FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CESAR MUÑOZ GONZALEZ, AKA 

Blanco, AKA Cesar Gonzales, AKA 

Ricardo Martines, AKA Ricardo O. 

Martinez, AKA Ricardo MartinezOsorio, AKA Osorio Ricardo

Applicant,

v.

UNITED STATES OF AMERICA,

Respondent.

No. 20-71709

OPINION

Application to File Second or Successive Petition

Under 28 U.S.C. § 2255

Argued and Submitted June 11, 2021

Pasadena, California

Filed March 17, 2022

Before: Consuelo M. Callahan and Danielle J. Forrest, 

Circuit Judges, and Richard Seeborg,* District Judge.

Opinion by Judge Forrest

* The Honorable Richard Seeborg, Chief United States District 

Judge for the Northern District of California, sitting by designation.
2 MUÑOZ GONZALEZ V. UNITED STATES

SUMMARY**

Second or Successive 28 U.S.C. § 2255 Authorization

The panel denied Cesar Muñoz Gonzalez’s application 

to file a second or successive 28 U.S.C. § 2255 motion 

asserting that his conviction for possession of a firearm in 

furtherance of a crime of violence or drug trafficking offense 

under 18 U.S.C. § 924(c) is invalid because his predicate 

crime—racketeering—is no longer a categorical “crime of 

violence” under a new rule of constitutional law announced 

in United States v. Davis, 139 S. Ct. 2319 (2019).

For purposes of this application, the only issue was 

whether Muñoz showed that his new Davis argument was 

“previously unavailable,” as required by 28 U.S.C. 

§ 2255(h)(2) for authorization of a second or successive 

§ 2255 motion.

Based on the weight of authority, including the Supreme 

Court’s interpretation of similar language in the Prison 

Litigation Reform Act, the panel adopted a pragmatic 

approach to determining whether a claim based on a new 

constitutional rule was “previously unavailable.” Under this 

approach, the prisoner must show that the real-world 

circumstances that he faced prevented him, as a practical 

matter, from asserting his claim based on a new rule of law 

in his initial habeas proceeding. The panel recognized that 

pro se prisoners face unique difficulties when litigating 

habeas relief or anything else, and that language barriers, as 

Muñoz cited in his case, add to those difficulties. The panel 

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

has been prepared by court staff for the convenience of the reader.
MUÑOZ GONZALEZ V. UNITED STATES 3

wrote that there is, however, nothing in the text or context of 

AEDPA's previously-unavailable-claim requirement 

suggesting that this limited exception to the otherwise broad 

prohibition against filing second or successive habeas 

proceedings was intended to be applied subjectively. 

Applying this pragmatic approach that focuses on 

external barriers, the panel concluded that Muñoz cannot 

show that his new Davis argument was unavailable during 

his initial habeas proceedings, where the Supreme Court 

issued its decision in Davis shortly before Muñoz filed his 

reply brief in support of his initial habeas motion and a few 

months before that motion was decided; Muñoz had the facts 

that he needed for his claim; no systemic or external barrier 

prevented him from presenting his claim in his initial habeas 

proceeding; and Muñoz was clearly aware of Davis because 

he cited it in his reply brief in his initial habeas proceeding.

COUNSEL

Brianna Mircheff (argued) and Deborah E. Gonzalez, 

Deputy Federal Public Defenders; Cuauhtemoc Ortega, 

Federal Public Defender; Federal Public Defenders Office, 

Los Angeles, California; for Applicant.

Bram M. Alden (argued), Assistant United States Attorney, 

Acting Chief, Criminal Appeals Section; Brandon D. Fox, 

Assistant United States Attorney, Chief, Criminal Division; 

Nicola T. Hanna, United States Attorney; Office of the 

United States Attorney, Los Angeles, California; for 

Respondent.
4 MUÑOZ GONZALEZ V. UNITED STATES

OPINION

FORREST, Circuit Judge:

Applicant Cesar Muñoz Gonzalez (Muñoz) seeks leave 

to file a second or successive motion for habeas relief under 

28 U.S.C. § 2255. Muñoz asserts that his conviction for 

possession of a firearm in furtherance of a crime of violence 

or drug trafficking offense under 18 U.S.C. § 924(c) is 

invalid because his predicate crime—racketeering—is no 

longer a categorical “crime of violence” under a new rule of 

constitutional law announced in United States v. Davis, 139 

S. Ct. 2319 (2019).1 Whether Muñoz is entitled to file a

second or successive motion depends on whether his Davis 

argument was “previously unavailable” to him. 28 U.S.C. 

