How a Procedural Certificate of Appealability Is Vacated

In the Eleventh Circuit, a certificate of appealability that names only a timing question is vacated when it names no constitutional claim. On October 30, 2026, the court applied that rule in McLellan v. United States, No. 22-13589 (Read the decision (PDF)). It affirmed the denial of Dustin McLellan's § 2255 motion on one issue and dismissed the rest of the appeal.

The opinion is marked "NOT FOR PUBLICATION." Eleventh Circuit Rule 36-2 says unpublished opinions are not binding precedent, but they may be cited as persuasive authority. The panel applied rules the circuit already had.

What the certificate covered

A certificate of appealability is permission to appeal the denial of a § 2255 motion. Without one, that appeal cannot go forward. 28 U.S.C. § 2253(c)(1)(B). A judge may issue a certificate only for "a substantial showing of the denial of a constitutional right." § 2253(c)(2). The certificate "shall indicate which specific issue or issues satisfy" that showing. § 2253(c)(3).

A single judge granted a certificate on two questions.

The first was whether the district court had skipped a claim. McLellan said the Armed Career Criminal Act, 18 U.S.C. § 924(e), had stopped the sentencing judge from considering a lower sentence under the Sentencing Guidelines. The Eleventh Circuit calls the duty to decide every claim the Clisby rule, from Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc). It later applied that rule to § 2255 motions. Rhode v. United States, 583 F.3d 1289, 1291 (11th Cir. 2009).

The second question was about timing. On April 14, 2022, after the one-year deadline, McLellan asked to amend the motion. He argued the new claims related back to the original motion, so they should be treated as filed on time. The certificate asked whether the district court was wrong to treat those claims as late.

The panel affirmed on the Clisby question. On the relation-back question, it vacated the certificate because the certificate should not have been granted, and it dismissed that part of the appeal. It did not decide whether the amendment related back.

Why the Guidelines claim was already decided

McLellan was convicted in the Southern District of Alabama of two counts of possessing a firearm after a felony conviction, 18 U.S.C. § 922(g)(1). The district court applied the Armed Career Criminal Act over his lawyer's objection. It imposed concurrent 15-year prison terms, the mandatory minimum, followed by concurrent five-year terms of supervised release.

The judge said that even without that enhancement, the sentence would still have been 15 years: 10 years on one count and 5 years on the other, served one after the other. On direct appeal, the Eleventh Circuit did not decide whether the enhancement applied, because the record showed the same total either way. It affirmed and sent the case back only so the written judgment would state that alternative sentence. United States v. McLellan, 958 F.3d 1110, 1116-17, 1120 (11th Cir. 2020).

The amended judgment did that. It stated 180 months on each count, concurrent, or, in the alternative, 120 months on Count One and 60 months on Count Two, consecutive.

McLellan filed a timely § 2255 motion in September 2020, No. 1:20-cv-00469-KD-N. One claim said the Act had blocked a downward departure under Guidelines § 5K2.0. A departure is a sentence outside the Guidelines range for a reason the Guidelines name.

The court of appeals treated the claim as a Guidelines challenge. It said Guidelines § 5G1.1(c) kept the judge from going below the 15-year statutory minimum. The district court had already answered the claim in a footnote. It wrote that McLellan's sentencing claims were not viable in a § 2255 motion, because a defendant has no right to raise Guidelines sentencing issues there.

The court relied on Spencer v. United States, 773 F.3d 1132, 1138-39 (11th Cir. 2014) (en banc). Spencer holds that a prisoner may not challenge a sentencing error in a collateral attack unless the error "constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Our page on what a § 2255 motion can challenge explains that bar.

Clisby requires a decision. It does not require a separate section of the order when a footnote already resolves the claim.

The court gave a second reason as well. McLellan could have raised the claim on direct appeal and did not. A claim left out of the appeal is generally barred later. Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004). That bar is procedural default.

Why the timing certificate was vacated

The second question on the certificate asked only whether the April 2022 amendment was late. Spencer holds that when a prisoner appeals a procedural error, the certificate "must specify the underlying constitutional issue." 773 F.3d at 1138. A certificate that does not do that is vacated. The court quoted its earlier statement that a failure to specify the issue "will result in the vacatur of the certificate."

This certificate did not name a constitutional claim under the relation-back question. The panel vacated it and did not reach the timing question.

It also declined to issue a new certificate. For a procedural ruling, Slack v. McDaniel, 529 U.S. 473, 484 (2000), requires two things. Jurists of reason must find it debatable whether the motion states a valid claim of the denial of a constitutional right, and they must find it debatable whether the procedural ruling was correct.

The court said the amended claims did not meet that test. They described errors at a resentencing. There was no resentencing. The amended judgment only recorded the alternative sentence the judge had already announced. McLellan could have raised those points at the original sentencing and on direct appeal. He did not, so the claims were procedurally barred. The court also said ordinary sentencing errors of this kind are not cognizable in a § 2255 proceeding.

One amended claim said his lawyer was ineffective for failing to object to the Act. The court said that claim did not relate back to the timely motion. It also said trial counsel did object to the enhancement. Reasonable jurists would not debate that claim.

What to gather before an appeal

This opinion is not binding precedent. Courts in other circuits follow their own law. Four checks still follow from the statute and from the cases the court applied.

• Read the certificate. If it allows an appeal of a procedural ruling, such as the deadline, relation back, or default, it should also name the constitutional claim. 28 U.S.C. § 2253(c)(3). A pending Supreme Court case, Berry v. United States, asks a different question: whether a split among the circuits supports a certificate when your own circuit has already ruled against you.

• Separate a Guidelines complaint from a constitutional claim. In the Eleventh Circuit, a Guidelines challenge supports § 2255 relief only when the error is a fundamental defect that results in a complete miscarriage of justice. Spencer, 773 F.3d at 1138-39. The motion, and any request for a certificate, should say what constitutional right was denied.

• Match the claim to the judgment the court actually entered. Here the court of appeals had ordered a clarification of the judgment, not a new sentencing hearing. Claims that described a resentencing had no resentencing to point to.

• Put the claims in the first motion. The one-year clock still applies to claims added later. A late amendment is timely only when it relates back to the same core facts. Mayle v. Felix, 545 U.S. 644, 659 (2005). McLellan did not decide that test for the sentencing claims in the April 2022 amendment. It dismissed the appeal of the timing issue because the certificate was defective.

Get the judgment, the order that denied the § 2255 motion, and the certificate of appealability. Book a consultation and tell us what happened.