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Roadmap for Filing a Second or Successive § 2255 Motion Under Davis

by Dale Chappell

The U.S. Attorney’s Manual passed out to federal prosecutors just after the Antiterrorism and Effective Death Penalty Act (“AEDPA”) was passed in 1996 had an interesting observation: “Under the AEDPA, federal prisoners will rarely be able to file second or successive motions.” But then came along Johnson v. United States, 135 S. Ct. 2551 (2015), and now United States v. Davis, 139 S. Ct. 2319 (2019), allowing scores of second or successive motions under 28 U.S.C. § 2255 (“SOS 2255”). As Judge Bev Martin of the U.S. Court of Appeals for the Eleventh Circuit noted in one of her dissenting opinions arguing on behalf of prisoners, “In a short time span, our court got thousands of authorization applications raising Johnson claims.” For almost two decades, the U.S. Attorney’s manual was right. And then it was not, thanks to the Supreme Court.

This article is intended to provide a roadmap for those who have already used up their one good shot at § 2255 relief to get back into federal district court with a SOS 2255 motion. This discussion is focused on getting your motion before the district court, not what the district court might do with your motion. Keep in mind that I have limited space to cover this complex and nuanced subject; SOS 2255 procedures could fill an entire book. I should know; I wrote a book on this topic.

Getting Your Foot in the Door

If you have previously filed a § 2255 motion that was denied on the merits or dismissed “with prejudice,” the only way you can file another motion with a Davis claim is to get authorization from the Court of Appeals. And getting that authorization is a must. Every court has held that the authorization requirement to file a SOS 2255 motion is a jurisdictional bar, so, it’s the first thing you need to do. Williams v. United States, 927 F.3d 427 (6th Cir. 2019) (discussing the jurisdictional aspects of § 2255).

How do you get authorization? That’s what we’re going to talk about. First, Davis must be considered “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” under § 2255(h)(2). That’s a mouthful in one sentence, but luckily Davis has already been declared by several courts to meet this strict criterion. The next thing you have to show is that Davis applies to your case, which means that you have to show your 18 U.S.C. § 924(c) conviction was based on the residual clause (and, yes, it’s a “conviction” and not a sentencing enhancement). Finally, you must file your SOS 2255 application in the Court of Appeals within one year of the Davis decision. Let’s take all of this step-by-step.

1. Davis is Retroactive for § 2255 Relief

Just like its sibling Johnson, which declared the residual clause of the Armed Career Criminal Act (“ACCA”) dead in the water and was declared to be a decision with retroactive effect by the Supreme Court under § 2255(h)(2), courts have held that the Davis decision declaring the residual clause of § 924(c) is also a new rule that qualifies to allow a SOS 2255 motion. In re Hammoud, 931 F.3d 1032 (11th Cir. 2019). This not only goes for SOS 2255 motions but also for first time § 2255 motions filed directly in the district court under § 2255(f)(3). That provision allows a motion based on a “newly recognized” retroactive right by the Supreme Court, and Davis undoubtedly fits that description. Carter v. United States, 2019 U.S. Dist. LEXIS 147187 (C.D. Ill. 2019).

So far, no court has even questioned whether Davis is retroactive for § 2255 purposes. And in light of the Supreme Court’s clear instruction in Welch v. United States, 136 S. Ct. 1257 (2016), on why Johnson is retroactive for § 2255, it’s unlikely any court will declare that Davis isn’t retroactive.

Tip: State unequivocally in your application that Davis is a new constitutional rule that is retroactive for § 2255 because it is a “substantive” rule, which meets the requirements of § 2255(h)(2). Not all courts have said that Davis is retroactive yet, but no court has said that it is not retroactive. 

2. Convincing the Court Davis Applies to Your Case

You must show that Davis actually applies to your case for the Court of Appeals to grant authorization to file another § 2255 motion in the district court. The statute governing this screening process, 28 U.S.C. § 2244, says that “the court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing” that it meets the criteria in § 2255(h).

In plain English, a “prima facie showing” simply means “a sufficient showing of possible merit to warrant a fuller exploration by the district court.” Bennett v. United States, 119 F.3d 468 (7th Cir. 1997). “Prima facie” literally means “on its face,” which would seem to require the court to take just a quick look at your SOS 2255 application to see if you meet the § 2255(h) criteria. If only things were so easy.

Unfortunately, Courts of Appeals give lip service to the prima facie requirement in the statute and go above and beyond a mere quick look, usually digging into your case to see if you would actually win your claim if they granted authorization. But that’s not what the standard is supposed to be. As discussed in my September 2019 CLN column, “Obtaining Relief Under Davis in the Wake of Johnson,” the Courts of Appeals are divided over how deeply they must look before they can grant authorization to file a SOS 225 motion in the district court.

As my column explained, five circuits (the Fourth, Sixth, Seventh, Ninth, and D.C. Circuits) have held that you must show your conviction “may have been” based on the now-unconstitutional residual clause, while seven of them (the First, Second, Third, Fifth, Eighth, Tenth, and Eleventh Circuits) have set the bar much higher, requiring that your conviction “more likely than not” rested on the residual clause.

