Petition for Writ of Certiorari — Damar D. Ruffin, Petitioner v. United States

No. 25-_____

IN THE

SUPREME COURT OF THE UNITED STATES

_________________________

DAMAR D. RUFFIN

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

___________________________

On Petition for Writ of Certiorari

to the U.S. Court of Appeals

for the Sixth Circuit

___________________________

PETITION FOR WRIT OF CERTIORARI

___________________________

30 June 2025

Jeffrey M. Brandt, Esq.

ROBINSON & BRANDT, P.S.C.

629 Main Street

Suite B

Covington, KY 41011

(859) 581-7777 voice

jmbrandt@robinsonbrandt.com

Counsel of Record for Petitioner

QUESTIONS PRESENTED FOR REVIEW

Petitioner was sentenced to serve a mandatory term of life in prison because the law of

the time required a mandatory life sentence when defendants had two or more felony drug

offense convictions. 21 U.S.C. § 841(b)(1)(A); 21 U.S.C. § 851. Within a month of obtaining the

orders expunging prior state convictions—orders that meant that if Petitioner were sentenced

today, he would no longer be subject to a mandatory life sentence and would face a mandatory as

low as 15 years—Petitioner filed a second-in-time § 2255 motion in the district court seeking a

reduction in sentence as a result of the orders of expungement. He acknowledged that he had

filed and lost a first § 2255 motion but cited this Court’s case law establishing that a second or

successive actions based on new facts should be heard in the district court. See Panetti v.

Quarterman, 551 U.S. 930, 943 (2007). The district court transferred the case to the Sixth Circuit

as a § 2244 application. Petitioner appealed that order.

Two separate actions proceeded in the circuit court. The applicable standards for those

separate actions were vastly different. For the second or successive application, Petitioner needed

to make a showing including that “no reasonable factfinder would have found the movant guilty

of the offense.” 28 U.S.C. § 2255(h)(1). For the separate matter, Petitioner needed to show that,

under this Court’s case law, he had filed an action that was properly brought in the district court

and did not require pre-certification from the circuit court. The Sixth Circuit dismissed the

second matter, noting that the circuit had held that transfer orders were not appealable and that it

would address the appropriateness of transfer orders as a part of the second or successive

application proceeding. See Howard v. United States, 533 F.3d 472, 474 (6th Cir. 2008).

The Court has held that 28 U.S.C. § 2244(b)(3)(E)’s limitation on petitioning the Court

for writ to certiorari did not apply to the district court’s finding that a filing was a second § 2255

rather than a first. Castro v. United States, 540 U.S. 375, 380-81 (2003). But case law is unclear

on whether a related or similar questions, such as whether the district court erred in transferring

the case on a finding that the law did not allow a second § 2255 motion requesting a reduction of

sentence following an expungement order that could not have been entered any earlier.

The question presented is whether a circuit court errs in finding that a transfer order is not

appealable, dismisses a petitioner’s appeal of the district court’s decision that the petitioner’s

filing was not a legitimate second-in-time § 2255 motion based on new facts, and fold the issue

of the appropriateness of the transfer order into the § 2244 application proceeding. The circuit

court may wait beyond the 90 days to petition this Court for review of the dismissal of the appeal

of the transfer order, deny the § 2244 application and affirm the district court’s transfer. If 28

U.S.C. § 2244(b)(3)(E) applies, the Court is precluded from hearing Petitioner’s appeal of the

district court’s transfer order. Petitioner notes that the Court has accepted review of a similar

question whether “28 U.S.C. § 2244(b)(3)(E) deprives this Court of certiorari jurisdiction over

the grant or denial of an authorization by a court of appeals to file a second or successive motion

to vacate under 28 U.S.C. § 2255.” Bowe v. United States, No. 24-5438.

i

TABLE OF CONTENTS

Question Presented for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv

Petition for Writ of Certiorari. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Opinion Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement on the Basis for Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Relevant Statutory Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Reasons for Granting the Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I.

The Court Should Grant Certiorari to Address and Resolve whether a Circuit Court

Errs by, as a Matter of Policy, Dismissing Appeals of a District Court’s Decision to

Transfer a Second or Successive § 2255 Motion and Addressing the Appropriateness

of that Classification in the § 2244 Application Proceeding, as Case Law does not

Yet Clearly Provide that this Court Can be Petitioned to Review Denial of that

Application under 28 U.S.C. § 2244(b)(3)(E).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Appendix Contents

Appendix A: Damar D. Ruffin v. United States, No. 25-3026 (6th Cir., Mar. 31, 2025)

(order dismissing appeal).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pet.1a

Appendix B: Damar D. Ruffin v. United States, No. 25-3026 (6th Cir., Mar. 31, 2025)

