# United States v. Ephren Taylor, II

> Court of Appeals for the Eleventh Circuit · September 10, 2025

URL: https://www.frixlaw.com/law-library/cases/11135915

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** September 10, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- stating that “no final judgment on the merits exist[ed]” after the appellate court vacated it

## Opinion text

USCA11 Case: 20-11238 Document: 61-1 Date Filed: 09/10/2025 Page: 1 of 26

FOR PUBLICATION

In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11238
____________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus

EPHREN TAYLOR, II,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:14-cr-00217-TCB-AJB-1
____________________

Before JILL PRYOR and WILSON, Circuit Judges, and RUIZ, * District
Judge.
RUIZ, District Judge:

* The Honorable Rodolfo A. Ruiz II, United States District Judge for the Southern
District of Florida, sitting by designation.
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2 Opinion of the Court 20-11238

When it comes to federal habeas petitions, finality matters.
Without it, applications for habeas relief can quickly become un-
wieldy. To promote finality, the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §§ 2244(b) and 2255(h),
provides strict gatekeeping requirements for “second or succes-
sive” habeas filings. Exactly when these gatekeeping requirements
kick in is the subject of this appeal, which involves between fifteen
and twenty separate pro se motions and filings across two courts
and three appeals. The lamentable procedural complications here
illustrate just how important these gatekeeping requirements are
for the orderly adjudication of postconviction claims in federal
court.
As explained below, we affirm the District Court’s denial of
a slew of 28 U.S.C. § 2255 motions advanced by Ephren Taylor, II
as unauthorized second or successive filings barred by 28 U.S.C.
§ 2244(b). But we vacate as to the District Court’s denial of Tay-
lor’s Motion to Modify Conditions of Release and remand for fur-
ther consideration.
I.
Until 2010, Taylor served as the CEO of City Capital Corpo-
ration. As part of City Capital’s operations, Taylor promoted
promissory notes and investments that involved sweepstakes ma-
chines through events such as his “Building Wealth Tour.” Taylor
focused his sales pitches on African American and Christian com-
munities. Taylor falsely represented the revenues and returns of
his touted investments, which were not invested as promised.
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20-11238 Opinion of the Court 3

Instead, the investments were used to pay ongoing business ex-
penses, including salaries and other payments.
City Capital depended on a continuous stream of investor
funds, which dried up in 2010 and caused investors to lose their
money. Taylor’s operation, described as “a Ponzi scheme designed
to build his own personal wealth,” involved over 400 victims who
lost over $16 million. See Ephren Taylor Sentenced to Federal Prison,
U.S. Att’y’s Off. for the N. Dist. of Ga., (Mar. 17, 2015),
https://perma.cc/CLY3-LSNS.
In June 2014, the Department of Justice indicted Taylor on
fifteen counts related to the fraudulent investment schemes he pro-
moted in his capacity as City Capital’s CEO. In October 2014, Tay-
lor pleaded guilty to one count of conspiracy to commit wire fraud
and mail fraud under 18 U.S.C. §§ 1341 and 1349. The District
Court sentenced him to 235 months’ incarceration, three years of
supervised release, and ordered him to pay $15,590,752.81 in resti-
tution. Taylor’s sentence was later reduced to 223 months. United
States v. Taylor, 727 F. App’x 979 (11th Cir. 2018) (per curiam) (af-
firming the District Court’s reduction of Taylor’s sentence pursu-
ant to FED. R. CIV. P. 35(b)).
II.
On March 21, 2016, Taylor, proceeding pro se, filed a § 2255
motion alleging ineffective assistance of counsel (grounds one
through four) and various errors by the District Court (grounds
five through seven). Taylor argued that his trial counsel 1) improp-
erly advised him on the plea agreement and possible sentencing
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4 Opinion of the Court 20-11238

enhancements before he pleaded guilty; 2) failed to object to three
of Taylor’s sentencing enhancements; 3) failed to raise at sentenc-
ing Taylor’s ongoing use of Xanax and alcohol; and 4) failed to raise
at sentencing, or seek a reduced sentence based on, Taylor’s coop-
eration with the Government. Taylor also alleged three errors on
the District Court’s part, including 1) accepting his guilty plea be-
fore the Pre-Sentence Investigation Report (“PSR”) was completed;
2) participating in plea negotiations; and 3) failing to consider the
United States Sentencing Guidelines and 18 U.S.C. §§ 3553 and
3661 during sentencing. The Government responded in opposition
to all of Taylor’s arguments.
On March 6, 2019—nearly three years after Taylor filed his
§ 2255 motion—the District Court adopted a Report and Recom-
mendation (“R&R”) denying the motion over Taylor’s objections.1
In overruling Taylor’s objections, the District Court concluded that
the R&R’s “factual and legal conclusions were correct.” The R&R
determined that the District Court’s purported errors (grounds five
through seven) were procedurally defaulted because Taylor failed
to raise them on direct appeal or show cause and actual prejudice
or proof of actual innocence to overcome the default. The appeal
waiver included in the plea agreement also barred these argu-
ments.
As for the ineffective assistance of counsel grounds (one
through four), the R&R concluded that 1) any grounds concerning

