Petition for Writ of Certiorari — Joel S. Elliott, Petitioner v. United States

Supreme Court briefDec 5, 2024

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NO.

IN THE

SUPREME COURT OF THE UNITED STATES

Joel S. Elliott,

Petitioner,

United States of America,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

APPENDIX

PETITION FOR WRIT OF CERTIORARI

United States v. Elliott, Not Reported in Fed. Rptr. (2024)

2024 WL 4100574

Only the Westlaw citation is currently available.

United States Court of Appeals, Tenth Circuit.

BACKGROUND

I. Conviction and Sentence

In 2015, Elliott was convicted by a jury of four counts: (1)

arson of a building receiving federal funds, in violation of

18 U.S.C. § 844(f); (2) using a firearm during a crime of

violence, in violation of 18 U.S.C. § 924(c); (3) possessing an

unregistered firearm, in violation of 26 U.S.C. § 5861(d); and

(4) making a false declaration before a grand jury, in violation

of 18 U.S.C. § 1623(a). The arson charge served as the

predicate felony for the crime-of-violence conviction, which

carried a mandatory 30-year consecutive sentence because

Elliott's “firearm” was “a destructive device.” 18 U.S.C. §

924(c)(1)(B)(ii). Constrained by § 924(c), the district court

sentenced Elliott to 444 months’ imprisonment—84 months

for arson plus 360 months for the crime-of-violence charge.

This court affirmed his conviction on direct appeal. See

United States v. Elliott, 684 F. App'x 685, 698 (10th Cir. 2017)

(unpublished).

UNITED STATES of America, Plaintiff - Appellee,

Joel S. ELLIOTT, Defendant - Appellant.

No. 24-8019

FILED September 6, 2024

(D.C. No. 1:15-CR-00042-SWS-1) (D. Wyoming)

Attorneys and Law Firms

David A. Kubichek Esq., Christyne Marie Martens, Office

of the United States Attorney, Casper, WY, for Plaintiff Appellee.

John C. Arceci, Office of the Federal Public Defender,

Denver, CO, for Defendant - Appellant.

II. Motions to Vacate

In 2018, Elliott filed his first motion to vacate under § 2255,

claiming that he received ineffective assistance of counsel and

that the government violated Brady v. Maryland, 373 U.S.

83 (1963). The district court denied Elliott's motion, and this

court denied Elliott a COA. United States v. Elliott, 753 F.

App'x 624, 626–27 (10th Cir. 2018) (unpublished).

Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges.

ORDER DENYING CERTIFICATE

OF APPEALABILITY *

Gregory A. Phillips, Circuit Judge

In 2020, Elliott sought authorization for a second § 2255

motion. He argued that his § 924(c) conviction was invalid

after the Supreme Court struck down part of that statute in

United States v. Davis, 588 U.S. 445, 470 (2019) (holding that

*1 Joel S. Elliott, a federal prisoner, filed a motion for

compassionate release under 18 U.S.C. § 3582(c)(1)(A),

alleging that three extraordinary and compelling reasons

warranted relief. Of these, the district court ruled that one

of the reasons implicated 28 U.S.C. § 2255 by challenging

the validity of Elliott's conviction and sentence. Adhering

to this court's decision in United States v. Wesley, 60 F.4th

1277, 1288 (10th Cir. 2023), which requires district courts to

treat such arguments as § 2255 claims, the court dismissed

that ground as an unauthorized successive § 2255 motion.

The court then rejected Elliott's remaining arguments on the

merits. Elliott now seeks to have Wesley revisited. But to

appeal the district court's dismissal of his § 2255 argument,

he must first obtain a certificate of appealability (COA).

Exercising jurisdiction under 28 U.S.C. § 1291 and § 2253,

we deny Elliott a COA.

