Tag Archives: second-and-successive

Bowe Gets His §2255 Second Chance – Update for February 20, 2026

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

11TH CIRCUIT GIVES BOWE ANOTHER ARROW

You may remember that a month ago, Michael Bowe – convicted 10 years ago of conspiracy to commit a Hobbs Act robbery, attempted Hobbs Act robbery, and using a gun during the offenses in violation of 18 USC § 924 – won his Supreme Court case. On January 12, 2026, SCOTUS ruled that while 28 USC § 2244 provides that a denial of authorization “to file a second or successive application” shall not be subject to Supreme Court review, the limitation does not apply to federal prisoners. The Supremes said the limitation is housed within 28 USC § 2244, “which imposes several strict requirements that apply only to state prisoners.” What’s more, subsection 2244(b)(3)(E) addresses only “second or successive application’ but “unlike state prisoners who file such ‘applications,’ federal prisoners file ‘motions.”

Mike filed and lost a § 2255 motion in 2016, arguing that Johnson v. United States, which invalidated the residual clause in the Armed Career Criminal Act (18 USC § 924(e)), also invalidated his § 924(c) conviction. He lost. He filed a second § 2255 motion in 2019, after United States v. Davis held that conspiracy to commit a vviolent crime was not itself a violent crime. He lost again, because while Davis announced a new, retroactive constitutional rule, Mike’s attempted Hobbs Act robbery conviction was still a crime of violence.

After United States v. Taylor held in 2022 that attempted Hobbs Act robbery was not a crime of violence, Mike once again asked the 11th Circuit for authorization under § 2255(h), arguing that Davis and Taylor leave none of his convictions as valid predicates for a § 924(c) charge. The Circuit dismissed the part of his request resting on Davis, reasoning that the claim had been “presented in a prior application” and that the panel lacked jurisdiction over such old claims under § 2244(b)(1) –  a statute that on its face applies to state prisoners seeking leave to file a second 28 USC § 2254 petition in federal court but has ambiguously been applied by federal appeals courts to federal § 2255 movants as well.

The Supreme Court reversed, holding that § 2244(b)(1)’s old-claim bar – that states that “[a] claim presented in a second or successive habeas corpus application under § 2254 that was presented in a prior application shall be dismissed” – applies only to state prisoners.

Last week, the 11th  ruled that Mike could go forward with a new § 2255 motion. “Based on Taylor and the 11th Circuit’s Brown v. United States decision, Bowe contends that neither of his predicate offenses — conspiracy to commit Hobbs Act robbery (Count 1) and attempted Hobbs Act robbery (Count 2) — can now quality as a ‘crime of violence’ that would support his § 924(c)(1)(A) conviction (Count 3) for using, brandishing, or discharging a firearm during a crime of violence,” the 11th said.

Bowe has made a prima facie showing that he meets the statutory criteria in § 2255(h)(2)… But a prima facie showing case is not a final showing entitling an applicant to relief. A prima facie showing is only the necessary first step. He still has to show the district court that he is entitled to the relief he seeks. As we have explained: “Things are different in the district court. That court has the benefit of submissions from both sides, has access to the record, has an opportunity to inquire into the evidence, and usually has time to make and explain a decision about whether the petitioner’s claim truly does meet the § 2244(b) requirements. The statute puts on the district court the duty to make the initial decision about whether the petitioner meets the § 2244(b) requirements—not whether he has made out a prima facie case for meeting them, but whether he actually meets them…”

In re Bowe, Case No. 24-11704, 2026 U.S. App. LEXIS 3876 (11th Cir. February 6, 2026)

Brown v. United States, 942 F.3d 1069 (11th Cir. 2019)

United States v. Taylor, 596 U.S. 845 (2022)

United States v. Davis, 588 U.S. 445 (2019)

Bowe v. United States, Case No. 24-5438, 2026 U.S. LEXIS 4 (January 9, 2026)

~ Thomas L. Root

Please Reverse Us, 11th Circuit Panel Tells Colleagues – Update for May 31, 2018

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

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11TH CIRCUIT PANEL BARS 2255 BRADY CLAIM, THEN ASKS EN BANC COURT TO REVERSE DECISION

rightwrong180531It’s pretty rare to see an appeals court beg for en banc review to reverse Circuit precedent, but a 3-judge panel of the 11th Circuit did that last week.

Gino Scott was convicted by a jury over a decade ago of drug trafficking. As do most defendants who lose jury trials, he filed a direct appeal and then a 2255 motion. He lost those. But a few years later, the government admitted to his trial court that it had Brady information about how its informant, whose testimony had help nail Gino, lied about his background on the stand.

Gino filed a second 2255 motion based on the newly-revealed information. But under 28 USC 2244, newly-discovered evidence will not allow a second-and-successive 2255 to go forward unless the new evidence would establish that no reasonable jury would have found the defendant guilty of the underlying offense.

