FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHUN MEI TONG,

 Petitioner,

 v.

UNITED STATES OF AMERICA,

 Respondent.

No. 23-48

OPINION

Application to File Second or Successive Motion

Under 28 U.S.C. § 2255

Submitted July 21, 2023*

San Francisco, California

Filed September 5, 2023

Before: EUGENE E. SILER**, KIM McLANE

WARDLAW, and MILAN D. SMITH, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

* The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable Eugene E. Siler, United States Circuit Judge for the 

Court of Appeals, Sixth Circuit, sitting by designation.
2 TONG V. USA

SUMMARY***

28 U.S.C. § 2255

The panel (1) denied Chun Mei Tong’s application for 

leave to file a second or successive motion under 28 U.S.C. 

§ 2255 in a case in which Tong was convicted of wire fraud 

and aggravated identity theft; and (2) to the extent Tong’s 

second motion raises claims that could not have been 

adjudicated when she filed her first § 2255 motion, 

transferred that aspect of the second motion to the district 

court.

Tong filed a § 2255 motion in the district court 

challenging her restitution order. The district court 

dismissed the motion on the ground that restitution claims 

are not cognizable in a § 2255 motion. Tong then filed a 

second-in-time § 2255 motion asserting new grounds for 

relief. The district court denied it as an unauthorized second 

or successive motion filed in violation of 28 U.S.C. 

§ 2255(h). Pursuant to Circuit Rule 22-3(a), the district 

court referred the matter to this court, which opened the 

matter as an application for authorization to file a second or 

successive motion.

The panel held that the district court’s dismissal of 

Tong’s first motion constitutes an adjudication “on the 

merits” for purposes of the second-or-successive bar. The 

panel explained that when an initial petition or motion is 

dismissed because its claims cannot be considered by the 

court or do not otherwise establish a ground for habeas relief, 

*** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
TONG V. USA 3

regardless of their underlying merits, any later-filed petition 

or motion is second or successive. Accordingly, to the 

extent Tong’s second motion raises claims that could have 

been adjudicated on the merits when she filed her first 

motion, that aspect of her second motion is second and 

successive for purposes of § 2255(h). Because Tong has not 

argued or otherwise made a showing that she meets the 

requirements of § 2255(h), the panel denied her application 

to file a second or successive motion.

In her second motion, Tong claims that her habeas 

counsel provided ineffective assistance by failing to raise 

various grounds for relief in her first § 2255 motion. The 

panel wrote that this claim could not have been adjudicated 

on the merits of her first motion, and thus, is not second or 

successive. The panel transferred this aspect of Tong’s 

second motion to the district court to consider it in the first 

instance.

COUNSEL

F. Clinton Broden, Broden & Mickelsen, Dallas, Texas, for 

Petitioner.

Rebecca A. Perlmutter, Assistant United States Attorney, 

United States Attorney’s Office, United States Department 

of Justice, Honolulu, Hawaii, for Respondent. 
4 TONG V. USA

OPINION

M. SMITH, Circuit Judge:

Chun Mei Tong filed a motion in the district court 

pursuant to 28 U.S.C. § 2255 challenging the amount of 

restitution she was ordered to pay as part of her federal 

sentence for wire fraud and identity theft. After the district 

court dismissed the motion on the basis that restitution

claims are not cognizable in a § 2255 motion, Tong filed a 

second motion asserting new grounds for relief. The district 

court denied the second motion as an unauthorized “second 

or successive” motion filed in violation of § 2255(h) and 

referred the matter to our court pursuant to Ninth Circuit 

Rule 22-3(a).

We hold that the dismissal of Tong’s first motion for 

failing to raise a claim cognizable in habeas rendered her 

second motion “second or successive” for purposes of 

§ 2255(h). Though a prisoner may be permitted to file a 

second habeas motion when her first motion was dismissed 

for curable procedural deficiencies rather than on the merits,

see e.g., Stewart v. Martinez-Villareal, 523 U.S. 637, 645 

(1998), Tong’s first motion was decided on the merits. 

