10th Circuit: Withdrawal of Meritless Section 2255 Motion Bars Successive Motion
Rafael Ramos got some bad advice concerning a meritless section 2255 motion. A jailhouse lawyer told him that he should collaterally attack his conviction for being a felon in possession of a firearm based on the Supreme Court’s ruling in United States v. Johnson, 135 S.Ct. 2551 (2015). In Johnson, the top court struck down the residual clause of the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B)(ii). Ramos, who does not speak English, filed a section 2255 motion in which he argued that his sentence was illegal in light of Johnson.
Ramos Withdrawals His Meritless Section 2255 Motion
When the government responded and made minced meat out of this silly argument, Ramos knew that he had a problem. With the help of an interpreter, he read the government’s response and concluded that Johnson had nothing to do with his case. Ramos then did what would seem to be the sensible thing: he filed a motion to withdraw his section 2255 motion. He told the court that “upon further consideration and examination … it has become clear that the Johnson case does not apply” to his conviction or sentence.
The Second 2255 Motion
This was all well and good until Ramos attempted to file a new section 2255 motion two years later. This time he said that he received ineffective assistance of counsel because his attorney misled him as to his sentence exposure. The government responded that the motion should be dismissed for lack of jurisdiction, because Ramos had not received permission from an appellate court to file a second or successive section 2255 motion, as is required by 28 U.S.C. §2255(h).
Ramos said that his first motion shouldn’t count because he withdrew it. The government countered that the first motion should count because Ramos didn’t withdraw it until he realized, and in fact affirmatively told the Court, that it was meritless.
Factual Basis Required: Did the Section 2255 Motion Lack Merit?
Whether a withdrawn section 2255 motion counts for purposes of second or successive analysis requires a fact-based inquiry into the specific circumstances of each individual case. The court said that a determinative factor in how to treat a withdrawn §2255 motion is whether the moving party conceded that the motion lacked merit. Several circuits hold that if the withdrawing party acknowledged lack of merit, the motion counts for purposes of second or successive analysis. The Tenth Circuit is one of those circuits.
This proved fatal to Ramos. There was no need for the court to guess whether Ramos knew that his initial motion had no merit–he said as much in his motion to withdraw. Ramos made a last-ditch effort to save his case by arguing that the initial motion shouldn’t count because he was misled by an “inmate paralegal,” and that “he would not have submitted such a ridiculous issue which had no bearing on his case,” but would have brought the issues argued in his second §2255 motion. This argument failed. The court found no legal authority that would indicate that Ramos’ unfortunate reliance on a misinformed jailhouse lawyer was relevant.
Cautionary Tale: Be Careful with Section 2255 Motions
This case teaches a powerful lesson: Take extreme care with your initial section 2255 motion. Meritless section 2255 motions and other absurd claims should not be filed. As Mr. Ramos learned, they can come back to bite you. The best bet is always to get professional assistance with your section 2255 motion. The stakes are very high.
Case: United States v. Ramos, 2019 U.S. App. LEXIS 107 (10th Cir., Jan. 3, 2019).