§ 924(c)(3)(B) is unconstitutionally vague). 1 We authorized

his second § 2255 motion, allowing Elliott to challenge his

§ 924(c) conviction and sentence. The district court denied

Elliott's motion. The court ruled that Davis had no impact on

Elliott's conviction, because he was convicted under § 924(c)

(3)’s elements clause—not the residual clause struck down by

Davis. We agreed. United States v. Elliott, No. 22-8046, 2023

WL 4196838, at *7 (10th Cir. June 27, 2023) (unpublished).

III. Motion for Compassionate Release

*2 In 2023, Elliott filed a motion for compassionate release,

claiming three grounds as extraordinary and compelling

reasons. 2 With some finetuning and reframing, Elliott

reasserts his argument that his § 924(c) conviction is invalid. 3

United States v. Elliott, Not Reported in Fed. Rptr. (2024)

1230, 1233 (10th Cir. 2008)). We then considered whether the

prisoner satisfied the COA standard. Id.

He also argues that “the severity of [his] sentence far

outweighs the gravity of the offense.” R. vol. 2, at 80. And he

contends that his rehabilitative efforts support his request for

a reduced sentence.

*3 As in Wesley, the district court construed Elliott's § 924(c)

argument as a § 2255 claim and dismissed it for lack of

jurisdiction. That means the district court's order is a “final

order in a proceeding under section 2255” and that Elliott

needs a COA. § 2253(c)(1)(B); see also United States v.

McKinney, Nos. 22-3090, 22-3189, 2023 WL 5608463, at

*2 (10th Cir. Aug. 30, 2023) (requiring a COA in the same

circumstances). Because Elliott hasn't sought a COA from us,

The district court dismissed in part and denied in part

Elliot's motion. The court determined that Elliott's § 924(c)

argument “implicate[s] the validity of his conviction and

sentence.” R. vol. 1, at 325. And so, relying on Wesley,

60 F.4th at 1284–85, the district court dismissed that

argument as an unauthorized, successive § 2255 motion, see

§ 2253. Considering Elliott's other claimed extraordinary and

compelling reasons, the district court ruled that his “sentence

is commensurate with the crime” and that his “rehabilitation

does not carry him across the line to extraordinary and

compelling circumstances.” Id. at 327. Elliott timely filed a

notice of appeal.

we treat his notice of appeal as a request for a COA. 5 Frost

v. Pryor, 749 F.3d 1212, 1222 n.6 (10th Cir. 2014).

II. We deny Elliott a COA.

Elliott is entitled to a COA if “jurists of reason would find

debatable the district court's decision to construe [Elliott's

§ 924(c) argument] as a motion to vacate, set aside, or

correct his sentence pursuant to § 2255.” Harper, 545 F.3d

at 1233 (cleaned up). Wesley prevents reasonable jurists from

debating the district court's ruling.

DISCUSSION

I. Elliott needs a COA to appeal the district court's

dismissal ruling.

Elliott asserts that we have jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a)—the statutes providing

jurisdiction over appeals from final orders and from final

criminal sentences. But Elliott seeks to appeal the district

court's decision to dismiss his § 924(c) argument as an

Wesley considered whether prisoners may include claims

governed by § 2255 in their compassionate-release motions.

60 F.4th at 1284. Reviewing the text and structure of § 3582

as well as comparing it to § 2255, the court concluded that a

compassionate-release motion “may not be based on claims

specifically governed by 28 U.S.C. § 2255.” Id. at 1289. The

court defined “a claim governed by § 2255” as one “that, if

true, would mean ‘that the sentence was imposed in violation

of the constitution or laws of the United States, ... or is

otherwise subject to collateral attack.’ ” Id. at 1288 (quoting

§ 2255(a)). And when confronted with a compassionaterelease motion that includes such a claim, the court instructed,

district courts should “treat the part governed by § 2255 as

if explicitly brought under § 2255 and handle it accordingly

(including dismissal for lack of jurisdiction if appropriate).”

