Merits Judgment Triggers “Second or Successive” § 2255 Status Despite Pending Appeal

Introduction

In Jeffrey Spivack v. United States (11th Cir. Aug. 31, 2026) (per curiam) (not for publication), the Eleventh Circuit affirmed the dismissal of Jeffrey Spivack’s later-filed motion under 28 U.S.C. § 2255 for lack of subject-matter jurisdiction because it was an unauthorized “second or successive” habeas petition. The case arose after Spivack pleaded guilty to wire fraud and extortion by interstate communication (18 U.S.C. §§ 1343, 875(b)) and then pursued multiple post-conviction filings.

The appeal presented three core questions: (1) whether appellate jurisdiction existed without a certificate of appealability (COA); (2) whether the district court could initially treat the later § 2255 filing as a “motion to amend” for case management purposes and later recharacterize it as “second or successive”; and (3) whether denial of a Federal Rule of Civil Procedure 59(e) motion was an abuse of discretion.

Summary of the Opinion

The Eleventh Circuit held:

  • No COA was required to appeal the district court’s jurisdictional dismissal because dismissal for lack of subject-matter jurisdiction is not a “final order in a habeas corpus proceeding” within the meaning of § 2253(c), relying on Hubbard v. Campbell.
  • Spivack’s later § 2255 filing was properly treated as “second or successive” because the first § 2255 petition had already been adjudicated on the merits, and the later claims could have been raised earlier; therefore, absent Eleventh Circuit authorization, the district court lacked jurisdiction.
  • The district court did not err by moving from its temporary “case management” characterization (as a motion to amend) to dismissal as successive; law-of-the-case did not bind it.
  • Denial of the Rule 59(e) motion was not an abuse of discretion because Spivack merely reargued prior points rather than showing newly discovered evidence or a manifest error of law or fact.

Analysis

Precedents Cited

Castro v. United States, 540 U.S. 375 (2003)

The district court provided Spivack a “Castro warning” before recharacterizing a pro se filing as a first § 2255 motion. Castro v. United States requires notice because such recharacterization can trigger AEDPA’s bar on later “second or successive” petitions. Here, the warning mattered because Spivack later attempted additional post-judgment § 2255 litigation, which the court treated as successive.

McIver v. United States, 307 F.3d 1327 (11th Cir. 2002)

McIver v. United States supplied the de novo standard of review for dismissals of § 2255 petitions as second or successive. That standard framed the Eleventh Circuit’s independent assessment of whether jurisdiction existed.

Jacobs v. Tempur-Pedic Int'l., Inc., 626 F.3d 1327 (11th Cir. 2010)

Jacobs v. Tempur-Pedic Int'l., Inc. performed two roles: (1) it supplied the abuse-of-discretion standard for Rule 59(e) rulings; and (2) it provided a key post-judgment amendment principle: Rule 15(a) does not apply after judgment is entered; to amend then, a party must first obtain relief under Rule 59(e) or Rule 60(b). The panel used Jacobs to reject Spivack’s insistence that Rule 15(a)’s liberal amendment presumption controlled.

Campbell v. Air Jam. Ltd., 760 F.3d 1165 (11th Cir. 2014)

The court cited Campbell v. Air Jam. Ltd. for the principle that pro se pleadings are liberally construed. The citation underscores that the successive-petition bar is jurisdictional and cannot be avoided by pro se labeling or framing.

Hubbard v. Campbell, 379 F.3d 1245 (11th Cir. 2004)

Hubbard v. Campbell drove the court’s threshold jurisdiction point: a jurisdictional dismissal of a habeas petition is not a “final order” requiring a COA under § 2253(c). This is significant procedurally: the panel could reach the successive-petition question without COA gatekeeping.

United States v. Holt, 417 F.3d 1172 (11th Cir. 2005) and Farris v. United States, 333 F.3d 1211 (11th Cir.2003) (per curiam)

These cases supplied the jurisdictional rule under AEDPA: without circuit authorization under § 2244(b)(3)(A) and § 2255(h), a district court lacks jurisdiction to consider a second or successive § 2255 motion. The panel invoked United States v. Holt (citing Farris v. United States) to anchor the dismissal as jurisdictional, not discretionary.

Stewart v. United States, 646 F.3d 856 (11th Cir. 2011)

Stewart v. United States supplied the Eleventh Circuit’s framework for identifying a second or successive petition: a later petition is successive if it raises claims that could have been raised earlier and there is no legitimate excuse, subject to a “small subset of unavailable claims” not treated as successive. Applying Stewart, the court noted that Spivack’s later claim—e.g., denial of access to counsel at critical stages—could have been raised in the first petition.

Rivers v. Guerrero, 605 U.S. 443 (2025)

Rivers v. Guerrero was central. The Supreme Court clarified that a petition is “second or successive” once a judgment on the merits has issued on a first-in-time petition, even if an appeal remains pending. The panel treated this as dispositive of Spivack’s attempt to file another § 2255 while appellate proceedings relating to his first § 2255 were ongoing.

Boyd v. Sec'y, Dep't of Corr., 114 F.4th 1232 (11th Cir. 2024)

Boyd v. Sec'y, Dep't of Corr. reinforced (and operationalized) Rivers in the amendment context: a “motion to amend” filed after the district court entered final judgment (even while an appeal is pending) should be treated as a second or successive habeas application. The court also cited Boyd for the proposition that post-judgment amendment is impossible unless the judgment is first set aside.

United States v. Santarelli, 929 F.3d 95 (3d Cir. 2019)

The district court had temporarily treated the later filing as a motion to amend “for case management purposes,” citing a procedure used in other circuits, including the Third Circuit’s approach in United States v. Santarelli. The Eleventh Circuit explained that the Supreme Court has since disapproved that technique in Rivers. Even so, the panel emphasized that even under the Santarelli technique, the ultimate outcome would have been dismissal as successive once the first appeal failed.