(judgment order). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pet.3a

Appendix C: Damar D. Ruffin v. United States, No. 25-3026 (6th Cir., Apr. 22, 2025)

(order denying timely-filed motion for reconsideration). . . . . . . . . . . . . . . . . Pet.4a

Appendix D: United States v. Damar D. Ruffin, No.1:06-cr-00362 (N.D. Ohio, Dec. 9, 2024)

(memorandum opinion and order transferring motion). . . . . . . . . . . . . . . . . . Pet.5a

ii

TABLE OF AUTHORITIES

Case Law:

Banister v. Davis, 509 U.S. 504 (2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Bowe v. United States, No. 24-5438 (11th Cir. 2024).. . . . . . . . . . . . . . . . . . . . . . . . . . . i, 4, 16, 17

Castro v. United States, 540 U.S. 375 (2003). . . . . . . . . . . . . . . . . . . . . . . . . i, 3, 6, 12, 13, 15, 16

Custis v. United States, 511 U.S. 485 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 8

Daniels v. United States, 532 U.S. 374 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 8

Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11

Howard v. United States, 533 F.3d 472 (6th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 6, 13

In re Embry, 831 F.3d 377 (6th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14

In re Jones, 652 F.3d 603 (6th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

In re Jones, 54 F.4th 947 (6th Cir. 2022). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

In re Lott, 366 F.3d 431 (6th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

In re McDonald, 514 F.3d 539 (6th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Johnson v. United States, 544 U.S. 295 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 7, 10

Johnson v. Wynder, 408 Fed. Appx. 616 (3d Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Leal Garcia v. Quarterman, 573 F.3d 214 (5th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Lemon v. Druffel, 253 F.2d 680 (6th Cir. 1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Magwood v. Petterson, 561 U.S. 320 (2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Miller v. Toyota Motor Corp., 554 F.3d 653 (6th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

iii

Panetti v. Quarterman, 551 U.S. 930 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . i, 1, 5, 8, 9, 10, 11

Potter v. United States, 887 F.3d 785 (6th Cir. 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Stewart v. Martinez-Villareal, 523 U.S. 637 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Stewart v. United States, 646 F.3d 856 (11th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Buenrostro, 638 F.3d 720 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Lopez, 577 F.3d 1053 (9th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Orozco-Ramirez, 211 F.3d 862 (5th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . 10

Other Authorities:

21 U.S.C. § 841(b)(1)(A).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 4

21 U.S.C. § 851. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 4

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 2244. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

28 U.S.C. § 2244(b)(3)(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

28 U.S.C. § 2244(b)(3)(E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

28 U.S.C. § 2255. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

28 U.S.C. § 2255(f)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

28 U.S.C. § 2255(h)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 3, 5, 8, 11

Anti-terrorism and Effective Death Penalty Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-11, 14

Sup. Ct. R. 13.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Sup. Ct. R. 13.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Sup. Ct. R. 29.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

iv

PETITION FOR WRIT OF CERTIORARI

Petitioner Damar D. Ruffin respectfully petitions the Court for a writ of certiorari to

review the judgment of the U.S. Court of Appeals for the Sixth Circuit dismissing his appeal of a

district court order transferring his case on a ruling that orders for transfer are non-appealable.

OPINION BELOW

The opinion of the U.S. Court of Appeals for the Sixth Circuit, dismissing Petitioner’s

appeal of the district court’s ruling that Petitioner’s second-in-time § 2255 motion was a filing

requiring circuit preauthorization, is unpublished. Damar D. Ruffin v. United States, No. 25-3026

(6th Cir., Mar. 31, 2025). Petitioner’s Appendix (“Pet.”) 1a. The Sixth Circuit’s opinion denying

Petitioner’s timely petition for rehearing is also unpublished. Damar D. Ruffin v. United States,

No. 25-3026 (6th Cir. April 22, 2025). Pet. 4a.

STATEMENT OF THE BASIS FOR JURISDICTION

Jurisdiction is contested and is the subject of this petition. Petitioner asserts that the

district court had jurisdiction over his chronologically second § 2255 motion. While Petitioner

had filed and lost an earlier § 2255 motion, his second-in-time § 2255 motion sought a reduction

of sentence under the Court’s case law. See Johnson v. United States, 544 U.S. 295, 303 (2005),

Daniels v. United States, 532 U.S. 374, 382 (2001); Custis v. United States, 511 U.S. 485 (1994).

Petitioner was diligent in seeking the orders of expungement, he filed the second § 2255 motion

within a month of obtaining the orders, and the orders were “facts” that could not have been

presented in his earlier § 2255 motion. See Panetti v. Quarterman, 551 U.S. 930, 943 (2007).

The district court ordered transfer of the filing to the Sixth Circuit, leading to an original action

in the court of appeals. Pet. 5a. That matter remains pending as of the date of this filing.

