PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-4274

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UNITED STATES OF AMERICA

v.

JOHN DOE,

Appellant

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Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal Action No. 2-02-cr-00191-001)

District Judge: Honorable Donetta W. Ambrose

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Argued January 12, 2015

Before: AMBRO, FUENTES, and ROTH, Circuit Judges

(Opinion filed: December 9, 2015)

William C. Kaczynski, Esquire (Argued)

1004 Manor Complex

564 Forbes Avenue
2

Pittsburgh, PA 15219

Counsel for Appellant

David J. Hickton

 United States Attorney

Laura S. Irwin (Argued)

 Assistant U.S. Attorney

Rebecca R. Haywood, Esquire

Margaret E. Picking, Esquire

Office of United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

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OPINION OF THE COURT

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AMBRO, Circuit Judge

Contents

I. Introduction .....................................................................4

II. Procedural and Legal History..........................................4

III. Summary of Our Decision.............................................11

IV. Standards of Review and Jurisdiction ...........................13

A. Mootness..................................................................13

B. Jurisdiction to Grant a COA ....................................15

C. Should We Grant a COA? .......................................16

1. Begay’s Arguably Constitutional Dimension.......20

2. Doe’s Arguably Meritorious Begay Claim...........22
3

3. The District Court’s Arguably Wrong Procedural 

Holdings ...............................................................24

4. Conclusion With Respect to COA........................25

D. Cognizability as a Jurisdictional Limit....................25

V. Did the 2008 Motion Count Such That Any Later 

Motion Was Second or Successive?..............................27

VI. Statute of Limitations....................................................28

VII. Was Doe Entitled to Rule 60 Relief? ............................30

VIII.Procedural Default.........................................................35

IX. Retroactivity ..................................................................37

X. Cognizability .................................................................38

A. Supreme Court Guidance.........................................38

B. Seventh Circuit ........................................................40

C. Fourth Circuit...........................................................41

D. Eleventh Circuit .......................................................43

E. Eighth Circuit...........................................................43

F. Our Dicta .................................................................44

G. The Government’s Argument..................................45

H. Synthesis and Conclusion With Respect 

Cognizability............................................................46

XI. Savings Clause ..............................................................49

XII. Conclusion.....................................................................50

“The whole thing was a very cleverly planned jigsaw 

puzzle, so arranged that every fresh piece of 

knowledge that came to light made the solution of the 

whole more difficult.”—Agatha Christie, Murder on 

the Orient Express.

“It’s like kind of complicated to me”—John Doe, on 

the withdrawal of his § 2255 motion.
4

I. Introduction

John Doe, whose identity we protect because he is a 

Government informant, appeals from the denial of (1) a 28 

U.S.C. § 2255 motion filed in 2012 and (2) a request made in 

2013 to reopen a § 2255 motion filed in 2008. Doe was 

sentenced pursuant to the then-mandatory Sentencing 

Guidelines as a “career offender” on the basis of two 

convictions for simple assault in Pennsylvania. He argued in 

his 2008 motion that his convictions were not “crimes of 

violence” within the meaning of the Guidelines and thus he 

was not a career offender. Our precedent foreclosed that 

argument when he made it, but, in light of the Supreme Court 

case Begay v. United States, 553 U.S. 137 (2008), we 

reversed ourselves, and Doe’s argument became plausible. 

He therefore filed another § 2255 motion, but it too was 

denied. 

This case presents many procedural complexities of 

first impression within this Circuit. If Doe can manage the 

Odyssean twists and turns of the Antiterrorism and Effective 

Death Penalty Act of 1996 (AEDPA), including the Scylla of 

the second-or-successive bar and the Charybdis of the statute 

of limitations, he may find a meritorious claim at the end of 

his journey. However, we do not definitively reach the merits 

here and instead remand to let Doe’s case continue its 

uncertain course.

II. Procedural and Legal History

In 1991 Doe pled guilty in Pennsylvania to cocaine 

possession. In 1996 and 2000 (also in Pennsylvania), he pled 

guilty to two simple assaults. In 2003, he pled guilty in 

federal court to distribution and possession with intent to 

distribute at least five grams of crack cocaine in violation of 

21 U.S.C. § 841(a)(1) & (b)(1)(B)(iii) (2000). Doe was 
5

sentenced to 262 months’ incarceration pursuant to the thenmandatory Sentencing Guidelines and case law that has since 

been overruled. This is the sentence he now attacks.

The Sentencing Guidelines provide a significant 

enhancement for “career offenders,” defined as those with “at 

least two prior felony convictions of either a crime of 

violence or a controlled substance offense.” U.S.S.G. 

§ 4B1.1(a)(3). Doe’s 1991 drug conviction was not relevant 

to the career-offender designation because it occurred more 

than 10 years before his federal conviction and did not result 

in a sentence longer than one year and one month of 

imprisonment.1 Thus Doe was a career offender only if both 

of his prior assaults were “crime[s] of violence.” Id.

§ 4B1.1(a)(3). His sentence in 2003 occurred under our case 

law categorically designating simple assault in Pennsylvania 

as a crime of violence, and hence Doe was a career offender. 

United States v. Dorsey, 174 F.3d 331, 333 (3d Cir. 1999). 

He was sentenced to 262 months of imprisonment, the bottom 

of the Guidelines range, and did not appeal. Without the 

career-offender enhancement, Doe’s Guidelines range would 

 

1 See U.S.S.G § 4B1.2(c)(2) (offenses must be counted under 

§ 4A1.1’s calculation of criminal history points in order to 

count for career offender purposes); § 4A1.1 Commentary 

(cross-referencing § 4A1.2 for instructions on how to 

compute criminal history points); § 4A1.2(e)(2) (excluding 

from calculation offenses for which the sentence received is 

less than one year and a month and that occurred more than 

ten years before the offense conduct to which the defendant is 

being sentenced). 
6

have been 110–137 months, with a mandatory minimum of 

10 years.2 U.S.S.G. ch. 5 pt. A (2002). 

In 2004 the Government filed a motion to reduce 

Doe’s sentence because he provided “substantial assistance” 

to the Government in a different criminal investigation. Fed. 

R. Crim. P. 35(b). The Government requested that the 

District Court hold the motion in abeyance while the 

investigation was ongoing, which the Court did. While the 

Rule 35 motion was still pending, Doe filed a § 2255 motion 

arguing in part that his simple assault convictions were not 

crimes of violence and that he was therefore wrongly 

sentenced as a career offender.

On April 16, 2008, the Supreme Court decided Begay, 

which held that a DUI conviction is not a “violent felony” 

within the meaning of the Armed Career Criminal Act 

(ACCA) because it does not involve “purposeful, violent, and 

aggressive conduct.” 553 U.S. at 145. The words and 

structure of the career-offender Sentencing Guideline are 

similar to the ACCA’s. This holding thus significantly 

strengthened Doe’s argument (which otherwise would have 

certainly failed because of Dorsey), as the subsection of

Pennsylvania’s assault statute to which Doe pled guilty 

 

2 Doe faced a mandatory minimum sentence of 10 years 

based on his 1991 conviction for cocaine possession. 21 

U.S.C. § 841(b)(1)(B)(iii) (2000). Although, as explained 

above, not relevant to his Guidelines calculation, Doe’s 1991 

conviction set his minimum statutory sentence, as older 

sentences for drug crimes involving small amounts of 

contraband still count as prior convictions that trigger 

mandatory minimums under the Controlled Substances Act. 

Id.
7

proscribes intentional (i.e., purposeful), knowing and reckless 

conduct. 18 Pa. Cons. Stat. § 2701(a)(1) & (a)(2). Yet, 

panels of this Court continued to apply Dorsey in 

nonprecedential opinions. E.g., United States v. Wolfe, 301 F. 

App’x 134 (3d Cir. 2008).

The District Court appointed the Federal Defenders to 

represent Doe on collateral review. On April 16, 2009, one 

year to the day from Begay (and thus the last day of 

AEDPA’s limitations period within which Doe could make an 

argument attacking his sentence based on that decision, see

28 U.S.C. 2255(f)), the District Court held an evidentiary 

hearing on both the Rule 35(b) and the § 2255 motions.

It indicated that it would grant Rule 35 relief but 

would not vacate the sentence under § 2255, and Doe’s 

counsel withdrew the § 2255 motion. Throughout the 

hearing, a crucial factor for everyone was how to keep 

confidential that Doe was cooperating with the authorities; if 

his cooperation got out, he would have been in danger from 

other inmates. The Court and counsel engaged in a lengthy 

colloquy about whether they were proceeding on Doe’s 

§ 2255 motion or the Government’s Rule 35 motion. 

Eventually, Doe’s lawyer proposed the following.

MR. LIVINGSTON [Doe’s counsel]: Your 

Honor, what I can do at sidebar is withdraw [the 

§ 2255 motion], but when I was asking, for the 

public portion of this record, the reason I made 

that request and the reason why I said the things 

I said of public record were mostly for Mr. 

Doe’s[3] safety. When he explained—what he 

 

3 We do not note in this opinion where we have altered Doe’s 

name.
8

explained to me is that he is fully expecting that 

the Court is going to enter a sentence today that 

is greater than time served and that he’s going 

to go back to the federal place from which he 

came, and that inmates there, if they find out 

that he is now serving a lesser term of 

imprisonment will suspect that he came in here 

on a 35(b) motion. So, without of record 

formally withdrawing the motion, what I can 

say at sidebar is that Mr. Doe is not expecting

relief under the 2255 vehicle.

THE COURT: But I think we have a problem 

then, I do, because I’m not going to grant the 

relief under 2255. I’m glad to grant it under 

35(b) and I’m glad to keep that under seal, but I 

am not finding today that he’s not a career 

offender and that his criminal history 

calculation in the presentence report 

overrepresented the actual severity of his past 

criminal history. So, I mean I think to do that, I 

almost have to say then that he’s really not a 

career offender because I have to give those 

past offenses less weight and take him out of 

that status, and I don’t find that to be true.

So I don’t know how we accomplish that 

because that’s the basis of my relief today. The 

basis of my relief is . . . the government having 

filed a 35(b) motion and telling me what they 

have told me today.