FACTUAL BACKGROUND

In 2019, Chun Mei Tong was convicted of wire fraud in 

violation of 18 U.S.C. § 1343 and aggravated identity theft 

in violation of 18 U.S.C. § 1028A(a)(1). While Tong was 

employed by the United States Department of Housing and 

Urban Development (HUD), she rented out properties 

through the Section 8 Housing Choice Voucher Program in 

violation of regulations prohibiting HUD employees from 
TONG V. USA 5

doing so. She was sentenced to sixty-six months 

imprisonment and ordered to pay $207,874 in restitution. 

Tong appealed her restitution order, and we affirmed. 

United States v. Tong, 2022 WL 187852, at *1 (9th Cir. Jan. 

20, 2022). 

Tong then filed a pro se motion pursuant to 28 U.S.C. 

§ 2255 challenging her restitution order (First Motion). She 

asserted that her trial counsel provided ineffective assistance 

by failing to argue that the victims’ loss amount was 

overstated and that she was not given credit for the $5,125 

in restitution she paid after trial but before sentencing. The 

district court denied the motion without leave to amend on 

the ground that claims challenging restitution may not be 

raised in a § 2255 motion. See United States v. Thiele, 314 

F.3d 399, 400 (9th Cir. 2002) (“28 U.S.C. § 2255 is available 

to prisoners claiming the right to be released from custody. 

Claims for other[] types of relief, such as relief from a 

restitution order, cannot be brought in a § 2255 

motion . . . .”). 

Tong filed a second § 2255 motion (Second Motion), 

alleging new grounds for relief. There, she claimed that her 

trial counsel provided ineffective assistance by (1) failing to 

argue that her conduct was not prohibited by law, (2) failing 

to call an ethics expert at trial, (3) failing to raise the lack of

third-party accounting of the loss amount, and (4) failing to 

object to the loss amount pursuant to United States v. Martin, 

796 F.3d 1101 (9th Cir. 2015). She also claimed that her 
6 TONG V. USA

habeas counsel provided ineffective assistance by failing to 

address these issues in her First Motion.

1

The district court asked the parties to brief whether 

Tong’s Second Motion should be deemed a “second or 

successive” motion filed in violation of 28 U.S.C. § 2255(h), 

which requires such motions to be authorized by the court of 

appeals. Tong argued that her Second Motion should not be 

deemed second or successive because her First Motion was 

not adjudicated on the merits. The district court rejected her 

argument, explaining that “the question is whether the court 

could have adjudicated the Second § 2255 Motion on the 

merits earlier, not whether the First § 2255 [M]otion was 

adjudicated on the merits.” The district court dismissed her 

Second Motion as second or successive and referred the 

matter to our court pursuant to Ninth Circuit Rule 22-3(a), 

which provides that “[i]f an unauthorized second or 

successive . . . section 2255 motion is submitted to the 

district court, the district court may, in the interests of 

justice, refer it to the court of appeals.” 

Upon referral, Tong filed a Motion to Remand to the 

district court, which was construed as a supplement to her 

application for leave to file a second or successive motion. 

We ordered the government to file a response, addressing:

(1) whether the applicant’s second-in-time 

motion was second or successive, including 

whether the denial of the applicant’s first 

§ 2255 motion was “on the merits” for 

purposes of § 2255(h); and 

1 According to Tong, her First Motion was ghostwritten by her attorney, 

Earle Partington, who had previously been disbarred. Tong is the only 

signatory on the motion; the “Signature of Attorney” line is left blank. 
TONG V. USA 7

(2) whether authorization is warranted if the 

second-in-time § 2255 [motion] is second or 

successive. 

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 2253. 

United States v. Buenrostro, 638 F.3d 720, 721 (9th Cir. 

2011). We review de novo a district court’s determination 

that a habeas petition is second or successive. Clayton v. 

Biter, 868 F.3d 840, 843 (9th Cir. 2017). 

ANALYSIS

A federal prisoner challenging her custody “is generally 

limited to one motion under § 2255.” United States v. 