1 On July 2, 2018, the case was reassigned to Judge Timothy C. Batten from

Senior Judge William S. Duffey, Jr. due to Judge Duffey’s retirement.
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20-11238 Opinion of the Court 5

counsel’s assistance before Taylor pleaded guilty were waived un-
less he could prove his plea was involuntary, which he could not
do; 2) Taylor either agreed with the contested enhancements or
requested an objection be withdrawn; 3) Taylor’s drug use was in-
cluded in the PSR and he was recommended for a drug-treatment
program; and 4) trial counsel had raised Taylor’s cooperation at
sentencing but only the Government could seek a reduced sen-
tence. Accordingly, the R&R determined that Taylor failed to
show that his trial counsel performed deficiently or that he was
prejudiced on any ground.
On March 18, 2019—twelve days after the District Court
adopted the R&R—Taylor moved for reconsideration under Fed-
eral Rule of Civil Procedure 59(e) asserting manifest errors based
on Clisby v. Jones. 960 F.2d 925, 936 (11th Cir. 1992) (en banc) (in-
structing “district courts to resolve all claims for relief raised in a
petition for writ of habeas corpus”). Specifically, Taylor asserted
that the following claims were unaddressed by the R&R and the
District Court: 1) his trial counsel’s “failure to file and raise issues
on direct appeal”; 2) his counsel “knowingly committing perjury at
sentencing hearing regarding movant being under the influence of
drugs”; 3) his “drug induced guilty plea was unknowing or invol-
untary”; and 4) his trial counsel’s “fail[ure] to set aside [his] guilty
plea.”
Three days after he filed the Rule 59(e) motion, on March
21, 2019, Taylor filed a Notice of Appeal for the denial of the § 2255
motion. Then, about two weeks later, on April 11, 2019—while
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6 Opinion of the Court 20-11238

the appeal was pending—the District Court denied Taylor’s Rule
59(e) motion. In the denial, the District Court explained that while
a failure to address a claim could constitute error, none of Taylor’s
claims were unaddressed. The District Court found that Taylor
had made no claim in his original § 2255 motion that his counsel
committed perjury during sentencing. It also found that the R&R
assessed whether Taylor’s guilty plea was knowing and voluntary,
finding no basis to withdraw it. Then, on April 22, 2019, Taylor
amended his Notice of Appeal to include the denial of his Rule 59(e)
motion from eleven days earlier. That appeal was assigned docket
number 19-11082 in this Court.
On September 19, 2019, while the appeal was pending, Tay-
lor filed his first motion pursuant to Federal Rule of Civil Proce-
dure 60(b), asserting several of the same issues raised in his Rule
59(e) motion and adding a few others. But, on November 8, 2019,
before the District Court ruled on Taylor’s Rule 60(b) motion, this
Court issued a limited remand in No. 19-11082—Taylor’s appeal.
The limited remand directed the District Court, in the first in-
stance, to consider whether a certificate of appealability (“COA”)
was appropriate for Taylor’s original § 2255 motion and the ensu-
ing Rule 59(e) motion. D.E. 174 (“Because the district court did not
rule on a COA with respect to its denial of Taylor’s Rule 59(e) mo-
tion, this case is hereby REMANDED on a limited basis so that the
district court may consider whether a COA is appropriate.”). 2

2 Any docket entries marked as D.E. refer to the District Court docket in United

States v. Taylor, No. 14-cr-00217-TCB-AJB (N.D. Ga. 2014).
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20-11238 Opinion of the Court 7

Despite the limited nature of the remand, Taylor saw it as
an opportunity to file a raft of motions, including motions to Ap-
point Counsel; to Compel Performance of the Plea Agreement; to
Modify Restitution Order Pursuant to 18 U.S.C. § 3664(k); to Mod-
ify Conditions of Release; to Supplement and Amend the original
§ 2255 motion; for an Indicative Ruling on His Rule 60(b)(3) Mo-
tion; and to Reopen the Judgment in His Habeas Proceedings in
Light of Newly Discovered Evidence Concerning the Govern-
ment’s Negligent Misrepresentations to the Court Pursuant to
Rule Fed. R. Civ. P. 60(b)(3). Taylor filed these seven motions be-
tween November 29, 2019, and January 3, 2020.
In Taylor’s motion to modify the conditions of his super-
vised release, liberally construed, he challenged three conditions of
supervised release: that he support his dependents and meet family
responsibilities, work regularly at a lawful occupation, and notify
third parties of risks that may be occasioned by his criminal record
or personal history or characteristics. Taylor’s motion sought to
remove these conditions. He also argued that these conditions
were unconstitutional and that when his term of supervised release
was considered, his sentence exceeded the statutory maximum.
On January 14, 2020, this Court sent a notice of inquiry to
the District Court regarding the determination of the COA under
the limited remand for No. 19-11082. Three days later, on January
17, 2020, the District Court denied Taylor’s first Rule 60(b) Motion
(the one filed before the limited remand), explaining that
“[b]ecause this Court has already determined that the Magistrate
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8 Opinion of the Court 20-11238