There followed further discussion on how to seal proceedings, 

and the Court addressed the defendant:
9

THE COURT: Mr. Doe, do you have any 

questions at all about what we’ve just been 

talking about here?

THE DEFENDANT: It’s like kind of 

complicated to me.

THE COURT: If you want to have a little bit of 

time to speak with Mr. Livingston, you 

certainly can.

THE DEFENDANT: I would appreciate that.

(Whereupon, there was a brief pause in the 

proceedings.)

MR. LIVINGSTON: I’ve had an opportunity to 

discuss the procedures that we’ve just been 

going through here with Mr. Doe, and on his 

behalf, what I’m going to do formally is move 

to withdraw his pro se 2255.

The Court then granted the Rule 35(b) motion and reduced 

Doe’s sentence by about seven years.

On May 5, 2009, Doe appealed from the grant of the 

Rule 35(b) motion, arguing that he was entitled to further 

reduction because of his wrongful classification as a career 

offender under the Guidelines. While that appeal was 

pending, we decided United States v. Johnson, 587 F.3d 203 

(2009), which overruled Dorsey in light of Begay and held 

that courts must inquire into the part of the statute to which 

the defendant actually pled guilty in order to determine 

whether the career-offender enhancement applies. If the 

defendant pled guilty to “an intentional or knowing violation 

of” Pennsylvania’s assault statute, he has committed “a crime 

of violence” within the meaning of the career-offender 
10

sentencing guideline. Id. at 212. In looking to the part of the 

statute to which a defendant pled, courts are restricted to the 

“Shepard materials,” namely, “the statutory definition, 

charging document, written plea agreement, transcript of plea 

colloquy, and any explicit factual finding by the trial judge to 

which the defendant assented.” Shepard v. United States, 544 

U.S. 13, 16 (2005).

Shortly after our Court’s decision in Johnson, Doe 

filed a motion to remand his appeal to the District Court, 

which we denied. When we ruled on the merits of his appeal, 

we erroneously stated that Doe would be able to bring his 

Begay claim in a timely § 2255 motion based on our mistaken 

conclusion that the statute of limitations does not begin to run 

until a new right is deemed retroactive on collateral review. 

United States v. Doe, No. 09-2265, slip op. at 11 (3d. Cir. 

2012) (sealed). In fact, the statute begins to run from the date 

the new right is recognized. Dodd v. United States, 545 U.S. 

353, 360 (2005). In any event, we affirmed the sentence and 

held that Rule 35 was not an appropriate means for Doe to 

attack his underlying sentence. 

After our opinion on appeal from the Rule 35 

proceedings, in 2012 Doe filed a § 2255 motion, again raising 

his Begay argument. The statute of limitations for a § 2255 

motion is one year, and, as stated above, begins to run the 

date a new right is recognized. Therefore, the statute of 

limitations on Doe’s Begay argument expired on April 16, 

2009, the day his lawyer withdrew his 2008 § 2255 motion. 

The District Court concluded that there was no basis to toll 

the limitations period for the 2012 motion and, in the 

alternative, that the 2012 motion was an impermissible 

second § 2255 motion. Doe filed a motion for 

reconsideration, arguing that the withdrawal in 2009 of his 

2008 § 2255 motion was involuntary due to ineffective 

assistance of counsel. The District Court appointed new 
11

counsel, who in 2013 filed a “supplemental” § 2255 motion 

and requested that the District Court either reinstate the 2008 

pro se motion or equitably toll the statute of limitations for 

the 2012 motion. (The parties treat the 2012 motion and the 

2013 supplemental motion collectively as one motion filed in 

2012, and we do the same.) The District Court again held 

that there was no basis for equitable tolling and also 

concluded that, because § 2255 counsel was not deficient 

under Strickland, the 2008 motion should not be reinstated.

Doe appeals.

III. Summary of Our Decision

Doe’s case is unusually complex, even in the already 

intricate and technical areas of law under § 2255 and its 

cousin habeas corpus. We therefore begin with an overview 

of the questions we face and our bottom-line holdings. 

Readers uninitiated in the mysteries of collateral review will 

find the following paragraphs opaque; we hope the rest of our 

opinion clarifies them.

To reiterate, Doe’s central claim is that he was 

sentenced as a career offender on the basis of two convictions 

for assault that should not have been considered. When he 

first raised this claim, our case law labeled it a loser, but the 

argument gained strength after the Supreme Court ruled in 

Begay.

Although Doe has been released from prison, we first 

hold that Doe’s case is not moot, as it is sufficiently likely 

that, if he wins, the District Court will shorten his term of 

supervised release. Next, we consider whether Doe has made 

the substantial showing of the denial of a constitutional right 

that entitles him to appeal even though Begay was not 

explicitly a constitutional decision. We conclude that we 
12

have jurisdiction to issue a certificate of appealability (COA); 

we then issue one on three threshold issues. We further decide 

that even though Doe’s claim is arguably not cognizable on 

collateral review, we have jurisdiction over the case, as 

cognizability is not always a jurisdictional limit.

Secure in our jurisdiction, we turn to the issues on 

which we grant the COA and assume without deciding that 

Doe’s 2012 § 2255 motion is not a second or successive 

motion over which the District Court lacked jurisdiction. We 

do so because, even if the 2008 motion did not count as Doe’s 

first, the 2012 motion would have been untimely and the 

circumstances of this case do not call for tolling the statute of 

limitations. 

Then we consider whether Doe was entitled to 

reinstate his 2008 motion under Federal Rule of Civil 

Procedure 60. Concluding that this is a question properly left 

to the District Court’s sound discretion, we remand on this 

ground.

To make sure that our remand is not a waste of time, 

we consider other potential bars to collateral relief. We hold 

that Doe has not procedurally defaulted his claim and that in 

any event the Government has waived this affirmative 

defense. We then accept the Government’s concession that 

Begay applies retroactively. Next, we hold that claims of 

Begay error are cognizable on collateral review at least where 

they are not defaulted and the § 2255 movant was sentenced 

under the mandatory Guidelines. Finally, we acknowledge 

that, even if Doe is unsuccessful in reinstating his 2008 

§ 2255 motion, he may be able to pursue the rare petition for 

a writ of habeas corpus under 28 U.S.C. § 2241.

We proceed to put some flesh on these bones.
13

IV. Standards of Review and Jurisdiction

We review legal determinations de novo, factual 

findings for clear error, and matters committed to the District 

Court’s discretion for abuse thereof.

There are four jurisdictional questions in this case. 

First, the Government argues that Doe’s appeal is moot 

because he is currently serving the supervised release portion 

of his sentence, which may not be reduced even if Doe 

prevails on the merits. The next question is whether we have 

jurisdiction to grant a COA. If we do, we reach the third 

question, which is whether we should in fact grant a COA so 

that we have jurisdiction over the merits of the case. Finally, 

we raise nostra sponte (that is, on our own) the question of 

whether, if Begay error is not cognizable in a § 2255 

proceeding, the District Court lacked jurisdiction.

A. Mootness

The Government has moved to dismiss Doe’s appeal 

as moot because, under 21 U.S.C. §§ 841(b)(1)(B)(iii) and 

851, he must serve eight years of supervised release 

regardless of the merits of his appeal. Even if it turns out that 

he was incarcerated too long, the Government argues that no 

relief is available to him because removing the careeroffender designation will not affect his supervised release. 

In circumstances similar to this case, where a § 2255 

movant on supervised release appealed the length of his 

imprisonment, we observed that the District Court could 

credit him with the time served in prison exceeding a lawful 

sentence and reduce the length of his supervised release by 

that amount. United States v. Wright, 642 F.3d 148, 155 n.7 

(3d Cir. 2011). Likewise here, that Doe’s eight-year 

supervised release term is statutorily required is no obstacle to 
14

our jurisdiction because Federal Rule of Criminal Procedure 

35(b), under which Doe was sentenced, “authorizes a district 

court to reduce any aspect of a defendant’s [otherwise 

statutorily mandated] sentence, including supervised release 

terms.” United States v. Spallone, 399 F.3d 415, 424 (2d Cir. 

2005).4 Because the District Court may reduce the duration 

of Doe’s supervised release if he prevails, the case is not 

moot.

 

4 The Government, in a petition for panel rehearing, argued 

that the “putative availability to Doe of a wholly separate 

procedural route to redress in the form of Rule 35(b) has no 

bearing on whether the instant matter is moot” because Doe’s 

Rule 35(b) proceedings are “closed and final.” Pet. for Panel 

Rehearing at 11. In essence, the Government’s argument is 

that Rule 35(b) cannot help Doe in the current case because 

the challenge here is to his initial sentence, not to his sentence 

as modified by the closed Rule 35(b) proceedings. However, 

this overlooks that, if Doe prevails, it would necessarily mean 

that the District Court used an unlawful sentence as a starting 

point for its Rule 35(b) reduction. Because that reduction was 

intertwined with Doe’s initial sentence, the District Court 

would have the authority to vacate both and revisit them de 

novo as part of its resentencing. Cf. United States v. Diaz, 639 

F.3d 616, 620 (3d Cir. 2011) (noting that “common sense 

dictates” that de novo resentencing should be available where 

there is a need to “reconstruct the sentencing architecture” 

after one component of an interrelated sentencing scheme is 

vacated) (quoting United States v. Davis, 112 F.3d 118, 122 

(3d Cir. 1997) (internal quotation marks omitted).
15

B. Jurisdiction to Grant a COA

The motions panel that referred Doe’s COA request to 

our (merits) panel directed the parties to brief whether we 

have jurisdiction to issue a COA. This phrasing bundles two 

distinct questions: whether we have jurisdiction to entertain 

Doe’s request for a COA; and, if we grant a defective COA, 

whether that would deprive us of jurisdiction over the appeal.

We clearly have jurisdiction to consider Doe’s 

application for a COA, as an appeal may be taken to a court 

of appeals if “a circuit justice or judge issues a certificate of 

appealability.” 28 U.S.C. § 2253(c)(1). A COA is a 

“jurisdictional prerequisite” to an appeal on the merits. 

