Under 28 U.S.C. § 2255(h), a federal district court lacks jurisdiction to consider a 'second or successive' § 2255 motion unless the petitioner first moves in the appropriate United States Court of Appeals for an order authorizing the district court to consider the application under 28 U.S.C. § 2244(b)(3). A three-judge panel of the Court of Appeals may certify a second or successive § 2255 motion only if it contains a prima facie showing of one of two strict statutory gateways: (1) 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 offense (§ 2255(h)(1)); or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable (§ 2255(h)(2)).
Governing Authority
28 U.S.C. § 2255(h) · 28 U.S.C. § 2244(b)(3) · Magwood v. Patterson · Castro v. United States
Standard of Review
Prima Facie Showing in the Court of Appeals (§ 2244(b)(3)(C)) before filing in District Court
Primary Record Focus
Prior § 2255 filings and dispositions, intervening amended judgments, newly discovered innocence proof, and retroactive Supreme Court holdings
Already Filed a § 2255 Motion? When a Second Filing Is Allowed
Critically, however, the Supreme Court has repeatedly held that 'second or successive' is a legal term of art—NOT every § 2255 motion filed second in time counts as 'second or successive' under § 2255(h). First, under Magwood v. Patterson, 561 U.S. 320 (2010), when a prior post-conviction motion or remand results in a new, amended criminal judgment (such as a resentencing), the first § 2255 motion challenging that new judgment is NOT 'second or successive' and requires no circuit authorization. Second, under Castro v. United States, 540 U.S. 375 (2003), if a district court recharacterized an earlier pro se post-judgment filing as a § 2255 motion without warning the prisoner of the consequences and offering an opportunity to withdraw or amend it, that prior filing cannot count as a first § 2255 motion.
Third, when a first § 2255 motion merely restored a lost direct appeal under Roe v. Flores-Ortega (or was dismissed without prejudice as premature while a direct appeal was pending), circuits hold that a subsequent § 2255 motion filed after the restored direct appeal concludes is the prisoner's first true collateral attack. Fourth, under Gonzalez v. Crosby, 545 U.S. 524 (2005), a Federal Rule of Civil Procedure 60(b) motion that attacks some defect in the integrity of the prior federal § 2255 proceedings (rather than asserting a new merits claim attacking the underlying criminal conviction) is not a successive § 2255 motion.
Why Auditing Prior Post-Conviction History Often Unlocks Direct District Court Access
Many federal prisoners are told they are barred by § 2255(h) simply because a docket entry from years ago mentions '§ 2255.' Yet a careful audit of the docket frequently reveals that an intervening resentencing or amended judgment occurred (triggering Magwood v. Patterson), that the earlier pro se letter was improperly recharacterized without Castro warnings, or that the earlier motion only restored a direct appeal.
Where the prior § 2255 motion was genuinely adjudicated on the merits and no intervening judgment exists, counsel must file the § 2244(b)(3) application directly in the Court of Appeals first—never in the district court—demonstrating a prima facie showing under § 2255(h)(1) or (h)(2) within the applicable one-year limitations window of § 2255(f)(3) or (f)(4).
Mistakes to Avoid With Second or Successive § 2255 Motions
Collateral review under 28 U.S.C. § 2255 and related statutes is governed by strict procedural gatekeeping. Mistakes to avoid include:
- Filing a truly second or successive § 2255 motion directly in the district court without first obtaining authorization from the Court of Appeals under 28 U.S.C. §§ 2255(h) and 2244(b)(3), which requires the district court to dismiss or transfer for lack of jurisdiction.
- Assuming that a second-in-time § 2255 motion is 'successive' when an intervening resentencing or amended judgment was entered since the first § 2255 motion (Magwood v. Patterson).
- Filing a Rule 60(b) motion that raises new substantive attacks on the criminal conviction rather than attacking a procedural defect in the prior § 2255 adjudication under Gonzalez v. Crosby.
- Waiting for the Supreme Court to issue a second decision declaring a new constitutional rule retroactive before counting the one-year clock; under Dodd v. United States, 545 U.S. 353 (2005), the one-year clock under § 2255(f)(3) runs from the date the Supreme Court initially recognized the right.
- Confusing a new rule of statutory construction with a 'new rule of constitutional law' under § 2255(h)(2).
How Post-Conviction Counsel Evaluates Successive § 2255 Posture
Evaluating and building a federal post-conviction claim requires investigating both the existing court record and crucial evidence outside the trial transcript:
- 01Audit every prior post-judgment filing and docket entry to determine whether the proposed motion is legally 'second or successive' under Magwood, Castro, Flores-Ortega, or Stewart v. Martinez-Villareal.
- 02If an amended judgment or resentencing occurred after the prior § 2255 motion, invoke Magwood v. Patterson to file directly in the district court without § 2255(h) gatekeeping.
- 03If there was a fundamental procedural defect in the prior § 2255 proceeding itself (such as failure to rule on a pleaded claim or denial of notice), evaluate a true Rule 60(b) motion under Gonzalez v. Crosby.
- 04If § 2255(h) gatekeeping applies, prepare the § 2244(b)(3) circuit application with the complete prima facie factual or constitutional showing—and simultaneously attach the proposed district court § 2255 motion.
- 05Track the strict 30-day statutory decision target under 28 U.S.C. § 2244(b)(3)(D) and preserve timeliness under § 2255(f).
Frequently Asked Questions
Is every second § 2255 motion considered 'second or successive' under § 2255(h)?
No. The Supreme Court has held that a second-in-time § 2255 motion is NOT 'second or successive' in several key situations: (1) when an intervening resentencing or amended judgment was entered after the first § 2255 motion (Magwood v. Patterson); (2) when the first pro se motion was recharacterized by the court without proper warnings (Castro v. United States); (3) when the first motion was dismissed without prejudice as premature; or (4) when the first motion merely restored the right to a direct appeal.
What are the two grounds for the Court of Appeals to authorize a successive § 2255 motion?
Under 28 U.S.C. § 2255(h), the Court of Appeals may certify a second or successive motion only if it involves: (1) newly discovered evidence that, viewed in light of the evidence as a whole, would establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
Can I appeal if the Court of Appeals denies authorization to file a successive § 2255 motion?
Under 28 U.S.C. § 2244(b)(3)(E), the grant or denial of an authorization by a Court of Appeals to file a second or successive application is not appealable and cannot be the subject of a petition for rehearing or for a writ of certiorari. Because you get only one shot at the circuit authorization motion unless facts change, thorough preparation of the initial prima facie showing is critical.
When can a Rule 60(b) motion be used after a § 2255 motion is denied?
Under Gonzalez v. Crosby, 545 U.S. 524 (2005), a true Rule 60(b) motion is permissible without circuit authorization when it attacks a non-merits defect in the integrity of the federal § 2255 proceeding itself—for example, when the district court failed to adjudicate one of the claims raised in the timely § 2255 motion, misapplied a statute-of-limitations or procedural-default bar, or entered judgment without notice.
Attorney Review & Contribution
Erik Friis — Federal & California Criminal Defense Attorney
California State Bar No. 189830 · Admitted to the U.S. Court of Appeals for the Ninth Circuit and U.S. District Court for the Southern District of California.
Erik Friis contributes legal expertise and attorney oversight to Federal Criminal Appeals Group, supporting content concerning federal criminal appeals, post-conviction relief, and related federal criminal proceedings.