Judge addressed all of the claims Defendant raised in his § 2255 mo-
tion, his Rule 60(b) motion, [Doc. 172], is DENIED.” That same
day, the District Court denied Taylor’s Motion to Appoint Counsel
and declined to grant Taylor a COA under the limited remand “be-
cause Taylor has failed to make a substantial showing of the denial
of a constitutional right.” In a footnote, the District Court added
that “[t]o the extent Taylor contends that the Court erred in not
addressing each of his objections to the R&R, he is incorrect.” Id.
The District Court explained that its analysis was sufficient because
it had reviewed the Magistrate Judge’s order de novo and could
choose not to expound upon the Magistrate Judge’s well-reasoned
and thorough recommendations.
A week later, on January 21, 2020, Taylor filed several more
motions, including a Motion for a Status Conference and a Motion
for a Briefing Schedule. Then, on February 6, 2020, he once again
sought to supplement his pending appeal, No. 19-11082, to include
the denial of “all his pending motions,” including his first Rule 60(b)
motion; the denial of his motion to appoint counsel; and the denial
of a COA for his Rule 59(e) motion.
The following month, on February 28, 2020, the District
Court ordered the Government to respond to Taylor’s Motion to
Compel Performance of the Plea Agreement, which was one of the
motions Taylor filed during the limited remand. That same day,
the District Court issued an order denying several motions, includ-
ing the motions to Modify Restitution Pursuant to 18 U.S.C.
§ 3664(k); Modify Conditions of Release; Supplement and Amend
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20-11238 Opinion of the Court 9

the original § 2255 motion; and Reopen the Judgment in His Ha-
beas Proceedings in Light of Newly Discovered Evidence Concern-
ing the Government’s Negligent Misrepresentations to the Court
Pursuant to Rule Fed. R. Civ. P. 60(b)(3). The order also denied as
moot Taylor’s motions for an Indicative Ruling on His Rule
60(b)(3) Motion; for a Status Conference; and for a Briefing Sched-
ule.
In that omnibus order, the District Court first denied the
Motion to Modify Restitution because it found Taylor’s claims
were meritless. It then denied the Motion to Modify Conditions of
Supervised Release because “relief under [18 U.S.C.] § 3583(e)(2) is
available only for procedural challenges to a condition of super-
vised release [and] Taylor challenges the legality of the conditions.”
Finally, the District Court jointly analyzed the motion to supple-
ment and amend, motion for an indicative ruling pursuant to Rule
60(b)(3), and motion to reopen in light of new evidence, as the
“Motions to Reopen/Supplement/Amend § 2255 Motion.” It did
so because all three motions concerned files that Taylor received
from his attorney after the District Court ruled on the original
§ 2255 motion. According to Taylor, these files showed that his
trial counsel received a plea offer that he did not communicate to
Taylor and that the Government made material misrepresenta-
tions at his sentencing hearing. The District Court found that it did
not have jurisdiction to entertain these motions because Taylor
had not “obtained prior authorization from the Eleventh Circuit to
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10 Opinion of the Court 20-11238

file a second or successive motion as required by 28 U.S.C.
§§ 2255(h) and 2244(b).” 3
Subsequently, Taylor filed a fourth Notice of Appeal regard-
ing the denial of two of the motions the District Court had deter-
mined were second or successive—the motion to supplement and
amend and the motion for an indicative ruling under Rule 60(b)(3)).
Taylor titled these his § 2255 motion and his Rule 60(b) motion.
Unlike the second and third notices, Taylor did not title this Notice
of Appeal as an amendment, though he did include the docket
number for his existing appeal, No. 19-11082. Thus, this fourth No-
tice was given a new docket number—20-11238—and forms the
basis of this appeal.4 We appointed counsel to represent Taylor in
this appeal.

3 The District Court alternatively ruled that it did not have jurisdiction to en-

tertain these motions because the filing of the notice of appeal “divested [it] of
jurisdiction ‘over the aspects of the case involved in the appeal.’” D.E. 193 at
9 (quoting United States v. Diveroli, 729 F.3d 1339, 1341 (11th Cir. 2013)).
4 Taylor’s parallel appeal continued apace. This Court docketed the District
Court’s denial of the COA on February 18, 2020, which promptly inspired Tay-
lor to file another motion for a COA regarding the denial of his Rule 59(e)
motion and his first Rule 60(b) motion. Motion for Certificate of Appealabil-
ity, Taylor v. United States, No. 19-11082 (filed Mar. 2, 2020), Dkt. No. 39. On
June 15, 2020, this Court denied Taylor’s original Motion for a COA (the one
which spawned the limited remand), which mooted all pending motions. Or-
der on Motion for Certificate of Appealability, id., Dkt. No. 41. Then on June
26, 2020, Taylor filed a Request for Clarification, id. at Dkt. No. 46, and on
June 29, 2020, he filed a Motion for Reconsideration, id. at Dkt. No. 45, both
of which this Court denied on July 10, 2020, because Taylor “offered no new
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20-11238 Opinion of the Court 11