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). “The COA 

statute establishes procedural rules and requires a threshold 

inquiry into whether the circuit court may entertain an 

appeal.” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 482 

(2000), and Hohn v. United States, 524 U.S. 236, 248 (1998)). 

Section 2253 unambiguously gives us jurisdiction—as a panel 

or individually as circuit judges—over the threshold inquiry. 

Gonzalez v. Thaler, 132 S. Ct. 641, 649 (2012) (“Congress 

placed the power to issue COAs in the hands of a ‘circuit 

justice or judge.’” (quoting 28 U.S.C. § 2253(c)(1)).

As a COA is a jurisdictional prerequisite to an appeal, 

it was until recently arguable that a defective COA fails to 

give a court jurisdiction over the merits of a case. United 

States v. Cepero, 224 F.3d 256 (3d Cir. 2000) (en banc), 

overruled by Gonzalez, 132 S. Ct. 641. A COA is defective if 

it is issued where the applicant has made no “substantial 

showing of the denial of a constitutional right.” 28 U.S.C. 

§ 2253(c)(2). Here, Doe’s most substantial claim is that the 

sentencing Court applied an incorrect (but not in itself 

unconstitutional) interpretation of the Sentencing Guidelines. 

Therefore, the case could be made that any COA here would 
16

be defective, as Doe has failed to make the required showing 

of the denial of a constitutional right.5 Under Cepero, if the 

COA were defective, we would lack jurisdiction over the 

appeal. However, in Gonzalez the Supreme Court clarified 

that § 2253(c)(2) is not a jurisdictional statute. 132 S. Ct. at 

649. Therefore, even if we issued a defective COA, it would 

still give us jurisdiction over the appeal.

We thus have jurisdiction to decide whether to grant 

the COA. It is also settled that we should not grant the COA 

unless Doe has made a substantial showing of the denial of a 

constitutional right. Furthermore, even if we erroneously 

granted a COA over a non-constitutional issue, we would still 

have jurisdiction over the appeal. The next question is 

whether we should in fact grant the COA, giving us 

jurisdiction over the merits of the appeal.

C. Should We Grant a COA?

Section 2253(c)(2) provides that “[a] certificate of 

appealability may issue . . . only if the applicant has made a 

substantial showing of the denial of a constitutional right.” 

(emphasis added). The Supreme Court has held that, as here, 

 

5 As discussed immediately below in Part III.C, it was 

arguably unconstitutional to sentence Doe according to the 

erroneous interpretation of the Guidelines because it is 

unconstitutional to punish someone more severely than the 

law allows; however, if the Guidelines in fact meant what the 

sentencing Court thought they did, there would be no 

constitutional infirmity in Doe’s sentence. 
17

[w]hen the district court denies a habeas 

petition[6] on procedural grounds without 

reaching the prisoner’s underlying 

constitutional claim, a COA should issue when 

the prisoner shows, at least, that jurists of 

reason would find it debatable whether the 

petition states a valid claim of the denial of a 

constitutional right and that jurists of reason 

would find it debatable whether the district 

court was correct in its procedural ruling.

Slack, 529 U.S. at 484.

Perhaps surprisingly, there is some debate as to 

whether “constitutional” in § 2253(c)(1) means 

“constitutional” or “federal.” 2 Randy Hertz & James S. 

Liebman, Federal Habeas Corpus Practice and Procedure

§ 35.4b[i] & n.33 (6th ed. 2011) [hereinafter FHCPP] 

(collecting cases). This is because, pre-AEDPA, to obtain a 

certificate of probable cause to appeal (the term for what is 

now a COA), an applicant needed to make a substantial 

showing of the denial of a federal right. Barefoot v. Estelle,

463 U.S. 880, 893 (1983). The Supreme Court since held, in 

Slack v. McDaniel, that § 2253(c) codified that standard. 529 

U.S. at 483. In doing so, the Slack Court expressed “due note 

for the substitution of the word ‘constitutional’” for “federal.” 

Id. However, the Court did not engage in extended 

discussion about whether the change was meaningful. See 

 

6 There are significant overlaps between the law of habeas 

corpus and motions to vacate, set aside, or correct sentences 

under 28 U.S.C. § 2255. In quoting cases from the habeas 

context, we do not address the differences from § 2255 law 

except where they are relevant to this appeal.
18

Medellín v. Dretke, 544 U.S. 660, 678 (2005) (per curiam) 

(O’Connor, J., dissenting). We have held that the change was 

meaningful. Marshall v. Hendricks, 307 F.3d 36, 80–81 (3d 

Cir. 2002); Cepero, 224 F.3d at 265–68. Hence, to obtain a 

COA, Doe must make a substantial showing of the denial of a 

constitutional right; a mere federal right will not do.7

 

7 Cepero went further than saying we may not hear appeals 

from denials of collateral relief when the appellant only

brings federal claims that are non-constitutional; we also held 

that we may not hear an appeal on any such claim even when 

the appellant has made a substantial showing of the denial of 

an independent constitutional right (for example, under 

Cepero, if a § 2255 movant makes a substantial showing of 

both a Brady violation and a non-constitutional sentencing 

error, the movant may appeal only the Brady issue). But see 

Ramunno v. United States, 264 F.3d 723, 725 (7th Cir. 2001) 

(“If the case presents a substantial constitutional question, 

then an independently substantial statutory issue may come 

along for the ride. This is one holding of Slack.”). 

We need not decide whether this aspect of Cepero 

survives Gonzalez. Our case held that we have no jurisdiction 

over appeals from denials of statutory claims. After 

Gonzalez, we clearly have jurisdiction, but it is still an open 

question whether § 2253(c)(1) bars appellants without any 

constitutional claims or bars all non-constitutional claims on 

appeal even if a constitutional claim is alongside. On this 

point Cepero is difficult to reconcile with Slack (which held 

that a petitioner may appeal from an adverse nonconstitutional procedural decision, 529 U.S. 483–84), and 

Gonzalez may be read to undermine Cepero significantly, but 

Doe’s case does not actually present the question because his 
19

One important qualification is in order: even though an 

appellant must make a substantial showing of the denial of a 

constitutional right to get a COA, this aspect of our threshold 

inquiry is satisfied even if the claim is only debatably 

constitutional. In Hunter v. United States, 559 F.3d 1188, 

1190 (11th Cir. 2009), the Eleventh Circuit denied a COA 

because Begay was not a constitutional decision. However, 

the Supreme Court vacated that judgment in light of the 

position in the Solicitor General’s brief, which argued the 

proper approach would “encompass[] review of ‘debatably 

constitutional’ claims.” See Br. of Solicitor General 9, 

Hunter v. United States, No. 09-122, 2009 WL 4099534 

(Nov. 25, 2009); Hunter v. United States, 558 U.S. 1143 

(2010). The Solicitor General’s position is consistent with 

Slack’s characterization of the decision to grant or deny a 

COA as a threshold inquiry. The contrary stance, requiring 

the claim at issue to be constitutional beyond debate, would in 

close cases require something approaching a merits decision 

at the supposedly threshold COA phase. In this context, we 

hold that Doe may be granted a COA even if Begay is only 

arguably (to be clear, plausibly or subject to good faith 

debate) a decision of constitutional dimension. See United 

States v. Martin, 226 F.3d 1042, 1046 (9th Cir. 2000) (issuing 

a COA because, at the time defendant’s § 2255 motion was 

filed, the constitutional issue was debatable, even though by 

the time of appeal the Supreme Court had resolved it against 

defendant’s position); see also Hunter, 558 U.S. 1143.

So we come to another threshold question in this case: 

is Doe entitled to a COA? There are three predicate 

 

only substantial claim is the Begay violation; either the Begay 

claim is constitutional or it’s not, and we need not decide 

whether it can “tag along” with a clearly constitutional claim.
20

questions: could jurists of reason debate whether (1) Begay is 

constitutional as applied through the Sentencing Guidelines; 

(2) Doe has stated a valid claim of Begay error; and (3) the 

District Court rightly decided Doe’s motion?

1. Begay’s Arguably Constitutional 

Dimension

Debate is currently fervid across the circuits on 

whether Begay is a constitutional decision; we have yet to 

weigh in. Supporting Doe’s position are Narvaez v. United 

States, 674 F.3d 621 (7th Cir. 2011), and Whiteside v. United 

States, 748 F.3d 541, 548 (4th Cir.), rev’d on other grounds, 

775 F.3d 180 (4th Cir. 2014) (en banc), cert. denied, 135 S. 

Ct. 2890 (2015), both of which held that erroneously 

classifying someone as a career criminal under the mandatory 

Sentencing Guidelines arguably violates the Due Process 

Clause by conferring a longer sentence than the law allows. 

The Government argues that in this case Doe’s classification, 

even if erroneous, did not result in an illegally long sentence 

(and thus comported with due process) because the top of the 

relevant statutory sentencing range (life imprisonment) is 

higher than the sentence he received (262 months). Narvaez

rejected that argument, as the career offender enhancement

created a legal presumption that [Narvaez] was 

to be treated differently from other offenders 

because he belonged in a special category 

reserved for the violent and incorrigible. No 

amount of evidence in mitigation or extenuation 

could erase that branding or its effect on his 

sentence. . . . The sentencing court’s 

misapplication of the then-mandatory § 4B1.1 

career offender categorization in Mr. Narvaez’s 

case was the lodestar to its guidelines 

calculation. 
21

674 F.3d at 629 (emphasis in original).

A panel of the Fourth Circuit held that 

miscategorization as a career offender worked a “complete 

miscarriage of justice” without deciding whether it also 

violated the Due Process Clause. Whiteside, 748 F.3d at 548. 

In granting the COA, however, the Court made a threshold 

inquiry about whether the erroneous designation worked a 

constitutional deprivation and was “satisfied that . . . it [was] 

at least debatable that erroneous application of the career 

offender enhancement deprived Whiteside of his liberty in 

violation of his due process rights.” Id. at 555.

By contrast, the Eighth Circuit, sitting en banc, held in 

Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) 

(en banc), that: Begay’s analysis of the language used in 

U.S.S.G. § 4B1.1 presented an “ordinary question[] of 

[G]uideline interpretation;” because Sun Bear’s sentence was 

within the District Court’s statutory authority to impose, “no 

miscarriage of justice is at issue;” and the claim, far from 

being constitutional, was not even cognizable in a § 2255 

case. The District Court in Sun Bear had granted a COA, and 

neither the panel nor the en banc Circuit Court discussed 

whether the COA was defective.