Id.

unauthorized, successive § 2255 motion. 4 And we cannot

review “the final order in a proceeding under section 2255”

unless the prisoner first obtains a COA. § 2253(c)(1)(B). So

we must determine whether the district court's dismissal is a

final § 2255 order. Wesley compels the answer: it is, so Elliott

needs a COA.

In Wesley, a prisoner filed a compassionate-release motion,

claiming various extraordinary and compelling reasons

warranted relief. 60 F.4th at 1279. Among those, the

prisoner argued that prosecutorial misconduct infected his

sentencing. Id. The district court dismissed that argument

as an unauthorized § 2255 motion and rejected the

remaining arguments on the merits. Id. On appeal, the

prisoner challenged only the district court's dismissal of his

prosecutorial-misconduct argument, but the prisoner didn't

seek a COA. Id. This court determined that he needed

one because, though arising from a compassionate-release

motion, “[t]he district court's dismissal of an unauthorized §

2255 motion is a ‘final order in a proceeding under section

2255.’ ” Id. at 1280 (quoting United States v. Harper, 545 F.3d

Elliott's § 924(c) argument asserts a claim governed by

§ 2255. In substance, he argues that he was wrongfully

convicted of § 924(c) because his arson conviction is not a

qualifying predicate crime of violence. And he contends that

the district court erred in submitting the § 924(c) charge to

the jury. Thus, “if true,” then Elliott is serving an unlawful

sentence—the type of argument “governed by § 2255.”

Wesley, 60 F.4th at 1288. After all, Elliott advanced a similar

version of this argument in his authorized, second § 2255

United States v. Elliott, Not Reported in Fed. Rptr. (2024)

reconsideration or a superseding contrary decision by the

Supreme Court.” (cleaned up)).

motion. See United States v. Elliott, No. 22-8046, 2023 WL

4196838, at *3 (10th Cir. 2023 June 27, 2023) (unpublished).

In his brief, Elliott concedes that the district court properly

applied Wesley. And he doesn't dispute that his § 924(c)

argument fits under § 2255. Instead, he contends that “Wesley

was wrongly decided.” Op. Br. at 5. But because this court

is bound by Wesley, and because Wesley compels the result

reached by the district court, reasonable jurists would not

debate the district court's ruling. See United States v. Garcia,

936 F.3d 1128, 1139 (10th Cir. 2019) (“We are consequently

bound by the precedent of prior panels absent en banc

CONCLUSION

*4 For these reasons, we deny Elliott a COA and dismiss

this matter.

All Citations

Not Reported in Fed. Rptr., 2024 WL 4100574

Footnotes

After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’

request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).

The case is therefore submitted without oral argument. This order is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive

value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Section 924(c) provides a substantive offense for anyone who uses a firearm “during and in relation to any

crime of violence.” The statute provides two definitions for “a crime of violence.” The first, dubbed the elements

clause, requires that the predicate felony “has as an element the use, attempted use, or threatened use of

physical force against the person or property of another.” § 924(c)(3)(A). The second, dubbed the residual

clause, covers felonies that “involve[ ] a substantial risk that physical force against the person or property of

another may be used in the course of committing the offense.” § 924(c)(3)(B). Davis struck down the residual

clause but left the elements clause intact. See 588 U.S. at 470.

To grant a motion for compassionate release, the district court must find that “extraordinary and compelling

reasons warrant a sentence reduction” and that a “reduction is consistent with applicable policy statements

issued by the Sentencing Commission.” See United States v. Maumau, 993 F.3d 821, 831 (10th Cir. 2021)

(cleaned up). Then the court must “consider any applicable § 3553(a) factors and determine whether” a

reduction is warranted. Id. (cleaned up).

