Expungement During a Pending First § 2255 Proceeding Still Triggers the Second-or-Successive Bar (Lack of Notice Does Not Invoke Weathersby)

Introduction

In United States v. Smith (10th Cir. Mar. 25, 2026), Marlon Alonzo Smith sought to appeal a district court order dismissing his postjudgment motion to amend his Presentence Investigation Report (PSR). Smith asserted that one or more convictions listed in his PSR had been expunged and that certain narrative descriptions were inaccurate; he asked the district court to order probation to update the PSR and to provide him a corrected copy.

The district court treated the PSR motion as an attempt to obtain collateral relief from his federal sentence—i.e., as a new motion under 28 U.S.C. § 2255—and dismissed it for lack of jurisdiction because Smith had not obtained authorization to file a second or successive § 2255 motion. On appeal, the central issues were (1) whether Smith needed a certificate of appealability (COA) to challenge that jurisdictional dismissal and (2) whether his claim fell within the narrow “not second or successive” window described in In re Weathersby.

Summary of the Opinion

The Tenth Circuit denied a certificate of appealability and dismissed the appeal. Although Smith’s theory initially resembled the scenario in In re Weathersby (state expungement of prior convictions used to calculate a federal criminal history score), the court held that United States v. Williams controlled: the Weathersby exception applies only when the factual basis for the claim did not yet exist during the first § 2255 proceeding—not when it existed but was not discovered, and not when it arose before the first § 2255 proceeding concluded.

Here, Smith’s expungement occurred while his first § 2255 motion was still pending (after filing but before final disposition). Therefore, a later attempt to seek sentencing relief based on that expungement was deemed second or successive, requiring prior circuit authorization. Because that authorization was absent, the district court lacked jurisdiction, and reasonable jurists could not debate the procedural ruling—so no COA could issue.

Analysis

Precedents Cited

  • United States v. Harper, 545 F.3d 1230 (10th Cir. 2008)

    Harper supplies the threshold appellate rule applied here: a prisoner must obtain a COA to appeal a district court order that dismisses a postjudgment motion for lack of jurisdiction after construing it as an unauthorized second or successive § 2255 motion. The Smith panel uses Harper to frame the proceeding: before reaching the merits of whether the motion was properly treated as successive, Smith first needs a COA.

  • In re Weathersby, 717 F.3d 1108 (10th Cir. 2013)

    Weathersby is the doctrinal “escape hatch” Smith sought to use. There, the Tenth Circuit held that when state convictions used to enhance a federal sentence are expunged (or vacated) after the conclusion of a prisoner’s first § 2255 proceedings, a subsequent § 2255 motion predicated on those later expungements is not “second or successive” because the claim’s factual predicate arose only after the first collateral proceeding ended.

    In Smith, the court initially flagged Weathersby as potentially applicable, appointed counsel, and ordered targeted briefing—signaling that the dispositive question would be the timeline of when the factual predicate came into existence relative to the first § 2255 proceeding.

  • United States v. Williams, 790 F.3d 1059 (10th Cir. 2015)

    Williams is the opinion’s decisive authority. The Smith panel quotes Williams for the limiting principle: Weathersby applies only where the factual basis “does not yet exist”—not where it “has simply not yet been discovered”—at the time of the first § 2255 motion.

    Importantly, Smith’s case tests a particular timing nuance: his expungement occurred after he filed his first § 2255 motion, but before the first § 2255 proceeding concluded. The court treats that as within the scope of what could have been raised in the first proceeding (e.g., via amendment or supplementation), rendering a later filing successive under Williams.

  • Slack v. McDaniel, 529 U.S. 473 (2000)

    Slack provides the governing COA standard. Because the district court dismissed on a procedural ground (lack of jurisdiction), Smith had to show that reasonable jurists could debate both (1) whether the motion stated a valid constitutional claim and (2) whether the district court’s procedural ruling was correct. The court resolves the COA inquiry on the procedural prong: under Williams, the jurisdictional dismissal is not reasonably debatable.

  • Colo. Outfitters Ass'n v. Hickenlooper, 823 F.3d 537 (10th Cir. 2016)

    This civil case is cited for an appellate practice point: even though courts must consider unargued obstacles to subject-matter jurisdiction, they may still deem arguments waived if they are raised too late. Smith attempted in a reply to recast Weathersby with a new timing rule; the panel held the argument waived because it was not raised in his first supplemental brief.

  • United States v. Smith, 800 F. App'x 658 (10th Cir. 2020) and United States v. Smith, No. 21-4130, 2023 WL 1156294 (10th Cir. Jan. 31, 2023)

    These decisions are cited as procedural landmarks: affirmance on direct appeal and denial of a COA on Smith’s first § 2255 effort. They contextualize why any later collateral effort would encounter the “second or successive” gatekeeping regime.

