We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SCOTUS GRANTS REVIEW ON 2255 AMENDMENT QUESTION

The law is clear that a prisoner can amend a pending 28 USC § 2255 motion while it is pending in front of the district court. But if the district judge has already denied the § 2255 motion, whether an amendment is allowed while the inmate is appealing the denial is in doubt.

Last Friday, the Supreme Court granted certiorari to decide whether a prisoner has to make the 28 USC § 2244 “second-or-successive” showing to amend a § 2255 motion while on appeal—which six circuits require—or whether such an amendment is allowed in some cases (as two circuits hold) or any time (allowed by the 2nd Circuit).

The precise issue raised is “[w]hether [28 USC] § 2244(b)(2) applies (i) only to habeas filings made after a prisoner has exhausted appellate review of his first petition, (ii) to all second-in-time habeas filings after final judgment, or (iii) to some second-in-time filings, depending on a prisoner’s success on appeal or ability to satisfy a seven-factor test.”

A decision will be made by the end of June 2025.

Rivers v. Lumpkin, Case No. 23-1345 (certiorari granted December 6, 2024)

– Thomas L. Root