Musacchio v. United States, 577 U.S. 237 (2016)

Musacchio v. United States provided the general definition of the law-of-the-case doctrine: once a court decides a rule of law, that rule governs later stages in the same case. The panel used Musacchio to frame—and then reject—Spivack’s argument that the district court was “bound” by its earlier characterization.

Hornady v. Outokumpu Stainless USA, LLC, 118 F.4th 1367 (11th Cir. 2024)

Hornady v. Outokumpu Stainless USA, LLC supplied the key qualification: district courts have “plenary power” to reconsider non-final rulings. This defeated Spivack’s law-of-the-case theory even if the earlier “case management” treatment were considered a ruling.

Telcy v. United States, 20 F.4th 735 (11th Cir. 2021)

Telcy v. United States reiterated the jurisdictional barrier: absent authorization, neither the district court (nor the court of appeals in the relevant posture) may reach the merits of an unauthorized second or successive petition. The panel cited Telcy to justify not addressing Spivack’s remaining merits arguments.

Legal Reasoning

  1. Jurisdiction to hear the appeal (COA issue): The panel treated the order below as a jurisdictional dismissal. Under Hubbard v. Campbell, that type of dismissal is not a “final order in a habeas corpus proceeding” requiring a COA, so appellate jurisdiction existed.
  2. Successiveness is triggered by a merits judgment, not appellate finality: The decisive move was adopting Rivers v. Guerrero’s clarification: a merits judgment on the first petition is enough to make later filings “second or successive” even if appellate proceedings on the first petition remain pending. This foreclosed arguments premised on “the first § 2255 isn’t final because it’s on appeal.”
  3. Recasting the later filing as an “amendment” could not confer jurisdiction: The panel relied on Boyd v. Sec'y, Dep't of Corr. to hold that a post-judgment motion to amend in habeas is treated as successive. Separately, it relied on Jacobs v. Tempur-Pedic Int'l., Inc. to reject Rule 15(a) as a post-judgment mechanism; after judgment, amendment requires first setting aside judgment under Rule 59(e) or Rule 60(b).
  4. No law-of-the-case constraint from a temporary administrative characterization: The district court’s earlier “for case management purposes” characterization was not a final, binding legal determination. Under Musacchio v. United States, law-of-the-case presupposes a decided rule of law; under Hornady, non-final rulings may be reconsidered.
  5. Rule 59(e) denial was appropriate: Using Jacobs, the panel concluded Spivack’s Rule 59(e) motion merely re-litigated an argument already made, rather than pointing to newly discovered evidence or a manifest error. Without Rule 59(e) relief, there was no procedural gateway to any amendment theory.

Impact

Although unpublished, the decision reflects (and applies) two consequential developments for federal post-conviction practice in the Eleventh Circuit:

  • Earlier trigger for “second or successive” status: By applying Rivers v. Guerrero, the opinion underscores that litigants cannot avoid AEDPA’s authorization requirement by filing additional § 2255 motions during the appeal of an initial merits denial. The operative event is the district court’s merits judgment, not completion of appellate review.
  • Post-judgment “amendments” are tightly constrained: The combination of Boyd and Jacobs narrows strategic options: once judgment enters on a § 2255 petition, later “amendments” are generally treated as successive unless the judgment is first set aside via Rule 59(e) or Rule 60(b), and Rule 59(e) cannot be used simply to reargue characterization disputes.
  • Administrative case management cannot override AEDPA jurisdiction: The opinion signals skepticism toward “temporary amendment” docketing approaches associated with United States v. Santarelli, noting the Supreme Court’s disapproval in Rivers. District courts should expect to treat post-judgment follow-on filings as successive in substance, not merely hold them as putative amendments pending appeal.

Complex Concepts Simplified

“Second or successive” § 2255 petition
Under AEDPA, after a prisoner has had one § 2255 petition adjudicated on the merits, a later § 2255 petition is usually “second or successive.” Before filing it, the prisoner must obtain authorization from the court of appeals; otherwise the district court has no jurisdiction.
Authorization under 28 U.S.C. §§ 2244(b)(3)(A) and 2255(h)
This is a screening step performed by the court of appeals. Without that authorization, the district court cannot consider the later petition at all.
Certificate of appealability (COA)
A COA is often required to appeal a final merits decision in habeas. But a dismissal for lack of subject-matter jurisdiction is treated differently in this circuit under Hubbard v. Campbell, allowing appeal without a COA.
Rule 15(a) amendments vs. post-judgment procedure
Rule 15(a) is liberal before judgment. After judgment, Rule 15(a) does not apply; a party must first reopen the judgment (typically via Rule 59(e) or Rule 60(b)), and in habeas, a post-judgment “amendment” may be treated as a successive petition.
Law-of-the-case
A doctrine meant to prevent re-litigation of issues already decided in the same case. It does not typically bind a court to temporary, non-final, case-management characterizations—especially where the court retains power to reconsider non-final rulings.

Conclusion

The Eleventh Circuit affirmed dismissal because Spivack’s later § 2255 filing was an unauthorized second or successive petition. The decision applies Rivers v. Guerrero to make clear that the district court’s merits judgment on a first § 2255 petition triggers successiveness even while an appeal is pending, and it reinforces that post-judgment “amendment” theories cannot circumvent AEDPA’s jurisdictional authorization requirement. Procedurally, the opinion also reiterates that jurisdictional dismissals in habeas are appealable without a COA and that Rule 59(e) is not a vehicle for reargument.