Legal Reasoning

The court’s reasoning proceeds in three tightly connected steps.

  1. Characterization of the PSR motion as § 2255 in substance. Although styled as a request to “amend and correct” the PSR, Smith’s requested relief was not merely clerical; he sought changes that would “reflect his offense level and criminal history category.” That is functionally a request to revisit the sentence imposed. Postjudgment requests that, in substance, seek to invalidate or reduce the sentence are treated as § 2255 motions, triggering § 2255’s procedural constraints.

  2. “Second or successive” determination turns on when the factual predicate existed relative to the first § 2255 proceeding. The court considers Weathersby but distinguishes it on the timeline. Smith did not claim the expungement occurred after his first § 2255 proceeding ended; he claimed only that he learned of it after the proceeding ended. Under Williams, that framing is fatal: the key is when the factual basis existed, not when it was discovered.

    The court then anchors the analysis to dates in the record: Smith filed his first § 2255 motion on February 8, 2021; the expungement occurred February 26, 2021; the first § 2255 proceeding concluded August 2021. Because the expungement existed before the first proceeding concluded, any later motion raising that claim is treated as second or successive.

  3. COA denial because the procedural ruling is not reasonably debatable. Once Williams resolves the “second or successive” status, the jurisdictional outcome follows: absent circuit authorization, the district court lacked jurisdiction. Under Slack, that leaves no room for a COA.

Impact

Although the order is designated nonprecedential, its reasoning is a clear application of a consequential doctrinal boundary in federal postconviction practice:

  • Narrowing (and operationalizing) the Weathersby exception. The decision reinforces that Weathersby is about claims whose factual predicate arises only after the first § 2255 proceeding ends. Expungements (or vacaturs) occurring during a pending first § 2255 case generally must be raised within that case, not saved for later.
  • Notice is not the trigger. By treating “late discovery” as insufficient under Williams, the court signals that litigants should focus on procedural tools available during the first § 2255 action (e.g., seeking leave to amend or supplement once the new fact occurs), rather than relying on a later filing.
  • Gatekeeping and jurisdiction remain rigid. The decision underscores that “second or successive” is not merely a pleading label; it is jurisdictional in effect. Without appellate authorization under § 2255(h), district courts must dismiss.
  • Appellate waiver can matter even in jurisdiction-adjacent disputes. The court’s waiver discussion (citing Colo. Outfitters Ass'n v. Hickenlooper) cautions postconviction litigants that reframing a jurisdictional theory late in supplemental or reply briefing risks forfeiture.

Complex Concepts Simplified

  • Certificate of Appealability (COA)

    A COA is a required screening device for many habeas and § 2255 appeals. Under Slack v. McDaniel, when the district court dismisses on a procedural ground, the appellant must show reasonable jurists could debate the procedural ruling (and usually the underlying constitutional claim). If controlling precedent squarely resolves the procedural issue, a COA will be denied.

  • “Second or successive” § 2255 motion

    After one full § 2255 proceeding, a prisoner generally cannot file another § 2255 motion unless the court of appeals authorizes it under strict statutory criteria. Some later motions are not considered “second or successive” when the claim’s factual predicate truly did not exist earlier (the Weathersby-type scenario). But under United States v. Williams, this does not include facts that existed earlier but were discovered later.

  • Jurisdictional dismissal

    When a filing is deemed an unauthorized second or successive § 2255 motion, the district court lacks authority to decide it. The proper disposition is dismissal for lack of jurisdiction.

  • PSR (Presentence Investigation Report)

    The PSR informs the sentencing court’s guideline calculation and factual findings relevant to sentencing. After judgment, efforts to “correct” a PSR may be treated as collateral attacks if they seek to alter the sentence’s foundation (e.g., criminal history category), rather than merely to fix clerical errors.

  • Expungement/vacatur as a “factual predicate”

    The key question is not when the prisoner learned about the expungement, but when the expungement legally occurred. If it occurred before the first § 2255 proceeding ended, the claim is generally expected to be raised in that proceeding; otherwise, a later § 2255 is treated as second or successive.

Conclusion

United States v. Smith applies United States v. Williams to hold that an expungement occurring during a prisoner’s first § 2255 proceeding—though after the initial filing—does not permit a later, new § 2255 motion without second-or-successive authorization, even if the prisoner claims he received notice only after the first proceeding ended. The decision reinforces a bright-line distinction: the Weathersby exception turns on whether the factual predicate did not yet exist, not whether it was merely not yet discovered, and it confirms that where Williams forecloses debate, a COA must be denied under Slack v. McDaniel.