assert a statute-of-limitations defense;
Whether his long-time lawyer’s out-of-court involvement created a conflict of interest;
Whether counsel wrongly waived his immunities under Kastigar proffer agreements;
Whether the district court lacked jurisdiction because the prosecutors were not properly appointed; and
Whether the § 2255 judge should have recused for bias.

The Eleventh Circuit’s per curiam opinion vacated and remanded the denial of two ineffective-assistance claims—statute-of-limitations and conflict of interest—because the district court erred in refusing an evidentiary hearing on contested facts. All other claims (Kastigar waiver, jurisdiction, recusal) were affirmed.

Summary of the Judgment

The Court of Appeals held that a § 2255 movant is entitled to an evidentiary hearing when he alleges specific, non-conclusory facts that, if true, would entitle him to relief and those facts are not conclusively refuted by the record. Applying 28 U.S.C. § 2255(b), Strickland v. Washington, and related conflict-of-interest precedents, the panel concluded:

Statute of Limitations Claim: Davis presented sworn testimony and expert handwriting analysis showing that he withdrew from the December 2012 tolling agreement and never signed a second agreement in April 2013. Because these factual disputes were not resolved by the record, the district court abused its discretion by denying relief without an evidentiary hearing.
Conflict of Interest Claim: Davis alleged that his long-time attorney, Charles Greene, advised both him and a cooperating coconspirator, thereby potentially sacrificing plea discussions. This contention raised a non-frivolous, fact-intensive issue of an “actual conflict” under Cuyler v. Sullivan that likewise required a hearing.
Kastigar Waiver Claim: The 2008 and 2013 proffer agreements expressly allowed derivative use of Davis’s statements, so no Kastigar-style immunity existed. Counsel’s alleged failure to preserve Kastigar protections therefore could not be deficient.
Jurisdictional Challenge: Appointment of Assistant U.S. Attorneys as “special attorneys” under 28 U.S.C. § 515(a) did not deprive the district court of subject-matter jurisdiction. Davis waived any defect by not timely raising it in the trial court.
Recusal Motion: Allegations of generational bias and comments at co-defendant sentencings were purely judicial and did not arise from extrajudicial sources. The district judge properly denied recusal under 28 U.S.C. § 144.

Analysis

Precedents Cited

Strickland v. Washington (466 U.S. 668, 687–88): Establishes the two-prong test for ineffective assistance—deficient performance and prejudice.
28 U.S.C. § 2255(b): Requires an evidentiary hearing unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”
Aron v. United States (291 F.3d 708, 714–15): Holds that non-frivolous factual allegations trigger a hearing.
Cuyler v. Sullivan (446 U.S. 335, 349–50): No prejudice showing required when an “actual conflict” (adverse interest) affects counsel’s representation.
Montgomery v. United States (469 F.2d 148, 150): “[C]ontested fact issues … must be decided on the basis of an evidentiary hearing, not affidavits.”
Liteky v. United States (510 U.S. 540, 544, 551): Disqualification requires bias from an extrajudicial source or pervasive bias making fair judgment impossible.
United States v. Suescun (237 F.3d 1284, 1287–88): Appointment defects of AUSAs do not strip subject-matter jurisdiction; Rule 12(b) waiver applies.

Legal Reasoning

The Eleventh Circuit carefully applied the statutory mandate of § 2255(b) and Supreme Court guidance on ineffective assistance and judge recusal:

Evidentiary‐Hearing Standard: When a movant alleges specific factual disputes—here, the validity and withdrawal of tolling agreements and the nature of counsel’s conflict—the district court must hold a hearing unless the record conclusively resolves them. A mere denial or conjecture is insufficient.
Statute of Limitations: Because the scheme ended in September 2008, the indictment, returned in February 2014, could be time-barred absent valid tolling. Davis’s sworn statements and expert exhibit a genuine dispute about whether he withdrew from the 2012 tolling agreement and never signed the second one. Counsel’s failure to raise the defense may have been deficient and prejudicial.
Conflict of Interest: Davis alleged that Greene, despite not formally entering his appearance, advised both Davis and coconspirator Bromfield. This simultaneous or successive representation of adverse clients may create an “actual conflict” under Cuyler. A hearing is required to test whether plea negotiations were abandoned or strategy skewed by Greene’s divided loyalty.
Kastigar Immunity: The 2008 proffer agreement disclaimed derivative‐use immunity; it only barred direct use of statements. As such, the proffer did not trigger Kastigar’s protections. Counsel’s advice could not be deficient for failing to assert nonexistent rights.
Jurisdiction: Under § 515(a), the Attorney General may direct U.S. Attorneys to prosecute outside their home district as “special attorneys.” That procedure does not undermine the district court’s power to hear “offenses against the laws of the United States.”
Recusal: Judge Mendoza’s critical comments at codefendant sentencings were judicial and derived from the record, not from extrajudicial sources. Generalizations about “a younger generation” do not demonstrate pervasive bias disqualifying a reasonably objective judge.

Impact

This decision clarifies and reinforces several important points in collateral § 2255 practice:

Pro-movant Hearing Requirement: District courts must err on the side of granting hearings whenever factual disputes are material and not conclusively refuted on the face of the record.
Tolling Disputes: Allegations about the validity or withdrawal of tolling agreements can form the basis of an ineffective-assistance claim if counsel failed to investigate or raise a potential statute-of-limitations defense.
Counsel Conflicts Beyond the Record: Courts cannot resolve non-record conflicts—especially those arising from out-of-court influence—without live testimony and cross-examination.
Limitation on Kastigar Challenges: Proffer agreements that expressly allow derivative use of statements do not trigger Fifth Amendment immunity, so no separate Kastigar hearing is required.
Jurisdictional Formalism Rejected: Appointment or assignment irregularities of prosecutors are non-jurisdictional and waived if not timely raised.
Strict § 144 Scrutiny: Recusal demands must rest on extrajudicial sources or demonstrate pervasive bias; judicial comments alone do not suffice.

Complex Concepts Simplified

§ 2255 Motion: A federal prisoner’s collateral attack on a sentence, asserting constitutional or jurisdictional defects.
Evidentiary Hearing (28 U.S.C. § 2255(b)): A live proceeding where witnesses testify to resolve disputed facts not conclusively disposed of by documents.
Strickland Test: To prove ineffective assistance, a defendant shows (1) counsel’s performance fell below an objective standard of reasonableness and (2) a reasonable probability of a different outcome.
Cuyler “Actual Conflict”: No need to show prejudice if counsel labored under a conflict of interest that adversely affected representation.
Proffer / Kastigar Immunity: A proffer agreement may grant immunity from direct use of testimony but—unless it expressly prohibits derivative use—does not trigger the enhanced Fifth Amendment protections of Kastigar.
28 U.S.C. § 515(a): Authorizes the Attorney General to direct any U.S. Attorney to prosecute beyond his district as a “special attorney” without affecting jurisdiction.
Judge Recusal (28 U.S.C. § 144): Requires a timely affidavit showing personal bias from extrajudicial sources or pervasive predisposition so extreme that fair adjudication is impossible.

Conclusion

Donovan G. Davis, Jr. v. United States underscores the Eleventh Circuit’s commitment to robust procedural protections in § 2255 proceedings. By vacating the summary denial of two ineffective-assistance claims and directing evidentiary hearings, the Court reaffirmed that district courts must probe contested factual assertions—especially those involving waiver of time-bar defenses and counsel conflicts—unless the record definitively forecloses them. At the same time, the opinion streamlines collateral review by (1) rejecting Kastigar challenges when proffers permit derivative use of statements, (2) confirming that § 515 appointments do not oust jurisdiction, and (3) strictly limiting recusal to genuine, extrajudicial bias. This decision will guide trial and appellate courts in balancing efficiency against the fundamental rights of federal prisoners seeking to vindicate constitutional errors in their convictions and sentences.