Washington, 653 F.3d 1057, 1059 (9th Cir. 2011). Pursuant 

to 28 U.S.C. § 2255(h) a prisoner may file a “second or 

successive” motion only if the appropriate court of appeals 

certifies that the motion contains newly discovered, 

dispositive evidence or relies on a new constitutional rule 

made retroactive to collateral proceedings. In this case, 

Tong does not contend that her Second Motion meets the

requirements of § 2255(h). Rather, she argues that her 

Second Motion was not second or successive at all, because 

her First Motion was not dismissed “on the merits.”

In habeas law, “second or successive” is a “term of art.” 

Slack v. McDaniel, 529 U.S. 473, 486 (2000).2 “Habeas 

2 Because the Supreme Court has not addressed the meaning of “second 

or successive” in § 2255(h), the parties primarily rely on caselaw 

interpreting the phrase as it is used in § 2244(b)(2). Similar to § 2255(h), 

§ 2244(b)(2) limits state prisoners from raising new claims in a “second 

or successive” petition unless it meets certain requirements. Therefore, 

“we assume, without deciding, that the Court’s interpretation of ‘second 
8 TONG V. USA

petitions that are filed second-in-time are not necessarily 

second or successive.” Clayton, 868 F.3d at 843. “Instead, 

courts have held that in certain circumstances petitions that 

follow an earlier-filed petition should not be deemed second 

or successive because, as a categorical matter, they do not 

constitute an abuse of the writ.” Goodrum v. Busby, 824 

F.3d 1188, 1193–94 (9th Cir. 2016). 

As we have recognized, “if a petitioner files a first 

petition that the court dismisses on technical procedural 

grounds without reaching the merits, a subsequent petition 

will not be deemed second or successive.” Id. at 1194. This 

principle is illustrated in Stewart v. Martinez-Villareal, 

where the Supreme Court considered whether a prisoner’s 

later-filed petition challenging his competency to be 

executed was “second or successive,” after his prior petition 

raising the same claim was dismissed as premature. See 523 

U.S. 637, 644 (1998). The Court held that it was not, 

because the “petitioner d[id] not receive an adjudication of 

his [prior petition],” and “[t]o hold otherwise would mean 

that a dismissal of a first habeas petition for technical 

procedural reasons would bar the prisoner from ever 

obtaining federal habeas review.” Id. at 645. Similarly, in 

Slack v. McDaniel, the Court held that a petition filed after a 

prior petition that was “unadjudicated on its merits and 

dismissed for failure to exhaust state remedies” is not a 

second or successive petition. 529 U.S. at 485–86. In both 

cases, the prisoner’s prior filing was dismissed without 

prejudice for curable deficiencies, which the Court did not 

consider a dismissal “on the merits” for purposes of the 

second-or-successive bar. McNabb v. Yates, 576 F.3d 1028, 

or successive’ for purposes of § 2244(b)(2) applies to § 2255(h).” 

Buenrostro, 638 F.3d at 724.
TONG V. USA 9

1029 (9th Cir. 2009) (citing Slack, 529 U.S. at 485–86); see 

also, e.g., Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 

1999) (first petition dismissed because it was filed in the 

wrong court, and “its refiling in the proper district is not a 

second or subsequent petition”).

In contrast, when a prisoner’s first filing is dismissed due 

to a “permanent and incurable bar to federal review,” that 

dismissal is “on the merits” such that a later filing is deemed 

second or successive. McNabb, 576 F.3d at 1029–30

(internal quotations omitted). For example, when a court 

dismisses a 28 U.S.C. § 2254 petition for state procedural 

default, any later-filed petition is subject to the second-orsuccessive bar. Howard v. Lewis, 905 F.2d 1318, 1322 (9th 

Cir. 1990). As we explained in Howard, although dismissal 

for procedural default does “not determin[e] the merits of the 

underlying claims” in the colloquial sense, “it [does] 

determin[e] on the merits that the underlying claims will not 

be considered by a federal court”—and that determination is 

“considered ‘on the merits’ for purposes of the successive 

petition doctrine.” Id. (emphasis added and internal citations 

omitted). We distinguished dismissal for procedural default, 

which is final, from dismissal for failure to exhaust, where 

“the opportunity is still open” for a prisoner to exhaust her 

state court remedies, after which “a subsequent federal 

petition for habeas corpus could be entertained.” Id. 