The Supreme Court has held that not every second 2255 is a “second-and-successive” 2255 motion. Instead, “to determine whether an application is ‘second or successive,’ a court must look to the substance of the claim the application raises and decide whether the petitioner had a full and fair opportunity to raise the claim in the prior application.” But the 11th Circuit previously held in Tompkins v. Secretary, DOC that this Supreme Court holding did not apply to second 2255s raising Brady claims.

spengler180531In last week’s decision, the 11th Circuit panel argued that Tompkins is wrong, and that a newly-discovered Brady claim is not a second-and-successive 2255. But, for the uninitiated, a three-judge panel has no power to reverse a prior published circuit decision. Rather, unless a Supreme Court decision does so, only the Court sitting en banc has the right to abandon Circuit precedent.

For that reason, after Gino’s panel explained in great detail why Tompkins was wrong, it was nevertheless obligated to apply Tompkins to deny Gino’s claim anyway. Gino’s court ended with a plea to the other judges in the Circuit: “Supreme Court precedent, the nature of the right at stake here, and habeas corpus require a petitioner who has reasonably probably been convicted because the government failed to disclose material exculpatory evidence, to have a full and fair opportunity to obtain relief. For this reason, we urge our colleagues to rehear this case en banc and reevaluate the framework we established in Tompkins.”

Scott v. United States, Case No. 15-11377 (11th Cir. May 23, 2018)

– Thomas L. Root

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Thinking About Stuff That’s Not Interesting – Update for January 17, 2018

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

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ANOTHER PROCEDURAL TRAP FOR THE UNWARY

It’s because we’re human… or maybe because we all have the attention span of a gnat. But everybody’s interested in substance; no one cares about procedure.

tedious180118Substantive law is interesting: does a gun in the closet of a marijuana farmer support an 18 USC 924(c) mandatory 5-year consecutive sentence? If you break into a building housing both a pizza joint and a beauty parlor, and pilfer both stores, is that a single burglary or two for Armed Career Criminal Act cases? The issues are understandable, fact-laden and, frankly, interesting.

But who cares about the niceties of whether a Rule 60(b) motion after denial of a 28 USC 2255 petition is a legitimate claim about the integrity of the post-conviction proceeding or a second-or-successive 2255? About whether an appeal/post-conviction waiver in a plea agreement encompasses a motion for sentence reduction? Talk about counting angels on the head of a pin! This stuff is, as a judge once intoned at us during a less-than-effective cross-examination, is te-ee-ee-dious.

angels170726OK, it’s tedious. But’s also very consequential. Consider the world of post-judgment motions. Most everyone knows that filing a motion under Rule 60(b) of the Federal Rules of Civil Procedure to try to resurrect a 2255 motion is fraught with procedural peril. After the 2005 Supreme Court decision in Gonzalez v. Crosby, a Rule 60(b) motion may well be considered a second-or-successive 2255, unless it is narrowly focused on a defect in the 2255 proceeding itself.

But how about a Rule 59(e) motion? F.R.Civ.P. 59(e) lets the loser file a motion to alter or amend the judgment within 28 days after the judgment. One of the benefits of a timely-filed 59(e) motion is that it stops the clock running on the time to file a notice of appeal. It is almost a no-brainer: file a 59(e), and you can buy a lot of time before the appeal is due.

John Uranga is a Texas state prisoner. States, like the Feds, all have procedures for post-conviction challenges to criminal convictions. John filed his state petition, and was shot down. He appealed through the state court system and lost at every step.

apple160516When that happens, a state prisoner has the right to file a motion in U.S. district court under 28 USC 2254. This sort of gives a state prisoner a second bite of the apple, although the standard for a federal court reversal of a state court denial is pretty high. John was in the U.S. District Court for the Northern District of Texas on his 28 USC 2254 motion, and – just like he had in the state system – the District Court ruled against him. After he lost his 2254 proceeding, he filed a 59(e) motion, arguing that the court should have considered an amendment he had filed to the 2254 motion before ruling against him.

Last week, the 5th Circuit made the business of filing a 59(e) motion a lot riskier. Pointing out that a 59(e) can be a second-or-successive post-conviction motion just as easily as can be a Rule 60(b) motion, the Court held that if it decides the motion is “a timely filed motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), then the deadline for filing a notice of appeal would be tolled until the entry of the order disposing of that motion. However, a purported Rule 59(e) motion that is, in fact, a second or successive Section 2254 application is subject to the restrictions of the Antiterrorism and Effective Death Penalty Act and would not toll the time for filing a notice of appeal.”

John was lucky: the appellate court said his 59(e) motion was legit. But there’s a caution here for inmates filing 2254s and 2255s: a 59(e) motion is not necessarily a time-stopper.