Some courts, like the Eleventh Circuit, have imposed yet another bar to filing a SOS 2255 motion, allowing just one application with the same claim to be filed. For example, the Court in In re Baptiste, 828 F.3d 1337 (11th Cir. 2016), cited § 2244(b)(1) to hold that an application with the same claim as an earlier application that was denied must be dismissed. Section 2244(b)(1) says that “a claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” While it specifically says that this limit applies only to state prisoners filing under § 2254 (and not federal prisoners filing under § 2255), the Court said “it would be odd indeed” if Congress meant to exclude federal prisoners from this rule.

This means that in the circuits that agree with the Baptiste Bar, you can file just one application for authorization to file a Davis SOS 2255 motion, even if the law changes later on that would have allowed you to pursue a Davis claim.

Thankfully, some rational minds have called a time-out on this, saying that the Baptiste Bar is wrong. In a full analysis by the Sixth Circuit on why Baptiste was wrongly decided, the Court in Williams (above) agreed with the government’s concession that the Eleventh Circuit was wrong and held that § 2244(b)(1)’s language “makes clear that it does not apply to federal prisoners.” The italicized part of the statute noted above is what the Court was referring to: “under section 2254.”

Tip: Cite case law in your application showing that at the time of your sentencing the predicate offense tied to your § 924(c) could only have qualified under the residual clause. If that’s not available, then cite any recent case law showing it now falls under the residual clause, and therefore it was the only option your judge had at the time.

3. You Must File Your Davis Claim Within One Year of Supreme Court’s Decision

You have one year from the date of the Supreme Court’s decision in Davis to file your claim, and that clock started on June 24, 2019. Most courts say that your motion is timely filed on the date your application is filed in the Court of Appeals. Orona v. United States, 826 F.3d 1196 (9th Cir. 2016). This means that if the Court of Appeals sits on your application until after June 24, 2020, before granting you authorization to file your SOS 2255 motion in the district court you’ll be on time.

However, a few courts have said that your motion isn’t “filed” until it’s actually in the district court and that your application does not toll the one-year clock. So, if the Court of Appeals takes more than a year to grant you authorization, some courts say too bad. Anstey v. Terry, 2019 U.S. Dist. LEXIS 131174 (S.D.W. Va. 2019); Fierro v. Cockrell, 294 F.3d 674 (5th Cir. 2002). The only way to avoid this dilemma in those courts is to get your application in the Court of Appeals as soon as possible. Some have even mentioned a “place holder” motion filed in the district court while your application is pending. That’s what some public defenders did with Johnson applications.

The one-year limit, though, is not a jurisdictional bar and can be waived or ignored by the government. This means that if the government doesn’t bring it up then the court is not obligated to address it. But if the court itself brings it up on its own, it must allow you the chance to argue why your motion is on time. Day v. McDonough, 547 U.S. 198 (2006).

Tip: Get your application in as soon as you can to the Court of Appeals. If you are in the Fourth or Fifth Circuit, which don’t toll the clock while your application is pending in the Court of Appeals, file a “place holder” motion in the district court explaining why you are doing so. This is still an unclear area of law, but it’s an option that has been used by the public defender’s office in order to cover the bases there.

Procedures for Filing a Davis Claim

Usually, there is a form supplied by the Court of Appeals clerk to file your application for a SOS 2255 motion with the court for authorization to file a Davis claim in the district court. It’s really nothing more than a screening tool for the court and is not designed to shed light on your claim. Most Courts of Appeals require you to use this form, but a handful do not. At the moment, the Third, Seventh, and Eighth Circuits expressly say the form is not required. To be safe, though, use of the form will ensure that you cover all the bases. If you don’t use the form, your “motion” filed in the Court of Appeals for authorization must contain all the same elements as the form.

Since there’s not enough room on the form to adequately explain why your application meets the “prima facie showing” standard noted above, all of the courts allow you to add supplemental pages or attach a memorandum in support to your application. This is true even though the form says “Do not submit separate petitions, motions, briefs, arguments, etc.”

Courts of Appeals for the Third, Fourth, Fifth, and Ninth Circuits also require you to attach your “proposed” § 2255 motion to your application. The First Circuit, however, has a rule that specifically says not to attach your proposed motion to your application. The rest of the Courts of Appeals haven’t said one way or the other but have accepted the proposed motion in support of the application.


Filing a Davis motion will largely mirror the steps used for filing Johnson motions. But be aware that the SOS 2255 procedures are still evolving, and what may have been good for early Johnson motions may not apply anymore. It also means that some of the earlier attempts by the courts to limit Johnson relief may no longer apply, either. For example, see the Williams opinion cited above (holding that much of the SOS 2255 statutes are no longer jurisdictional bars anymore).

One thing is for sure: AEDPA purposely makes it difficult to file more than one § 2255 motion. Understanding these rules and procedures will go a long way in making that road a little smoother. 

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