Federal Habeas Corpus: Understanding Second or Successive Motions for Federal Prisoners

It used to be that filing a second or third habeas corpus petition in federal court was the norm, with the courts following precedent and limiting repeat challenges, such as applying the rule of res judicata to bar claims raised and lost in earlier petitions. But the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) changed all of that, turning that precedent into laws that all courts must follow. This removed a judges discretion to allow another habeas petition for cases that deserved relief. Filing a second or successive motion to vacate under 28 U.S.C. sec 2255 (SOS 2255) in court today is not straight-forward by any means, so let`s go over some of the details.

What is a “Second or Successive” Motion?

The term “second or successive” may seem redundant, but it`s actually two legal terms with each having a different meaning. The term “second” used to be called “abusive” and it`s where a claim that could have been raised earlier but wasn`t and is now being raised in another motion for relief. It was typically an effort to keep the door open should the first motion fail.

The term “successive” means a repeat motion which contains the same claim(s) as a previous motion that was denied on the merits. This can be seen today in motions where the law has changed, making the earlier claim that was denied one that now has merit. The Supreme Court`s opinion in Kulhman v. Wilson, 477 U.S. 436 (1986), explains this history rather well.

Permission to File a SOS 2255 Motion is Jurisdictional

You must first get permission from the court of appeals in order to file a SOS 2255 motion in the district court. Without authorization, the district court doesn`t have jurisdiction to hear your motion. Even if the government waives any challenge to your motion as being second or successive, subject-matter jurisdiction cannot be waived or ignored by a court. United States v. Lopez, 557 F.3d 1053 (9th Cir. 2009).

But not all of sec 2255(h) is jurisdictional, only the requirement that you get authorization from the court of appeals. Whether you can actually meet the criteria under sec 2255(h) in order to file a SOS 2255 motion is another question, which is not jurisdictional. Williams v. United States, 927 F.3d 427 (6th Cir. 2019).

Filing for Permission to file a SOS 2255 Motion

Every court of appeals uses an application to request permission to file a SOS 2255 motion, and the clerk provides this form free of charge. Some courts of appeals require that you use the form, and some also require that you attach your proposed sec 2255 motion you want to file in the district court to your application.

Whether the court requires this practice or not, it`s a good idea to attach your proposed motion to your application because it can be used to support why your application should be granted. The court of appeals is not limited to what`s in the application, anything you file gets considered.

Time Limits for Filing a SOS 2255 Application

You have one year from either discovery of new evidence or a retroactive Supreme Court decision, under sec 2255(h), in which to file your application for permission to file a SOS 2255 motion in the district court. Dodd v. United States, 545 U.S. 353 (2005).

Another good reason to attach your proposed motion is that it`s not clear in some courts when the AEDPA`s one-year clock stops running. Some say it`s when you file your application in the court of appeals, others say it`s when you file it in the district court. At least one court has provided solid reasoning in this debate. In Gilmore v. Berghuis, 2015 U.S. App. LEXIS 4501 (6th Cir. Jan. 30, 2015), the court of appeals rejected the government`s that the one-year clock didn`t stop until the approved second or successive motion was actually filed in the district court. The court pointed to 28 U.S.C. sec 2242, which says that a habeas petition is “filed” if it is addressed to a circuit judge with an explanation of why it could not be filed in the district court, and held that the attached habeas petition was considered “filed” when the SOS application was filed in the court of appeals.

Note: The AEDPA`s one-year clock isn`t jurisdictional and the government can waive or forfeit it, allowing your “late” motion to proceed through the courts. In re Jackson, 826 F.3d 1343 (11th Cir. 2016).

Screening of the Application and Motion

Both the court of appeals and the district court are obligated to screen your motion to see if it meets the strict criteria under sec 2255(h). It is the court of appeals` job to determine if your application makes a prima facie showing that you meet the criteria. This has been defined as “sufficient showing of possible merit to warrant a fuller exploration by the district court.” Bennett v. United States, 119 F.3d 468 (7th Cir. 1997). This is not a high bar to meet. You don`t have to show you would actually win your claims, but some courts say that it wouldn`t make sense to grant permission to file a SOS 2255 motion if it would waste the district court`s time because relief couldn`t be granted. See, e.g., United States v. St. Hubert, 918 F.3d 1174 (11th Cir. 2019) (five concurring judges in denying rehearing en banc: “how could a fuller exploration [by the district court] be warranted when it would serve only to waste the district court`s time?”).

And once you`re in the district court, you can supplement your motion in an attempt to meet these criteria, since that`s the court where it`s appropriate to develop this record. Only after you`ve passed the examination by both courts is your motion considered a true motion.

Permission Based on New Evidence

The provision under sec 2255(h)(1) allows a SOS 2255 motion if it contains “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 offenses.”