II.
A district court’s determination that a prisoner’s filing is a
second or successive § 2255 motion is reviewed de novo. Stewart
v. United States, 646 F.3d 856, 858 (11th Cir. 2011). Questions about
the district court’s jurisdiction are reviewed de novo. Zakrzewski v.
McDonough, 490 F.3d 1264, 1267 (11th Cir. 2007). But a district
court’s denial of a motion for leave to amend a § 2255 motion un-
der Federal Rule of Civil Procedure 15(a) is reviewed for abuse of
discretion. See Davenport v. United States, 217 F.3d 1341, 1343 n.4
(11th Cir. 2000). And this Court reviews the denial of a motion for
modification of supervised release for abuse of discretion as well.
United States v. Cordero, 7 F.4th 1058, 1069 (11th Cir. 2021).
III.
In this appeal, Taylor presents two questions: 1) whether the
District Court erred by dismissing his motions to reopen, supple-
ment, and amend his original § 2255 motion, which was then on
appeal, as unauthorized second or successive motions; and
2) whether the District Court erred in dismissing Taylor’s motion
to modify his conditions of supervised release. 5 We address each
issue in turn.

evidence or arguments of merit to warrant relief.” Order on Motion for Re-
consideration, id., Dkt. No. 47. That ended Taylor’s parallel appeal.
5 This appeal was held in abeyance pending the United States Supreme Court’s

decision in Rivers v. Guerrero, Case No. 23-1345. Order, United States v. Taylor,
No. 20-11238 (Feb. 24, 2025), Dkt. No. 59. On June 12, 2025, the Supreme
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12 Opinion of the Court 20-11238

A.
We begin with Taylor’s challenge to the District Court’s de-
cision dismissing his motions to reopen, supplement, and amend
his original § 2255 motion. We consider whether the District
Court erred in dismissing these motions because they were unau-
thorized second or successive motions or because the notice of ap-
peal deprived the District Court of subject matter jurisdiction.
There have been significant developments in this area of law
since Taylor filed his appeal. Previously, there was a circuit split
regarding how to characterize a prisoner’s second-in-time habeas
filing for purposes of 28 U.S.C. § 2244(b) when it is filed while the
prisoner’s appeal of the judgment of his first habeas filing is pend-
ing. Compare Balbuena v. Sullivan, 980 F.3d 619, 641–42 (9th Cir.
2020), Phillips v. United States, 668 F.3d 433, 435–36 (7th Cir. 2012),
Ochoa v. Sirmons, 485 F.3d 538, 540–41 (10th Cir. 2007) (per curiam),
and Williams v. Norris, 461 F.3d 999, 1003–04 (8th Cir. 2006), with
Whab v. United States, 408 F.3d 116, 118 (2d Cir. 2005), and United
States v. Santarelli, 929 F.3d 95, 105 (3d Cir. 2019).
In Boyd v. Secretary, Department of Corrections, this Court ad-
dressed “whether a habeas petitioner can seek leave to amend his
petition while an appeal from a final judgment is pending, or
whether such a motion is instead properly characterized as a sec-
ond or successive habeas corpus petition.” 114 F.4th 1232, 1236

Court issued its opinion, 605 U.S. 443. As a result, this appeal is now ripe for
adjudication.
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20-11238 Opinion of the Court 13

(11th Cir. 2024), cert. denied sub nom., Boyd v. Dixon, No. 24-6486,
2025 WL 1727417 (U.S. June 23, 2025).
In Boyd, the defendant filed a motion under Federal Rule of
Civil Procedure 15(a)(2), or in the alternative, to reopen his habeas
proceedings under Rule 60(b)(6), roughly two years after the dis-
trict court granted him a COA and while his appeal was still pend-
ing. Id. at 1235. Boyd contended the amendment was allowed be-
cause his appeal was still pending, but the district court disagreed.
It determined that the motion was properly characterized as sec-
ond or successive. Consequently, the district court could not en-
tertain the motion without preauthorization pursuant to
§ 2244(b)(3), which requires an applicant to move in the Court of
Appeals for an order authorizing a district court to review a second
or successive habeas application. Id. at 1235–36.
In analyzing Boyd’s argument, this Court explained that
while a prisoner always gets one chance to bring a federal habeas
challenge to his conviction, “he almost never gets another.” Id. at
1236. In determining that Boyd’s motion was properly character-
ized as a second or successive habeas corpus petition, the Court
made two points. First, the Court explained that “a district court
has no jurisdiction to grant a motion to amend a pleading that is no
longer pending before it,” and that “once the court has entered final
judgment, Rule 15(a) no longer applies and no amendment is pos-
sible unless the judgment is first set aside.” Id. at 1237. Second, the
Court clarified that Boyd could not proceed with his amendment
as a separate action because his claims were not based on either “‘a
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14 Opinion of the Court 20-11238