1

Separate from the transferred matter, Petitioner filed a timely notice of appeal, seeking to

appeal the district court’s finding that the § 2255 motion was not a second-in-time § 2255 motion

properly brought in the district court. The Sixth Circuit dismissed that appeal, citing its holding

that transfer orders cannot be appealed and that the circuit court addresses the appropriateness of

the transfer order as a part of the § 2244 application proceeding. Pet. 1a. Petitioner moved for

reconsideration, noting that this holding meant that if the Sixth Circuit denied the § 2244

application and affirmed the district court, uncertainty on the limitations of 28 U.S.C. §

2244(b)(3)(E) could prevent Petitioner from seeking this Court’s review of the district court’s

decision to transfer to the Sixth Circuit. The Sixth Circuit denied the motion for reconsideration.

Pet. 4a.

This Court has jurisdiction under 28 U.S.C. § 1254(1), as Petitioner is filing this petition

within 90 days of the Sixth Circuit’s ruling denying the timely-filed motion for reconsideration.

See Sup. Ct. R. 13.1, 13.3., 29.2.

RELEVANT STATUTORY PROVISIONS

The grant or denial of an authorization by a court of appeals to file a second or

successive application shall not be appealable and shall not be the subject of a

petition for rehearing or for a writ of certiorari.

28 U.S.C. § 2244(b)(3)(E).

A 1-year period of limitation shall apply to a motion under this section [28 U.S.C.

§ 2255]. The limitation period shall run from the latest of—

****

(4)

the date on which the facts supporting the claim or claims presented could have

been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f)(4).

2

A second or successive motion must be certified as provided in section 2244 by a

panel of the appropriate court of appeals to contain—

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; * * *.

28 U.S.C. § 2255(h)(1).

STATEMENT OF THE CASE

This case presents a question that, when addressed and resolved, determines whether this

Court will be able to review conclusions of lower courts that conflict with the Court’s precedent

concerning when a second or successive action is directly filed in the district court without preauthorization from the circuit court.

Petitioner sought to appeal the district court’s ruling that this Court’s precedent did not

allow a second § 2255 motion to be filed in the district court requesting a reduction of sentence

following an expungement order that could not have been entered any earlier. The Sixth Circuit

dismissal has, for the moment, prevented that question from being heard on appeal.

The Court has held that 28 U.S.C. § 2244(b)(3)(E)’s limitation on petitioning the Court

for writ to certiorari did not apply to the district court’s finding that a filing was a second § 2255

motion rather than a first § 2255 motion. Castro v. United States, 540 U.S. 375, 380-81 (2003).

The Court has not expanded that holding in the interim, and the case law is unclear on whether

the related, similar question presented here would be likewise excluded from § 2244(b)(3)(E)’s

limitations on appeals to this Court. If the Sixth Circuit waits more than 90 days after dismissing

Petitioner’s attempted appeal of the transfer order before ruling on Petitioner’s pending § 2244

application, if the Sixth Circuit denies that application and affirms the district court’s transfer

3

order, and if Petitioner’s argument is not exempted from § 2244(b)(3)(E), the Court would be

prevented from hearing his argument, and he would be beyond the 90 days to seek review of the

question presented here.1

1. The district court sentenced Petitioner to serve a mandatory term of life in prison

because the law of the time required a mandatory life sentence when defendants had two or more

felony drug offense convictions. 28 U.S.C. § 841(b)(1)(A); 28 U.S.C. § 851.

2. Petitioner’s first § 2255 motion only raised sentencing issues. These included whether

the drug quantity finding supported the mandatory life sentence and whether his offense of

conviction (conspiracy) allowed a finding that he was a career offender.

3. Recognizing that his life sentence was the result of prior convictions, Petitioner

diligently sought orders of expungement in the state courts. The state courts eventually ordered

expungement. As a result of the orders, if sentenced today, Petitioner would not be subject to a

mandatory life sentence. Under new law, the mandatory minimum sentence would be 15 years at

most.

4. Within a month of receiving the orders of expungement that meant he would no longer

subject to a mandatory life sentence if re-sentenced, Petitioner filed a second-in-time § 2255

motion seeking a reduction of sentence. The request for reduction of sentence through § 2255

1

The Court accepted review of a related question of whether “28 U.S.C. § 2244(b)(3)(E)

deprives this Court of certiorari jurisdiction over the grant or denial of an authorization by a court

of appeals to file a second or successive motion to vacate under 28 U.S.C. § 2255.” See Bowe v.

United States, No. 24-5438 (granted from Eleventh Circuit order dated Jun. 27, 2024). Petitioner

recognizes that, if the Court rules in Bowe that § 2244(b)(3)(E) does not apply to § 2255

proceedings, it would appear that he would not be prejudiced by the Sixth Circuit dismissal at

issue here. For these reasons, in the event that the Court is not included to grant certiorari on the

question presented here, Petitioner would ask the Court in the alternative to stay this matter until

the ruling in Bowe.