The Supreme Court has stressed that the decision to 

grant a COA is a “threshold inquiry” into whether “jurists of 

reason could disagree with the district court’s resolution 

. . . or that jurists could conclude the issues presented are 

adequate to deserve encouragement to proceed further.” 

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Given the 

live debate in several circuits about whether Begay error in a 

sentencing case violates the Constitution, a debate that has 

resulted in a circuit split and at least two rehearings en banc, 

we join the Fourth and Seventh Circuits in holding that, 

whatever the final outcome, Begay error is debatably 
22

constitutional, and therefore the word “constitutional” in 

§ 2253(c)(2) is no bar to a COA in this case.

2. Doe’s Arguably Meritorious Begay

Claim

Next, we must analyze whether “jurists of reason 

would find it debatable whether [Doe’s motion] states a valid 

claim of” Begay error. Slack, 529 U.S. at 484. This is easy—

Doe was sentenced as a career offender because of two 

simple assault convictions. A career offender is someone 

who has been convicted of at least two crimes of violence. 

U.S.S.G. § 4B1.1. Simple assault is not categorically a crime 

of violence under the Sentencing Guidelines; rather, only 

knowing or intentional assaults are. Johnson, 587 F.3d at 

210–211 & n.8.8 In deciding whether a defendant pled guilty 

to a knowing or intentional assault, we are “generally limited 

to examining the statutory definition, charging document, 

written plea agreement, transcript of plea colloquy, and any 

 

8 Because the Government conceded in Johnson that reckless 

assault did not qualify as a crime of violence, we saw no need 

to decide whether Begay overruled our prior holding that 

“purely reckless crimes may count as predicate offenses for 

purposes of career offender guideline.” Dorsey, 174 F.3d at 

333. We did, however, note that “Begay . . . made plain that 

only ‘purposeful, violent, and aggressive conduct’ may 

constitute a violent felony . . . [and] distinguished that sort of 

conduct from . . . ‘a crime of negligence or recklessness.’” 

Johnson, 587 F.3d at 211 n.8 (quoting Begay, 553 U.S. at 

144–46). The Government also concedes here that reckless 

conduct is not a crime of violence, Gov’t Br. at 70, and we 

agree for the reasons quoted from Begay in Johnson.
23

explicit factual finding by the trial judge to which the 

defendant assented.” Shepard, 544 U.S. at 16. We have also 

held that a Presentence Investigation Report (PSR) can be a 

Shepard document when the defendant does not object to a 

factual account of a crime therein. United States v. Siegel, 

477 F.3d 87, 93 (3d Cir. 2007).9

The Shepard materials in the record before us do not 

establish that Doe pled guilty to knowing or intentional 

conduct. We have the statutory definition of simple assault, 

the criminal information for Doe’s first assault, the plea 

colloquies for both of Doe’s assaults, and Doe’s PSR in this 

case to which he did not object. A person is guilty of simple 

assault in Pennsylvania if he “attempts to cause or 

intentionally, knowingly or recklessly causes bodily injury to 

another” or if he “negligently causes bodily injury to another 

with a deadly weapon.” 18 Pa. Cons. Stat. § 2701(a)(1) & 

(a)(2). To be guilty of intentional or knowing assault, the 

defendant must “intend[] to impair the victim’s physical 

condition or cause her substantial pain.” Johnson, 587 F.3d at 

212. Doe’s information tracks the language of the statute’s 

first subsection and says that he “intentionally, knowingly or 

recklessly caused injury to another, namely David Amon to 

wit: by spitting on him in the face and slapping him in the left 

cheek area causing pain, redness and swelling to the left 

cheek area.” App. 51. At the plea colloquy, the only 

 

9

 In Johnson, 587 F.3d at 212, n.10, we declined, despite 

Siegel, to consider factual matter in an unobjected-to PSR on 

the ground that the document provided no basis to determine 

the defendant’s mens rea. We need not attempt to resolve 

any tension between Johnson and Siegel, as the description of 

Doe’s actions here does not provide an adequate basis to hold 

that he pled guilty to knowing or intentional assault.
24

reference to Doe’s conduct was a question by the prosecutor, 

“Do you admit that you did strike him,” and Doe’s answer, 

“Yes.” Tr. 12:17–19, App. 64. The PSR, to which Doe did 

not object, states roughly the same set of facts for Doe’s 

second assault conviction as the information that Doe slapped 

the victim in the face and spat on him (the PSR adds that he 

spat a second time). This factual recitation is insufficient to 

hold that Doe’s conduct was knowing or intentional. 

Slapping someone in the face and spitting are not violent 

enough for us to conclude that Doe must have intended to 

“impair the victim’s physical condition or cause [him] 

substantial pain.” Johnson, 587 F.3d at 212. Therefore, it 

appears that Doe has at most one conviction for a crime of 

violence within the meaning of the Sentencing Guidelines.

For these reasons, Doe likely was not a career 

offender, and, at a minimum, jurists of reason would at least 

find it debatable whether Doe has stated a valid Begay claim.

3. The District Court’s Arguably Wrong 

Procedural Holdings

Third, we must determine whether jurists of reason 

would find it debatable that the District Court correctly 

dismissed Doe’s motion as second or successive, denied his 

request for equitable tolling of the statute of limitations, and 

denied Rule 60 relief that would have reinstated Doe’s timely 

2008 motion that also challenged his career offender status. 

The District Court evaluated all three issues through the lens 

of an ineffective-assistance-of-counsel claim, deciding that, 

because counsel was not ineffective in withdrawing the 2008 

motion, the 2012 motion was a second motion, and neither 

equitable tolling nor Rule 60 relief was available. We explore 

these points in greater detail below, but for the threshold 

COA question it is enough to note that the District Court 

engaged in the wrong analysis. Whether the 2012 motion was 
25

a second motion depends on why the 2008 motion was 

withdrawn, not on whether it was a legitimate strategic 

choice. See Thai v. United States, 391 F.3d 491, 495 (2d Cir. 

2004) (per curiam). As for equitable tolling and Rule 60, 

both require courts to inquire into the totality of the 

circumstances; counsel’s ineffectiveness may be one factor, 

but it is not necessarily determinative.

4. Conclusion With Respect to COA

For the reasons discussed above, we grant Doe a COA 

on whether the District Court properly ruled that (1) his 2012 

motion was his second, (2) he was not entitled to equitable 

tolling on his 2012 motion, and (3) he was not entitled to 

reinstate his 2008 motion.

D. Cognizability as a Jurisdictional Limit

The Government contends that Begay error is not 

cognizable on collateral review because it is not of 

constitutional magnitude. Assuming for the moment the 

Government is correct, we do not believe (nor does the 

Government argue) that this sort of cognizability limitation is 

also a jurisdictional one. But, as we have a duty to be sure we 

have power to decide the case, we pause to consider any 

potential jurisdictional implications. 

Sometimes habeas petitioners and § 2255 movants 

bring claims that are not cognizable on collateral review, and 

judges conclude they lack jurisdiction over those claims. 

E.g., Palma-Salazar v. Davis, 677 F.3d 1031, 1038 (10th Cir. 

2012); Trinidad y Garcia v. Thomas, 683 F.3d 952, 1009 (9th 

Cir. 2012) (per curiam) (en banc) (Kozinski, J. dissenting). 

Other courts have indicated that cognizability is not 

jurisdictional. United States v. Fung, 935 F.2d 276, mem. at 

2 (9th Cir. 1991) (not precedential) (per curiam). These 
26

strands of case law are harmonized when we recognize that 

collateral review courts lack jurisdiction if applicants seek 

unavailable remedies. A habeas court may lack jurisdiction 

over a claim that does not challenge the fact, duration, or 

conditions of confinement because the court is powerless to 

afford the proper remedy for the claim, like damages (as 

available collateral remedies are generally release or vacating 

a conviction or sentence, or some combination of the 

foregoing, see 2 FHCPP § 33.1). In Article III terms, certain 

claims are not redressable on collateral review, and thus the 

Court lacks jurisdiction over them. Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 561 (1992).

Doe’s claim is not the sort of non-redressable claim 

over which collateral courts lack jurisdiction. He seeks to 

correct his sentence, and therefore he is properly proceeding 

under § 2255. If his claim is not cognizable, then he has 

failed to state a claim on which relief may be granted, but he 

properly invoked the District Court’s jurisdiction. Bell v. 

Hood, 327 U.S. 678, 681 (1946). This distinction is not all 

that important to Doe’s case, but as a general matter it is more 

than semantic because, were cognizability always 

jurisdictional, courts would have to raise the issue sua sponte. 

If a movant brings a non-cognizable sentencing issue and the 

Government only argues that the movant loses on the merits, 

a court may afford relief (if the movant’s position is correct) 

regardless whether the Government could have persuasively 

argued that the claim was non-cognizable. By contrast, if a 

habeas petitioner seeks damages, notwithstanding the 

Government’s position, a district court would lack authority 

to redress the claimed harm.

Because cognizability is not a jurisdictional bar in this 

case, it is discussed below after other procedural hurdles.
27

V. Did the 2008 Motion Count Such That Any Later 

Motion Was Second or Successive? 

In general, federal defendants get two conceptual bites 

at the apple of relief from criminal charges: first at trial (and 

appeal therefrom), and second by a motion to vacate, set 

aside, or correct a sentence under 28 U.S.C. § 2255, the first 

step in what is known as “collateral review” of a trial and 

pretrial proceedings (the appeal from a guilty verdict is 

“direct review”). After an unsuccessful § 2255 motion, there 

is very little a defendant may plausibly ask a court to do; 

particularly relevant here, a defendant may not present a court 

with a second or “successive” (i.e., third, fourth, etc.) § 2255 

motion except in rare circumstances. Thus, the next threshold 

question in this case is whether Doe’s 2012 § 2255 motion is 

an impermissible second or successive one. 