new rule of constitutional law, made retroactive to cases on collat-
eral review by the Supreme Court, that was previously unavailable’
or newly discovered clear and convincing evidence establishing his
factual innocence of the underlying crime.” Id. at 1239 (quoting
§ 2244(b)(1)–(3)). The Court thus affirmed the district court’s de-
termination that Boyd’s motion was properly viewed as second or
successive. Accordingly, Boyd could not proceed without author-
ization under the guidelines of § 2244, which he could not satisfy.
Id.
The concurrence added that “this rigorous standard does
not apply to a motion to amend a habeas petition when, upon re-
mand, the motion is filed in the district court.” Id. at 1240 (J. Pryor,
J., concurring). “[I]f, on appeal from the denial or dismissal of the
initial petition, the petitioner succeeded in obtaining vacatur of the
district court’s ruling and remand to the district court,” then “on
remand there would no longer be a final judgment.” Id. (first citing
McKiver v. Sec’y, Fla. Dep’t of Corr., 991 F.3d 1357, 1367 (11th Cir.
2021) (explaining that a vacated or reversed decision is “officially
gone” and “has no legal effect whatever” (internal quotation marks
omitted)); then citing Quarles v. Sager, 687 F.2d 344, 346 (11th Cir.
1982) (stating that “no final judgment on the merits exist[ed]” after
the appellate court vacated it)). Thus, “if the petitioner wanted to
amend his petition on remand, he would not need to file an appli-
cation seeking authorization from this Court under § 2244(b)(2).”
Id.
While Boyd made its way through the halls of this Court, a
notably similar case was traversing the corridors of the Fifth Circuit
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20-11238 Opinion of the Court 15

and then of the Supreme Court. See Rivers v. Guerrero, 605 U.S. 443
(2025). While Rivers’s appeal of the denial of his § 2254 petition
was pending in the Fifth Circuit, he requested to supplement the
Fifth Circuit’s appellate record with new evidence, which the Fifth
Circuit denied. Id. at 448. Then, Rivers asked the Fifth Circuit to
either stay the appeal or remand the case to the district court to
allow him to present the new evidence in the first instance, which
the Fifth Circuit also denied. Id. The Fifth Circuit ultimately af-
firmed the district court’s denial of Rivers’s § 2254 petition on the
merits. Id.
After the Fifth Circuit denied Rivers’s request to supplement
the record, he filed another § 2254 petition with the district court
asserting that the new filing should be construed as an amendment
to his initial habeas petition. Id. Even though Rivers’s appeal of
the denial of the initial habeas petition was still pending, the district
court concluded that the second-in-time filing was a second or suc-
cessive habeas petition subject to § 2244(b)(2) and transferred it to
the Fifth Circuit pursuant to § 2244’s gatekeeping requirements.
Id. The Fifth Circuit affirmed, explaining that “the timing of Riv-
ers’s second-in-time petition d[id] not permit him to circumvent
the requirements for filing successive petitions under § 2244.” Id.
at 449 (citation modified). The Fifth Circuit also stated that “the
District Court could have treated the second-in-time filing as a re-
quest to amend under Federal Rule of Civil Procedure 15 if the
judgment relating to Rivers’s first petition had been vacated on ap-
peal and the case reopened in the District Court.” Id.
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16 Opinion of the Court 20-11238

The Supreme Court then granted certiorari to resolve the
circuit split entrenched by the Fifth Circuit’s Rivers decision: Does
a second-in-time habeas filing submitted when an appeal of a judg-
ment denying the first habeas filing is pending qualify as second or
successive, thereby triggering § 2244(b)’s stringent gatekeeping re-
quirements? Id. at 446.
The Supreme Court began by summarizing the guiding
principles of habeas filings, stressing that “[t]hese rules apply to sec-
ond-in-time habeas filings even if the filing is not styled as a § 2254
habeas application by the filer—so long as the document is a § 2254
petition in substance.” Id. at 450–51. The Court reaffirmed that
second or successive is a “term of art” that “applies only to
‘claim[s]’ that have been presented in subsequently filed ‘applica-
tions.’” Id. at 452 (quoting Banister v. Davis, 590 U.S. 504, 511
(2020), and § 2244(b)(2)). “A ‘claim,’ as that term is used in
§ 2244(b), is ‘an asserted federal basis for relief’ from the judgment
of conviction. And an ‘application’ is ‘a filing that seeks an adjudi-
cation’ of one of those claims ‘on the merits.’” Id. (quoting Gonza-
lez v. Crosby, 545 U.S. 524, 530 (2005)).
The second-or-successive inquiry often arises in the form of
a post-judgment motion, as in the instant case. Rivers, however,
had filed an entirely new § 2254 petition while his original appeal
was pending. He argued that timing was the most important con-
sideration in determining whether a filing is second or successive.
Rivers highlighted the pendency of his appeal as an opening for
supplementing the record as part of his “‘one fair opportunity’ to
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20-11238 Opinion of the Court 17