4

and following the orders of expungement was supported by this Court’s decisions including

Johnson v. United States, 544 U.S. 295, 303 (2005), Daniels v. United States, 532 U.S. 374, 382

(2001); Custis v. United States, 511 U.S. 485 (1994). The assertion that he was properly filing in

the district court was supported by Panetti v. Quarterman, 551 U.S. 930 (2007). Although

Panetti addressed a chronologically second § 2254 petition, rather than § 2255 motion to vacate,

the Court made clear that “second of successive” is not self-defining and when claims cannot be

raised in an earlier filing, the chronologically second filing can be filed in the district court

outside of the § 2244 application requirements. Id. at 943.

5. The district court ruled that Panetti was distinguishable and immaterial, that there were

no new facts justifying avoiding § 2255(h) and seeking authorization from the Sixth Circuit, and

ordered transfer. Pet. 5a. The transfer resulted in an original action in the Sixth Circuit. It remains

pending and is not a subject of this petition.

6. Petitioner filed a motion for reconsideration in the district court. When the district

court denied it, Petitioner appealed from that order to make clear on the record that he intended

to appeal to the Sixth Circuit—and litigate separately from the § 2255(h)(1) standard that

required making a prima facie showing of newly discovered evidence that no reasonable

factfinder would have found him guilty—whether the district court had erred in ruling that circuit

preauthorization was necessary.

7. In the separate appeal, Petitioner pointed out the reasons for treating the appeal of the

district court’s ruling separate from the transferred matter. This included that if the Sixth Circuit

folded all legal issues together in the § 2244 application proceeding, and if it denied Petitioner’s

§ 2244 application, the district court and Sixth Circuit could escape the potential for accepting

5

review of those decisions. He noted that § 2244(b)(3)(E) could prevent him from appealing the

district court’s error in finding that the second-in-time § 2255 motion needed to be presented to

the Sixth Circuit first.

8. The Sixth Circuit dismissed Petitioner’s separate appeal. Pet. 1a. It cited its holding

that transfer orders are not appealable. See Howard v. United States, 533 F.3d 472, 474 (6th Cir.

2008). It reported that it would address the question of the appropriateness of the district court’s

decision that Petitioner could not file a second-in-time § 2255 motion in the district court in the

second or successive authorization proceeding.

9. The Sixth Circuit has not ruled on the § 2244 application. While the statute calls for

circuit courts to rule on § 2244 applications within 30 days, the Sixth Circuit does not follow that

requirement. See In re McDonald, 514 F.3d 539, 543 (6th Cir. 2008). It is possible, if not

exceedingly likely, that the Sixth Circuit will rule on that matter well beyond the 90 days

Petitioner has presented this petition, asking the Court to accept review of the Sixth Circuit’s

dismissal under its holding in Howard.

10. If the Sixth Circuit denies Petitioner’s § 2244 application and affirms the district

court’s transfer order, if the question Petitioner wishes to bring is not exempted from the

limitations of § 2244(b)(3)(E) like the question presented in Castro, and if the Court does not

rule that § 2244(b)(3)(E) is inapplicable to § 2255 cases (or a favorable ruling comes too late for

Petitioner to take advantage of it), the Court will not have the opportunity to accept the question

Petitioner brings.

Petitioner remains in the custody of the U.S. Bureau of Prisons at USP Hazelton in

Bruceton Mills, West Virginia under an order to serve his entire life in prison.

6

REASONS FOR GRANTING THE PETITION FOR WRIT

This case presents an important question that could determine whether the Court has the

ability to review lower court rulings that conflict with the Court’s precedent concerning what

qualifies as “second or successive” under the Anti-terrorism and Effective Death Penalty Act

(“AEDPA”).

I.

The Court Should Grant Certiorari to Address and Resolve whether a Circuit

Court Errs by, as a Matter of Policy, Dismissing Appeals of a District Court’s

Decision to Transfer a Second or Successive § 2255 Motion and Addressing the

Appropriateness of that Classification in the § 2244 Application Proceeding, as

Case Law does not Yet Clearly Provide that this Court Can be Petitioned to

Review Denial of that Application under 28 U.S.C. § 2244(b)(3)(E).

A.

The Court’s Precedent Allows § 2255 Motions Seeking a Reduction of

Sentence after Orders Vacating, Reversing or Expunging Prior Convictions.

The Court has held that a person incarcerated as a result of a federal conviction may seek

a reduction of sentence, through 28 U.S.C. § 2255, following a state court order vacating,

expunging or reversing a conviction. Johnson v. United States, 544 U.S. 295, 302, 125 S. Ct.

