Motion to vacate convictions & set aside sentences under 28 USC § 2255; Whether the motion was “second or successive”; In re Hill; Challenge to an amended judgment; Magwood v Patterson

Holding that movant-Augustin’s motion challenging his amended judgment (after successfully challenging the original one) was “not ‘second or successive’ under § 2255[,]” the court remanded his motion to the district court. He was convicted of six federal crimes. On a prior second motion under § 2255 challenging his original judgment, the district court vacated one of the convictions, “corrected his sentence accordingly, and issued an amended judgment.” He then moved to vacate the others “and set aside his sentence under § 2255.” The district court transferred the motion to the court as a “second or successive” motion. The court agreed with Augustin that his motion challenged “his amended judgment, not the original judgment, so it is not ‘second or successive.’” The court noted that the “Supreme Court has carved out discrete circumstances to determine when a § 2255 motion filed later in time is not ‘second or successive.’” One is that “when a second motion challenges a new judgment—not the judgment already challenged in a prior § 2255 motion—[it] is not ‘second or successive.’” When the district court granted Augustin’s 2020 motion under § 2255, “it first vacated and set aside the original judgment before correcting [his] sentence to reduce it by 120 months and then issuing an amended judgment to reflect this reduction. And when a judgment is vacated,” the law treats it as though it never occurred. The intervening judgment stands in its place, and “may be challenged as of right under § 2255 without implicating the second or successive bar.” The court noted it has reached this conclusion in several unpublished orders. While “many of those cases involved a full resentencing, we do not see that as a distinguishing feature. Whether the district court corrects the sentence or fully resentences the defendant after vacating the judgment is irrelevant—the previous judgment is void ab initio, and the intervening judgment is new and challengeable in the first instance, regardless of the remedial measure selected.”