Willie Jones, Sr. v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WILLIE BYRON JONES, SR., No. 20-71862
Petitioner,

v. ORDER AND
OPINION
UNITED STATES OF AMERICA,
Respondent.

Application to File Second or Successive
Motion Under 28 U.S.C. § 2255

Argued and Submitted January 10, 2022
Pasadena, California

Filed June 9, 2022

Before: J. Clifford Wallace, Danny J. Boggs, * and
Michelle T. Friedland, Circuit Judges.

Order;
Opinion by Judge Boggs;
Dissent by Judge Wallace

*
The Honorable Danny J. Boggs, Senior Circuit Judge of the United
States Court of Appeals for the Sixth Circuit, sitting by designation.
2 JONES V. UNITED STATES

SUMMARY **

28 U.S.C. § 2255

The panel withdrew an opinion filed May 11, 2022, and
filed a superseding opinion denying federal prisoner Willie
Byron Jones, Sr.’s application for leave to file a second or
successive 28 U.S.C. § 2255 motion challenging his
conviction and sentence for use of a firearm during and in
relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A).

In his first § 2255 motion, which the district court denied,
Jones argued that his § 924(c)(1)(A) conviction and sentence
were invalid under United States v. Davis, 139 S. Ct. 2319
(2019). In the second or successive § 2255 motion he later
sought to file, he again raised a claim that his § 924(c)(1)
conviction and sentence are unlawful under Davis; and he
added a claim that under Borden v. United States, 141 S. Ct.
1817 (2021), his conviction for assault resulting in serious
bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and
1153, cannot serve as a predicate crime of violence for his
§ 924(c) conviction, because a violation of § 113(a)(6) can
be committed recklessly.

In the superseding opinion, the panel wrote that if Jones
were seeking relief from a state sentence pursuant to
28 U.S.C. § 2254, there could be a question whether
jurisdiction was lacking over the Davis claim because under
28 U.S.C. § 2244(b)(1), “[a] claim presented in a second or
successive habeas corpus application under section 2254 that
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 JONES V. UNITED STATES 3

was presented in a prior application shall be dismissed.” The
panel wrote, however, that whether § 2244(b)(1) is
jurisdictional or not, it presents no jurisdictional problem
here because Jones moves for relief from a federal sentence
pursuant to § 2255.

On a question not yet decided in this circuit, and as to
which other circuits are divided, the panel held that
§ 2244(b)(1) does not apply to second or successive § 2255
motions. In so holding, the panel explained that the plain
text of § 2244(b)(1) by its terms applies only to state
prisoners’ applications “under section 2254”—not federal
prisoners’ motions under § 2255; that statutory structure
further supports this reasoning; and that policy interests
under Antiterrorism and Effective Death Penalty Act do not
counsel in favor of applying § 2244(b)(1) to § 2255 motions.

The panel wrote that both of Jones’s claims must
therefore be analyzed instead under the gateway provisions
of § 2255(h). Because Jones did not rest his second or
successive motion on new evidence, 28 U.S.C. § 2255(h)(1),
the panel could authorize his motion only if it makes a prima
facie showing that the claims contain “a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable,” 28 U.S.C. § 2255(h)(2).

The panel held that Jones did not make the necessary
prima facie showing under § 2255(h)(2) with respect to his
Davis claim because that claim is not “previously
unavailable,” where Jones presented that claim to the district
court in his first § 2255 motion, and the district court—
though it erroneously characterized the predicate offense—
held on the merits that Jones was not entitled to relief, and
he did not appeal that decision.
4 JONES V. UNITED STATES

The panel held that Jones also failed to make a prima
facie showing under § 2255(h)(2) with respect to his Borden
claim. Borden held that the Armed Career Criminal Act’s
definition of “violent felony” in its elements clause,
18 U.S.C. § 924(e)(2)(B)(i), did not include offenses
committed recklessly. The ACCA’s elements clause is
nearly identical to the elements clause for a “crime of
violence” under 18 U.S.C. § 924(c)(2)(A). The government
conceded that an assault resulting in serious bodily injury
under § 113(a)(6) can be committed recklessly, and after
Borden cannot qualify as a predicate offense under
§ 924(c)(3)(A). The panel concluded, however, that Borden
does not provide a basis under § 2255(h)(2) for granting
Jones’s application for leave to file a second or successive
§ 2255 motion because, as a case of statutory interpretation,
Borden did not announce a new rule of constitutional law.

Dissenting, Judge Wallace disagreed with the majority’s
conclusion that § 2244(b)(1) does not apply to second or
successive motions by federal prisoners under § 2255. He
wrote that Ninth Circuit caselaw, the text and structure of
§ 2244 and § 2255, as well as the purpose of the
Antiterrorism and Effective Death Penalty Act and policy
concerns, all support applying § 2244(b)(1) to § 2255
motions. Moreover, the Sixth Circuit is the lone circuit that
has held § 2244(b)(1) does not apply to § 2255
motions. Instead of creating a further circuit split, he would
follow the approach adopted by the vast majority of all other
circuits that have decided the issue and join the Second,
Third, Fifth, Seventh, Eighth, and Eleventh Circuits in
holding that § 2244(b)(1) applies to § 2255 motions.
 JONES V. UNITED STATES 5

COUNSEL

Michael J. Bresnehan (argued), Law Offices of Michael J.
Bresnehan P.C., Tempe, Arizona, for Petitioner.

Karla Hotis Delord (argued), Assistant United States
Attorney; Krissa M. Lanham, Appellate Division Chief;
Glenn B. McCormick, Acting United States Attorney;
United States Attorney’s Office, Phoenix, Arizona; for
Respondent.

ORDER

The Opinion filed on May 11, 2022 is WITHDRAWN
and replaced with a superseding Opinion filed concurrently
with this Order.

IT IS SO ORDERED.

