Court Grants Second 2255 Permission to Pursue Counterman Claim

In re: Rendelman: In 1986, Rendelman was serving a state sentence when he was raped in prison. Over the next 15 years he wrote numerous letters to various officials involved in his case or the judicial system, some of which resulted in a federal sentence (during which he was raped four more times). In 2005, Rendelman was arrested on an outstanding state warrant (based on an old letter), started writing letters again, and was charged with six counts of mailing threatening communications. Proceeding pro se, Rendelman wanted to argue that his letters were not true threat, but “protests.” The district court disagreed, applying an objective reasonable person standard for the relevant jury instructions. Rendelman was convicted and sentenced to 15 years in prison.

After the Supreme Court’s decision in Counterman, Rendelman sought permission from the Fourth Circuit to file a second or successive §2255 petition challenging his conviction, arguing that under Counterman the Government would be required to prove that he acted with intent or at least recklessly in making actual threats. The court agreed and granted permission, rejecting (again) the Government’s argument that Rendelman was required to show a chance of succeeding on the merits. All that was necessary, the court held, was for him to show a new rule of constitutional law that was made retroactive and was “previously unavailable” to the petitioner.