AEDPA (and, to a lesser extent, pre-AEDPA case law) 

puts a very high barrier between movants and relief on “[a] 

claim presented in a second or successive” motion. 28 U.S.C. 

§§ 2244(a), (b) & 2255(h). To oversimplify, relief on a 

second or successive motion is only available when the 

Supreme Court makes a new rule of constitutional law 

retroactive to cases on collateral review or when newly 

discovered evidence clearly shows the movant is factually 

innocent of the crime of which he was convicted. Doe meets 

neither condition; hence he cannot file a second or successive 

§ 2255 motion.

Doe’s is literally his second § 2255 motion, but 

“second or successive” is a term of art; the second-orsuccessive bar does not apply to all § 2255 motions that are 

filed after an initially filed motion. Panetti v. Quarterman, 

551 U.S. 930, 943–44 (2007) (“[‘Second or successive’] takes 

its full meaning from our case law, including decisions 

predating [AEDPA].”). To figure out whether the 2012 
28

motion, numerically Doe’s second, was also legally his 

second, we need to decide whether the 2008 motion 

“counted” as his first even though it was withdrawn. We do 

not have a precedential opinion addressing the precise 

question here: when does a voluntarily withdrawn § 2255 

motion or habeas petition “count” so that a numerically 

second motion or petition will be deemed a “second or 

successive” filing within the meaning of § 2244?

Even though the second-or-successive bar is 

jurisdictional, see Burton v. Stewart, 549 U.S. 147, 157 

(2007), we need not decide whether Doe’s 2012 motion was 

his second because, even if it was, AEDPA’s statute of 

limitations bars the motion. See Olson v. United States, 953 

F. Supp. 2d 223, 229 (D.D.C. 2013) (relying on Sinochem 

Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431 

(2007)), to dismiss case on statute-of-limitations grounds 

without deciding jurisdictional issue). As such, we assume 

the 2012 motion was Doe’s first, and he hops out of the 

second-or-successive frying pan into the statute-of-limitations 

fire.

VI. Statute of Limitations

The limitations period ran in 2009, one year after the 

Supreme Court decided Begay, and Doe’s motion was filed in 

2012. See Dodd v. United States, 545 U.S. 353, 360 (2005). 

Therefore, the motion is barred unless the limitations period 

is tolled.

The District Court erroneously analyzed the equitable 

tolling question, concluding that, because Doe’s § 2255 

counsel was not ineffective within the meaning of Strickland, 

equitable tolling was inappropriate. The correct standard is 

that equitable tolling is available when a movant shows “(1) 

that he has been pursuing his rights diligently, and (2) that 
29

some extraordinary circumstance stood in his way and 

prevented timely filing.” Holland v. Florida, 560 U.S. 631, 

649 (2010) (internal quotation marks omitted).

Doe has diligently pursued his rights. He filed his 

Begay claim one month before the case came down; he 

withdrew his § 2255 motion without any obvious indication 

that he was abandoning the Begay claim. He raised Begay on 

appeal; when we issued Johnson, he sought remand to the 

District Court to litigate his Begay claim. We denied that 

relief, telling Doe he could file a timely § 2255 motion; four 

and a half months after our mandate issued in his appeal from 

the Rule 35 motion, he filed the 2012 motion. Doe has taken 

every possible opportunity to press his case and thus satisfies 

the first prong of equitable tolling.

As for the second prong, the question is whether his 

attorney’s error in dismissing his 2008 motion as meritless is 

the sort of “extraordinary circumstance” that entitles Doe to 

equitable tolling. We have “rejected the argument that an 

attorney’s mistake in determining the date a habeas petition is 

due constitutes extraordinary circumstances for purposes of 

equitable tolling.” Johnson v. Hendricks, 314 F.3d 159, 163 

(3d Cir. 2002). The failure of Doe’s lawyer to anticipate 

Dorsey’s overruling is far less negligent than the error in 

Johnson v. Hendricks by a lawyer who miscalculated a wellestablished deadline. Indeed, Doe’s lawyer was not negligent 

at all. And the failure to anticipate the change in the law did 

not impede Doe from directing his lawyer not to withdraw the 

motion; the colloquy at Doe’s Rule 35 hearing where Doe’s 

attorney withdrew the timely § 2255 motion to move forward 

with the Rule 35 relief suggests that Doe agreed with his 

lawyer’s strategy, although without completely 

comprehending the consequences of that assent. Not 

anticipating a legal development, assuming it can even be 

considered a “mistake,” is just the sort of ordinary mistake 
30

that courts have held insufficient for equitable tolling. 

Johnson, 314 F.3d at 163 (collecting cases).

Moreover, while we regret misstating on his appeal 

from the Rule 35 hearing that Doe could file a timely § 2255 

motion after our remand, it is beside the point because, even 

at the time of our decision, the limitations period had long 

passed. This is a case where a lawyer failed to foresee 

developments in the law, a circumstance far from 

extraordinary. Therefore, even if we deem Doe’s 2012 

§ 2255 motion his first, it must be dismissed as untimely, and 

Doe can only win by obtaining Rule 60 relief from the 

withdrawal of his 2008 motion.

VII. Was Doe Entitled to Rule 60 Relief? 

The District Court denied Doe’s request to reinstate his 

pro se motion on the ground that, because counsel was not 

ineffective in withdrawing the 2008 motion, Doe was not 

entitled to relief. We believe the Court should have treated 

Doe’s request as a Rule 60 motion, and then should have 

asked whether the Rule 60 motion was a disguised second or 

successive motion and, if it was not, whether extraordinary 

circumstances justified granting relief.10

 

10 Except in supplemental briefing we ordered, Doe does not 

bring up Rule 60 on appeal (he does argue that the pro se 

motion should have been reinstated, Opening Br. at 37, 38 & 

42). The Government in its supplemental letter brief does not 

contend that a Rule 60 argument is waived, and we believe 

Doe may pursue it on remand. Doe sought reinstatement of 

the 2008 motion in his brief in support of his 2013 

supplemental § 2255 motion. The Court had granted 
31

The question whether the Rule 60 motion is second or 

successive is close. The Supreme Court has held that when a 

motion asserts that “a subsequent change in substantive law is 

a reason justifying relief from the previous denial of a claim 

. . . [,] such a pleading, although labeled a Rule 60(b) motion, 

is in substance a successive habeas petition and should be 

treated accordingly.” Gonzalez v. Crosby, 545 U.S. 524, 531 

 

reconsideration of its denial of the 2012 motion because Doe 

argued his lawyer had been ineffective in withdrawing the 

§ 2255 motion in 2008; the Court allowed Doe to present his 

arguments through new counsel (in support of the 2012 

§ 2255 motion). The Court also ordered briefing on 

“ineffective assistance of counsel, as it relates to the grounds 

for denial of Defendant’s [2012 § 2255] Motion via this 

Court’s March 14 [2013] Order.” ECF No. 82 at 1–2. But 

Doe’s Motion for Reconsideration attacked counsel’s 

performance in 2008, and in any event counsel’s 

ineffectiveness has never been particularly relevant in this 

case, as Doe has no legitimate Strickland claim, nor has he 

defaulted any claim that ineffectiveness could overcome. Cf. 

Martinez v. Ryan, 132 S. Ct. 1309 (2012). Because the 

confusion about the proper basis for reinstating the 2008 

§ 2255 motion may well have occurred at least in part 

because of the District Court’s order, we do not consider the 

Rule 60 argument waived.

Doe also argues that the pro se motion was in fact 

reinstated when the Court granted reconsideration of its 

denial of his 2012 § 2255 motion in order to appoint new 

counsel, but this argument is plainly wrong: the Court granted 

reconsideration only to allow Doe to present his arguments 

through a counsel he had not accused of inefficacy.
32

(2005). At first glance, it would appear that Gonzalez

forecloses Doe’s motion, for it arguably “attacks the federal 

court’s previous resolution of a claim on the merits.” Id. at 

532 (emphasis removed). However, in Cox v. Horn we read 

Gonzalez to hold that a change in the law “without more” is 

an inadequate basis for Rule 60 relief. 757 F.3d 113, 124 (3d 

Cir. 2014). The approach in Cox calls for a remand to the 

District Court to determine if the “more” exists.

“The fundamental point of 60(b) is that it provides a 

grand reservoir of equitable power to do justice in a particular 

case.” Id. at 122 (internal quotation marks omitted). 

“[C]ourts are to dispense their broad powers under 60(b)(6) 

only in extraordinary circumstances where, without such 

relief, an extreme and unexpected hardship would occur.” Id.

at 120. And just as “we have not embraced any categorical 

rule that a change in decisional law is never an adequate basis 

for Rule 60(b)(6) relief,” id. at 121, it would be nonsensical to 

hold as a categorical matter that a person with constitutionally 

adequate counsel can never qualify for Rule 60(b) relief. 

“We have not taken that route. Instead, we have long 

employed a flexible, multifactor approach to Rule 60(b)(6) 

motions . . . that takes into account all the particulars of a 

movant’s case.” Id. at 122. 

The most relevant factor in this case is the change in 

law from Dorsey to Johnson. But a change in decisional law, 

without more, is not enough to warrant Rule 60 relief. Cox, 

757 F.3d at 115. It is nonetheless an important factor, as is 

the significance of that change. Johnson changed the 

interpretation of the Sentencing Guidelines in an important 

way, but it was not an obviously constitutional decision nor a 

decision that made any conduct or activity legal that had 

previously been illegal. That the law changed in a significant 

way cuts in favor of granting Rule 60 relief, but Doe will still 
33

need to show “much more” to get relief. Cox, 757 F.3d at 

115. (internal quotation marks omitted). 

Doe’s diligence is also an “important factor” under 

Rule 60(b). Id. at 126. For the reasons discussed above in 

Part VI with respect to equitable tolling, Doe has been 

diligent in pursuing his rights.11

Doe’s underlying claim’s merit is relevant, too. Id. at 

124. For the reasons discussed above in connection with his 

COA, it appears to us (at least from the record on appeal) that 

the Begay claim has merit. Other relevant factors are the time 

between the dismissal of Doe’s § 2255 motion and his Rule 

60 motion and the nature of his sentence; here, it has been six 

 

11 The Government in its supplemental brief argues that if 

Doe’s 2012 motion is construed as a Rule 60 motion, it would 

be “untimely.” Gov’t Supp. Br. at 4. That contention is 

clearly wrong. First, Rule 60(b)(6) has no built-in time limit. 