OPINION

BOGGS, Circuit Judge:

Willie Jones, Sr. pled guilty in 2013 to one count of
assault resulting in serious bodily injury, in violation of 18
U.S.C. §§ 113(a)(6) and 1153, as well as one count of use of
a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A). In June 2020, he
moved for postconviction relief under 28 U.S.C. § 2255,
arguing that his § 924(c)(1)(A) conviction and sentence were
invalid in light of United States v. Davis, 139 S. Ct. 2319
(2019). The district court denied the motion in August of that
year. Jones now applies to this court for leave to file a second
6 JONES V. UNITED STATES

or successive motion for postconviction relief under
28 U.S.C. § 2255. He again raises a claim that his
§ 924(c)(1)(A) conviction and sentence are unlawful under
Davis, and he adds a claim that under Borden v. United
States, 141 S. Ct. 1817 (2021), his § 113(a)(6) conviction
cannot serve as a predicate crime of violence for his
§ 924(c)(1)(A) conviction, because a violation of
§ 113(a)(6) can be committed recklessly.

In other words, Jones asks us to authorize a motion
containing a previously presented Davis-based claim and a
new Borden-based claim. If he were seeking relief from a
state sentence pursuant to 28 U.S.C. § 2254, there could be
a question whether jurisdiction was lacking over the Davis
claim, because “[a] claim presented in a second or successive
habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed.”
28 U.S.C. § 2244(b)(1). But, whether § 2244(b)(1) is
jurisdictional or not, it presents no jurisdictional problem
here because Jones moves for relief from a federal sentence
pursuant to § 2255.

Our sister circuits are divided on the matter whether the
bar in § 2244(b)(1) applies to second or successive § 2255
motions, and our court has not yet decided that question. We
now hold that § 2244(b)(1) does not apply to second or
successive § 2255 motions. Instead, both of Jones’s claims
must be analyzed under the gateway provisions of § 2255(h)
to determine whether they make prima facie showings that
they either contain newly discovered evidence satisfying
additional requirements, see 28 U.S.C. § 2255(h)(1), or “a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable,” id. § 2255(h)(2); see id. § 2244(b)(3)(C).
Jones fails to make this prima facie showing for either his
 JONES V. UNITED STATES 7

Davis claim or his Borden claim. We therefore deny his
application.

I. Factual and Procedural History

On January 12, 2013, Jones shot and wounded a police
officer on the Navajo Nation Indian Reservation who had
responded to a call that he was drunk and disorderly. A grand
jury indicted him on six counts under 18 U.S.C. § 113(a)(6),
which concerns “[a]ssault resulting in serious bodily injury”;
18 U.S.C. § 1153, which treats certain acts committed on
reservations as federal offenses; 18 U.S.C. § 924(c)(1)(A),
which punishes the use, carrying, or possession of a firearm
“during and in relation to any crime of violence or drug
trafficking crime”; and other felony-assault charges not at
issue here. The term “crime of violence” in § 924(c)(1)(A)
is defined in two ways. 18 U.S.C. § 924(c)(3). First, under
what is known as the elements clause, a felony qualifies as a
crime of violence if it “has as an element the use, attempted
use, or threatened use of physical force against the person or
property of another.” Id. § 924(c)(3)(A). Second, under the
so-called residual clause, a felony qualifies as a crime of
violence if it is an offense “that by its nature, involves a
substantial risk that physical force against the person or
property of another may be used in the course of committing
the offense.” Id. § 924(c)(3)(B).

Jones ultimately pled guilty on October 30, 2013 to one
count of assault resulting in serious bodily injury, in
violation of 18 U.S.C. §§ 113(a)(6) and 1153, as well as one
count of use of a firearm in a crime of violence, in violation
of 18 U.S.C. § 924(c)(1)(A). His plea agreement stated that
he waived his right to move for postconviction relief under
28 U.S.C. § 2255, among other appeal waivers. On July 2,
2014, the district court sentenced him to consecutive terms
of imprisonment of 63 months on the assault count and
8 JONES V. UNITED STATES

120 months on the firearm count, followed by concurrent
three-year terms of supervised release on each count.

Jones timely filed an appeal to our court challenging his
sentence. While that appeal was pending, in 2015, he filed a
pro se motion under § 2255. The district court dismissed the
motion without prejudice because his direct appeal was still
pending. We then affirmed his sentence in a memorandum
disposition. United States v. Jones, 633 F. App’x 440 (9th
Cir. 2016) (mem.).

Jones filed another pro se § 2255 motion on June 18,
2020, arguing that Alleyne v. United States, 570 U.S. 99
(2013), established a new, retroactive rule that was not
previously available to him. 1 On the same day, he moved for
appointment of counsel, citing Davis. That decision held that
the residual clause, 18 U.S.C. § 924(c)(3)(B), was void for
vagueness. Davis, 139 S. Ct. at 2323–24. Although Jones
discussed the decisions in separate filings, the district court
construed both the Alleyne and Davis claims as part of the
same motion for postconviction relief (the “First § 2255
Motion”).

On June 22, 2020, while the First § 2255 Motion was
pending, Jones filed a pro se application to the Ninth Circuit
for leave to file a second or successive § 2255 motion.
Construed liberally, see Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam), it asserted several grounds for relief.
First, it pointed to our grant of the petition for rehearing en
banc following our decision in United States v. Orona,
923 F.3d 1197 (9th Cir.), reh’g en banc granted, 942 F.3d

1
Alleyne held that a jury must find any fact that increases the
mandatory minimum for a sentence. See 570 U.S. at 103. Jones does not
continue to press his Alleyne argument before us.
 JONES V. UNITED STATES 9

1159 (9th Cir. 2019) (mem.), which we stayed pending the
outcome of Borden v. United States, 141 S. Ct. 1817 (2021). 2
Second, it referenced a series of Supreme Court decisions
striking down various criminal statutes as unconstitutionally
vague: Davis, 139 S. Ct. 2319 (concerning 18 U.S.C.
§ 924(c)(3)(B)); Sessions v. Dimaya, 138 S. Ct. 1204 (2018)
(concerning 18 U.S.C. § 16(b)); and Johnson v. United
States, 576 U.S. 591 (2015) (“Johnson II”) (concerning
18 U.S.C. § 924(e)(2)(B)). Finally, it argued that at least
some of these decisions were retroactively applicable to his
collateral attack, relying on Welch v. United States, 578 U.S.
120 (2016), and Teague v. Lane, 489 U.S. 288 (1989).

