§ 2255 “Second or Successive” Motions: A Post-Resentencing Amended Judgment Is a New, Intervening Judgment (No Claim-by-Claim Bar)

I. Introduction

In Antonio U. Akel v. United States (11th Cir. June 18, 2026), the Eleventh Circuit addressed a recurring AEDPA gatekeeping question: when a federal prisoner files a later 28 U.S.C. § 2255 motion after the district court has entered an Amended Judgment correcting an illegal sentence, is that later motion an unauthorized “second or successive” motion requiring circuit authorization?

The parties were Antonio U. Akel (Petitioner-Appellant) and the United States of America (Respondent-Appellee). The key issue was jurisdictional: whether the district court erred by dismissing Akel’s later § 2255 motion as successive, even though Akel had been resentenced and an Amended Judgment had been entered after partial § 2255 relief.

II. Summary of the Opinion

The Eleventh Circuit vacated the district court’s dismissal and remanded. It held that Akel’s later § 2255 motion was not “second or successive” because it challenged a new, intervening Amended Judgment entered after resentencing that corrected illegal sentences (and corrected the characterization of Count Two to marijuana-only).

The court also rejected the government’s “invited error” argument. Akel did not invite the jurisdictional error; he repeatedly objected to the magistrate judge’s successive-motion view, and subject-matter jurisdiction cannot be manufactured (or waived) by party conduct.

III. Analysis

A. Precedents Cited

1. The “judgment challenged” framework

  • Magwood v. Patterson, 561 U.S. 320 (2010): The cornerstone. “Second or successive” is interpreted with respect to the judgment challenged. Where a new judgment intervenes, a petition challenging that new judgment is not successive. The Akel panel treated Magwood’s “new judgment” rule as controlling and emphasized that AEDPA’s bar is petition-based, not claim-based.
  • Burton v. Stewart, 549 U.S. 147 (2007): Quoted through Magwood for the “new judgment intervening” concept and the centrality of the operative judgment authorizing custody.
  • Insignares v. Sec'y, Fla. Dep't of Corr., 755 F.3d 1273 (11th Cir. 2014): The Eleventh Circuit’s key extension of Magwood. It held there is “one judgment” comprised of conviction and sentence, and a post-new-judgment petition is not successive regardless of whether the claims attack the sentence or the underlying conviction. Akel relies heavily on Insignares to reject the government’s “Count One was untouched” argument.
  • Patterson v. Sec'y, Fla. Dep't of Corr., 849 F.3d 1321 (11th Cir. 2017) (en banc): Clarified that not every postconviction alteration creates a new AEDPA “judgment.” Patterson’s change (removing chemical castration) did not alter imprisonment and therefore did not create a new judgment authorizing custody. Akel distinguishes Patterson because Akel’s Amended Judgment altered imprisonment (and supervised release) terms and even corrected what Count Two convicted him of.
  • Ferreira v. Sec'y, Dep't of Corr., 494 F.3d 1286 (11th Cir. 2007): Used for the definition that the relevant judgment is the conviction plus the most recent sentence authorizing current detention.

2. Rejection of a “claim-by-claim” successive analysis

  • Insignares v. Sec'y, Fla. Dep't of Corr., 755 F.3d 1273 (11th Cir. 2014): Explicitly rejects a claim-based approach; “second or successive” applies to the petition/motion, not individual claims. Akel uses this to fault the district court’s and magistrate judge’s attempt to sever “old” claims and force Akel to refile only “new resentencing” claims.

3. What is not a new judgment: discretionary reductions and limited modifications

  • Armstrong v. United States, 986 F.3d 1345 (11th Cir. 2021): A discretionary reduction under 18 U.S.C. § 3582(c) is not a new judgment for AEDPA purposes because it is only a limited adjustment to an otherwise final sentence. Akel distinguishes Armstrong because Akel’s original sentences were illegal and § 2255(b) required setting aside the unlawful judgment and entering a corrected one.
  • Dillon v. United States, 560 U.S. 817 (2010): Quoted via Armstrong for the proposition that § 3582(c) does not authorize a full resentencing proceeding, but only a limited adjustment.
  • Telcy v. United States, 20 F.4th 735 (11th Cir. 2021): First Step Act sentence reductions do not create a new judgment because they are legislative grace and do not undermine the lawfulness of the underlying sentence. Again distinguished because Akel’s amendments cured unlawfulness and produced an operative Amended Judgment authorizing custody.

4. Interpretive principles and standards

  • Scott v. United States, 890 F.3d 1239 (11th Cir. 2018) (quoting Slack v. McDaniel, 529 U.S. 473 (2000)): “Second or successive” is a term of art that limits jurisdiction and must be read narrowly.
  • Stewart v. United States, 646 F.3d 856 (11th Cir. 2011): Provided the standard of review (de novo) and the cross-use of § 2254 successive-case precedent for § 2255 analysis.
  • Bowe v. United States, 146 S. Ct. 447 (2026): Cited to confirm that Supreme Court developments did not abrogate Eleventh Circuit precedent applying Magwood’s framework to § 2255 motions.

5. Invited error and jurisdictional nonwaivability

  • United States v. Stone, 139 F.3d 822 (11th Cir. 1998): Provided the general invited error doctrine definition.
  • Arbaugh v. Y&H Corp., 546 U.S. 500 (2006), and Wright Transp., Inc. v. Pilot Corp., 841 F.3d 1266 (11th Cir. 2016): Cited for the principle that courts have an independent obligation to assess subject-matter jurisdiction; invited error is disfavored where jurisdiction is at issue.

