by David M. Reutter

The United States Court of Appeals for the Eleventh Circuit held that a motion under 28 U.S.C. § 2255 is not an unauthorized “second or successive” motion when it challenges a new, intervening amended judgment entered after the movant established in earlier § 2255 proceedings that the sentences on two of his three counts were unlawful. The Court determined that the amended judgment is the operative judgment authorizing the movant’s confinement and that its existence is dispositive even when a claim concerns a count whose sentence was unchanged. It vacated the dismissal and remanded.

Background

A jury convicted Antonio Akel of conspiracy to distribute and possess with intent to distribute MDMA, marijuana, and 500 grams or more of cocaine (“Count One”), possession with intent to distribute marijuana (“Count Two”), and possession of a firearm by a convicted felon (“Count Seven”). By special verdict, the jury found that Count Two involved marijuana but not cocaine. The U.S. District Court for the Northern District of Florida imposed concurrent 480-month prison terms on each count and enhanced the Count Seven sentence under the Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(1). The written judgment nevertheless recited a conviction on Count Two under 21 U.S.C. § 841(b)(1)(B)(ii), the cocaine provision, and it was affirmed on direct appeal.

Akel filed his initial § 2255 motion in 2011, challenging the ACCA enhancement. The Supreme Court remanded for reconsideration in light of Mathis v. United States, 579 U.S. 500 (2016), and Akel argued in the District Court that he lacked the predicate convictions the ACCA requires and that his 480-month sentence on Count Two exceeded the statutory maximum for marijuana distribution. The District Court reduced Count Seven to the 120-month statutory maximum and Count Two to 60 months’ imprisonment but left the term on Count One undisturbed. The 2017 Amended Judgment set out the three sentences and removed the cocaine provision from Count Two. Akel appealed, and the Eleventh Circuit affirmed.

Analysis

The Court began its analysis by reviewing the limits the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) places on successive collateral attacks. A movant must obtain an order from the Court of Appeals authorizing the District Court to consider a second or successive § 2255 motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). Absent that authorization, the District Court has no jurisdiction. Armstrong v. United States, 986 F.3d 1345 (11th Cir. 2021). The Court explained that AEDPA does not define the phrase, and because “second or successive” is a term of art limiting the courts’ jurisdiction, the Eleventh Circuit reads it narrowly. Scott v. United States, 890 F.3d 1239 (11th Cir. 2018).

Whether a filing is second or successive depends on the judgment challenged rather than on the claims raised, the Court stated. Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321 (11th Cir. 2017) (en banc); Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d 1273 (11th Cir. 2014). The judgment AEDPA refers to is “the underlying conviction and the most recent sentence that authorizes the petitioner’s current detention.” Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286 (11th Cir. 2007). Where there is a “new judgment intervening between the two habeas petitions,” an application attacking that judgment is not second or successive. Magwood v. Patterson, 561 U.S. 320 (2010).

Magwood left open whether a petitioner may attack an undisturbed conviction after an intervening judgment imposing only a new sentence, the Court observed. Insignares held that because there is a single judgment “comprised of both the sentence and the conviction,” a petition filed after a new judgment is not second or successive “regardless of whether its claims challenge the sentence or the underlying conviction.” That framework applies to § 2255 motions by federal prisoners, and Bowe v. United States, 146 S. Ct. 447 (2026), did not abrogate it, according to the Court.

Whether the Amended Judgment Was a New Judgment

Applying that framework, the Court determined that the Amended Judgment was a new judgment. As in Magwood, Akel had shown in his initial § 2255 motion that his original judgment was unlawful, and he was resentenced. The Court placed significance on § 2255(b), which directs a court granting relief to “vacate and set the judgment aside” and then resentence the movant or correct the sentence. The Amended Judgment altered the imprisonment and supervised release terms on Counts Two and Seven, restated the 480-month term on Count One, and corrected Count Two to reflect a conviction for marijuana distribution alone. The District Court had thereby imposed a new prison term on every count, and the Amended Judgment was the judgment under which Akel is now confined, the Court explained. Patterson. The procedural history confirmed the point, because the Eleventh Circuit had treated Akel’s challenge to the Amended Judgment as a direct appeal.

The Court was unpersuaded by the government’s analogy to decisions finding no new judgment in an altered sentence. An order removing a chemical-castration condition was not a new judgment because it did “not otherwise address the term of Patterson’s imprisonment.” Patterson. A discretionary reduction is likewise no new judgment, whether under 18 U.S.C. § 3582(c), which permits only a limited adjustment to an otherwise final sentence rather than a resentencing, or under the First Step Act, “a matter of legislative grace” that “does not affect the validity or lawfulness of the underlying sentence.” Armstrong; Dillon v. United States, 560 U.S. 817 (2010); Telcy v. United States, 20 F.4th 735 (11th Cir. 2021). Akel stood in a different position because his original collateral attack established the illegality of his sentences on Counts Two and Seven, the Court determined.

Similarly, the Court rejected the contention that this case differs from Magwood and Insignares because Akel challenges Count One, which the resentencing did not affect. The “existence of a new judgment is dispositive,” and the argument would in any event require the second-or-successive determination to be made claim by claim, an approach the Supreme Court has rejected because the phrase applies to petitions rather than to the claims they raise. Insignares.

Conclusion

Accordingly, the Court vacated the dismissal and remanded for further proceedings. See: Akel v. United States, 178 F.4th 1316 (11th Cir. 2026).  

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