The district court summarily dismissed the First § 2255
Motion on August 18, 2020. The court rejected the Alleyne
claim because the Supreme Court had already issued that
decision by the time of Jones’s guilty plea, Jones had waived
his appeal rights, and the Alleyne issue did not go to the
voluntariness of his waiver. It then held that Davis did not
support Jones’s motion, either, because that decision
concerned the residual clause, while it said that Jones “was
convicted of discharging a weapon in relation to Hobbs Act
robbery,” a crime of violence under the elements clause. See
United States v. Dominguez, 954 F.3d 1251, 1261 (9th Cir.
2020). Notably, the court incorrectly characterized Jones’s
predicate “crime of violence” as Hobbs Act robbery when he
actually was convicted under § 113(a)(6), which penalizes
“[a]ssault resulting in serious bodily injury.” The court also
declined to issue a certificate of appealability (“COA”).
Jones did not appeal.

2
Orona died before Borden was decided, and the case was dismissed
as moot. United States v. Orona, 987 F.3d 892, 893 (9th Cir. 2021)
(mem.).
10 JONES V. UNITED STATES

Nevertheless, on November 16, 2020, a panel of this
court issued an order stating that Jones’s present application
for leave to file a second or successive motion merited
further briefing and directing the appointment of counsel. 3
The panel specified that the briefing must address two
issues: (1) whether 28 U.S.C. § 2244(b)(1) divests this court
of jurisdiction to authorize Jones’s claim, and (2) if not,
whether, pursuant to Davis, assault resulting in serious
bodily injury under 18 U.S.C. § 113(a)(6) is not a qualifying
predicate crime of violence under 18 U.S.C. § 924(c),
meaning that Jones’s § 924(c) conviction and sentence must
be vacated.

After that order was issued, but before the government
filed its brief in opposition to Jones’s application, the
Supreme Court issued its decision in Borden, holding that
“[o]ffenses with a mens rea of recklessness do not qualify as
violent felonies” under the elements clause of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(2)(B)(i). 141 S. Ct. at 1834 (plurality op.). That
provision is nearly identical to the firearms charge under
which Jones was convicted. Compare 18 U.S.C.

3
Jones did not indicate at the time he filed his successive motion
with this court that the First § 2255 Motion was still pending before the
district court. Typically, if a pro se petitioner files an application under
§ 2244(b)(3) requesting leave to file a new habeas action while his first
habeas motion or application remains pending, the court of appeals is
obligated to construe the application as a motion to amend the earlier-
filed action. Goodrum v. Busby, 824 F.3d 1188, 1194 (9th Cir. 2016).
Here, though, because the panel of this court was unaware of the earlier-
filed pending motion, it “d[id] not have an obligation to research the
status of earlier-filed petitions to determine whether a pro se petitioner
is requesting leave to file a petition that is not in fact second or
successive.” Id. at 1195. And, in any event, the district court had already
denied Jones’s First § 2255 Motion by the time our court issued the
briefing order.
 JONES V. UNITED STATES 11

§ 924(e)(2)(B)(i) (defining “violent felony” as felony that
“has as an element the use, attempted use, or threatened use
of physical force against the person of another”), with id.
§ 924(c)(3)(A) (defining “crime of violence” as a felony that
“has as an element the use, attempted use, or threatened use
of physical force against the person or property of another”).
The government now concedes that assault resulting in
serious bodily injury under § 113(a)(6) “no longer qualifies
as a predicate crime of violence under § 924(c),” because it
can be committed recklessly.

II. Analysis

Before addressing Jones’s arguments, we summarize the
provisions of the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified
as relevant here at 28 U.S.C. §§ 2244, 2253–55) (“AEDPA”)
that are implicated in this case. The statute divides the
available routes for collateral attacks on a sentence
according to the law under which a person is imprisoned: A
person imprisoned pursuant to the judgment of a state court
may apply for a writ of habeas corpus under § 2254, while a
person in federal custody may move for postconviction relief
under § 2255. In both instances, AEDPA limits the number
of opportunities for petitioners to seek relief through “second
or successive motion[s].” 28 U.S.C. § 2255(h); see also id.
§ 2244(b) (addressing claims presented “in a second or
successive habeas corpus application under section 2254”).
“[T]he phrase ‘second or successive’ [i]s a ‘term of art,’”
referring to an application for relief that follows an earlier
application concerning the same judgment. Magwood v.
Patterson, 561 U.S. 320, 332 (2010) (quoting Slack v.
McDaniel, 529 U.S. 473, 486 (2000)).

All parties agree that Jones’s motion falls under § 2255,
not § 2254. But before a person in federal custody can file a
12 JONES V. UNITED STATES

second or successive motion in district court, § 2255(h)
requires that a court of appeals certify the motion as follows:

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.

28 U.S.C. § 2255(h).

The cross-reference to § 2244 in § 2255(h) directs the
reader’s attention to additional limitations. Most importantly
for this case, § 2244(b)(1) states: “A claim presented in a
second or successive habeas corpus application under
section 2254 that was presented in a prior application shall
be dismissed.” Next, § 2244(b)(2) indicates when a second
or successive claim “under section 2254 that was not
presented in a prior application” may survive dismissal. As
in the similar (but not identical) requirements of § 2255(h),
the claim must involve either a new, previously unavailable
rule of constitutional law that the Supreme Court has made
retroactive to cases on collateral review, id. § 2244(b)(2)(A),
 JONES V. UNITED STATES 13

or a claim where the “factual predicate” could not have been
discovered earlier through due diligence, and whose facts, if
proven and viewed in light of all the evidence, would “be
sufficient to establish by clear and convincing evidence that,
but for constitutional error, no reasonable factfinder would
have found the applicant guilty of the underlying offense,”
id. § 2244(b)(2)(B); cf. id. § 2255(h).

Subsection 2244(b)(3) then lays out a process that a court
of appeals must follow to authorize a “second or successive
application permitted by this section.” Id. § 2244(b)(3)(A).
This procedure requires the court to satisfy itself that the
application “makes a prima facie showing that [it] satisfies
the requirements of this subsection,” id. § 2244(b)(3)(C),
and to rule on the application within thirty days after filing,
id. § 2244(b)(3)(D). 4 Finally, § 2244(b)(4) instructs district
courts to dismiss any claim in a second or successive motion
“unless the applicant shows that the claim satisfies the
requirements of this section,” even if the court of appeals
previously certified that the motion made a prima facie
showing. Id. § 2244(b)(4).

