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When the Supreme Court recognizes a new right that applies to old cases, you get one year from the date of that Supreme Court decision to file a § 2255 motion based on it. 28 U.S.C. § 2255(f)(3). The clock starts on the day of the decision — not on the later day some court says it applies to old cases — so do not wait.
Criminal and constitutional law change over time. Sometimes the Supreme Court announces a new rule that helps people already convicted. Section 2255(f)(3) gives those people a fresh year to file, but only if the right has been “made retroactively applicable to cases on collateral review” — meaning it applies to cases that are already final.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
Who decides that a new right applies to old cases?
Only a right recognized by the U.S. Supreme Court can trigger § 2255(f)(3).
The Supreme Court often does not say, when it announces a new rule, whether the rule applies to old cases. For a first § 2255 motion, many courts hold that the district court can decide that question itself. (For a second or successive motion under § 2255(h)(2), the rule must be made retroactive by the Supreme Court.)
Why is this a trap?
Because the year starts on the date the Supreme Court first recognized the right — not the date it was later held retroactive. Dodd v. United States, 545 U.S. 353, 357-59 (2005).
The Court admitted this can be harsh: by the time a court says the right is retroactive, the year may be nearly gone, or over. So if a new Supreme Court decision may help you, file within one year of that decision. Do not wait for a retroactivity ruling.
When has the Supreme Court “recognized” a new right?
That can be hard to tell. The Fourth Circuit said the Supreme Court has “recognized” a right for § 2255(f)(3) purposes “if it has formally acknowledged that right in a definite way.” United States v. Brown, 868 F.3d 297, 301 (4th Cir. 2017). Under that view, the right must come from the Supreme Court’s actual holding. If whether the right exists is debatable, the Court has not yet “recognized” it.
Chief Judge Gregory dissented in Brown. In his view, a newly recognized right “is more sensibly read to include the reasoning and principles that explain it,” not just the narrow holding.
Some decisions clearly do not create a new right. If the Supreme Court simply applies an existing rule to new facts, there is no new right.
For decisions interpreting a criminal statute, courts have found a new right when the Supreme Court “officially acknowledges the appropriate statutory meaning.” See, e.g., United States v. Lopez, 248 F.3d 427, 431 (5th Cir. 2001). An example is Bailey v. United States, 516 U.S. 137 (1995). There the Court held that conduct many courts had treated as “use” of a firearm under 18 U.S.C. § 924(c) was not a crime under that statute.
Which new rules apply to old cases?
The framework comes from Teague v. Lane, 489 U.S. 288 (1989).
- New substantive rules apply to old cases. These are rules that put certain conduct beyond the reach of criminal law, or bar a type of punishment for a class of people. Welch v. United States, 578 U.S. 120 (2016) (holding Johnson v. United States, 576 U.S. 591 (2015), retroactive).
- New procedural rules do not. These change how a case is handled, such as rules about juries or evidence. The Supreme Court once recognized an exception for “watershed” procedural rules, but it has since said that exception “retains no vitality.” Edwards v. Vannoy, 593 U.S. 255 (2021).
Read more about the Teague doctrine.
How does § 2255(f)(3) fit with the rest of the one-year clock?
Section 2255(f) lists four possible start dates. The limitation period runs from the latest of those dates. 28 U.S.C. § 2255(f). So a person whose conviction became final years ago may still have a timely motion if a later trigger — such as a new Supreme Court right under (f)(3) — applies and the motion is filed within one year of that trigger.
Subsection (f)(3) itself requires three things: (1) the right was newly recognized by the Supreme Court; (2) the right has been made retroactively applicable to cases on collateral review; and (3) the motion is filed within one year of the date the Supreme Court recognized the right. The statute’s wording is: “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3).
First motions versus second or successive motions
For a first § 2255 motion, many courts of appeals allow the district court to decide whether a Supreme Court decision is retroactive for (f)(3) purposes. For a second or successive motion, the gatekeeping statute is stricter: the claim must rely on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2). In that setting, the Supreme Court itself must have made the rule retroactive. See Tyler v. Cain, 533 U.S. 656, 662-64 (2001) (discussing the parallel standard under 28 U.S.C. § 2244(b)(2)(A)).
If you already filed a § 2255 motion and lost, do not assume (f)(3) alone lets you file again. You may need authorization from the court of appeals under § 2255(h) before the district court can consider a second motion. Read more about second or successive § 2255 motions.
Practical steps when a new Supreme Court decision comes out
Read the opinion and ask whether it creates a new right or merely applies an old one to new facts. Check whether your conviction rests on the statute, guideline, or procedure the Court addressed. Calendar one year from the decision date. Gather the judgment, plea or verdict papers, and sentencing transcript so counsel can compare your case to the new rule quickly.
Do not wait for every circuit to weigh in on retroactivity. Under Dodd, waiting for a later retroactivity decision can use up — or run out — the year that started on the recognition date. Dodd v. United States, 545 U.S. 353, 357-59 (2005).
Common questions
What is a newly recognized right?
It is a right the Supreme Court has clearly announced for the first time. For § 2255(f)(3) to help you, it must also apply to cases already final. In practice, that usually means a new substantive rule — for example, a decision narrowing what conduct a criminal statute covers, or striking down part of a sentencing statute.
Must the new right also be retroactive to restart the clock?
Yes. Section 2255(f)(3) applies only if the right has been “made retroactively applicable to cases on collateral review.”
The Supreme Court recognized a new right but did not say whether it is retroactive. When does my year start?
On the date of the Supreme Court’s decision. Dodd v. United States, 545 U.S. 353 (2005). Do not wait for a later ruling on retroactivity — it may come after your year has run. If a new Supreme Court decision may affect your case, book a consultation with Brandon Sample soon after the decision comes out.
Related pages
You Must be “In Custody” to File a Section 2255 Motion
Section 2255 Motions: The Statute of Limitations
Equitable Tolling Applies to the Section 2255 Statute of Limitations
Actual Innocence Can Overcome the Section 2255 Statute of Limitations
Section 2255(f)(4): Newly Discovered Evidence Restarts the One-Year Clock
Section 2255 Exhaustion Issues
Questions about your case? Book a consultation to talk it through with Brandon Sample.