Elliott has reshaped his argument over the years he has been litigating the § 924(c) issue. His finetuning has

been aided by recent Supreme Court decisions like Borden v. United States, 593 U.S. 420 (2021). There, the

Court ruled that “[o]ffenses with a mens rea of recklessness do not” fit under the elements clause of § 924(e)

(2)(B)—a near copy of § 924(c)(3)(B). Borden, 593 U.S. at 445. Elliott contends that arson under § 844(f)

requires a mens rea of recklessness, and so he asserts that his § 924(c) conviction cannot be sustained

under the elements clause. We addressed this argument in Elliott, 2023 WL 4196838, at *4, *7. Because the

authorization for Elliott's second § 2255 motion was limited to Davis and the residual clause, we ruled that we

lacked jurisdiction to consider the merits of his arguments under Borden and the elements clause. Id. at *7.

Elliott doesn't challenge the district court's merits decision denying his compassionate-release motion.

The district court didn't consider whether to grant a COA. See 10th Cir. R. 22.1(C) (“[T]he district court shall

in every applicable case issue or deny a certificate of appealability when it enters a final order adverse to

United States v. Elliott, Not Reported in Fed. Rptr. (2024)

the applicant.”). But because thirty days have passed since Elliott filed his notice of appeal, we consider the

district court to have denied a COA. See United States v. Card, 534 F. App'x 765, 767 n.2 (10th Cir. 2013)

(unpublished).

End of Document

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(jcj

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING > .

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UNITED STATES OF AMERICA,

Plaintiff,

VS.

Case No. 15-CR-42

JOEL S. ELLIOTT,

Defendant,

ORDER DENYING MOTION FOR COMPASSIONATE RELEASE

In 2014, Joel Elliott used a homemade bomb to set fire to a building owned by

Sheridan County, Wyoming and used by the Sheridan County Attorney's Office. (ECF No.

140 at 4-5.) As a result of his conduct, Elliott was charged with and convicted of, inter alia,

committing arson of a building owned by an entity receiving federal funds, in violation of

18 U.S.C. §§ 844(f)(1) and (f)(2), and using a destructive device (the homemade bomb)

during and in relation to a crime of violence (i.e., arson of a building receiving federal

funds), in violation of 18 U.S.C. §§ 924(c)(1)(A) and (B)(ii).' (ECF No. 133.) The bulk of

his 444-month sentence is attributable to his § 924(c) conviction, which carries a

mandatory minimum 360-months' imprisonment to be served consecutively to any other

sentence(s) imposed. (See ECF No. 150 at 2); see 18 U.S.C. § 924(c)(l)(B)(ii) and (D)(ii).

' The jury convicted Elliott on two additional counts: possession of an unregistered firearm

in violation of 26 U.S.C. § 5861(d) and making a false declaration before a grand jury in

violation of 18 U.S.C. § 1623(a). (ECF No. 133 at 2-3.)

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United States Code Annotated

Title 18. Crimes and Criminal Procedure (Refs & Annos)

Part II. Criminal Procedure

Chapter 227. Sentences (Refs & Annos)

Subchapter D. Imprisonment (Refs & Annos)

18 U.S.C.A. § 3582

§ 3582. Imposition of a sentence of imprisonment

Effective: December 21, 2018

Currentness

(a) Factors to be considered in imposing a term of imprisonment.--The court, in determining whether to impose a term of

imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the

factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate

means of promoting correction and rehabilitation. In determining whether to make a recommendation concerning the type of

prison facility appropriate for the defendant, the court shall consider any pertinent policy statements issued by the Sentencing

Commission pursuant to 28 U.S.C. 994(a)(2).

(b) Effect of finality of judgment.--Notwithstanding the fact that a sentence to imprisonment can subsequently be-(1) modified pursuant to the provisions of subsection (c);

(2) corrected pursuant to the provisions of rule 35 of the Federal Rules of Criminal Procedure and section 3742; or

(3) appealed and modified, if outside the guideline range, pursuant to the provisions of section 3742;

a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes.

been imposed except that-(1) in any case-(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant

has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the

defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility,

whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release

A16

with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after

considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that-(i) extraordinary and compelling reasons warrant such a reduction; or

(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed

under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a

determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety

of any other person or the community, as provided under section 3142(g);

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and

(B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by

Rule 35 of the Federal Rules of Criminal Procedure; and

(2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or

the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after

considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent

with applicable policy statements issued by the Sentencing Commission.