§ 2255(h)(2). Adopting a pragmatic approach, we conclude 

that this argument was available to Muñoz when his first 

habeas motion was still pending, and we deny him leave to 

file a second or successive motion.

I. BACKGROUND

Muñoz was convicted and sentenced for racketeering, 

drug trafficking conspiracy, and related offenses. Of 

particular importance here is his conviction for possession of 

a firearm in furtherance of a crime of violence or drug 

trafficking under 18 U.S.C. § 924(c). United States v. 

1 The verdict form did not require the jury to specify which 

conviction—racketeering or Muñoz’s two drug offenses—served as the 

predicate offense for his § 924(c) conviction. The government concedes 

that, despite the uncertainty about which offense was the predicate for 

his § 924(c) conviction, Muñoz can establish that Davis at least advances 

his claim. See Henry v. Spearman, 899 F.3d 703, 706 (9th Cir. 2018)

(petitioner need only show “possible merit to warrant a fuller exploration 

by the district court”) (citation omitted).
MUÑOZ GONZALEZ V. UNITED STATES 5

Torres, 869 F.3d 1089, 1092–94 (9th Cir. 2017); Muñoz 

received a mandatory sentence of five years on this 

conviction, to run consecutively to the sentences imposed on 

his other convictions.

After an unsuccessful direct appeal2, Muñoz filed a pro 

se § 2255 motion challenging his convictions. He raised five 

separate claims, none of which challenged his § 924(c) 

conviction. Three months after Muñoz filed his § 2255 

motion, the Supreme Court decided Davis. 139 S. Ct. 2319. 

Ten days later, Muñoz filed his reply in support of his 

motion. At the suggestion of “another [inmate] in the law 

library,” Muñoz argued in reply that the definition of “felony 

drug offense” was unconstitutionally vague based on the 

“very recent U.S. v. Davis.” Muñoz did not understand his 

Davis argument but included it “in case” it might help him. 

He did not make a Davis argument related to his § 924(c) 

conviction.

The district court denied Muñoz’s § 2255 motion three 

months later, and Muñoz filed a notice of appeal. After the 

district court denied a certificate of appealability (COA) on 

limited remand, this court also denied a COA.

Eight months after the district court denied Muñoz’s first 

§ 2255 motion, he filed the subject motion, seeking leave 

from this court to file a second § 2255 motion in the district 

court to assert a new argument based on Davis that his 

§ 924(c) conviction was invalid because his predicate 

racketeering conviction is no longer a categorical crime of 

violence. Muñoz contends that his § 924(c) conviction 

2 Torres, 869 F.3d at 1092; United States v. Torres, 711 F. App’x 

829 (9th Cir. 2017), cert. denied sub nom. Muñoz Gonzelez v. United

States, 138 S. Ct. 1601 (2018).
6 MUÑOZ GONZALEZ V. UNITED STATES

should be vacated and that he should be resentenced without 

the mandatory five-year consecutive sentence imposed for 

this conviction.

II. DISCUSSION

The court of appeals must grant leave for a federal 

prisoner to file a “second or successive” § 2255 motion in 

district court. See 28 U.S.C. §§ 2244(b)(3)(C), 2255(h); 

United States v. Buenrostro, 638 F.3d 720, 723 (9th Cir. 

2011) (per curiam). Where the prisoner’s proposed claim is 

based on a new constitutional rule, leave is given only if the 

prisoner makes a prima facie showing that the new rule was 

“made retroactive to cases on collateral review by the 

Supreme Court” and was “previously unavailable.” 