litigate the merits of [his] postconviction claims in federal court.”
Id. at 450 (quoting Banister, 590 U.S. at 507). But the Court rejected
a rule based on timing, concluding “instead that it is the final judg-
ment related to the initial habeas filing that matters” and that
“[o]nce the judgment has been entered with respect to the initial
habeas petition, a second-in-time filing that makes new habeas
claims generally qualifies as a second or successive petition for
§ 2244(b) purposes.” Id. at 456–57.
In reaching this conclusion, the Court distinguished motions
to alter or amend a judgment under Federal Rule of Civil Proce-
dure 59(e), which “present a unique variant to the otherwise gen-
erally applicable rule that entry of final judgment separates first
from second or successive habeas filings,” and must be filed within
twenty-eight days. Id. at 454. This is so because Rule 59(e) “sus-
pends finality of the original judgment” and constitutes “a limited
continuation of the original proceeding,” the disposition of which
merges into “a single final judgment for appeal.” Id. (quoting Ban-
ister, 590 U.S. at 515–16, 521). Given the “attendant” nature of Rule
59(e) motions, they are not second or successive, and thus easily
distinguishable from Rule 60(b) motions, “which seek[] to chal-
lenge an extant judgment.” Id.
The Court also addressed Rivers’s argument that a motion
under Federal Rule of Civil Procedure 15 is, by its nature, not sec-
ond or successive as it seeks only to amend. But the Court ex-
plained that “[t]he District Court could not have granted Rivers’s
Rule 15 motion to amend . . . while his habeas claims were being
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18 Opinion of the Court 20-11238

considered on appeal, since jurisdiction had shifted to the Court of
Appeals.” Id. at 458. Though Rivers recognized this jurisdictional
shift and argued that the district court could have issued an indica-
tive ruling under Rule 62.1, he never asked for such a ruling and
did not argue that the district court abused its discretion by failing
to do so sua sponte. Thus, noting the Fifth Circuit had denied Riv-
ers’s motion to remand to the district court, the Court declined to
address his Rule 15 argument.
Accordingly, Rivers now sets out a clear rule: “A second-in-
time § 2254 petition generally qualifies as a second or successive
application, triggering the requirements of § 2244(b), when an ear-
lier filed petition has been decided on the merits and a judgment
exists.” Id. at 459. This rule guides our analysis here. 6
With this understanding of Rivers in mind, we consider
whether the District Court erred in dismissing Taylor’s motions to
reopen, supplement, and amend his original § 2255 motion because
they were unauthorized second or successive motions or because
the notice of appeal deprived the District Court of subject matter
jurisdiction. The District Court did not err on either ground.

6 It’s true that while Rivers involved the question of whether a state prisoner’s

filing qualified as a second or successive habeas petition under § 2244(b), this
case raises the question of whether Taylor’s filings qualified as second or suc-
cessive § 2255 motions. But this distinction has no effect on our analysis. Con-
gress has directed that a “second or successive” motion under § 2255 “must be
certified as provided in section 2244.” 28 U.S.C. § 2255(h).
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20-11238 Opinion of the Court 19

Taylor’s later-filed motions were unauthorized second or
successive motions and the District Court was deprived of jurisdic-
tion at the time the motions were filed. In adopting the R&R after
de novo review, the District Court provided a merits judgment that
analyzed all the claims Taylor presented in his original § 2255 mo-
tion. And the substance of his subsequent motions attempted to
advance new habeas claims. See Rivers, 605 U.S. at 457.
Specifically, in his first Rule 60(b) motion, Taylor asserted
the same claims made in his Rule 59(e) motion and added several
new claims. Then, in his “Motions to Reopen/Supple-
ment/Amend § 2255 Motion,” Taylor asserted the attached files
showed that his trial counsel received a plea offer that he did not
communicate to Taylor, and that the Government made material
misrepresentations at his sentencing hearing. Taylor consistently
attempted to add claims challenging the judgment that authorized
his confinement in his later-filed motions. See Magwood v. Patterson,
561 U.S. 320, 332 (2010) (“A § 2254 petitioner is applying for some-
thing: His petition ‘seeks invalidation (in whole or in part) of the
judgment authorizing the prisoner’s confinement.’” (emphasis in
original) (quoting Wilkinson v. Dotson, 544 U.S. 74, 83 (2005))).
As for jurisdiction, many of Taylor’s relevant motions came
after he filed a Notice of Appeal (and an amended Notice of Ap-
peal), which divested the District Court of jurisdiction. Boyd, 114
F.4th at 1238 (noting “an appeal divests the district court of its con-
trol over those aspects of the case involved in the appeal” (citation
modified)). That said, his “Motions to
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20 Opinion of the Court 20-11238