Second, the Government tries to argue that the 2012 motion 

was filed at an unreasonable time because it came 72 months 

after Begay, but the Government ignores that Doe first argued 

he was not a career offender before Begay came down and 

that he has since made repeated arguments both in the District 

Court and this Court to the same effect. Finally, the 

Government claims that a five-month delay (here it is actually 

less) between our mandate on appeal from Doe’s Rule 35 

motion and his 2012 motion is unreasonable. We disagree 

that, even if the Government were correct about the facts, five 

months to make a critical motion in a highly complex case is 

categorically unreasonable, particularly when the motion 

makes the same meritorious argument Doe has been making 

for years to no avail.
34

years since the 2008 motion was dismissed (though the lapse 

is largely due to the courts and not Doe), and he has been 

released from prison. Yet his motion is not moot, as 

discussed above. A final relevant factor is the allegation—

which will be for the District Court to credit or not—that Doe 

disagreed with his 2008 counsel on the subject of whether to 

withdraw the motion and allowed him to do so only because 

he was confused about the proceedings.

These factors suggest that it would be within the 

District Court’s discretion to grant Rule 60 relief, but it is not 

so obvious that Doe deserves relief that we would direct that 

Court to do so. We therefore vacate the denial of Doe’s 

request to reinstate his 2008 § 2255 motion and remand for 

consideration of all the relevant factors, including those 

factors the parties care to brief that we have not just 

discussed. 

But there are still more threshold issues that we must 

resolve to guarantee that remand is not a fool’s errand in case 

there is a bar to relief independent of everything discussed so 

far.12

 

12 In a letter and response pursuant to Fed. R. App. P. 28(j), 

the parties dispute whether the Supreme Court’s recent 

decision in Johnson v. United States, 135 S. Ct. 2551 (2015) 

(holding that the ACCA is unconstitutionally vague), applies 

to the career offender provision of the Sentencing Guidelines, 

which uses very similar language to the ACCA. We believe 

this issue is properly decided by the District Court in the first 

instance, assuming Doe obtains Rule 60 relief. If the District 

Court reinstates his timely 2008 motion, Doe may seek to 

amend it to include the Johnson argument. Because the need 
35

VIII. Procedural Default

The Government argues that Doe defaulted his claim 

by not raising it on appeal when its legal basis did not exist. 

We disagree. If a claim is defaulted, the default may be 

overcome by a showing of cause and prejudice. When the 

“legal basis for a claim was not reasonably available to 

counsel,” Coleman v. Thompson, 501 U.S. 722, 753 (1991), 

there is “cause” for a procedural default; here prejudice is 

clear if the Begay claim is valid. See English v. United States, 

42 F.3d 473, 479 (9th Cir. 1994) (failure to object in the face 

of a “solid wall of circuit authority” contrary to movant’s 

position did not work a default); 2 FHCPP § 41.4[a] (“[T]his 

procedural bar is inapplicable to claims that could not have 

been raised on direct appeal.”).

The Government also concedes that it did not rely on 

procedural default below, but it argues that we may reach the 

issue on our own accord. For that proposition it cites Sweger 

v. Chesney, 294 F.3d 506, 521 (3d Cir. 2002), a § 2254 case 

stating, among other things, that, in determining whether to 

consider an alleged default the Government has not raised, 

courts should consider “comity, federalism, judicial 

efficiency, and the ends of justice.” Id. (internal quotation 

marks omitted). At the outset, Sweger and decisions from 

other circuits holding that courts may raise procedural default 

sua sponte are in some tension with the Supreme Court’s 

 

to decide whether that case invalidated the career-offender 

provision depends on the interpretation of a very recent 

Supreme Court opinion and on how the District Court will 

exercise its discretion over any amendment that is sought, we 

believe it sensible to remand this case without addressing 

Johnson.
36

statement in Gray v. Netherland, 518 U.S. 152, 165–66 

(1996), a § 2254 case, that “procedural default is an 

affirmative defense for the [Government]. If the . . . claim 

was addressed at some stage of federal proceedings, the 

[Government] would have been obligated to raise procedural 

default as a defense, or lose the right to assert the defense 

thereafter.” And regardless of Sweger, § 2254 is sufficiently 

different from § 2255, where comity and federalism are 

irrelevant, that we join those circuits that have allowed courts 

to hold that the federal Government has waived or forfeited 

procedural default defenses. See, e.g., United States v. 

Cannady, 126 F.3d 352, 359 (2d Cir. 1997); Rogers v. United 

States, 1 F.3d 697, 699 (8th Cir. 1993) (per curiam); Shukwit 

v. United States, 973 F.2d 903, 904 (11th Cir. 1992) (per 

curiam); United States v. Drobny, 955 F.2d 990, 995 (5th Cir. 

1992); see also 2 FHCPP § 41.7[b] n.20 (“Although some 

court decisions in the section 2254 context assert that 

considerations of comity may justify sua sponte judicial 

invocation of a procedural default even when the state’s 

representative fails to assert a default in a timely manner, 

such a rationale would appear to be inapplicable to section 

2255 proceedings.” (citations omitted)). One crucial 

difference between §§ 2254 and 2255 is that § 2254(b)(3) 

expressly forbids federal courts from deeming the related 

exhaustion defense waived, and there is no parallel 

prohibition in § 2255, suggesting that in the § 2255 context 

Congress intended courts to use their traditional rules of 

waiver and forfeiture.

Doe spills a great deal of ink arguing that 

ineffectiveness of his collateral review counsel can excuse 

any procedural default. Br. at 43–53. Because the claim is 

not defaulted and the Government waived this affirmative 

defense, Doe’s argument need not be addressed in much 

detail. But we note that his attorney’s performance could not

excuse a procedural default (if there were a default), as we 
37

have held that failing to predict a change in the law is not 

deficient performance. Sistrunk, 96 F.3d at 672. We also 

point out that, to the extent Doe argues that ineffectiveness of 

collateral-review counsel can be an independent Sixth 

Amendment violation, see Br. at 53, this claim is a nonstarter. 

Coleman, 501 U.S. at 752 (“There is no constitutional right to 

an attorney in state post-conviction proceedings. 

Consequently, a petitioner cannot claim constitutionally 

ineffective assistance of counsel in such proceedings.” 

(citations omitted)). 

In any event, the claim is not defaulted, and, even if it 

were, the Government waived the defense of procedural 

default.

IX. Retroactivity

Begay was decided after Doe was sentenced, and 

therefore he can only benefit from the decision if it applies 

retroactively, meaning that those sentenced before Begay was 

decided may avail themselves of the rule of that case. The 

Government concedes that it does, and we agree. Gov’t Br. at 

64; see Narvaez, 674 F.3d at 625.13

 

13 The Government argues that Begay is not “retroactively 

applicable” to Doe’s 2012 § 2255 motion because it is his 

second and is thus not allowed. Gov’t Br. at 64–65. This 

phrasing confuses two distinct issues, (1) whether a new rule 

of law is retroactive generally (usually because it is 

“substantive” or a “watershed rule of criminal procedure,” see

Whorton v. Bockting, 549 U.S. 406, 416 (2007) (describing 

doctrine derived from Teague v. Lane, 489 U.S. 288 (1989)), 

and (2) whether in a particular case a prisoner may benefit 
38

X. Cognizability 

The Government argues that Doe’s Guidelines claim is 

not cognizable because it is neither constitutional nor the sort 

of “fundamental defect” that can be remedied under § 2255. 

Hill v. United States, 368 U.S. 424, 428 (1962). This is a 

difficult question and one that has divided the circuits. We 

hold that it is cognizable.

A. Supreme Court Guidance

Before delving into the narrow question whether a 

challenge to the career-offender enhancement may be brought 

in a § 2255 motion that has no procedural defects, we review 

the Supreme Court’s guideposts for non-constitutional claims 

that are cognizable in a § 2255 proceeding. As in many 

situations, the polar cases are easy. 

In Davis v. United States, an interpretation of the law 

handed down after the defendant’s conviction and appeal (the 

same interpretation Davis had advanced on the appeal that he 

 

from new law in a second or successive motion, see 28 U.S.C. 

§ 2255(h)(2). Under Teague, either a rule is retroactive or it 

is not. By contrast, § 2255(h) imposes an independent bar for 

relief to the category of prisoners who have already filed one 

§ 2255 motion, and in the context of the second-or-successive 

bar the language of “retroactivity” is confusing and unhelpful. 

Our difference with the Government on this point may be 

semantic, but in this technical area of law it is best to be as 

clear as possible. We agree with the Government that if 

Doe’s 2012 motion is second or successive, he cannot clear 

the § 2255(h)(2) hurdle, but, as discussed above, we assume 

that the 2012 motion was Doe’s first.
39

lost) rendered the defendant’s conduct no longer punishable, 

and therefore the Supreme Court held the conviction and 

sentence could be challenged via § 2255. 417 U.S. 333, 343 

(1974). By contrast, in Peguero v. United States, 526 U.S. 23 

(1999), a district court failed to inform a criminal defendant 

of his right to appeal, as required by the Federal Rules of 

Criminal Procedure; Peguero did not appeal, and he sought to 

have his appellate rights reinstated on collateral review. 

Despite his failure to appeal and his lawyer’s lack of advice 

on that right, record evidence made it clear that the defendant 

had independent knowledge of his right to appeal. The 

Supreme Court held that the District Court’s noncompliance 

with the formal requirements of the Federal Rules of Criminal 

Procedure could not support a basis for collateral relief when 

the movant failed to bring his claim on direct appeal, and, in 

any event, he suffered no prejudice from the error. Id. at 27–

28.