28 U.S.C. § 2255(h)(2) (emphasis added); Tate v. United 

States, 982 F.3d 1226, 1227 (9th Cir. 2020) (per curiam). For 

purposes of this application, the government does not 

dispute that Davis announced a new constitutional rule that 

applies retroactively. Thus, the only issue is whether Muñoz 

has shown that his new Davis argument related to his 

§ 924(c) conviction was “unavailable” during his first 

habeas proceeding.

A. The “Previously Unavailable” Requirement

Neither we nor the Supreme Court has interpreted 

§ 2255(h)(2)’s “previously unavailable” requirement, nor 

did Congress define this term. However, the Supreme Court 

has interpreted what “available” means in the context of the 

Prison Litigation Reform Act’s (PLRA) requirement that 

prisoners exhaust the “administrative remedies as are 

available” before filing a lawsuit to challenge a prison 

condition. Ross v. Blake, 578 U.S. 632, 635 (2016). In that 

context, the Supreme Court explained that “the ordinary 

meaning of the word ‘available’ is ‘capable of use for the 
MUÑOZ GONZALEZ V. UNITED STATES 7

accomplishment of a purpose,’ and that which ‘is accessible 

or may be obtained.’” Id. at 642 (quoting Booth v. Churner, 

532 U.S. 731, 737–38 (2001)). The Court further explained 

that this is a pragmatic analysis: “courts in this and other 

cases must apply [the availability standard] to the real-world 

workings of prison grievance systems.” Id. at 643. For 

example, when a prison’s administrative grievance system is 

“so opaque that it becomes, practically speaking, incapable 

of use” because “no ordinary prisoner can discern or 

navigate it,” administrative remedies are not “available.” Id.

at 643–44. Likewise, the Court instructed that administrative 

remedies are not available when a prisoner is “thwart[ed] . . .

from taking advantage of a grievance process through 

machinations, misrepresentation, or intimidation.” Id. at 

644.

Although Ross addressed a different statute, the Supreme 

Court’s analysis is persuasive here. If the PLRA’s 

availability-of-administrative-remedies standard is 

measured against “the real-world” practicalities that 

prisoners face, id. at 643, we see no reason why the 

Antiterrorism and Effective Death Penalty Act of 1996’s 

(AEDPA) previously-unavailable-claim standard, which 

uses similar language, should not be interpreted to account 

for whether a prisoner seeking to raise a claim based on a 

new constitutional rule in a second or successive habeas 

proceeding could have, as a practical matter, raised that 

claim at an earlier time. See 28 U.S.C. § 2244(b)(2)(A).

Several of our sister circuits have adopted a pragmatic 

approach when interpreting AEDPA’s “previously 

unavailable” requirement.3 For example, in In re Cathey, the 

3 This same “previously unavailable” requirement also applies to 

second or successive habeas petitions filed under § 2254. 28 U.S.C. 
8 MUÑOZ GONZALEZ V. UNITED STATES

Fifth Circuit refused to adopt a “strict rule” that a claim 

based on a new constitutional rule is available anytime the 

Supreme Court announces the rule before the inmate’s initial 

habeas proceeding is concluded. 857 F.3d 221, 229–30 (5th 

Cir. 2017). Rather, that court recognized that there is “a gray 

area of previous unavailability [of a new constitutional rule] 

despite technical availability,” and it adopted a “rebuttable 

presumption that a new rule of constitutional law was 

previously available if published by the time a district court 

ruled on a petitioner’s initial habeas petition,” which can be 

overcome by presenting “cogent arguments that [the claim] 

was previously unavailable” during the initial habeas 

proceedings. Id. at 229–30 (internal quotation marks and 

citation omitted).

Applying this pragmatic standard, the Fifth Circuit 

concluded that Cathey sufficiently established that his 

proposed claim was “previously unavailable” even though it 

was based on a constitutional rule that was announced well 

before his initial habeas proceedings were concluded—in 

fact, before he even filed his initial habeas petition. Cathey 

sought to bring a claim under Atkins v. Virginia, 536 U.S. 