Reopen/Supplement/Amend § 2255 Motion” were filed during
the brief period in which this Court had issued a limited remand
for the District Court to address the need for a COA. It appears
that, in filing a raft of motions during this period, Taylor was at-
tempting to hijack the limited remand to amend or supplement his
original appeal. But a limited remand does not allow for amend-
ment or supplementation of a § 2255 petition where the stated pur-
pose of the limited remand is only to allow the district court to rule
on whether to issue a COA.
Limited remand does not alter the jurisdictional rules re-
garding second or successive filings laid out in Rivers. Only a Rule
59 motion suspends finality, and none of the motions Taylor filed
during the limited remand were or could have been Rule 59 mo-
tions. That the District Court had limited jurisdiction to rule on
the COA did not expand its jurisdiction to consider any additional
motions or issues. As such, Taylor’s attempts to argue that his
later-filed motions were not unauthorized second or successive fil-
ings are unavailing as the District Court was without jurisdiction.
Lastly, we consider Rivers’s guidance on Rule 15 motions. In
a footnote, the Court explained that “[a]lthough we hold today that
an application is second or successive under § 2244(b) if a judgment
on the merits has issued as to a first-in-time petition even if the case
remains pending on appeal, we neither decide nor comment on
whether the classification of a second-in-time petition must occur
while the appeal is pending.” 605 U.S. at 457 n.5. The Court elab-
orated: “That is, we take no position on whether, in a case where
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20-11238 Opinion of the Court 21

the facts support doing so, a subsequent filing can be held in abey-
ance until the first-in-time appeal has concluded, as is the common
practice in some Circuits.” Id. (citing Santarelli, 929 F.3d at 105–
06); see also Boyd, 114 F.4th at 1237 (explaining that, under Rule 15,
“no amendment is possible unless the judgment is first set aside”).
Here, Taylor titled the primary motion he filed as a Motion
to Supplement and Amend the original § 2255 motion. Construed
liberally, as required with pro se filings, this motion could have been
brought pursuant to Rule 60 or Rule 15. In his arguments before
this Court, Taylor does not distinguish or clarify which road he in-
tended to travel. But if we construe Taylor’s motion as one filed
pursuant to Rule 60, then it is clearly second or successive because
Rivers instructs that a final judgment both bars a district court from
considering additional filings and divests it of jurisdiction to do so.
Conversely, if we construe the motion as a Rule 15 motion,
as is equally plausible given both the title and the substance of the
pleading, then a district court could elect one of two options under
Rivers. It could either classify the motion as second or successive
given its denial of the original § 2255 motion on appeal—a final
judgment barring further consideration—or hold the motion in
abeyance if the facts support doing so. Here, the District Court
acted within its discretion when it treated the motion as second or
successive.7

7 If the District Court instead had held the motion in abeyance, it would have

been in a position to deny the motion as an unauthorized second or successive
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22 Opinion of the Court 20-11238

The District Court plainly had discretion not to hold Tay-
lor’s motions in abeyance until his first appeal was resolved. The
District Court reasonably could have concluded that it would be
inefficient to wait to decide whether his motions were second or
successive because this approach could allow Taylor to “file any
number of new applications raising new claims during the pen-
dency of appeal or certiorari review, thereby prolonging the case
seemingly indefinitely,” and “promot[ing] inefficiency by encour-
aging piecemeal litigation.” Rivers, 605 U.S. at 455. This case ex-
emplifies why a district court might want to foreclose such tactics,
as the record shows that Taylor was simultaneously filing motions
regarding the same issues in the District Court and this Court.
Given that the District Court entered its judgment on March 6,
2019, any later-filed motions—except for timely-filed Rule 59 mo-
tions that suspend finality—were correctly deemed second or suc-
cessive and required authorization from this Court under
§ 2244(b). And Taylor’s opportunistic attempts to leverage the lim-
ited remand to tack on more claims to the pending appeal of his
original § 2255 motion are foreclosed. The District Court was di-
vested of jurisdiction the moment Taylor filed his Notice of Appeal
and this Court’s limited remand vested jurisdiction back in the

motion upon this Court’s affirmance of the District Court’s denial of the orig-
inal § 2255 motion. See Boyd, 114 F.4th at 1240 (J. Pryor, J., concurring) (“[O]n
remand the district court would apply Rule 15’s standard to determine
whether to grant the petitioner leave to amend his petition.”).
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20-11238 Opinion of the Court 23

District Court only as to the question of the COA—nothing more,
nothing less. 8
B.
Next, we turn to Taylor’s second issue on appeal: Whether
the District Court abused its discretion in denying his motion to
modify the conditions of his supervised release by challenging their
legality and constitutionality via a motion under 18 U.S.C.
§ 3583(e)(2).
Section 3583(e) addresses when a district court can modify a
defendant’s conditions of supervised release. It provides, among
other things, that a court “after considering” certain § 3553(a) fac-
tors may “modify, reduce, or enlarge the conditions of supervised
release, at any time prior to the expiration or termination of the
term of supervised release.” Id. § 3583(e)(2).
We previously addressed the scope of a court’s authority un-
der this provision. See Cordero, 7 F.4th at 1070. We explained that
this provision addresses the “factors a court should consider in de-
termining whether to modify or terminate a condition of super-
vised release.” Id. But we have recognized that a defendant cannot
raise in a § 3583(e) motion issues “concerning the legality or