The threshold issue in this case is whether § 2244(b)(1)
bars Jones’s § 2255 motion. Despite the question posed to

4
This thirty-day time limit is “hortatory,” not mandatory. Ezell v.
United States, 778 F.3d 762, 765 (9th Cir. 2015); see also In re Siggers,
132 F.3d 333, 336 (6th Cir. 1997) (reaching the same conclusion because
“Congress has failed to specify a consequence for noncompliance with
the thirty-day time limit” and “[d]ue to the press of other judicial work,
it will not always be possible to rule within thirty days”). Therefore,
though it has been considerably longer than thirty days since Jones filed
his application for permission to file a second or successive § 2255
motion, we proceed to consider his application. See Ezell, 778 F.3d
at 765 (noting that court can exceed time limit when a motion presents
“a complex issue”).
14 JONES V. UNITED STATES

the parties by a prior panel of our court, we need not reach
whether § 2244(b)(1) sets out a jurisdictional rule or a
“nonjurisdictional ‘claim-processing rule,’” Gonzalez v.
Thaler, 565 U.S. 134, 141 (2012) (quoting Kontrick v. Ryan,
540 U.S. 443, 454–455 (2004)), because even assuming it is
jurisdictional, we conclude that § 2244(b)(1) does not apply
to § 2255 claims. The upshot is that even if Jones previously
presented his Davis claim, we analyze both his Davis and
Borden claims under the test laid out in § 2255(h).

A. Whether § 2244(b)(1) Governs § 2255 Motions

Section 2255(h) specifies that “[a] second or successive
motion must be certified as provided in section 2244.” 28
U.S.C. § 2255(h). Section 2244(b)(1), in turn, states that “[a]
claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.” Id. § 2244(b)(1) (emphasis
added). Thus, the key question is whether § 2244(b)(1) also
applies to claims brought in second or successive motions
for postconviction relief under § 2255. If § 2244(b)(1) did
apply—at least if it set out a rule governing our jurisdiction
to consider an application—then we would have to deny the
application to the extent Jones has presented the same claim
twice. But if it does not apply, then we must still conduct a
§ 2255(h) inquiry even if Jones has asserted the same claim
before.

Our court has not yet confronted this question, but our
sister circuits are split. 5 The Second, Third, Fifth, Seventh,

5
The dissent acknowledges that “we have never specifically held
that § 2244(b)(1) applies to § 2255 motions” but notes that our court
appeared to assume that § 2244(b)(1) would apply to such motions in
Moore v. Reno, 185 F.3d 1054 (9th Cir. 1999). See Dissent at 26–27. In
 JONES V. UNITED STATES 15

Eighth, and Eleventh Circuits consider § 2244(b)(1) to apply
to federal prisoners seeking relief under § 2255. See
Winarske v. United States, 913 F.3d 765, 768–69 (8th Cir.
2019); In re Bourgeois, 902 F.3d 446, 447 (5th Cir. 2018);
In re Baptiste, 828 F.3d 1337, 1339 (11th Cir. 2016) (per
curiam); United States v. Winkelman, 746 F.3d 134, 135 (3d
Cir. 2014); Gallagher v. United States, 711 F.3d 315, 315
(2d Cir. 2013) (per curiam); Taylor v. Gilkey, 314 F.3d 832,
836 (7th Cir. 2002). Other courts, including our own, have
been more circumspect, merely noting the issue without
deciding it. See Young v. United States, 22 F.4th 1115, 1121
n.4 (9th Cir. 2022); Moore v. United States, 871 F.3d 72, 78
(1st Cir. 2017); United States v. Winestock, 340 F.3d 200,
205 (4th Cir. 2003), abrogated in part on other grounds by
United States v. McRae, 793 F.3d 392 (4th Cir. 2015).

The Sixth Circuit has taken the opposite view that § 2255
relief is not covered by the language of § 2244(b)(1).

Moore, the petitioner filed a § 2241 petition for habeas relief in the
district court, and the district court dismissed the petition on the grounds
that the petitioner had failed to show that § 2255 was an inadequate
remedy. 185 F.3d at 1054–55. We affirmed the district court’s
conclusion. Ibid. In the final paragraph of the opinion, we noted in
dictum that the petitioner’s claim would have failed even if we had
construed it as an application to file a successive § 2255 motion. In one
unreasoned sentence, we said that Ҥ 2244(b) requires the dismissal of a
successive petition unless ‘the claim relies on a new rule of constitutional
law’ or ‘the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence.’ 28 U.S.C.
§ 2244(b)(1) and (2) (1998).” Id. at 1055. We are not bound by this
unreasoned dictum. See United States v. McAdory, 935 F.3d 838, 843
(9th Cir. 2019) (“[W]e are not bound by a prior panel’s comments made
casually and without analysis, . . . uttered in passing without due
consideration of the alternatives, or . . . [done as] a prelude to another
legal issue that commands the panel’s full attention.” (quotation marks
omitted)).
16 JONES V. UNITED STATES

Williams v. United States, 927 F.3d 427, 434 (6th Cir. 2019).
The government also takes the position that the § 2244(b)(1)
does not cover § 2255 motions. It adopted a similar stance in
a recent filing before the Supreme Court, and though the
Court denied certiorari in that case, one Justice wrote
separately to express doubt that § 2244(b)(1) addresses
federal prisoners’ motions filed under § 2255. See Avery v.
United States, 140 S. Ct. 1080, 1080 (2020) (mem.)
(Kavanaugh, J., statement respecting denial of certiorari);
Brief for the United States in Opposition at 10, 13, Avery v.
United States, 140 S. Ct. 1080 (2020) (No. 19-633).

