Filing a Second § 2255 Motion

After your first § 2255 motion is decided, you generally cannot file another one unless the court of appeals first gives you permission. It will do so only for (1) strong new evidence of innocence or (2) a new constitutional rule the Supreme Court has made retroactive. Some later filings do not count as “second or successive,” so check that first.

The AEDPA made habeas cases harder in three ways: the first motion must be timely, a denial can be appealed only with permission, and a second or successive motion is very hard to bring.

What does the statute require?

For federal prisoners, 28 U.S.C. §2244 directs that no judge is required to entertain a second or successive habeas corpus petition “except as provided in section 2255.” §2244(a). Under § 2255(h), a second or successive motion “must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain” either “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense,” § 2255(h)(1), or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” § 2255(h)(2). The requirement of appellate court certification is jurisdictional. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).

Did the Supreme Court change these rules in 2026?

Yes, in two ways that help federal prisoners. In Bowe v. United States, No. 24-5438 (U.S. Jan. 9, 2026), the Court held:

• The rule in 28 U.S.C. § 2244(b)(1) that bars re-presenting a claim already raised in an earlier application applies to state prisoners, not to federal prisoners’ second or successive § 2255 motions.
• The Supreme Court can review a court of appeals’ decision on a federal prisoner’s request to file a second or successive § 2255 motion; § 2244(b)(3)(E) does not bar that review.

The § 2255(h) requirements themselves still apply.

When is a later filing not “second or successive”?

The limits apply only to filings that truly are second or successive. Courts have held that, in these situations, no permission is required:

• When the original claim was not decided on the merits, a subsequent filing is not a second or successive 2255 motion. See Muniz v. United States, 236 F.3d 122 (2d Cir. 2001)(Subsequent motion not second or successive when first was improperly dismissed on procedural grounds); Haro-Arteaga v. United States, 199 F.3d 1195 (10th Cir. 1999)(Subsequent motion not second or successive when first was voluntarily dismissed without prejudice, and without reaching the merits). But see Thai v. United States, 391 F.3d 491 (2d Cir. 2004)(When procedural default of initial petition was proper or petition was voluntarily dismissed after petitioner conceded the claim had no merit, subsequent filings would be second or successive).

Outcomes vary. A past result does not predict or guarantee the outcome of any other case.

• When the initial motion is improperly recharacterized as a section 2255 motion, or is recharacterized without proper warning, a subsequent filing is not a second or successive 2255 motion. See United States v. Jackson-Bey, 302 F.Supp.2d 621 (E.D. Va. 2004)(Because recharacterization of 18 U.S.C. §3582(c)(2) motion as a section 2255 motion was improper, subsequent filing was not a second or successive section 2255 motion); United States v. Blackstock, 513 F.3d 128 (4th Cir. 2008) (Recharacterization of a discovery motion as a section 2255 motion required Castro warning; when the warning was not provided, subsequent filing was not a second or successive 2255 motion).

• When the basis for a valid claim did not exist when the initial section 2255 motion was filed, a subsequent motion making that claim is not a second or successive 2255 motion. See Stewart v. United States, 646 F.3d 856 (11th Cir. 2011)(Movant’s claim based on the vacatur of prior state convictions, under Johnson v. United States, 544 U.S. 295 (2005), did not exist at the time of the initial filing, so subsequent filing was not second or successive; attempting to raise the non-existent claim would have been empty formality); United States v. Grant, 493 F.3d 464 (5th Cir. 2007)(When the facts supporting the new claim arose after disposal of the initial section 2255 motion, the new claim was not a second or successive section 2255 motion).

• When the initial section 2255 motion was used solely to reinstate a lost right to appeal, a subsequent filing is not a second or successive 2255 motion. See Tuan Vu v. United States, 648 F.3d 111 (2d Cir. 2011)(Initial, unsuccessful section 2255 motion sought only to reinstate appellate rights; subsequent filing was not second or successive); Cantrell v. United States, 123 F.Supp.2d 427 (M.D. Tenn. 2000)(same).

• When the subsequent motion is, or should be treated as a motion to amend, it is not a second or successive section 2255 motion. See Johnson v. United States, 196 F.3d 802 (7th Cir. 1999)(When the court has not yet ruled on the merits of a section 2255 motion, a motion to amend is not a second or successive 2255 motion); Bouloute v. United States, 645 F.Supp.2d 125 (E.D. N.Y. 2009)(When prisoner moved to amend after section 2255 motion was lost — but still on appeal — the motion to amend was not a second or successive section 2255 motion); Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002)(When a subsequent section 2255 motion is filed prior to adjudication of the first, it should be treated as a motion to amend, not a second or successive 2255 motion).

