The Supreme Court will decide whether a federal prisoner can appeal the denial of a § 2255 motion when his own circuit's precedent is against him but another circuit has agreed with his argument. The Court granted review in Berry v. United States, No. 25-7026, on October 13, 2026. The Court has not decided the case yet.
What a certificate of appealability is
A certificate of appealability, or COA, is permission to appeal. Without one, you cannot appeal the final order in a § 2255 case (28 U.S.C. § 2253(c)(1)(B)). A COA may issue only if you make "a substantial showing of the denial of a constitutional right" (28 U.S.C. § 2253(c)(2)).
The Supreme Court has said that test is met when "reasonable jurists could debate" whether the case should have been decided differently (Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
The question the Court will answer
The question presented is whether a COA should be granted when the issue the prisoner wants to appeal "has been resolved against him by binding circuit precedent but has been resolved in his favor by another circuit."
Put simply: if judges in another circuit agree with you, are those "reasonable jurists" who could debate your case, even though your own circuit has already ruled the other way?
How the case got here
According to Mr. Berry's petition, he pleaded guilty in the Southern District of Florida to carjacking offenses and to brandishing a firearm during a "crime of violence" under 18 U.S.C. § 924(c). His second § 2255 motion challenged the § 924(c) conviction after United States v. Davis, 588 U.S. 445 (2019), struck down the statute's residual clause.
The petition says the district court denied the motion by applying Eleventh Circuit precedent on the burden of proof in these cases, and that the Third, Fourth and Ninth Circuits use a different rule. A single Eleventh Circuit judge then denied a COA. The petition says that judge relied on circuit precedent holding that a COA will not issue when a claim is foreclosed by binding circuit precedent.
The petition says the circuits are divided on this COA question. By its count, the Fifth, Sixth and Eleventh Circuits deny a COA in this situation, while the Ninth and Tenth Circuits grant one.
What it means for a § 2255 motion
If your § 2255 claim was denied because your circuit's precedent is against you, but another circuit has accepted the same argument, watch this case. The outcome could affect whether you can get a COA and appeal.
Some practical points:
- Preserve the issue. Make the argument in the district court and cite the other circuits' cases, even if your circuit has rejected it.
- Ask for a COA. If the district court denies one, you can ask the court of appeals (28 U.S.C. § 2253(c)(1)).
- Do not miss deadlines while you wait for Berry. A § 2255 motion has a one-year limit (28 U.S.C. § 2255(f)), and appeal deadlines are short.
Your next step
Get a copy of the order denying your motion and any order on a COA. Book a consultation to talk about your case.
Source: Berry v. United States, Supreme Court of the United States, No. 25-7026. Read the order or opinion