In our view, the Sixth Circuit has the better of the debate.
The plain text of § 2244(b)(1) by its terms applies only to
state prisoners’ applications “under section 2254”—not
federal prisoners’ motions under § 2255. See Williams,
927 F.3d at 434–35. Courts reaching the other conclusion
have reasoned that because § 2255 does not specify
procedures for certifying second or successive motions and
cross-references § 2244 in its entirety, the bar on previously
presented claims in § 2244(b)(1) must also apply in the
federal-prisoner context. See, e.g., Bradford, 830 F.3d at
1275–76 (explaining view that § 2255 “expressly tells us to
incorporate the certification provisions of § 2244 that are
contained in § 2244(b),” and that “§ 2255(h) incorporates
the whole range of procedures and limitations set out in
§ 2244(b)(1), (b)(3), and (b)(4)”). That reading, however,
overlooks that § 2244(b) is divided into provisions that
expressly specify their applicability to “a second or
successive habeas corpus application under section 2254”
(emphasis added)—namely § 2244(b)(1) and (b)(2)—and
those that do not indicate whether they apply only to § 2254
applications—§ 2244(b)(3) and (b)(4). “A statute should be
construed so that effect is given to all its provisions.” Hibbs
v. Winn, 542 U.S. 88, 101 (2004) (citation omitted). If we
 JONES V. UNITED STATES 17

were to ignore the “under section 2254” language in
§ 2244(b)(1) and (b)(2), that text would become superfluous.

Statutory structure further supports this reading. Recall
that § 2255(h) and § 2244(b)(2) each set out tests that courts
of appeals must apply in order to authorize second or
successive applications: In both instances, an applicant must
(broadly speaking) show either new facts that would create
clear and convincing evidence of innocence for any
reasonable factfinder, or a new, previously unavailable rule
of constitutional law that the Supreme Court has made
retroactive to cases on collateral review. See 28 U.S.C.
§§ 2244(b)(2), 2255(h). The tests also differ in important
ways. 6 And § 2254, unlike § 2255, contains no standard for
authorizing second or successive applications.
Consequently, when § 2244(b)(2) specifies that it governs
claims “under section 2254,” it provides a single test for
courts to evaluate an applicant’s prima facie case for habeas
relief from state proceedings, but if it were also to apply to
§ 2255, it would overlap with § 2255(h) and likely conflict
with that provision’s requirements.

The Eleventh Circuit in Bradford recognized as much,
reasoning that although § 2255(h) “incorporat[es] every
other part of § 2244(b),” it did not incorporate § 2244(b)(2),
and so avoided the possibility of subjecting prisoners to

6
For example, while § 2244(b)(2) requires a claim resting on newly
discovered facts to be one where “the factual predicate for the claim
could not have been discovered previously through the exercise of due
diligence,” and that “the facts underlying the claim . . . would be
sufficient to establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense,” see 28 U.S.C.
§ 2244(b)(2)(B) (emphases added), § 2255(h) contains no due-diligence
or constitutional-error requirement, see id. § 2255(h)(1).
18 JONES V. UNITED STATES

inconsistent requirements. 830 F.3d at 1276 n.1. While that
court thought that the logical difficulty posed by applying
§ 2244(b)(2) to § 2255 motions justified a departure from a
general principle that § 2244(b) applied to § 2255 in its
entirety, we think the better inference is that the principle is
wrong. After all, the text in § 2244(b)(2) that limits its
applicability to § 2254 is identical to the text in § 2244(b)(1),
and “the normal rule of statutory construction assumes that
identical words used in different parts of the same act are
intended to have the same meaning.” Sorenson v. Sec’y of
Treasury, 475 U.S. 851, 860 (1986) (quotation marks
omitted). We see no reason to credit the cross-reference to
§ 2254 in § 2244(b)(2) but ignore it in § 2244(b)(1).

Nor does this interpretation result in a strained reading
of § 2255(h). That provision is fairly read to refer to the
procedures outlined in § 2244(b)(3). Pursuant to that
subsection, an applicant must move for authorization in the
court of appeals, id. § 2244(b)(3)(A); a panel of the court of
appeals must convene to determine the motion, id.
§ 2244(b)(3)(B); the panel must determine that the
application makes “a prima facie showing that [it] satisfies
the requirements of this subsection,” id. § 2244(b)(3)(C);
and the court must issue a non-appealable decision within
thirty days, id. § 2244(b)(3)(D)–(E). “[I]t makes no
linguistic sense to direct a court to ‘certif[y] as provided in
section 2244[ (b)(1) ]’ that a motion contains the threshold
conditions discussed in § 2255(h),” because subsection
(b)(1) contains no certification procedures. Williams,
927 F.3d at 435 (second and third alterations in original).
Rather, “what makes linguistic sense is to direct a court to
certify that those preconditions are met in accordance with
the procedures laid out in § 2244(b)(3).” Ibid.
 JONES V. UNITED STATES 19

Some courts that have applied § 2244(b)(1) to § 2255
have also relied on policy considerations and the purposes of
AEDPA. On that view, “it would be odd indeed if Congress
had intended to allow federal prisoners to refile precisely the
same non-meritorious motions over and over again while
denying that right to state prisoners.” Baptiste, 828 F.3d at
1339; see also Bourgeois, 902 F.3d at 448. The idea seems
to be that allowing federal prisoners to file multiple
collateral attacks would hamper Congress’s goals in
enacting AEDPA—which, according to the Supreme Court,
were “to further the principles of comity, finality, and
federalism,” Williams v. Taylor, 529 U.S. 420, 436 (2000)—
because doing so would threaten to repeatedly reopen cases
through collateral attacks. See, e.g., White v. United States,
371 F.3d 900, 901 (7th Cir. 2004).

But the policy interests underlying AEDPA do not
counsel in favor of applying § 2244(b)(1) to § 2255 motions.
To begin with, comity and federalism concerns arise when a
federal court reviews a state-court conviction, but not when
it reviews a federal conviction. See Coleman v. Thompson,
501 U.S. 722, 731 (1991) (referring to the need to give states
“the first opportunity” to correct violations of state
prisoners’ federal rights); McCleskey v. Zant, 499 U.S. 467,
493 (1991) (referring to “the State’s interest in the finality of
its criminal judgments”). Such concerns do not occur when
a federal court of appeals reviews the judgment of a federal
district court. See Williams, 927 F.3d at 436 n.6. Moreover,
though we do not question Congress’s purpose in ensuring
the finality of criminal judgments, a reading of § 2244(b)(1)
that permits the same claims to be presented in second or
successive § 2255 motions does not contravene that goal:
Even though this interpretation may result in more
applications for leave to file such motions before courts of
appeals, it is doubtful that this would produce a wave of new
20 JONES V. UNITED STATES

district-court postconviction proceedings. After all, even
previously presented claims must satisfy the gatekeeping test
in § 2255(h), and as illustrated below, motions that failed
before very likely will fail if presented again. See infra
Section II.B.