1571, 1577 (2005). In Johnson, the government had argued that the facts supporting that

petitioner’s claim were those on which he challenged the validity of his state convictions, so they

did not fit into the § 2255(f)(4) rubric. Id. at 305-06. The Court disagreed, explaining that though

the “circumstances rendering the underlying predicate conviction invalid are ultimate subjects of

fact supporting the § 2255 claim,” a petitioner cannot obtain relief under § 2255 before the state

vacatur. Id. at 305, 125 S. Ct. at 1578-79.

The Johnson Court held that a state court order vacating, expunging or reversing a

conviction is a new “fact” that forms the basis of the challenge under § 2255 and triggers a fresh

one-year statute of limitations under § 2255(f) so long as the petitioner exercised due diligence in

7

seeking that order. Id. at 305-07. Only after an underlying conviction is successfully challenged

may a defendant seek relief in federal courts. See Daniels v. United States, 532 U.S. 374, 382,

121 S. Ct. 1578 (2001); Custis v. United States, 511 U.S. 485, 114 S. Ct. 1732 (1994).

B.

In Some Circumstances, Circuit Preauthorization is Required to Proceed

with a Second or Successive Petition or Motion; but “Second or Successive”

is Not Self-defining, and the Court has Found that Some Second or

Successive § 2254 Petitions do not Require Circuit Preauthorization.

Persons incarcerated as a result of a federal conviction who have already lost a first

motion under 28 U.S.C. § 2255 can apply to the circuit court for leave to file a “second or

successive” § 2255 motion. 28 U.S.C. § 2255(h). AEDPA’s restrictions on second or successive

motions are meant to forestall abuse of the writ of habeas corpus, see Felker v. Turpin, 518 U.S.

651, 664, 116 S. Ct. 2333, 2340 (1996), by, for instance, barring successive motions raising

habeas claims that could have been raised in earlier motions where there was no legitimate

excuse for failure to do so. See McCleskey v. Zant, 499 U.S. 467, 493-95, 111 S. Ct. 1454,

1469-71 (1991). But the Court has noted that “[t]he phrase ‘second or successive’ is not selfdefining.” Panetti v. Quarterman, 551 U.S. 930, 943 (2007). “The phrase ‘second or successive,’

the Court has held, is a ‘term of art’ that draws meaning from the history of federal habeas corpus

and the objectives of AEDPA.” Banister v. Davis, 509 U.S. 504, 511-12 (2020). The Court has

“often made clear that it does not ‘simply “refer”’ to all habeas filings made ‘second or

successively in time,’ following an initial application.” Magwood v. Petterson, 561 U.S. 320, 332

(2010) (quoting Panetti, 551 U.S. at 944).

8

In Panetti, the petitioner raised a Ford incompetency claim was filed as soon as that

claim was ripe.2 The state argued that the claim was barred because it had not been foreseen,

raised and preserved in the petitioner’s first § 2255. Id. at 943. The Court rejected that argument,

explaining that if this interpretation of “second or successive correct,” “‘the implications for

habeas practice would be far reaching and seemingly perverse.’” Id. at 943 (quoting Stewart v.

Martinez-Villareal, 523 U.S. 637, 644 (1998)). “A prisoner would be faced with two options:

forgo the opportunity to raise a Ford claim in federal court; or raise the claim in a first federal

habeas application (which generally must be filed within one year of the relevant state-court

ruling), even though it is premature.” Id.

The Panetti Court determined “that Congress did not intend the provisions of AEDPA

addressing “second or successive’ petitions to govern a filing in the unusual posture presented

here: a § 2254 application raising a Ford-based incompetency claim filed as soon as that claim is

ripe.” Id. at 945. The Court ultimately determined that the petitioner’s Ford claim was not

“second or successive,” thereby refusing to construe AEDPA “in a manner that would require

unripe (and, often, factually unsupported) claims to be raised as a mere formality, to the benefit

of no party.” Id. at 947.

In this case, like in Panetti, the phrase “second or successive” must not be interpreted “in

a manner that would require unripe (and, often, factually unsupported) claims to be raised as a

mere formality, to the benefit of no party.” Panetti, 551 U.S. at 947. The Ford claim in Panetti is

analogous to Petitioner’s expungement orders. The Ford claim in Panetti could not have been

2

See Ford v. Wainwright, 477 U.S. 399, 409-410, 106 S. Ct. 2595 (1986) (“[T]he Eighth

Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is

insane.”).

9

raised in that petitioner’s first § 2254 petition. Similarly, Petitioner could not have raised his

Johnson-based request for a reduction in sentence in his first § 2255 motion because his state

orders of expungement did not exist at that time (and could not have existed under Ohio law).

C.

The Reasoning Applied to Second § 2254 Applies to Second § 2255 Motions.