This requires three things to happen. First, the evidence must be “new” and not something you could have discovered earlier. DNA evidence is a good example of this. Second, you must show that there`s “clear and convincing” evidence that you`re not guilty of the offense. This isn`t quite as tough as the “beyond-a-reasonable-doubt” standard, but it`s more than the preponderance of the evidence standard. It`s like the two-thirds vote in Congress in some ways, being more than a simple majority vote. And third, you have to show you were diligent in finding that new evidence.

Permission Based on a New Supreme Court Decision

The provision under sec 2255(h)(2) allows a SOS 2255 motion if it contains “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”

First, the Supreme Court`s decision must be a new constitutional ruling. This means a decision by the Court interpreting a statute would not count, unless that interpretation narrows the scope of a criminal statute and makes a class of people fall outside the reach of the statute. That`s what happened in Johnson v. United States, 576 U.S. 591 (2015), for example, when the Court declared part of a criminal statute unconstitutional. This was a “substantive” constitutional decision that opened the door for thousands of federal prisoners to file a SOS 2255 motion.

Note: For more information on retroactivity of new Supreme Court decisions, see my column in Criminal Legal News, Feb. 2021, titled Federal Habeas Corpus: Retroactivity of New Rules. Also see my blog post on this topic at www.zenlawguy.com/federal-habeas-corpus-when-does-a-new-rule-apply-retroactively.

Second, the decision has to be made retroactive by the Supreme Court itself. This is where it gets tricky. The Supreme Court hardly ever says when one of its decisions in retroactive, but it did so with Johnson when it decided Welch v. United States, 136 S. Ct. 1257 (2016). Usually, its a combination of Supreme Court decisions applying the new ruling that makes it retroactive. See Tyler v. Cain, 533 U.S. 656 (2001) (explaining this method).

Third, you have to show that the Supreme Court`s retroactive decision applies to your case. The courts disagree on how you should go about this, but the harshest standard out there is that you have to show it was “more likely than not” that the rule announced in the new decision would affect your case. Again, this is more than a simple majority and best done by pointing to caselaw at the time of your conviction or sentencing that applied the now-unconstitutional rule.

Not All Motions Are Second or Successive

Not every sec 2255 motion filed after your first one is a SOS 2255 motion. In Magwood v. Patterson, 561 U.S. 320 (2010), the Supreme Court held that a habeas petition which attacks a new judgment is not a SOS motion. So if you had a successful sec 2255 motion earlier and the judgment was vacated, another motion would be attacking the new judgment and not be SOS.

If your first sec 2255 motion was dismissed without prejudice, then another motion filed after this would not be a SOS 2255 motion. The term “without prejudice” means that there is nothing against you filing the same motion again later on.

Handling a Motion Transferred to the Court of Appeals as a SOS Motion

Some district courts automatically transfer any motion that looks like a SOS 2255 motion to the court of appeals for authorization. See 28 U.S.C. sec 1631. But if you believe your motion is not a SOS 2255 motion, you must file a “motion to remand” in the court of appeals where the motion was transferred to (and not the court of appeals over the court that transferred your motion), asking that court to return it back to the district court. Peach v. United States, 478 F.3d 1269 (10th Cir. 2006). To repeat, you are not appealing the district court`s transfer, only asking the court of appeals to remand the motion to the district court.

Appealing the Denial of Your Application or Subsequent Motion

You cannot appeal the denial of your application in the court of appeals, and you can`t ask for a rehearing. The AEDPA, under sec 2244(b)(3)(E), forbids this. But the court of appeals has the authority to rehear your application on its own volition, if it wants to, and you may even make the “suggestion” for a rehearing. You`re just not allowed to file a formal motion for rehearing. For how this works, see In re Johnson, 814 F.3d 1259 (11th Cir. 2016). Some courts even allow you to file a motion to “recall the mandate” if the law changes after your application is denied. Massey v. United States, 2016 U.S.. App. LEXIS 24299 (2d Cir. Sept. 21, 2016).

Appealing the denial of your approved motion filed in the district court follows the exact path as the denial of any first sec 2255 motion, since its no different from any other sec 2255 motion once in the district court. That`s even if the district court dismisses your motion for not meeting the SOS criteria under sec 2255(h).

IN CONCLUSION, filing a second or successive sec 2255 motion requires a lot of steps and it`s hardly an easy path to follow. This information should get you started on your trip, but be sure to do some research along the way.

Dale Chappell has hundreds of published articles on federal post-conviction relief and is the author of the Insider`s Guide series of post-conviction books, including Habeas Corpus for Federal Prisoners, and Federal Habeas Corpus for State Prisoners. Follow his blog at www.ZenLawGuy.com and on Twitter: @zenlawguy.

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