In short, policy considerations, to the extent they cut
against the text at all, are insufficient to overcome the
language and structure of § 2244(b)(1). Cf. Williams,
927 F.3d at 427 (rejecting reading of § 2244(b)(1) that “is an
unjustifiable contravention of plain statutory text”). We
therefore hold that this provision does not apply to second or
successive motions under § 2255. Consequently, we turn to
the ultimate issue: whether Jones satisfies the requirements
of § 2255(h) to bring a second or successive motion.

B. Authorization to File a Second or Successive Motion
Under § 2255(h)

Jones does not rest his second or successive motion on
new evidence, see 28 U.S.C. § 2255(h)(1), so we may
authorize his motion only if it makes a prima facie showing
that it relies on “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable,” 28 U.S.C.
§2255(h)(2); see id. § 2244(b)(3). Jones points to Davis and
Borden in support of his motion. We consider each claim in
turn. 7

7
Jones’s appellate waiver in his plea agreement does not remove
our jurisdiction to consider whether to certify his second or successive
motion. See United States v. Jacobo Castillo, 496 F.3d 947, 949–50 (9th
Cir. 2007) (en banc). A waiver in a plea agreement does not speak to a
court’s “authority to adjudicate a case,” but rather to the success of a
party’s arguments and the procedures “by which the court prescribes the
 JONES V. UNITED STATES 21

1. Davis

Jones has not made the necessary prima facie showing
with respect to his Davis claim, because it is not “previously
unavailable.” Instead, he presented the claim to the district
court in the First § 2255 Motion. Though that court
erroneously characterized his predicate offense, it held on
the merits that he was not entitled to relief, and Jones did not
appeal that decision.

Jones presented his Davis claim in a pro se motion for
appointment of counsel that he filed along with his First
§ 2255 Motion. The district court construed that motion as a
§ 2255 motion stating a Davis claim, despite the
idiosyncratic filing. This approach was proper, as courts
should liberally construe pro se submissions. See Erickson,
551 U.S. at 94; Ross v. Williams, 950 F.3d 1160, 1173 n.19
(9th Cir. 2020) (en banc). However, the district court then
denied Jones’s motion, reasoning that because Davis
invalidated only § 924(c)(3)(B) and his predicate offense
was Hobbs Act robbery, which is a crime of violence under
§ 924(c)(3)(A), Jones’s conviction was constitutional. This
analysis was plainly wrong. Hobbs Act robbery is a crime of
violence under the elements clause. Dominguez, 954 F.3d at
1261; see 18 U.S.C. § 1951(a). But Jones’s predicate offense
was assault resulting in serious bodily injury under 18 U.S.C.

orderly conduct of its business.” Id. at 952. In other words, a plea
agreement may have “preclusive effect”—and a district court can rely on
a waiver in such an agreement to deny postconviction relief even when
we authorize a second or successive motion—but it does not have a
jurisdictional effect. Id. at 957 (emphasis omitted). While Jacobo
Castillo concerned a direct appeal, its reasoning is equally applicable in
cases on collateral review. Though we may have discretion to consider
Jones’s waiver at this stage, we decline to do so, as his claims fail
regardless of the waiver.
22 JONES V. UNITED STATES

§ 113(a)(6). Therefore, the court should have asked whether
§ 113(a)(6) qualified as a crime of violence under the
elements clause.

Yet the district court’s error does not mean that Jones’s
Davis claim was “previously unavailable.” 28 U.S.C.
§ 2255(h)(2). For a petition to be second or successive, it
must “raise[ ] claims that were or could have been
adjudicated on the merits.” McNabb v. Yates, 576 F.3d 1028,
1029 (9th Cir. 2009) (per curiam) (emphasis added). A claim
is decided on the merits “[i]f the district court either
considers and rejects the claims or determines that the
underlying claim will not be considered by a federal court.”
Ibid. Here, Jones’s Davis claims could have been considered
and rejected by the district court; indeed, the district court’s
opinion demonstrates that although it made an error in
characterizing Jones’s predicate offense, it considered his
argument.

To remedy the district court’s error, Jones could have
attempted an appeal. Although the district court declined to
issue a COA, Jones could have sought a COA from our
court. See 28 U.S.C. § 2253(c); 9th Cir. R. 22-1. But the
district court’s error does not give us license to authorize a
second or successive motion for a claim that was previously
available. Consequently, though Davis offers Jones no
grounds for postconviction relief, we also consider whether
he can rely on Borden instead.

2. Borden

Jones’s Borden claim also fails to make a prima facie
showing under § 2255(h)(2) because Borden did not
 JONES V. UNITED STATES 23

announce a new “constitutional” rule. Ezell v. United States,
778 F.3d 762, 766 (9th Cir. 2015). 8

In Borden, the Supreme Court held that the ACCA’s
definition of “violent felony” in its elements clause,
18 U.S.C. § 924(e)(2)(B)(i), which is nearly identical to the
elements clause for a “crime of violence” under 18 U.S.C.
§ 924(c)(3)(A), did not include offenses committed
recklessly. See Borden, 141 S. Ct. at 1825 (plurality op.); id.
at 1834 (Thomas, J., concurring in the judgment). Because
an assault resulting in serious bodily injury under
§ 113(a)(6) can be committed recklessly, after Borden it
cannot qualify as a predicate offense under § 924(c)(3)(A).
See United States v. Benally, 19 F.4th 1250, 1258 (10th Cir.
2021). The government concedes this point.