The logic the Court has applied to facts giving rise to second § 2254 applies with equal

force to § 2255 motions to allow petitioners to seek relief directly from the district courts even

though the filing is a second or subsequent motion. This is precisely how circuits have

interpreted Panetti and Stewart.

In Leal Garcia v. Quarterman, 573 F.3d 214 (5th Cir. 2009), the Fifth Circuit addressed

the balance of precluding re-litigation of issues and the importance of permitting petitioners to

raise previously unavailable claims. The Leal Garcia court concluded that a subsequent § 2254

petition that was based upon a defendant that did not arise until after the proceedings on the

previous petition were completed was not successive. Id. at 224. If “the purported defect did not

arise, or the claim did not ripen, until after the conclusion of the previous petition, the later

petition of that defect may be non-successive.” Id. at 222. The basis for the claim in Leal Garcia

was a state court decision refusing to conduct a review of a conviction and did not occur until

well after proceedings on his first § 2254 petition were concluded. Id. at 224. Thus, the secondin-time petition was not “second or successive” under AEDPA. Id.

In United States v. Orozco-Ramirez, 211 F.3d 862, 869 (5th Cir. 2000), the Fifth Circuit

applied this approach in the context of a § 2255 motion. The circuit court held that a defendant’s

claim of ineffective assistance of counsel during his out-of-time appeal “could not have been

raised in [his] prior proceeding and, thus, is not ‘second or successive.’” Id. at 869, 871.

10

The Eleventh Circuit has noted that “[t]he posture in Panetti was ‘unusual,’ but it was not

unique.” Stewart v. United States, 646 F.3d 856, 852 (11th Cir. 2011) (emphasis sic). “[W]hen a

claim could not have been been raised in a prior habeas petition, courts have interpreted Panetti

to permit that claim to be raised in a subsequent petition.” Id. (citing United States v. Buenrostro,

638 F.3d 720, 725 (9th Cir. 2011) (per curiam) (“Panetti do[es] not apply only to Ford claims.

Prisoners may file second-in-time petitions based on events that do not occur until a first petition

is concluded.”); Johnson v. Wynder, 408 Fed. Appx. 616, 619 (3d Cir. 2010) (“We see no reason

to avoid applying Panetti in the context of other types of claims that ripen only after an initial

federal habeas petition has been filed.”); United States v. Lopez, 577 F.3d 1053, 1064 (9th Cir.

2009) (“The considerations the [Supreme] Court identified in support of its holding are not

specifically limited to Ford claims, and therefore must be considered in deciding whether other

types of claims that do not survive a literal reading of AEDPA’s gatekeeping requirements may

nonetheless be addressed on the merits.”(citation omitted)).

The Sixth Circuit, too, has ruled in line with these circuits following Panetti to apply the

logic to second-in-time § 2255 motions, even though it failed to do so in this case. “One might

think that ‘second or successive’ means what it says—that federal prisoners get ‘one shot’ to

attack a judgment that confines them.” In re Jones, 54 F.4th 947, 949 (6th Cir. 2022) (quoting

Potter v. United States, 887 F.3d 785, 787 (6th Cir. 2018)). “But the Supreme Court has

instructed us otherwise.” Id. “As a result, some second-try § 2255 motions are not ‘second or

successive’ within the meaning of § 2255(h).” Id.

In Jones, for example, the petitioner had filed a “second or successive” § 2255 motion in

the Sixth Circuit under the procedures of § 2244, asking the circuit court to authorize the district

11

court to consider his claim. Jones, 54 F.4th at 949. This was filed after California dismissed and

vacated the petitioner’s prior conviction for a narcotics offense. Id. The Sixth Circuit ruled that

he had not filed a second or successive § 2255 motion, that he did not need authority to file a

second-in-time § 2255 motion, because “the events giving rise” to his claim came about when

California dismissed and vacated the prior California conviction. Id. “In 2016, when [the

petitioner] filed his first § 2255 motion, those events ‘had not yet occurred.’” Id. (quoting In re

Jones, 652 F.3d 603, 605 (6th Cir. 2010)). Accordingly, the Sixth Circuit dismissed the

application for leave “as unnecessary” and transferred the matter to the district court. Id. at 950.

D.

Title 28 U.S.C. § 2244(b)(3)(E) has been Interpreted to Apply to § 2255

Motions and, thus, to Preclude Petitions for Writ of Certiorari from Denied

Applications to File Second or Successive § 2255 Motions.

The “grant or denial of an authorization by a court of appeals to file a second or

successive application * * * shall not be the subject of a petition for * * * a writ of certiorari.” 28

U.S.C. § 2244(b)(3)(E). The Sixth Circuit has held that “[a] denial of a motion to authorize a

successive petition is unreviewable—not by the en banc court, not by the Supreme Court.” In re

Embry, 831 F.3d 377, 382 (6th Cir. 2016). Embry involved a request to file a second or successive

§ 2255 motion.

