2244(b)(1) Limitations Don’t Apply to Successive 2255 Petitions

In re: Graham: In 2015 Graham was convicted of, among other things, possession of a firearm in connection with a crime of violence, an attempted Hobbs Act Robbery. In the wake of the Supreme Court’s opinion in Johnson, Graham has tried numerous ways to get relief under 28 U.S.C. 2255, arguing that attempted Hobbs Act robbery is no longer a crime of violence. In 2020, he filed a petition seeking permission from the Fourth Circuit to file a second or successive 2255 motion, which was held in abeyance while the court and Supreme Court concluded (in other cases) that attempted Hobbs Act robbery was not a crime of violence.

Ultimately, the Government agreed with Graham that he was entitled to file a second or successive petition, particularly because 28 U.S.C. 2244(b)(1) did not bar him from seeking relief. That provision requires dismissal of any “claim presented in a second or successive . . . application under section 2254 that was presented in a prior application.” Circuit courts are split as to whether that limitation only applies to state prisoners seeking relief under 2254 or also applies to federal prisoners proceeding under 2255. The court sided with the minority of circuits that have held that the restriction is limited to 2254 proceedings. Thus it did not matter that Graham had tried to raise this same issue in prior 2255 proceedings. The court also agreed with the parties that Graham met the standard for being able to file  second or successive petition.

Congrats to the Defender office in Maryland on the win!