304 (2002), which held that imposing capital sentences 

against intellectually disabled prisoners violates the Eighth 

Amendment. In re Cathey, 857 F.3d at 223. Even though 

Atkins had already been decided, throughout his initial 

habeas proceedings, Cathey, who was represented by 

counsel, believed that his IQ was “outside of the range that 

§ 2244(b)(2)(A). Requests for habeas relief brought under § 2255 are 

motions. 28 U.S.C. § 2255. Requests for habeas relief brought under 

U.S.C. § 2254 are referred to as petitions or applications. But regardless 

of whether the underlying collateral attack arises under § 2254 or § 2255, 

a request for permission to file a second or successive habeas filing is 

referred to as an application. We follow this nomenclature.
MUÑOZ GONZALEZ V. UNITED STATES 9

was then understood to satisfy the subaverage intellectual 

functioning prong of an Atkins claim.” Id. at 230. Only after 

the state disclosed evidence that his IQ was lower than he 

had understood and that new science showed prior IQ tests 

could be inflated did he realize that he had a valid Atkins

claim. Id. at 230–33. And those disclosures were both made 

after Cathey’s first habeas petition was decided. Id. Under 

these circumstances, the Fifth Circuit found that Cathey 

made a sufficient showing that his Atkins claim was 

“previously unavailable” to warrant allowing him to present 

his second or successive petition to the district court. Id. at 

233.

Similarly, in In re Hill, the Eleventh Circuit rejected a 

“mechanistic test” for assessing whether a claim based on a 

new rule of constitutional law was previously available. 113 

F.3d 181, 183 (11th Cir. 1997) (per curiam). As an initial 

matter, the Eleventh Circuit assessed the previously 

unavailable requirement “with reference to the availability 

of the claim at the time the first federal habeas application 

was filed.” Id. at 182. But it also required an inmate to 

“demonstrate the infeasibility of amending” his request for 

habeas relief if it is still pending when a new rule that applies 

retroactively is announced. Id. at 183. The court explained 

that its “pragmatic approach . . . properly recognizes that the 

liberal amendment policy applicable to habeas petitions may 

make claims based upon new rules of constitutional law 

‘available’ to the petitioner during a prior habeas action, 

even when the claim would not have been available at the 

inception of that prior action.” Id.

In that case, Hill sought to bring a claim under Cage v. 

Louisiana, 498 U.S. 39 (1990), and challenge his conviction 

based on an improper jury instruction. In re Hill, 113 F.3d at 

182. Cage was issued while Hill’s initial petition was still 
10 MUÑOZ GONZALEZ V. UNITED STATES

pending. Id. at 183. After Hill filed his initial petition, the 

district court permitted him to present additional filings, and 

a year after Cage was decided Hill filed a supplemental brief 

that addressed other issues. Id. Hill’s petition remained 

pending for an additional two and a half years, and yet he 

never asserted a claim based on Cage. Id. These facts were

central to the Eleventh Circuit’s denial of his request for 

leave to file a second or successive habeas petition, and it 

concluded “that the circumstances . . . conclusively refute 

Hill’s contention that his Cage claim was ‘previously 

unavailable’ within the meaning [of AEDPA].” Id. at 184.

The Eighth Circuit also applies a pragmatic approach to 

determining unavailability. Davis v. Norris, 423 F.3d 868, 

879 (8th Cir. 2005). In Davis, the prisoner sought to bring an 

Atkins claim in a second or successive petition. Id. at 878. 

Represented by counsel, the prisoner filed his first habeas 

petition after Atkins was argued in the Supreme Court but 

before a decision was issued. Id. at 879; see also, Davis v. 

Norris, No. CV 01-05188-SOH, Dkt. No. 17 (W.D. Ark. 

Apr. 1, 2002). The district court held an evidentiary hearing 

on the habeas petition three months after Atkins was issued 

and did not deny the petition until well over a year after that. 

Id. The evidence that the prisoner relied on in making his 

later-presented Atkins claims was also available to him 

during the pendency of his initial habeas proceeding. See id. 

Under these circumstances, the Eighth Circuit held that “the 

Atkins rule was not previously unavailable” because the 

prisoner “could have raised [it] in the district court.” Id.