Uranga v. Davis, Case No. 15-10290 (5th Cir., Jan. 12, 2018)

– Thomas L. Root

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A Pair of Second-and-Successive 2255 Decisions – Update for June 5, 2017

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

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AVENUES FOR SECOND-AND-SUCCESSIVE 2255 MOTIONS NARROWED

Most everyone is familiar with the rule that a defendant cannot file a second motion under 28 USC 2255 without prior permission from the court of appeals, granted under 28 USC 2255(h). To get permission, generally, a prisoner has to show either that there is a new retroactive change in the law made by the Supreme Court, or that there is some newly-discovered evidence – that could not have reasonably been found before – which will just about assure that he or she would have been found not guilty.

courthouseclosed170605The 9th and 11th Circuits handed down decisions on second-and-successives last week that restrict the ways prisoners can obtain leave to file. The 9th Circuit decision on intervening judgments is relatively unsurprising; the 11th Circuit decision – which drew a concurrence joined by two of the three judges on the panel denouncing the precedent the decision was obligated to follow – cements the 11th Circuit’s reputation as the most unfriendly forum for a federal prisoner seeking a means to raise a constitutional issue after his or her own go-around with a 2255 motion.

LISAStatHeader2smallNinth Circuit – Sentence Reduction Win Does Not Reset the 2255 Clock

If a defendant is lucky enough to have an intervening judgment, however, the clock is reset. So if Donnie Defendant wins a 2255 motion saying his lawyer messed up his sentencing, getting resentenced as a result, he will then be able to appeal the new sentencing and, after that, file another 2255 motion without getting any special permission.

reductions170605Chris Sherrod filed and lost his 2255 motion in 2014. The next year, however, he won a reduction in his drug sentence under 18 USC 3582(c)(2) based on the Sentencing Commission’s 2-level reduction issued in 2014.

After that, Chris filed another 2255 motion, arguing he did not need permission for a second-and-successive 2255, because the 3582(c)(2) sentence reduction was a new, intervening sentence. Last week, the 9th Circuit disagreed.

The Circuit said a 3582(c)(2) resentencing is “intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” A district court ruling on a 3582(c)(2) makes only a limited adjustment to the sentence, and claims of error at the original sentencing cannot be raised.

For that reason, the 9th joined the 5th and 7th Circuits in holding that a 3582(c)(2) sentence reduction does not qualify as a new, intervening judgment, and therefore “does not wipe clean the slate of habeas applications that a prisoner has previously filed.”

Sherrod v. United States, Case No. 16-72178 (9th Cir., June 2, 2017)

LISAStatHeader2smallEleventh Circuit – Mathis Does Not Allow Raising Old Issue in Second 2255, No Matter How Wrong The Prior Denial Might Have Been

Orestes Hernandez was sentenced to 775 months imprisonment, 300 months of which came from three mandatory-minimum enhancements he got under 18 USC 924(c) for using a gun. After his conviction, he filed a 2255 motion that was denied.

Sentencestack170404After the 2015 decision in Johnson v. United States, Orestes asked for permission to file a second 2255 arguing that the three 924 convictions were no longer based on a crime of violence. The 4th Circuit denied his application, reasoning that his indictment showed that he was convicted under the Hobbs Act subpart that required a use of force.

However, after the decision in Mathis v. United States last summer, Orestes filed for permission to try a 2255 motion again. Using the rules outlined in Mathis, he said, there was no way his Hobbs Act conviction could be considered a crime of violence under 924(c)(3)(A)’s use-of-force clause.

Last week, the 11th Circuit denied him permission to go forward. A year ago, the Circuit handed down In re Baptiste, which held that under 28 USC 2244(b)(1) – which governs second-and-successive 2255 applications – a claim presented in the second-and-successive application that was raised in a prior application must be dismissed. Because Orestes previously filed a second-and-successive application based on Johnson, the 11th said, Baptiste prohibits his filing again.

Orestes argued that Mathis permitted the filing, but the appeals panel said “Mathis does not provide an independent basis for his application, as the Supreme Court’s holding in Mathis did not announce a ‘new rule of constitutional law’” under 28 USC 2255(h). Instead, Mathis just “provided guidance to courts in interpreting an existing criminal statute. “

eye-needle170605In a concurring opinion, Judge Martin (joined by Judge Jill Pryor) denounced the Baptiste rule. “Mr. Hernandez asks us to make sure the crimes he was charged with qualify as crimes of violence so as to justify the 25 extra years he received under § 924(c),” they said. “However, we are barred from reviewing his application by In re Baptiste… which held that ‘the federal habeas statute requires us to dismiss a claim that has been presented in a prior application’ to file a § 2255 motion. I have stated my view that this bar created by our Court in Baptiste has no basis in the text of the habeas statute.”

In re Hernandez, Case No. 17-11989E (11th Cir., May 31, 2017)

– Thomas L. Root

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