This Court has held that § 2244(b)(3)(E) does not bar a petition of writ of certiorari that

seek review of a district court’s decision that a certain filing qualified as a second § 2255 motion,

rather than a first, when the incarcerated person had not labeled an earlier filing as a § 2255

motion. Castro v. United States, 540 U.S. 375, 379-80 (2003). The Castro Court held that it had

the power to review the question of whether the lower court had erred in refusing “to recognize

12

that this § 2255 motion is his first, not his second,” which was “a very different question.” Id. at

380.

The Court may at sometime in the future view Petitioner’s request for writ of certiorari as

functionally equivalent to the petition in Castro. Petitioner would be asking the Court to find that

he was seeking to appeal the district court’s order transferring the case rather than the Sixth

Circuit’s decision to deny authorization to proceed in the district court with a chronologicallysecond § 2255 motion. But because the case law does not currently and clearly provide that this

question would necessarily fall outside the limitations of § 2244(b)(3)(E), petitioner seeks

certiorari of the question of whether the circuit court errs in dismissing transfer orders as a matter

of policy.3

E.

The Sixth Circuit Dismisses Appeals of District Court Transfer Orders and

Requires Applicants to Brief those Errors in the Second and Successive

Application Proceedings.

The Sixth Circuit has determined, without a statutory basis, that a district court order

transferring a second or successive is not appealable. “Our court’s practice in the case of secondor-successive transfer orders to this court is to treat the transfer order as non-appealable, and to

consider in the transferred case whether such a transfer was necessary or appropriate.” Howard v.

United States, 533 F.3d 472, 474 (6th Cir. 2008). See Miller v. Toyota Motor Corp., 554 F.3d

653, 655 (6th Cir. 2009). Neither Howard nor Miller provide any statutory authority supporting

3

Petitioner does not in this petition present the question of whether the district court erred

in transferring the case to the Sixth Circuit because that issue is not yet ripe. The Sixth Circuit

dismissed that appeal and reported that it would address that question in the § 2244 proceeding,

which remains pending. Likewise, Petitioner does not in this petition present the question of

whether the Court’s holding in Castro extends to show that the district court’s ruling in this case

is outside the limitations of § 2244(b)(3)(E) because, again, the Sixth Circuit has stated that it

will answer the question of whether the district court erred in the pending § 2244 proceeding.

13

the ruling that the transfer order is not appealable. The ruling appears premised on the idea that a

transfer of a second or successive § 2255 motion is interlocutory, as the lineage of cases can be

traced back to Lemon v. Druffel, 253 F.2d 680 (6th Cir. 1958), a case predating AEDPA and

holding that an order that grants or denies a transfer is interlocutory and not appealable. Id. at

683.

A judicial efficiency may exist as a result of this court-invented rule that orders

transferring jurisdiction are not appealable.4 But regardless of any judicial efficiency, the end

result is that can prevent the Court from ever being in a position to decide whether it wishes to

review a district court decision that the petitioner did not file a legitimate second-in-time § 2255

that should not be subject to circuit preauthorization. The policy means that, if the Sixth Circuit

denies Petitioner’s application and affirms the district court, under current interpretation of §

2244(b)(3)(E), Petitioner could not appeal, and this Court would not have a chance to determine

whether to accept review of whether the district court erred.

//

4

Any judicial efficiency would come from the fact that the circuit court would have one

matter pending, under one case number, rather than two. Combining the unrelated legal issues

may not create efficiency, however. The application for leave to file a second or successive

petition was designed to be a quick, rather ministerial action, resolving whether a prima facie

showing had been made, a standard that was not meant to be difficult to meet. Congress “asked

the courts to make these decisions [in response to § 2244 applications] quickly, ideally within 30

days of a motion’s filing and often with little if any briefing.” In re Embry, 831 F.3d 377, 382 (6th

Cir. 2016). The quick turnaround makes sense for the question of whether to authorize the

second or successive petition. After all, the applicant “needs only to make a ‘prima facie

showing’ that his claim relies on a new rule of constitutional law made retroactive to cases on

collateral review by the Supreme Court.” Id. at 381-82 (citing 28 U.S.C. § 2244(b)(3)(C)). “That

is ‘not a difficult standard to meet.’” Id. (quoting In re Lott, 366 F.3d 431, 432 (6th Cir. 2004)).

But one would be reasonable in questioning if Congress intended for circuit courts to review the

appropriateness of the transfer in a mere 30 days.

14

F.