Based on the weight of authority, including the Supreme 

Court’s interpretation of similar language in the PLRA, we 

likewise adopt a pragmatic approach to determining whether 

a claim based on a new constitutional rule was “previously 

unavailable,” as required by AEDPA when a prisoner seeks 
MUÑOZ GONZALEZ V. UNITED STATES 11

to file a second or successive request for habeas relief based 

on a new constitutional rule. 28 U.S.C. § 2244(b)(2)(A). 

Under this approach, the prisoner seeking to file a second or 

successive request for habeas relief must show that the realworld circumstances that he faced prevented him, as a 

practical matter, from asserting his claim based on a new rule 

of law in his initial habeas proceeding. If he makes this 

showing, leave to file a second or successive request for 

habeas relief must be granted.

B. Muñoz’s Motion

We now turn to Muñoz’s newly asserted Davis

argument. As previously noted, the Supreme Court issued its 

decision in Davis shortly before Muñoz filed his reply brief 

in support of his initial habeas motion and a few months 

before that motion was decided. Thus, purely as a matter of 

timing, the Davis argument was available during Muñoz’s 

initial habeas proceeding. And despite Muñoz’s suggestion 

that the district court “seemed to deter” amendments or 

additional filings in his initial proceeding, the record does 

not establish that he would have been prohibited from 

amending his initial habeas motion to assert a Davis

argument related to his § 924(c) conviction.

Nonetheless, Muñoz asserts that his new Davis argument 

was previously unavailable to him because it is unreasonable 

to expect a pro se prisoner with an eighth-grade education 

and no experience filing habeas applications to learn about a 

new rule of constitutional law and amend his habeas 

application to add a new claim in such a short time. He also 

lists other circumstances that added to his difficulty: his first 

language is Spanish, he taught himself how to look up cases 

on LexisNexis, and he did not have unlimited access to the 

prison law library. He further claims he “doesn’t think [the 
12 MUÑOZ GONZALEZ V. UNITED STATES

Davis decision] was available on the computer in the law 

library until after [he] mailed in [his] reply.”

In describing his difficulties, Muñoz tries to minimize 

that he in fact did raise an argument based on Davis in his 

initial habeas proceeding. He contends that he did so only at 

another prisoner’s suggestion and that he had not read Davis. 

He further claims that he did not understand Davis or what 

he had written about it in making his earlier argument. 

Finally, he asserts that he could not have amended his initial 

petition because he did “not know what it means to amend” 

a habeas motion or that he could have done so.

We do not dispute that pro se prisoners face unique 

difficulties when litigating requests for habeas relief, or 

anything else for that matter. See, e.g., Woods v. Carey, 684 

F.3d 934, 938 (9th Cir. 2012) (recognizing pro se prisoner 

litigants face “unique handicaps of incarceration” (quoting 

Rand v. Rowland, 154 F.3d 952, 958 (9th Cir. 1998) (en 

banc))). Nor do we doubt that language barriers add to those 

difficulties. But it is axiomatic that pro se litigants, whatever 

their ability level, are subject to the same procedural 

requirements as other litigants. United States v. Merrill, 746 

F.2d 458, 465 (9th Cir.1984); cf. Roy v. Lampert, 465 F.3d 

964, 970 (9th Cir. 2006).

The difficulties that Muñoz identifies in and of 

themselves do not render a claim based on a new 

constitutional rule unavailable. See Ross, 578 U.S. at 643 

(reasoning that an administrative remedy is unavailable only 

if it “is not capable of use to obtain relief”); cf. Bills v. Clark,

628 F.3d 1092, 1099–1100 (9th Cir. 2010) (holding that to 

establish eligibility for equitable tolling in habeas 

proceedings due to mental impairment, a prisoner must 

show, among other things, that “his mental impairment was 

an ‘extraordinary circumstance’ beyond his control” 
MUÑOZ GONZALEZ V. UNITED STATES 13