The lead case for filling in the space between these 

poles is Reed v. Farley, 512 U.S. 339 (1994). Although Reed

was a § 2254 case, it was pre-AEDPA, when the cognizable 

claims under §§ 2254 and 2255 were coextensive. Davis, 417 

U.S. at 343. Under Reed, § 2255 relief is available for 

nonconsitutional claims to remedy “a fundamental defect 

which inherently results in a complete miscarriage of justice 

[or] an omission inconsistent with the rudimentary demands 

of fair procedure,” 512 U.S. at 348 (alteration in original), or 

when “aggravating circumstances” make “the need for the 

remedy afforded by the writ of habeas corpus . . . apparent,” 

id. at 350. Examples of “aggravating circumstances” include 

“[v]iolations of statutes as to which nationally uniform 

interpretation is particularly important” and “[p]rejudice to 

important interests of the incarcerated petitioner.” 1 FHCPP

§ 9.1 (internal quotation marks omitted). For example, in 

Peguero, 526 U.S. at 24–28, the Supreme Court held that 

because of the “general rule, that a court’s failure to give a 
40

defendant advice required by the Federal Rules is a sufficient 

basis for collateral relief only when the defendant is 

prejudiced by the court’s error,” a “district court’s failure to 

advise a defendant of his right to appeal as required by the 

Federal Rules of Criminal Procedure” can “provide[] a basis 

for collateral relief” only if the movant “suffered . . . 

prejudice from the omission.”

With these guideposts in mind, we turn to the circuit 

courts that have faced the same question presented here: 

whether a challenge to the career-offender Guidelines 

enhancement is cognizable in a § 2255 motion.

B. Seventh Circuit

In Narvaez v. United States, 674 F.3d 621 (2011), with 

facts similar to those here, a defendant was classified as a 

career offender under the Sentencing Guidelines. Because 

that classification was no longer valid after Begay, Narvaez

brought a § 2255 motion. The Seventh Circuit acknowledged 

the “general rule” that sentencing errors are not cognizable on 

collateral review yet held that the case before it “present[ed] a 

special and very narrow exception: A postconviction 

clarification in the law has rendered the sentencing court’s 

decision unlawful.” Id. 674 F.3d at 627. The Court surveyed 

the five cases where the Supreme Court had considered “the 

issue of whether a non-constitutional, non-jurisdictional error 

is a miscarriage of justice on collateral review,” id. at 627 

n.11. In four of the cases, procedural error did not amount to 

a miscarriage of justice, but in Davis (the case where a 

subsequent change in decisional law rendered defendant’s 

conduct lawful) the Supreme Court held that “[t]here can be 

no room for doubt that such a circumstance inherently results 

in a complete miscarriage of justice and present[s] 

exceptional circumstances that justify collateral relief under 
41

§ 2255.” 417 U.S. at 346–47 (alteration in original) (internal 

quotation marks omitted). 

For the Seventh Circuit, the difference between Davis

and the other key cases meant that new procedural rules could 

not support a § 2255 claim, while new substantive ones could. 

Narvaez relied on Welch v. United States, 604 F.3d 408, 415 

(7th Cir. 2010)—a case that held Begay retroactive because 

its new interpretation of the ACCA was “substantive”—to 

extend the reasoning in Davis to Narvaez’s case. In 

particular, the Narvaez Court held that the difference between 

a ruling that limits the amount of punishment that can 

lawfully be imposed for given conduct and a ruling that 

makes punishment impermissible altogether is “one of 

degree, not one of kind.” Narvaez, 674 F.3d at 628. The 

Court also analogized the situation of Narvaez to one who has 

been sentenced on the basis of materially false information, a 

well-established due-process violation. Townsend v. Burke, 

334 U.S. 736, 741 (1948). The Court concluded, “To classify 

Mr. Narvaez as belonging to this group [career offenders] and 

therefore to increase, dramatically, the point of departure for 

his sentence is certainly as serious as the most grievous 

misinformation that has been the basis for granting habeas 

relief.” Narvaez, 674 F.3d at 629. Narvaez has been limited 

to cases decided (as occurred to Doe) under the mandatory 

Guidelines. Hawkins v. United States, 706 F.3d 820, 822–23 

(7th Cir. 2013).

C. Fourth Circuit

In Whiteside v. United States, a panel of the Fourth 

Circuit reached the same conclusion as the Seventh Circuit. 

748 F.3d 541, 543–54 (4th Cir. 2014), rev’d on other 

grounds, 775 F.3d 180 (2014) (en banc). The Whiteside 

Court first reasoned that the defendant’s failure to take a 

direct appeal of his career-offender designation did not 
42

foreclose collateral review. It acknowledged that Whiteside 

“would likely be entitled to a vacated sentence” were the case 

now on direct appeal, id. at 554, but at the time of 

Whiteside’s conviction pre-Begay Circuit precedent would 

have barred his argument and rendered direct appeal fruitless. 

That the procedural posture of Whiteside’s case depended 

less on the presentation of his claims than on the timing of the 

Court’s own decisions “contribute[d] to the conclusion that 

denial of review [on collateral review would] operate[] a 

complete miscarriage of justice.” Id. As the Court put it, 

“[Whiteside] should not be punished—and we mean literally 

punished, as in additional time spent in federal prison, time 

which the law does not countenance—for th[e] fact” that he 

was sentenced pursuant to case law that the Court only 

repudiated after the time for a direct appeal had elapsed. Id.

Next, the Court relied on Peugh v. United States, 133 

S. Ct. 2072 (2013), which held that application of a later 

edition of advisory Guidelines recommending a higher 

sentence than the edition in print at the time of the crime 

violated the Constitution’s Ex Post Facto Clause. The 

Whiteside Court cited Peugh for the propositions that 

Guidelines challenges can be constitutional (thus cognizable 

on collateral review) and that principles of fairness and justice 

should inform whether a defendant “was subject to a 

fundamental miscarriage of justice.” Whiteside, 748 F.3d at 

554. The Court concluded that, because of Begay, Whiteside 

was “not a career offender, and he should not serve a sentence 

that was based on his classification as one.” Indeed, such a 

sentence is a fundamental miscarriage of justice. Id. The en 

banc Fourth Circuit reversed the Whiteside panel but did not 

address cognizability. 775 F.3d 180. 
43

D. Eleventh Circuit

The panel decision in Gilbert v. United States, 609 

F.3d 1159, 1165 (11th Cir. 2010), rev’d on other grounds,

640 F.3d 1293 (11th Cir. 2011) (en banc), used yet another 

line of reasoning to conclude that wrongful career-offender 

enhancements are cognizable on collateral review, 

considering the enhancement to be in substance a crime: “For 

federal sentencing purposes, the act of being a career offender 

is essentially a separate offense, with separate elements (two 

. . . convictions[] for violent felonies), which must be proved, 

for which separate and additional punishment is provided.” 

(The Seventh Circuit echoed this reasoning in determining 

that challenges to career-offender status are cognizable under 

28 U.S.C. § 2241. Brown v. Caraway, 719 F.3d 583 (7th Cir. 

2013).) Because Gilbert was “actually innocent” of being a 

career offender, he could challenge his sentence collaterally. 

Gilbert, 609 F.3d at 1165. The Eleventh Circuit en banc 

reversed the panel’s decision, as it concluded the motion in 

question was a second or successive one, but it expressly 

reserved whether Gilbert’s claim could have been brought in 

a first § 2255 motion. Gilbert v. United States, 640 F.3d 

1293, 1306 & n.13 (11th Cir. 2011) (en banc).

E. Eighth Circuit

Although a panel of the Eighth Circuit also held that 

Begay error was cognizable on collateral review (following a 

similar line of reasoning as did the Seventh Circuit), the en 

banc Court reversed. Sun Bear v. United States, 611 F.3d 

925, 931 (8th Cir. 2010), rev’d, 644 F.3d 700 (8th Cir. 2011) 

(en banc). The en banc decision is straightforward: because 

the defendant’s sentence was statutorily authorized, there was 

no miscarriage of justice, and his claim was not cognizable on 

collateral review (even though he was sentenced pursuant to 

the mandatory Guidelines). Sun Bear, 644 F.3d at 705.
44

F. Our Dicta

In Cepero, we faced a question of Guidelines 

interpretation and held that we lacked jurisdiction over the 

appeal because it was not a constitutional issue. We then 

“confront[ed] the specter that Congress has now differentiated 

between the type of § 2255 petition that may be filed in 

district court and the type that may be appealed to this court.” 

Cepero, 224 F.3d at 265. We acknowledged that “[s]ection 

2255 petitioners may allege and have adjudicated nonconstitutional issues in district court.” Id. In coming to this 

conclusion, we relied on the statute providing that “[a] 

prisoner in custody under sentence of a court established by 

Act of Congress claiming the right to be released upon the 

ground that the sentence was imposed in violation of the 

Constitution or laws of the United States . . . may move the 

court which imposed the sentence to vacate, set aside or 

correct the sentence.” Id. (emphasis in original); accord

United States v. Gordon, 172 F.3d 753, 754 (10th Cir. 1999) 

(“Congress, in enacting § 2253(c)(2), differentiated between 

the type of petition that can be filed and the type that can be 

appealed. Petitions may be filed in district court alleging 

violations of the Constitution or federal law. The claims may 

only be appealed, however, if they involve the denial of 

constitutional rights.” (citation omitted) (emphases in 

original)). Even if the advisory Guidelines are arguably not 

“law,” there is no doubt the mandatory Guidelines were. 

United States v. Booker, 543 U.S. 220, 234 (2005). The 

discussions in Cepero and Gordon strongly suggest that any 

violation of the “laws of the United States” is cognizable (and 

therefore that Guidelines error is too), but the analyses are 

dicta, as those cases turned on the appealability of claims 

rather than their cognizability in the district courts. 
45

G. The Government’s Argument

The Government has an impressively long string cite 

for the proposition that “federal appellate courts . . . faced 

with the question of whether an error in calculating the 

Guidelines is cognizable on post-conviction collateral 

review[] have ruled consistently that they are not.” Br. at 37. 

Surprisingly, only two of the twelve cases the Government 

cites—Sun Bear, 644 F.3d at 704 & United States v. 

Williamson, 183 F.3d 458, 462 (5th Cir. 1999)—actually 

support this proposition. The others are not relevant, as either 

they do not discuss the cognizability of sentencing errors in 

§ 2255 motions before district courts, United States v. 

