Monday, July 11, 2011

Subsequent 2255 not "successive" when first one was successful

United States v. Pearson, No. 10-6516 (4th Cir. June 29, 2011):

Petitioner filed a § 2255 motion arguing, inter alia, that his attorney failed to file an appeal on his behalf.  The District Court granted Petitioner's right to file an appeal but denied all other claims for relief.  After the Fourth Circuit affirmed Petitioner's sentence, Petitioner filed another § 2255 motion.  The District Court denied the second § 2255 motion as an unauthorized successive motion.  Subsequently, the District Court granted a certificate of appealability, acknowledging that Petitioner's motion was not in fact successive, but noting that jurisdiction rested with the Fourth Circuit.

It is settled law that not every numerically second § 2255 motion is a "second or successive" motion within the meaning of the Antiterrorism and Effective Death Penalty Act of 1996.  When a prisoner’s first § 2255 motion is granted to permit a direct appeal, the counter of collateral attacks pursued is reset to zero.  Because the District Court granted Petitioner's original § 2255 motion and to permit a direct appeal, the instant § 2255 motion is not a second or successive motion within the meaning of § 2255(h).  Therefore, the District Court erred by holding that Petitioner was required to obtain an order from the Fourth Circuit authorizing the District Court to consider the motion.

However, if a habeas petitioner files an application for collateral relief that raises a successful appeal claim and additional claims, any subsequent petition will be considered "second or successive" if (a) the District Court ruled on the merits of the additional claims in the initial petition, and (b) the petitioner seeks to raise those claims again in the subsequent petition.  Therefore, to the extent Petitioner seeks to raise claims already rejected by the District Court in his previous § 2255 motion, the District Court is bound to provide Plaintiff with the option of omitting the repetitive claims or having the entire petition treated as successive.

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