6. Case-specific procedural anchors

  • United States v. Akel, 337 F. App'x 843 (11th Cir. 2009): Background affirmance of Akel’s original convictions and sentence, including discussion of guideline range and the Count One statutory maximum sentence.
  • Akel v. United States, 581 U.S. 902 (2017) (mem.): Supreme Court vacatur/remand for reconsideration in light of Mathis v. United States, 579 U.S. 500 (2016), which affected ACCA predicate analysis.
  • United States v. Akel, 787 F. App'x 1002 (11th Cir. 2019): The court’s prior decision to treat Akel’s appeal from the Amended Judgment as a direct appeal (no COA required), reinforcing that an Amended Judgment operated as a new judgment.
  • Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405 (11th Cir. 1999), and Fed. R. Civ. P. 12(h)(3): Quoted for the principle that once a court recognizes it lacks subject-matter jurisdiction, it must dismiss.

B. Legal Reasoning

1. The dispositive inquiry is judgment-based, not claim-based

The court framed the controlling question as whether the later § 2255 motion challenged the same “judgment” as the initial § 2255 motion. It held the district court erred by treating particular claims as “successive” and trying to carve them out. Under Magwood v. Patterson and Insignares v. Sec'y, Fla. Dep't of Corr., the successive inquiry turns on whether there is a new judgment intervening—not whether some claims resemble (or could have been raised with) earlier claims.

2. Akel’s 2017 Amended Judgment was a “new judgment” authorizing confinement

The panel emphasized concrete features of the 2017 Amended Judgment:

  • It followed § 2255 relief that determined parts of the original sentence were illegal (Count Seven ACCA enhancement and Count Two statutory maximum error).
  • It imposed revised imprisonment terms (Count Two reduced to 60 months; Count Seven to 120 months) and revised supervised release terms.
  • It corrected the Count Two conviction description (removing cocaine distribution), which directly drove the statutory maximum.
  • It was the operative instrument that “authorizes Akel’s current confinement,” making it the relevant AEDPA judgment.

3. Distinguishing limited sentence modifications (no new judgment)

The government argued the Amended Judgment was just a correction/reduction akin to § 3582(c) or First Step Act modifications. The court rejected that analogy: unlike discretionary, limited adjustments (Armstrong v. United States; Telcy v. United States), Akel’s resentencing followed a determination of unlawfulness and occurred under § 2255(b), which requires setting aside the unlawful judgment and entering a lawful one.

4. Undisturbed counts do not revive AEDPA successiveness

The government’s argument that Count One was “unaffected” failed under Insignares v. Sec'y, Fla. Dep't of Corr.: because the new judgment is “one judgment” incorporating conviction and sentence, the presence of an intervening judgment means the later § 2255 motion is not successive even if it attacks convictions or components that were not changed during resentencing.

5. No invited error where the “error” is jurisdictional and Akel objected throughout

Even though Akel moved to dismiss his pending motion, the panel treated the “invited error” argument as misplaced. The erroneous jurisdictional premise (that the eight claims were successive) originated from the court’s own approach and persisted over Akel’s objections. Moreover, subject-matter jurisdiction must be assessed independently (Arbaugh v. Y&H Corp.), making invited error a poor fit.

C. Impact

  • Clarifies AEDPA gatekeeping in § 2255 practice: When an Amended Judgment is entered after § 2255 relief correcting illegality (including statutory maximum errors and ACCA errors), a subsequent § 2255 motion challenging that Amended Judgment is not “second or successive.”
  • Constrains district-court “claim surgery”: The decision reinforces that courts should not perform claim-by-claim jurisdictional triage as a substitute for the judgment-based inquiry.
  • Draws a sharper line between resentencing and sentence modification: The opinion strengthens the doctrinal distinction between (a) corrected/resentenced judgments under § 2255(b) and (b) discretionary, limited sentence reductions under § 3582(c) and the First Step Act.
  • Practical consequence: Prisoners resentenced via an Amended Judgment may obtain one full, non-successive collateral opportunity directed at that new judgment—though ordinary doctrines (procedural default, law of the case, res judicata, timeliness) may still limit relief. The panel expressly reserved any view on how those doctrines apply on remand.

IV. Complex Concepts Simplified

  • “Second or successive” (§ 2255 / AEDPA): Not every later-filed § 2255 motion is “second or successive.” The label applies (as a jurisdictional bar) when the motion attacks the same operative judgment as a prior § 2255 motion resolved on the merits, absent circuit authorization.
  • “Judgment” for AEDPA purposes: The legally operative package—conviction + sentence—that authorizes current custody. If a court later enters a new sentence judgment (an Amended Judgment) after resentencing/correction under § 2255, that is typically the new operative judgment.
  • New judgment vs. sentence modification: A resentencing/correction that follows a finding of unlawfulness and results in a new judgment authorizing custody differs from a limited, discretionary modification (e.g., § 3582(c) guideline reduction or First Step Act), which generally does not create a new AEDPA judgment.
  • Claim-by-claim approach (rejected): Courts do not decide “successiveness” by asking whether specific claims were raised before. The inquiry is whether the petition/motion challenges a new intervening judgment.
  • Invited error: Generally prevents a party from complaining about an error they induced. But it is a poor fit for subject-matter jurisdiction issues, and it does not apply where the litigant objected and the court independently had a duty to get jurisdiction right.

V. Conclusion

The Eleventh Circuit’s decision establishes (and reaffirms in the § 2255 setting) a clear rule: when a prisoner is resentenced and an Amended Judgment is entered to remedy an illegal sentence, that Amended Judgment is a new, intervening judgment. A subsequent § 2255 motion challenging that new judgment is not “second or successive,” even if it raises attacks on components not altered at resentencing.

By vacating the dismissal and remanding, the court ensured that AEDPA’s jurisdictional bar is applied narrowly and correctly—focused on the judgment authorizing custody, not on a claim-by-claim reclassification of arguments as “old” or “new.”