Unless and Until the Court Expressly Extends Castro to Circumstances

Presented Here or the Court Finds that § 2244(b)(3)(E) does not Apply

to Court of Appeals Rulings to File a Second or Successive Motion to

Vacate under 28 U.S.C. § 2255, the Sixth Circuit’s Judicially-created

Rule that Transfer Orders Are Not Appealable will Prevent the Court

from the Opportunity to Review and Correct Lower Court Errors as

to what Qualifies as Second or Successive.

In Castro, the Court held that a petition for writ of certiorari seeking review of a district

court’s decision on whether a § 2255 motion was a first or second motion was outside the

limitations of § 2244(b)(3)(E). Castro, 540 U.S. at 581. In the decision, the Castro Court noted

that the limitation did not apply because the petitioner in that case “asked the court to reverse the

District Court’s dismissal of [his § 2255] motion.” Id. at 380. “He nowhere asked the Court of

Appeals to grant, and it nowhere denied, any ‘authorization * * * to file a second or successive

application.’” Id.

A defendant might be tempted to assume that this holding means that any petition for writ

of certiorari that does not make the “subject” of the petition the “denial of an authorization” to

file a second or successive motion or petition would not be limited by § 2244(b)(3)(E). While

that reasoning is present in Castro, that is not what the Court held in Castro. The language of the

decision appears to limit it to the question presented regarding a district court’s determination of

whether the filing was a first or second § 2255 motion—“whether Castro's § 2255 motion was

his first such motion or his second.” Id. at 380. “After receiving the parties’ responses, we

conclude that [§ 2244(b)(3)(E)] does not bar our review here.” Id. at 379 (emphasis added).

In Castro, the procedural lines were clearer. The district court certified the question of

whether the petitioner’s filing was a first or second § 2255, and the Eleventh Circuit allowed the

petitioner in that case to appeal without forcing that question to be shoe-horned into a § 2244

15

application proceeding. See id. at 379-80. When the Eleventh Circuit affirmed, it was not making

a ruling on a § 2244 application, and the petition was not filed within 90 days of a ruling on a §

2244 application.

That same series of events could not happen in the Sixth Circuit. The district court’s

order deciding that the filing is something that requires transfer is a part of the order that transfers

the matter. The Sixth Circuit then dismisses appeals of the transfer orders as a matter of practice.

The only matter pending in the Sixth Circuit is the § 2244 application. In the event the Sixth

Circuit denies the application, the petition is filed with this Court in 90 days from that decision,

giving an impression that the petitioner is seeking to appeal the denial of the application.

At this time, despite what Petitioner hopes will be the eventual ruling of this Court that

his question of the appropriateness of the transfer order is not subject to § 2244(b)(3)(E), no case

law provides him a safe haven to assume this to be an accurate interpretation of Castro. Had the

Sixth Circuit allowed the matters to be separated, and had the Sixth Circuit ruled on the issue of

the transfer order and affirmed the district court, this petition would be making a different

argument. With the Sixth Circuit’s decision to combine the transfer order and the § 2244

application, without knowing how long the Sixth Circuit will take to rule on those issues, and

without knowing how the Court will rule on the question it certified in Bowe v. United States,

No. 24-5438, Petitioner’s only way to preserve his argument that the Sixth Circuit erred in

dismissing his appeal of the district court’s transfer order, is to file this petition and ask the Court

to grant certiorari.

16

CONCLUSION

Petitioner Damar D. Ruffin submits that his petition for writ of certiorari should be

granted for the compelling reasons noted above. He asks the Court to grant his petition and grant

full briefing in this important matter to address and resolve whether circuit courts err by

dismissing appeals of district court orders transferring second or successive § 2255 motion. In the

event the Court is not inclined to certify that question, he asks the Court to stay this matter

pending the Court’s decision in Bowe v. United States, No. 24-5438 (granted from Eleventh

Circuit order dated Jun. 27, 2024).

Respectfully submitted,

ROBINSON & BRANDT, P.S.C.

Dated: 30 June 2025

by:

/s/ Jeffrey M. Brandt

Jeffrey M. Brandt, Esq.

629 Main Street

Suite B

Covington, KY 41011

(859) 581-7777 voice

jmbrandt@robinsonbrandt.com

Counsel of Record for Petitioner

CERTIFICATE OF SERVICE

I certify that a true and accurate copy of the foregoing petition for writ of certiorari and

the following appendix were served by U.S. Priority Mail on the date I reported below upon the

Solicitor General’s Office, Room 5614, Department of Justice, 950 Pennsylvania Avenue, NW,

Washington, DC 20530-0001; and Assistant U.S. Attorney, Matthew B. Kall, Office of the U.S.

Attorney, 801 W. Superior Avenue, Suite 400, Cleveland, OH 44113.

Dated: 30 June 2025

/s/ Jeffrey M. Brandt

Jeffrey M. Brandt

17

APPENDIX

18