The chief difficulty with Jones’s claim is that Borden did
not announce a new rule of constitutional law, but rather was
a statutory-interpretation decision. In Ezell, we denied an
application to file a second or successive motion under
§ 2255(h)(2), in part because the decision on which the
application relied, Descamps v. United States, 570 U.S. 254
(2013), merely interpreted the ACCA by indicating when
certain crimes qualified as violent felonies under that statute.

8
It is somewhat unclear whether Jones actually raised a Borden
claim in his application to file a second or successive motion, as that
decision was issued well after he submitted his application. However, he
cited Ninth Circuit caselaw with a holding similar to that of Borden, and
given the extensive attention the parties have now devoted to this issue,
there would be little purpose served in our denying Jones’s motion
merely because he had not specifically mentioned Borden in his initial
application form. Cf. In re Embry, 831 F.3d 377, 381–82 (6th Cir. 2016)
(granting application to file second or successive § 2255 motion for
claim because Supreme Court had decided to hear, but had not yet heard,
case that would provide rule governing the claim).
24 JONES V. UNITED STATES

778 F.3d at 766–67. Though Descamps may have implicated
Sixth Amendment concerns, it was nonetheless a statutory
decision, as the Court framed its analysis as a statutory-
interpretation exercise. See ibid. We took the same approach
in Garcia v. United States, 923 F.3d 1242 (9th Cir. 2019),
holding that because the applicant “fail[ed] to make a prima
facie showing” that the Supreme Court decision on which he
relied was a constitutional decision, the applicant did not
satisfy § 2255(h)(2). Id. at 1244–45 (discussing Dean v.
United States, 137 S. Ct. 1170 (2017)); see also United
States v. Reyes, 358 F.3d 1095, 1097 (9th Cir. 2004) (per
curiam).

Borden was a statutory-interpretation case, so it does not
provide “a new rule of constitutional law” for Jones to make
a prima facie showing under § 2255(h)(2). The plurality
expressly framed its inquiry in statutory terms. See Borden,
141 S. Ct. at 1825 (plurality op.) (“[W]e must decide
whether the elements clause’s definition of ‘violent
felony’—an offense requiring the ‘use of physical force
against the person of another’—includes offenses
criminalizing reckless conduct.”). To answer that question,
it looked to the meaning of the statutory phrase “against
another,” see id. at 1825–28, as well as the “context and
purpose” of the ACCA, see id. at 1830–32. Justice Thomas,
who concurred in the judgment and supplied the vote making
a majority, relied on his own analysis of the statutory phrase
“use of physical force” and also described his conclusion in
statutory terms. See id. at 1834–35 (Thomas, J., concurring
in the judgment). Although he recognized that the case was
related to the Court’s jurisprudence following its
constitutional void-for-vagueness decision in Johnson II,
that did not alter the statutory nature of the decision. See id.
at 1835–36.
 JONES V. UNITED STATES 25

Because Borden did not announce a new rule of
constitutional law, it does not provide a basis for granting
Jones’s application to file a second or successive motion
under § 2255(h)(2).

III. Conclusion

Section 2244(b)(1) does not apply to applications for
leave to file second or successive motions under § 2255.
Instead, when faced with an application such as that
presented by Jones, we must ask whether it makes a prima
facie showing that the second or successive motion relies on
a “new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. § 2255(h)(2).

Here, Jones does not make a prima facie showing that
either his Davis claim or his Borden claim satisfies this test.
Davis was not “previously unavailable,” and Borden did not
state a constitutional rule, but rather a statutory one.
Therefore, Jones’s application to file a second or successive
motion is

DENIED.

WALLACE, Circuit Judge, dissenting:

I agree with the majority that 28 U.S.C. § 2244(b)(1) is
jurisdictional, but I disagree with the majority’s conclusion
that § 2244(b)(1) does not apply to second or successive
motions by federal prisoners under § 2255. The majority’s
approach creates a further split among the circuits on this
issue by joining the Sixth Circuit, which alone holds that
§ 2244(b)(1) does not apply to § 2255 motions. Instead, I
26 JONES V. UNITED STATES

would join the Second, Third, Fifth, Seventh, Eighth, and
Eleventh Circuits, and hold that § 2244(b)(1) governs
second or successive § 2255 motions. For the following
reasons, I respectfully dissent.

First, the majority is clearly wrong that we have never
confronted this question. Although we have never
specifically held that § 2244(b)(1) applies to § 2255
motions, we have repeatedly confronted the issue of whether
§ 2244(b) in general applies to § 2255. For instance, in
Moore v. Reno, we declined to “authorize the district court
to consider [a defendant’s] successive § 2255 motion”
because the defendant “has not made a prima facie showing
that he has satisfied the requirements of section 2244(b).”
185 F.3d 1054, 1055 (9th Cir. 1999) (“Under the AEDPA,
§ 2244(b) requires the dismissal of a successive petition
unless ‘the claim relies on a new rule of constitutional law’
or ‘the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence.’
28 U.S.C. § 2244(b)(1) and (2) (1998).”). 1 In Young v.
United States, we also acknowledged that a § 2255 motion
“may be subject to dismissal under 28 U.S.C. § 2244(b)(1)”
but ultimately did not decide on this issue there. 22 F.4th
1115, 1121 n.4 (9th Cir. 2022). But our court has never
adopted or even hinted at applying the Sixth Circuit rule that
§ 2244(b)(1) does not apply to § 2255 motions. See
Williams v. United States, 927 F.3d 427, 434 (6th Cir. 2019).
Rather, when confronting this issue, we have generally been

