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4TH CIRCUIT SAYS THAT IN A § 2244 INQUIRY, LEAVE THE PREJUDICE FOR LATER
In order to be allowed to file a second-or-successive 28 USC § 2255 habeas corpus motion, a prisoner has to meet some tough “gatekeeping” standards, that newly discovered evidence would have led a jury to find him or her innocent or that the Supreme Court had adopted a new rule of constitutional law, made retroactive to cases on collateral review, that was previously unavailable.”
In 2008, Scott Rendelman was convicted for mailing threatening communications under 18 USC § 876. The district court instructed the jury that the government need prove only that a “reasonable person” would find Scott’s communications threatening, and the jury did so. However, 15 years later, the Supreme Court held in Counterman v. Colorado that the 1st Amendment requires the government to prove that the defendant actually had some understanding of his statements’ threatening character.
Scott, who said his many letters to government officials were just intended to show that prison does not rehabilitate people, asked the 4th Circuit for authorization to file a successive 28 USC § 2255 motion based on Counterman. The government agreed that he had satisfied the gatekeeping requirements of § 2255(h), but it argued that the court should also impose a “plausibility requirement.”
In other words, the government said, even if Counterman had been applied, Scott would have lost his jury trial. The US Attorney called on the Circuit to require Scott to show that constitutional error “had substantial and injurious effect or influence in determining the jury’s verdict, as required for relief under § 2255.”
The 4th refused the government’s demand. “The focus of our inquiry at this stage must always remain on the § 2255(h) gatekeeping standards,” the Circuit wrote. “We’ve already found that Rendelman has satisfied the § 2255(h) gatekeeping requirements. There isn’t an additional plausibility requirement he must meet… Counterman is on point. Rendelman was prosecuted for a true-threat offense. The jury wasn’t instructed that the government had to prove beyond a reasonable doubt that he subjectively intended to threaten another, and the government acknowledges that this omission was error… Whether that error warrants relief under § 2255 is a merits question for the district court to decide in the first instance when it considers Rendelman’s § 2255 motion.
In re Rendelman, Case No. 23-257, 2025 U.S. App. LEXIS 4087 (4th Cir. February 21, 2025)
Counterman v. Colorado, 600 U.S. 66 (2023)
– Thomas L. Root