• When the first motion led to a new judgment (for example, a resentencing), a motion challenging the new judgment is generally not second or successive. See Magwood v. Patterson, 561 U.S. 320, 331-33 (2010) (state-prisoner case); Hawkins v. United States, 415 F.3d 738 (7th Cir. 2005)(When the original conviction was vacated pursuant to a section 2255 attack, a subsequent attack on the newly imposed conviction or sentence is not a second or successive 2255 motion).

Be careful with filings made after the first motion is decided. The Supreme Court held in a state-prisoner case that a new filing made after the district court’s judgment — even while an appeal is pending — is second or successive. Rivers v. Guerrero, No. 23-1345 (U.S. June 12, 2025). Whether and how courts apply that to § 2255 cases should be checked in your circuit.

What counts as newly discovered evidence? (§ 2255(h)(1))

A true second or successive motion must satisfy § 2255(h)(1) or (h)(2) before the court of appeals will let the district court hear it. Section 2255(h)(1) requires the movant to show “newly discovered evidence” that “establish[es] by clear and convincing evidence that no reasonable factfinder would have found the movant guilty.” This is a difficult standard to meet.

Newly discovered evidence is not enough when the movant could have discovered the evidence at the time of the initial section 2255 motion. In Villanueva v. United States, 346 F.3d 55, 64 (2d Cir. 2003), for instance, the court ruled that newly obtained alibi affidavits were not “newly discovered,” because they could have been obtained prior to the first section 2255 motion.

If there is newly discovered evidence, it must establish by “clear and convincing evidence” that the movant would not have been found guilty. Even in the case of new DNA evidence, if other evidence from trial would have left the issue of guilt in doubt, the court will not permit the second or successive 2255 motion. See Kutzner v. Cockrell, 303 F.3d 333, 337 (5th Cir. 2002).

What counts as a new rule of constitutional law? (§ 2255(h)(2))

Under §2255(h)(2), the appellate court will allow a second or successive 2255 motion when the motion contains “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” This standard is also very difficult to meet.

First of all, the rule relied upon must actually be “new.” A Supreme Court decision that clarifies an earlier decision does not create a new rule. In re Garza, 253 F.3d 201 (5th Cir. 2001). Nor does applying “a long-established principle . . . to a particular claim” create a new rule. Outlaw v. Sternes, 233 F.3d 453, 455 (7th Cir. 2000). Further, a Supreme Court decision that merely interprets a substantive criminal statute using rules of statutory construction does not create a new rule. In re Blackshire, 98 F.3d 1293 (11th Cir. 1996).

The new rule must also be one of constitutional law. A Supreme Court case involving statutory interpretation in which the Court specifically avoids reaching any constitutional questions does not create a new rule of constitutional law. United States v. Reyes, 358 F.3d 1095 (9th Cir. 2004). New rules of constitutional law are rare.

The new rule of constitutional law must also be made retroactive by the Supreme Court. This analysis is very different from the analysis of a “right newly recognized by the Supreme Court and made retroactively applicable,” for purposes of the § 2255(f)(3) statute of limitations. The difference is, in the second or successive section 2255 motion context, the Supreme Court itself must declare the new rule of constitutional law retroactive. See Tyler v. Cain, 533 U.S. 656, 663 (2001)(“[A] new rule becomes retroactive, not by the decisions of the lower courts or by the combined action of the Supreme Court and the lower courts, but simply by the action of the Supreme Court”).

The Court rarely takes such action. For instance, in Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court held that all facts used to increase a defendant’s sentence beyond the statutory maximum must be charged and proven to a jury — but the Court never made Blakely retroactively applicable to cases on collateral review. As such, the new rule of constitutional law created in Blakely does not support a second or successive section 2255 motion. See Simpson v. United States, 376 F.3d 679 (7th Cir. 2004). This is also the case for Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543 U.S. 220 (2005); neither of these seminal cases were made retroactively applicable to cases on collateral review, and as such, neither are available to support a second or successive 2255 motion.

The final requirement under §2255(h)(2) is that the new rule of constitutional law, made retroactive by the Supreme Court, must have been “previously unavailable.” See In re Hill, 113 F.3d 181 (11th Cir. 1997).

How do you ask for permission?

File a motion in the court of appeals for authorization before filing anything in the district court. 28 U.S.C. § 2244(b)(3)(A). The court of appeals may grant it only if you make a “prima facie showing” — enough on its face — that the motion meets § 2255(h)(1) or (h)(2). § 2244(b)(3)(C). The court of appeals is supposed to decide within 30 days. § 2244(b)(3)(D). If it grants permission, you then file the motion in the district court, which must still decide whether the requirements are actually met.

Common questions

Related pages

Procedural Default

The Teague Doctrine

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