As the Second Circuit observed: “We consider the denial 

of procedurally defaulted claims to be ‘on the merits’ even 

though the underlying merits of those claims are not 

reviewed by any federal court because those claims, 

regardless of their merit, can never establish a basis for 

habeas relief.” Graham v. Costello, 299 F.3d 129, 133 (2d 

Cir. 2002) (emphasis added). The court generalized this 

principle, concluding that the “distinction between petitions 
10 TONG V. USA

that are denied ‘on the merits’ and those that are not does not 

depend on whether the federal court actually determined the 

merits of the underlying claims but rather on whether the 

prior denial of the petition conclusively determined that the 

claims presented could not establish a ground for federal 

habeas relief.” Id. (emphasis added). 

We agree. When an initial petition or motion is 

dismissed because its claims cannot be considered by the 

court or do not otherwise establish a ground for habeas relief, 

regardless of their underlying merits, any later-filed petition 

or motion is second or successive.

Applying these principles to this case, we hold that 

Tong’s First Motion was dismissed “on the merits” for 

purposes of the second-or-successive bar. In her First 

Motion, Tong argued that her trial counsel provided 

ineffective assistance by failing to raise certain arguments 

challenging her restitution order. The district court 

dismissed the motion because “a § 2255 petition cannot be 

used as a vehicle to collaterally attack a restitution order.”

The court quoted United States v. Thiel, explaining that “28 

U.S.C. § 2255 is available to prisoners claiming the right to 

be released from custody. Claims for other[] types of relief, 

such as relief from a restitution order, cannot be brought in 

a § 2255 motion.” 314 F.3d at 400. Even though Tong 

“couched [her] restitution claim in terms of ineffective 

assistance of counsel,” because “§ 2255 is available only to 

defendants who are in custody and claiming the right to be 

released,” the district court correctly held that Tong’s 

restitution challenge was not cognizable. Id. at 401–02. 

Though the court did “not determin[e] the merits of the 

underlying claims, it [did] determin[e] on the merits that the 

underlying claims will not be considered.” Howard, 905 

F.2d at 1322 (emphasis omitted). Therefore, the district court 
TONG V. USA 11

adjudicated the motion “on the merits,” and the principle 

recognized in Martinez-Villareal and related cases does not 

apply. 

However, another limitation on the second-andsuccessive bar applies to one aspect of Tong’s Second 

Motion: we have recognized that a habeas filing is “second 

or successive only if it raises claims that were or could have 

been adjudicated on the merits” in the first petition. 

McNabb, 576 F.3d at 1029. In her Second Motion, Tong 

claims that her habeas counsel provided ineffective 

assistance by failing to raise various grounds for relief in her 

First Motion. This claim could not have been adjudicated on 

the merits with her First Motion, and thus, is not second or 

successive. Because “[i]n reviewing an application for a 

second or successive habeas petition, we do not assess the 

cognizability of that petition,” we proceed no further. See 

Clayton, 868 F.3d at 846. We transfer this aspect of Tong’s 

motion to the district court to consider it in the first instance.

CONCLUSION

The district court dismissed Tong’s First Motion because 

it failed to raise claims cognizable pursuant to § 2255. That 

decision constitutes an adjudication “on the merits” for 

purposes of the second-or-successive doctrine. See

McNabb, 576 F.3d at 1029–30. Accordingly, to the extent 

Tong’s Second Motion raises claims that could have been 

adjudicated on the merits when she filed her First Motion, 

that aspect of her Second Motion is second and successive. 

Because Tong has not argued or otherwise made a showing 

that she meets the requirements of § 2255(h), we deny her 

application to file a second or successive motion. However, 

to the extent that Tong’s Second Motion raises claims that 

could not have been adjudicated when she filed her First 
12 TONG V. USA

Motion, those claims are not second or successive and must 

be considered by the district court in the first instance. 

APPLICATION DENIED and PETITION 

TRANSFERRED.