(d) Notification requirements.-(1) Terminal illness defined.--In this subsection, the term “terminal illness” means a disease or condition with an end-oflife trajectory.

(2) Notification.--The Bureau of Prisons shall, subject to any applicable confidentiality requirements-(A) in the case of a defendant diagnosed with a terminal illness-(i) not later than 72 hours after the diagnosis notify the defendant's attorney, partner, and family members of the

defendant's condition and inform the defendant's attorney, partner, and family members that they may prepare and

submit on the defendant's behalf a request for a sentence reduction pursuant to subsection (c)(1)(A);

(ii) not later than 7 days after the date of the diagnosis, provide the defendant's partner and family members (including

extended family) with an opportunity to visit the defendant in person;

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(iii) upon request from the defendant or his attorney, partner, or a family member, ensure that Bureau of Prisons

employees assist the defendant in the preparation, drafting, and submission of a request for a sentence reduction

pursuant to subsection (c)(1)(A); and

(iv) not later than 14 days of receipt of a request for a sentence reduction submitted on the defendant's behalf by the

defendant or the defendant's attorney, partner, or family member, process the request;

(B) in the case of a defendant who is physically or mentally unable to submit a request for a sentence reduction pursuant

to subsection (c)(1)(A)-(i) inform the defendant's attorney, partner, and family members that they may prepare and submit on the defendant's

behalf a request for a sentence reduction pursuant to subsection (c)(1)(A);

(ii) accept and process a request for sentence reduction that has been prepared and submitted on the defendant's behalf

by the defendant's attorney, partner, or family member under clause (i); and

(iii) upon request from the defendant or his attorney, partner, or family member, ensure that Bureau of Prisons

employees assist the defendant in the preparation, drafting, and submission of a request for a sentence reduction

pursuant to subsection (c)(1)(A); and

(C) ensure that all Bureau of Prisons facilities regularly and visibly post, including in prisoner handbooks, staff training

materials, and facility law libraries and medical and hospice facilities, and make available to prisoners upon demand,

notice of-(i) a defendant's ability to request a sentence reduction pursuant to subsection (c)(1)(A);

(ii) the procedures and timelines for initiating and resolving requests described in clause (i); and

(iii) the right to appeal a denial of a request described in clause (i) after all administrative rights to appeal within the

Bureau of Prisons have been exhausted.

(3) Annual report.--Not later than 1 year after December 21, 2018, and once every year thereafter, the Director of the

Bureau of Prisons shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the

House of Representatives a report on requests for sentence reductions pursuant to subsection (c)(1)(A), which shall include

a description of, for the previous year-(A) the number of prisoners granted and denied sentence reductions, categorized by the criteria relied on as the grounds

for a reduction in sentence;

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(B) the number of requests initiated by or on behalf of prisoners, categorized by the criteria relied on as the grounds for

a reduction in sentence;

categorized by the criteria relied on as the grounds for a reduction in sentence, and the final decision made in each

request;

(D) the number of requests that attorneys, partners, or family members submitted on a defendant's behalf, categorized by

the criteria relied on as the grounds for a reduction in sentence, and the final decision made in each request;

(E) the number of requests approved by the Director of the Bureau of Prisons, categorized by the criteria relied on as the

grounds for a reduction in sentence;

(F) the number of requests denied by the Director of the Bureau of Prisons and the reasons given for each denial,

categorized by the criteria relied on as the grounds for a reduction in sentence;

(G) for each request, the time elapsed between the date the request was received by the warden and the final decision,

categorized by the criteria relied on as the grounds for a reduction in sentence;

(H) for each request, the number of prisoners who died while their request was pending and, for each, the amount of

time that had elapsed between the date the request was received by the Bureau of Prisons, categorized by the criteria

relied on as the grounds for a reduction in sentence;