1
In fact, we have since relied on Moore in an unpublished
memorandum disposition for the principle that “[t]he strictures of
§ 2241(b)(1) apply to § 2255.” United States v. Shetty, 543 Fed. App’x
675, 676 n.5 (9th Cir. 2013), citing Moore, 185 F.3d at 1055. Because
Shetty is an unpublished memorandum disposition, I give it no
precedential value. However, its interpretation of Moore, a binding
precedent, is insightful.
 JONES V. UNITED STATES 27

in favor of the approach adopted by the Second, Third, Fifth,
Seventh, Eighth, and Eleventh Circuits. See, e.g., Moore,
185 F.3d at 1055; see also Gallagher v. United States,
711 F.3d 315 (2d Cir. 2013); United States v. Winkelman,
746 F.3d 134, 135 (3d Cir. 2014); Bourgeois, 902 F.3d 446,
447 (5th Cir. 2018); Taylor v. Gilkey, 314 F.3d 832, 836 (7th
Cir. 2002); Winarske v. United States, 913 F.3d 765, 768–69
(8th Cir. 2019); In re Baptiste, 828 F.3d 1337, 1339 (11th
Cir. 2016). Moreover, when deciding whether a particular
application under § 2254 is “second or successive,” some
justices of the Supreme Court have stated that “in the context
of federal prisoners’ challenges to their convictions or
sentences under 28 U.S.C. § 2255, the ‘second or
successive’ bar under § 2244(b) applies to § 2255 motions.”
Magwood v. Patterson, 561 U.S. 320, 348 (2010) (Kennedy,
J., dissenting on other grounds), citing 28 U.S.C. § 2255(h).
The majority’s adoption of the Sixth Circuit rule not only
goes against our own caselaw, but also would unnecessarily
create a deeper circuit split on this issue.

Second, the language and structure of § 2244 and § 2255
support applying § 2244(b)(1) to federal prisoners seeking
relief under § 2255. Section 2255 explicitly incorporates
§ 2244 by stating that “[a] second or successive motion must
be certified as provided in section 2244 by a panel of the
appropriate court of appeals.” 28 U.S.C. § 2255(h).
Accordingly, we have held that “[s]econd or successive
§ 2255 motions are subject to the gatekeeping procedures
‘provided in section 2244.’” Ezell v. United States, 778 F.3d
762, 764 (9th Cir. 2015), quoting 28 U.S.C. § 2255(h). The
majority attempts to limit these “gatekeeping procedures”
referenced by § 2255(h) to only the certification procedures
outlined in § 2244(b)(3). But both our caselaw and the
statutory text show that the gatekeeping procedures in
§ 2244(b)(3) incorporates the requirements detailed in
28 JONES V. UNITED STATES

§ 2244(b)(1)–(2). In general, § 2244(b)(3) “creates a
‘gatekeeping’ mechanism for the consideration of second or
successive applications in district court.” Felker v. Turpin,
518 U.S. 651, 657 (1996). But among other procedural
requirements, the “court of appeals may authorize the filing
of a second or successive application only if it determines
that the application makes a prima facie showing that the
application satisfies the requirements of this subsection.”
28 U.S.C. § 2244(b)(3)(C); see also Felker, 518 U.S. at 657.
Nothing in § 2244(b)(3), however, outlines the substantive
requirements for what courts must consider in order to
determine whether a petitioner made a prima facie showing.
Instead, that standard is detailed in § 2244(b)(1)–(2).
Indeed, our caselaw makes clear that we look to
§ 2244(b)(1)–(2) for whether a petitioner has made a prima
facie showing that he has satisfied the requirements of
§ 2244(b). See, e.g., Moore, 185 F.3d at 1055, citing
28 U.S.C. § 2244(b)(1)–(2).

Third, there is no conflict between § 2255(h) and the
prima facie requirements in § 2244(b)(2). Section 2255(h)
specifies that “[a] second or successive motion must be
certified as provided in section 2244.” 28 U.S.C. § 2255(h)
(emphasis added). It then went on to provide a list of
requirements that is nearly identical to § 2244(b)(2) for a
second or successive § 2255 motion. Indeed, the standards
for a successive motion based on a new constitutional rule
are identical. See In re Zambrano, 433 F.3d 886, 887 n.1
(D.C. Cir. 2006) (“The relevant portion of § 2244(b)(2)(A)
is identical to that portion of § 2255 implicated in this
case.”); In re Elwood, 408 F.3d 211, 213 (5th Cir. 2005)
(“The standards for a successive § 2254 petition and a
successive § 2255 motion based on a new constitutional rule
are identical.”). To be sure, § 2244(b)(2) contains two
additional requirements for claims based on newly
 JONES V. UNITED STATES 29

discovered evidence: “[T]he factual predicate for the claim
could not have been discovered previously through the
exercise of due diligence” and “the facts underlying the
claim . . . would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty
of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)
(emphasis added). But the omission by § 2255(h)(1) for
claims based on newly discovered evidence does not mean
that it directly conflicts with § 2244(b)(2)(B) in substance.
Again, § 2255(h) explicitly adopted the requirements “as
provided in section 2244,” which includes any additional
§ 2244(b)(2) requirements not specifically mentioned in
§ 2255(h). Thus, for the small subset of claims based on
newly discovered evidence, I agree with the Seventh Circuit
that “the phrase ‘as provided in section 2244,’ which appears
in section 2255, [means] that in considering an application
under section 2255 for permission to file a second or
successive motion we should use the section 2244 standard.”
Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997).
This also would be consistent with our own precedent as
well. See, e.g., Moore, 185 F.3d at 1055 (applying
§ 2244(b)(2) to a successive § 2255 motion).

Finally, I agree with the overwhelming majority of our
sister circuits that “it would be odd indeed if Congress had
intended to allow federal prisoners to refile precisely the
same non-meritorious motions over and over again while
denying that right to state prisoners.” In re Baptiste,
828 F.3d at 1339. Like the Seventh Circuit, I “cannot think
of any reason why the standard for federal prisoners would
be more stringent,” and the majority has not provided any
rationale for this distinction. Bennett, 119 F.3d at 469. It is
not our role to question whether Congress’s purpose of
enacting the Antiterrorism and Effective Death Penalty Act
30 JONES V. UNITED STATES

(AEDPA) is significant or not. Through § 2244 and
§ 2255(h), Congress decided that “two rounds of judicial
review are sufficient in all but the extraordinary situation.
Trial, sentencing, and direct appeal are the first round; an
initial collateral attack under § 2255 is the second.” Taylor,
314 F.3d at 836. Consistent with the purpose of § 2244(b)
and § 2255, I would apply § 2244(b)(1) to § 2255 motions
so that federal prisoners are also barred from refiling the
same non-meritorious motions over and over again.

Because Ninth Circuit caselaw, the text and structure of
§ 2244 and § 2255, as well as the purpose of AEDPA and
policy concerns all support applying § 2244(b)(1) to § 2255
motions, I respectfully dissent.