Second or Successive 2255 Motion

The Antiterrorism and Effective Death Penalty Act of 1996 made life more difficult for habeas corpus petitioners. The initial motion must be timely [L to SOL page], a denial can only be appealed with permission [L to COA page], and, significantly, relief on a second or successive 2255 motion is now nearly impossible to obtain. Post-AEDPA, a federal prisoner who wishes to file a second §2255 motion must first obtain permission from an appellate court, and such authorization is granted in very limited circumstances.

What Are Second or Successive 2255 Motions?

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). Section 2255(h) permits a court to hear a second or successive section 2255 motion only when an second or successive 2255 motionappellate court certifies that the motion contains either "newly discovered evidence that, if proven and viewed in the 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)(l), 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).

Examples of Cases Where a 2255 Motion is Not Considered Second or Successive

Before delving into what is required under §2255(h), it is important to note that the AEDPA restrictions only apply to filings that are actually second or successive section 2255 motions. There are a variety of circumstances where courts will not consider a filing second or successive. In these situations, no permission is required prior to a subsequent filing:

 

  • 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).
  • 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 Johnson claim 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 initial section 2255 motion was successful and a new conviction or sentence obtained, a subsequent section 2255 motion is not second or successive. See 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).

Second or Successive 2255 Motion: Newly Discovered Evidence

When a section 2255 motion is truly second or successive, the motion must satisfy either §2255(h)(l) or (2) before an appellate court will allow a district court to hear it. Section 2255(h)(l) 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 22255 motion. See Kutzner v. Cockrell, 303 F.3d 333, 337 (5th Cir. 2002).

Second or Successive 2255 Motion: New Rule of Constitutional Law

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). Be cautioned: the Supreme Court will go to great lengths to avoid creating new rules of constitutional law. They 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 tolling the §2255(f) statute of limitations [L to 2255(f)(3) page]. 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 (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 to File a Second or Successive 2255 Motion

In order to be permitted to file a second or successive 2255 motion, the movant must first petition the appellate court for permission. Permission is rarely granted, but will be when the petitioner makes a prima facie showing that the proposed section 2255 motion satisfies §2255(h)(l) or (2). When permission is granted, the movant may file the second or successive 2255 motion in the district court.

Second or Successive 2255 Motion Lawyers

If you are a federal prisoner or a prisoner's family member, and want to file a second or successive 2255 motion, contact us to discuss the matter. Neither Congress nor the courts want you to take a second swing at section 2255 relief. Navigating the second or successive 2255 motion maze requires a high level of legal acumen and experience. The attorneys at the Law Offices of Brandon Sample have both. We have helped clients obtain relief through section 2255 motions. Contact us today for assistance.

Second or Successive 2255 Motion FAQs

Q: What is a second or successive 2255 motion?

A: For purposes of the AEDPA-imposed restrictions, a second or successive section 2255 motion quite literally means any section 2255 motion after the first. This analysis is somewhat deceptive, however, as it is not always simple to say when the initial section 2255 actually counts as the first. Moreover, there are multiple procedural niceties that may impact whether the second or successive section 2255 motion will face the AEDPA restrictions. Hire experienced counsel to help you navigate the second or successive section 2255 motion maze. Contact us. We can help.

Q: Are there situations where a second or successive motion won't be treated as second or successive?

A: Yes. When the original claim was never decided on the merits, or was improperly dismissed on procedural grounds, a newly filed section 2255 motion will not be considered second or successive. Neither will a new section 2255 motion that is filed because the first was successful, and the movant was resentenced. There are several other instances in which a subsequent filing will not be treated as a second or successive 2255 motion. If you are not sure whether your filing is second or successive, contact us now. The AEDPA-imposed bar is no joke; it is crucial that you avoid it at all costs. Our experienced habeas corpus litigators can help you.

Q: What are the restrictions on a second or successive 2255 motion?

A·: The AEDPA amended section 2255 to make it nearly impossible to file a second or successive 2255 motion. There are only two circumstances under which a court will hear such a motion: (1) When the motion contains "newly discovered evidence that, if proved and viewed in the 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), and (2) 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." §2255(h)(2).

Q: I have discovered new evidence that helps my case, but my first section 2255 has already been denied. Can I file a second 2255 motion?

A: Maybe. In order to be permitted to file a second or successive 2255 motion on the basis of newly discovered evidence, the evidence must have been essentially undiscoverable at the time of the first section 2255 motion. Additionally, the newly discovered evidence must establish by clear and convincing evidence that no reasonable juror would have found the movant guilty. The court will consider all of the evidence when making this determination, not just what was newly discovered.

Q: The Supreme Court recently made a new rule of constitutional law that helps me, but my first 2255 motion was already decided. Can I file another section 2255 motion?

A: When the Supreme Court makes a truly "new" rule of constitutional law, it may be applicable to federal prisoners who have already filed a section 2255 motion. Note that a clarification or extension of precedent does not create a new rule.  If the rule is new, it must be of constitutional magnitude, and made retroactive to cases on collateral relief by the Supreme Court.

Q: Does the Supreme Court regularly create new rules of constitutional law and declare them retroactively applicable to cases on collateral review?

A: No, the Court most certainly does not. If you believe that you qualify for a second or successive 2255 motion under §2255(h)(2), call us first. Our professional staff will help you understand your claim, and move it forward if possible.

Q: I qualify for a second or successive motion under §2255(h). May I simply file my section 2255 motion in the district court?

A: No. Section 2244(b)(3) requires that the prospective movant first apply to the court of appeals for permission to file the second or successive 2255 motion. If the appellate court finds that the motion satisfies either 2255(h)(l) or (h)(2), it will provide the certification necessary to file in the district court.

Q: I want to file a second or successive 2255 motion. Can you help me?

A: It is extraordinarily difficult to navigate the second or successive crucible. Any federal prisoner considering doing so would be well served to contact a qualified attorney first. At the Law Offices of Brandon Sample, we routinely handle federal habeas corpus matters. Our experienced attorneys have helped federal prisoners file 2255 motions. Contact us now to discuss your case with a member of our professional staff.

Related Content

Procedural Default

The Teague Doctrine

Copy link
Powered by Social Snap