(I) the number of Bureau of Prisons notifications to attorneys, partners, and family members of their right to visit a

terminally ill defendant as required under paragraph (2)(A)(ii) and, for each, whether a visit occurred and how much

time elapsed between the notification and the visit;

(J) the number of visits to terminally ill prisoners that were denied by the Bureau of Prisons due to security or other

concerns, and the reasons given for each denial; and

(K) the number of motions filed by defendants with the court after all administrative rights to appeal a denial of a

sentence reduction had been exhausted, the outcome of each motion, and the time that had elapsed between the date the

request was first received by the Bureau of Prisons and the date the defendant filed the motion with the court.

(e) Inclusion of an order to limit criminal association of organized crime and drug offenders.--The court, in imposing a

sentence to a term of imprisonment upon a defendant convicted of a felony set forth in chapter 95 (racketeering) or 96

(racketeer influenced and corrupt organizations) of this title or in the Comprehensive Drug Abuse Prevention and Control Act

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of 1970 (21 U.S.C. 801 et seq.), or at any time thereafter upon motion by the Director of the Bureau of Prisons or a United

States attorney, may include as a part of the sentence an order that requires that the defendant not associate or communicate

with a specified person, other than his attorney, upon a showing of probable cause to believe that association or

communication with such person is for the purpose of enabling the defendant to control, manage, direct, finance, or otherwise

participate in an illegal enterprise.

CREDIT(S)

(Added Pub.L. 98-473, Title II, § 212(a)(2), Oct. 12, 1984, 98 Stat. 1998; amended Pub.L. 100-690, Title VII, § 7107,

Nov. 18, 1988, 102 Stat. 4418; Pub.L. 101-647, Title XXXV, § 3588, Nov. 29, 1990, 104 Stat. 4930; Pub.L. 103-322, Title

VII, § 70002, Sept. 13, 1994, 108 Stat. 1984; Pub.L. 104-294, Title VI, § 604(b)(3), Oct. 11, 1996, 110 Stat. 3506; Pub.L.

107-273, Div. B, Title III, § 3006, Nov. 2, 2002, 116 Stat. 1806; Pub.L. 115-391, Title VI, § 603(b), Dec. 21, 2018, 132 Stat.

5239.)

Notes of Decisions (1554)

18 U.S.C.A. § 3582, 18 USCA § 3582

Current through P.L. 118-107. Some statute sections may be more current, see credits for details.

End of Document

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United States Code Annotated

Title 28. Judiciary and Judicial Procedure (Refs & Annos)

Part VI. Particular Proceedings

Chapter 153. Habeas Corpus (Refs & Annos)

28 U.S.C.A. § 2255

§ 2255. Federal custody; remedies on motion attacking sentence

Effective: January 7, 2008

Currentness

(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the

ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was

without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is

otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the

sentence.

(b) Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the

court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the

issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was

rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack,

or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment

vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence

him or grant a new trial or correct the sentence as may appear appropriate.

(d) An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on

application for a writ of habeas corpus.

(e) An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant

to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court

which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate

or ineffective to test the legality of his detention.

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-(1) the date on which the judgment of conviction becomes final;

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(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution

or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly

recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of

due diligence.

(g) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any

subsequent proceedings on review, the court may appoint counsel, except as provided by a rule promulgated by the Supreme

Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title

18.

(h) A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of

appeals to contain-(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; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable.

CREDIT(S)

(June 25, 1948, c. 646, 62 Stat. 967; May 24, 1949, c. 139, § 114, 63 Stat. 105; Pub.L. 104-132, Title I, § 105, Apr. 24,

1996, 110 Stat. 1220; Pub.L. 110-177, Title V, § 511, Jan. 7, 2008, 121 Stat. 2545.)

Notes of Decisions (5866)

28 U.S.C.A. § 2255, 28 USCA § 2255

Current through P.L. 118-107. Some statute sections may be more current, see credits for details.

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