8 Because we find that Taylor’s motions were unauthorized and second or suc-

cessive, we do not reach his fourth and fifth arguments on appeal. Appellant’s
Br. at 26–29 (arguing that under Clisby, remand is required so that the district
court can consider each of Taylor’s claims on the merits, and that under Whab,
remand is appropriate regardless of this Court’s ruling on Taylor’s initial re-
quest for a COA).
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24 Opinion of the Court 20-11238

constitutionality” of his sentence because those issues must be
raised only on “direct appeal” or in a “§ 2255 motion to vacate sen-
tence.” Id.
We agree with the District Court that to the extent Taylor
was challenging his conditions of supervised release as illegal or un-
constitutional, under Cordero, these challenges were not properly
before the District Court in Taylor’s § 3583(e) motion. See id.
Taylor argues that the District Court was not bound by
Cordero because “Cordero’s statement on this issue is both non-bind-
ing and incorrect, but if the Court concludes otherwise the issue
should be heard by the en banc Court.” Appellant’s Br. at 35. But
the § 3583(e)(2) analysis in Cordero was an alternative holding and
“in this circuit additional or alternative holdings are not dicta, but
instead are as binding as solitary holdings.” Bravo v. United States,
532 F.3d 1154, 1162 (11th Cir. 2008). Cordero made clear that chal-
lenges to the legality or constitutionality of supervised release con-
ditions cannot be brought in a § 3583(e)(2) motion. See 7 F.4th at
1070 (“Simply put, § 3583(e)(2) is not a vehicle to collaterally attack
the legality of a defendant’s sentence. Rather, § 3582(e) sets forth
the factors a court should consider in determining whether to mod-
ify or terminate a condition of supervised release and illegality or
constitutionality is not one of them.”). Accordingly, the District
Court was correct in concluding that Taylor’s § 3583(e)(2) motion
could not substantively challenge the legality of the conditions of
his supervised release.
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20-11238 Opinion of the Court 25

Taylor also asserts that the District Court should have con-
strued his motion as a § 2255 motion rather than denying it out-
right because § 3583(e)(2) was an improper vehicle. But we cannot
say that the District Court erred in failing to do so. As we explained
above, such a § 2255 motion would now be considered second or
successive and would require prior authorization from this Court
to proceed.
Although § 3583(e)(2) does not permit a district court to con-
sider illegality or constitutional challenges to a condition of super-
vised release, it does broadly permit a defendant to seek to modify
his conditions of supervised release. And when a defendant files a
motion for a modification, the district court must consider the
§ 3553(a) factors. The relevant § 3553(a) factors are: 1) the nature
and circumstances of the offense; 2) the defendant’s history and
characteristics; 3) the need for deterrence; 4) the need to protect
the public; 5) the need to provide the defendant with educational
and vocational training, medical care, or correctional treatment; 6)
the applicable guideline range; 7) any pertinent policy statements
set forth by the Sentencing Commission; 8) the need to avoid un-
warranted sentencing disparities; and 9) the need to provide resti-
tution. See 18 U.S.C. § 3583(e) (cross-referencing § 3553(a)(1),
(2)(B)–(D), (4)–(7)).
On appeal, Taylor argues that the District Court erred in
denying his motion to modify the terms of his supervised release
without considering the § 3553(a) factors. We agree. Taylor em-
phasizes that one of the factors is “any pertinent policy statements
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26 Opinion of the Court 20-11238

set forth by the Sentencing Commission,” and such policy state-
ments were the focus of his motion. Even though he sought a
modification based on at least one relevant § 3553(a) factor, the
District Court did not order or allow for the Government to re-
spond to Taylor’s motion. And in its order denying the motion,
the District Court never mentioned any of the § 3553(a) factors.
We find nothing in the District Court’s order that would allow us
to conclude it meaningfully considered Taylor’s argument that the
conditions of his supervised release should be modified based on
clarifying amendments to the United States Sentencing Guidelines.
See United States v. Johnson, 877 F.3d 993, 997 (11th Cir. 2017) (ex-
plaining that a district court “need not ‘articulate the applicability
of each factor,’ but the record must show ‘that the pertinent factors
were taken into account’” and that “there must be enough, in the
record or the court’s order, to allow for meaningful appellate re-
view of its decision” (quoting United States v. Douglas, 576 F.3d 1216,
1219, 1220 (11th Cir. 2009))). We thus vacate the denial of Taylor’s
motion and remand to the District Court to evaluate the § 3553(a)
factors.
IV.
Accordingly, for the reasons stated, the judgment of the Dis-
trict Court is AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11135915. Public record. Not legal advice.