Manigault, 395 F. App’x 831, 834 (3d Cir. 2010), or they 

stand for the proposition that sentencing errors that were 

defaulted at sentencing or on direct appeal may not be 

brought for the first time in a § 2255 motion. Graziano v. 

United States, 83 F.3d 587, 589–90 (2d Cir. 1996) (per 

curiam) (“Insofar as claims regarding a sentencing court’s 

error in failing to properly apply the Sentencing Guidelines 

are neither constitutional nor jurisdictional, we join several 

other circuits in holding that, absent a complete miscarriage 

of justice, such claims will not be considered on a § 2255 

motion where the defendant failed to raise them on direct 

appeal.”); Scott v. United States, 997 F.2d 340, 340 (7th Cir. 

1993) (“In 1990 Phillip D. Scott was sentenced to 57 months’ 

imprisonment. He did not appeal.”); Hill, 368 U.S. at 425 

(“There was no appeal.”); Knight v. United States, 37 F.3d 

769, 771 (1st Cir. 1994) (“Knight did not appeal from his 

federal sentence.”); United States v. Mikalajunas, 186 F.3d 

490, 492 (4th Cir. 1999) (“Neither Mikalajunas nor Largent 

pursued an appeal.”); United States v. Kinder, 69 F.3d 536 

(5th Cir. 1995) (not precedential) (per curiam) (unclear 

whether Kinder appealed his career offender designation, see 

United States v. Kinder, 980 F.2d 961, 962 (5th Cir. 1992)); 

Gibbs v. United States, 655 F.3d 473, 475 (6th Cir. 2011) 
46

(“Gibbs acknowledges that he failed to raise his U.S.S.G. 

§ 4B1.1 claim on direct appeal and that the claim is therefore 

procedurally defaulted.”); Burke v. United States, 152 F.3d 

1329, 1331 (11th Cir. 1998) (“[T]he appeal was dismissed 

pursuant to Burke’s motion for voluntary dismissal.”); United 

States v. Coley, 336 F. App’x 933, 936 (11th Cir. 2009) (per 

curiam) (“Coley did not raise this issue on direct appeal. In 

fact, it appears that he filed no direct appeal at all.”). For the 

reasons discussed above, Doe has not defaulted his Begay 

claim, and therefore the Government’s cases (with the 

exception of Sun Bear and Williamson) are not on point.

The Government also strenuously argues that there is 

no reason to think that Doe would receive a reduction in his 

sentence were he resentenced because it filed an information 

under 21 U.S.C. § 851 that enhanced Doe’s statutory 

sentencing range based on his prior drug conviction to a 

mandatory minimum of 10 years and a maximum of life. But 

the Government ignores that Doe was sentenced at the bottom 

of the mandatory Guidelines range (262 months) and that the 

Court at sentencing expressed its regret that the Guidelines 

forced it to impose such a high sentence. Tr. 13:15–19, S. 

App. 155 (“[T]here is not much room for discretion here. 

There is a guideline sentence that I am required to follow 

under the law and it’s a very stringent sentence. It is very 

strict and it’s very, very difficult to impose.”). As discussed 

above regarding mootness, even though Doe could receive the 

same sentence on remand, the available facts suggest the 

likely outcome is otherwise.

H. Synthesis and Conclusion With Respect to 

Cognizability

The Government does not seriously grapple with the 

precise issue here, which is whether erroneous sentencing as a 

career offender is cognizable on collateral review, not 
47

whether any Guidelines error can be raised on § 2255. We 

have no precedential opinion on either question (though, as 

noted above, dicta from Cepero supports Doe), and there is a 

circuit split on the former one.

We hold that the claim is cognizable, at least in cases 

arising under the mandatory Guidelines. In reaching that 

conclusion, we do not adopt wholesale the reasoning of any 

of the circuit courts that have so held; instead, we start from 

the Supreme Court’s guidance in Reed and Peguero. The 

former case stands for the proposition that a nonconstitutional 

error can be cognizable in the presence of “aggravating 

factors.” Peguero allows for claims attacking a district 

court’s failure to comply with the Federal Rules of Criminal 

Procedure when those claims prejudice the defendant. We 

believe the incorrect computation of a mandatory Guidelines 

range based on misclassification of the defendant as a career 

offender is at least as serious as the error discussed in 

Peguero and thus should also be cognizable where the 

mistake prejudices the defendant. 

This holding is consistent with the dicta of Cepero. 

We further agree with the Narvaez Court that substantive

error, like more time in prison, is doubtless more serious than 

procedural error, like failure by a court to advise someone of 

appellate rights (the claim in Peguero). And as Narvaez 

recognizes, § 4B1.1 “involves the classifying of an individual 

as belonging to a subgroup of defendants, repeat violent 

offenders, that traditionally has been treated very differently 

from other offenders.” 674 F.3d at 629. However, unlike 

Narvaez, we do not read the Supreme Court’s cases as having 

drawn a bright line between, on the one hand, procedural 

(therefore not cognizable) claims, and, on the other, 

substantive (hence cognizable) ones. 
48

Further, the Whiteside Court was correct to draw some 

support from Peugh. Although, as a direct appeal about an ex 

post facto challenge to wrongful calculation of the advisory 

Guidelines, Peugh is entirely distinguishable from Doe, the 

case does acknowledge the importance, even the primacy, of 

the Sentencing Guidelines to criminal defendants. 

Specifically, the Supreme Court cautioned courts that 

“sentencing decisions are anchored by the Guidelines,” 

Peugh, 133 S. Ct. at 2083, that “[t]he Sentencing Guidelines 

represent the Federal Government’s authoritative view of the 

appropriate sentences for specific crimes,” id. at 2085, and 

that “the range is intended to, and usually does, exert 

controlling influence on the sentence that the court will 

impose.” Id. This description carries even greater force in 

the context of mandatory Guidelines because before Booker

the Guidelines “ha[d] the force and effect of laws,” United 

States v. Booker, 543 U.S. 220, 234 (2005). 

Booker and Peugh render implausible the en banc

Eighth Circuit’s analysis that if a sentence is statutorily 

authorized, even if not allowed by the mandatory Guidelines, 

it is categorically legal and therefore cannot be challenged on 

collateral review. We look to the actual world of sentencing, 

which before Booker and even today relied far more heavily 

on the Guidelines than on statutory ranges. Moreover, and 

more importantly, the Supreme Court has not taken such a 

categorical approach to cognizablility on collateral review, as 

it has strongly suggested, if not held, that collateral challenges 

to applications of the Federal Rules of Criminal Procedure are 

permitted where the movant has been prejudiced. In short, 

Reed’s recognition that nonconstitutional error may be 

cognizable in § 2255 proceedings, Peguero’s 

acknowledgement that prejudicial violations of the Rules of 

Criminal procedure are cognizable, Cepero’s dicta that any 

violation of the “laws of the United States” may be corrected 

on collateral review, Booker’s emphasis that the mandatory 
49

Guidelines are law, Peugh’s understanding that even the 

advisory Guidelines exert considerable force over sentencing, 

and the significance of a career-offender designation, lead us 

to conclude that misapplication of the mandatory careeroffender Guideline, when such a misapplication prejudices 

the Defendant, results in a sentence substantively not 

authorized by law and is therefore subject to attack on 

collateral review where the claim is not defaulted. 

Our holding is narrow, and we do not consider 

challenges to the advisory Guidelines, procedural Guidelines 

error, provisions other than career-offender designation, 

defaulted claims, or Guidelines errors that do not cause 

prejudice.

XI. Savings Clause

We note one final issue that the parties do not brief: 

§ 2255 is not a complete substitute for a petition for a writ of 

habeas corpus under 28 U.S.C. § 2241. Section 2255(e), 

referred to as the “savings clause,” provides that “[a]n 

application for a writ of habeas corpus on behalf of a prisoner 

who is authorized to apply for relief by motion pursuant to 

this section[] shall not be entertained . . . unless it . . . appears 

that the remedy by motion is inadequate or ineffective to test 

the legality of his detention.” 

We do not decide here whether Doe could properly 

petition for a writ of habeas corpus, but we note that Doe’s 

situation seems to fall between two of our cases. Compare In 

re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997) (prisoner 

may petition for habeas when intervening Supreme Court 

case rendered conduct of which he was convicted no longer 

criminal), with Okereke v. United States, 307 F.3d 117, 120 

(3d Cir. 2002) (prisoner may not petition for habeas where 
50

intervening Supreme Court case changed the identity of 

factfinder and burden of proof on facts affecting sentence).

The Seventh Circuit in a case with factual similarities 

to this one held that the second-or-successive bar rendered 

§ 2255 inadequate to challenge a sentence after Begay when 

the petitioner’s first § 2255 motion was brought at a time 

when our Third Circuit precedent foreclosed his argument. 

Brown, 719 F.3d at 588. (Seventh Circuit law governed the 

§ 2241 petition because Brown was incarcerated in Indiana; 

the § 2255 motion was governed by our law, as Doe was 

convicted in Pennsylvania.) However, the Eleventh Circuit 

rejected the same argument in Gilbert. 640 F.3d at 1295. We 

do not decide which of these cases we believe is correct.

XII. Conclusion

Doe argued that he was not a career offender before 

Begay came down. He was right when his lawyer, the 

District Court, and our Court were wrong. After the Supreme 

Court clarified the law, the District Court, our Court, and 

Doe’s lawyer persevered in our error. We caused unfortunate 

and unwarranted hope by informing Doe in his appeal from 

the Rule 35 motion that he could still bring a timely § 2255 

motion. We regret that this case proves wrong Justice 

Holmes’s optimistic statement that collateral review “cuts 

through all forms and goes to the very tissue of the structure. 

It comes in from the outside, not in subordination to the 

proceedings, and although every form may have been 

preserved, opens the inquiry whether they have been more 

than an empty shell.” Frank v. Mangum, 237 U.S. 309, 346 

(1915) (Holmes, J. dissenting). AEDPA’s procedural 

obstacles hobble the meritorious and frivolous claims alike; 

while they have not stopped Doe, they may yet, and in any 

event they have slowed his progress considerably. We vacate 
51

the judgment of the District Court and remand for further 

proceedings.