(internal quotation marks and citation omitted)). Instead, his 

difficulties largely mirrored the general challenges pro se 

prisoners face when preparing legal filings; they did not 

effectively create an external barrier to his ability to amend 

his petition, especially given his awareness of the recent 

Davis decision. Nor were his difficulties inherently related 

to his claim being based on a new rule of law as opposed to 

his pro se status.4

The authorities discussed above focus on the real-world

circumstances impacting whether a legal claim or remedy 

can be utilized or accessed by a prisoner. The circumstances 

relevant to this inquiry relate to: (1) the timing of the change 

in law, see In re Hill, 113 F.3d at 182; (2) whether the 

prisoner had a factual basis for a claim based on the new law 

and when the prisoner learned of that factual basis, see In re 

Cathey, 857 F.3d at 230–33; cf. Hirabayashi v. United 

States, 828 F.2d 591, 605 (9th Cir. 1987) (in corum nobis 

context delay is justified when a petitioner discovered new 

evidence that he could not reasonably have located earlier); 

and (3) whether there is a procedural avenue for presenting 

the new claim that is generally accessible, see, e.g., Ross, 

578 U.S. at 642; cf. Lakawanna Cnty Dist. Atty v. Cross, 532 

U.S. 394, 405 (2001) (characterizing in dicta that 

§ 2244(d)(1)(B) tolls “[the] 1-year limitations period while 

petitioner is prevented from filing application by an 

impediment . . . created by State action”) (internal quotation 

marks and citation omitted). This analysis typically focuses 

4 In a similar context, we recently held that a prisoner is not denied 

“an unobstructed procedural shot” to present a claim based on a decision 

issued before the prisoner’s initial § 2255 motion was exhausted because 

he filed his motion pro se. Pavulak v. Blanckensee, 14 F.4th 895, 897 

(9th Cir. 2021) (per curium). As we explained, to conclude otherwise 

would “effectively overrule our precedent that there is no right to counsel 

in federal post-conviction proceedings.” Id.
14 MUÑOZ GONZALEZ V. UNITED STATES

on external barriers. See Menominee Indian Tribe of Wis. v. 

United States, 577 U.S. 250, 256–57 (2016) (holding that the 

“extraordinary circumstances” element for equitable tolling 

requires evidence of “an external obstacl[e],” which reflects 

the “requirement that a litigant seeking tolling show that 

some extraordinary circumstance stood in his way”) 

(internal quotation marks and citation omitted); Smith v. 

Davis, 953 F.3d 582, 588 (9th Cir. 2020) (recognizing that a 

habeas petitioner seeking equitable tolling must establish 

some extraordinary circumstance stood in the way of filing 

his petition within the one-year limitations period); Grant v. 

Swarthout, 862 F.3d 914, 924–26 (9th Cir. 2017) (finding 

that prison officials’ delay in providing a prisoner with a 

requested certificate required for an in forma pauperis 

application caused the federal habeas petition’s 

untimeliness); Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 

2003) (holding that a petitioner’s attorney’s misconduct may 

justify equitable tolling). This makes sense because, as the 

Supreme Court has explained, “availability” relates to 

whether something is “capable of use for the 

accomplishment of a purpose” or “is accessible.” Ross, 578 

U.S. at 642 (internal quotation marks and citation omitted).

Perhaps it can be argued that “availability” may be 

analyzed either objectively (whether a claim is “capable of 

use” by or “accessible” to an ordinary prisoner) or 

subjectively (whether a particular prisoner can use or access 

a claim given his unique characteristics and limitations). But 

there is nothing in the text or context of AEDPA’s 

previously-unavailable-claim requirement suggesting that 

this limited exception to the otherwise broad prohibition 

against filing second or successive habeas proceedings was 

intended to be applied subjectively. Indeed, serious fairness 

concerns would arise if a legal claim were deemed 

“available” to one prisoner but not another based on personal 
MUÑOZ GONZALEZ V. UNITED STATES 15

factors specific to the prisoner. And certainly were we to 

conclude that a prisoner’s comprehension of the law or 

experience with the legal system dictates whether a legal 

claim is available to him, the previously-unavailable-claim 

exception would be broadened far beyond its current 

application and become an open invitation for litigation.

Here, Muñoz points to his personal characteristics in 

arguing that his Davis argument was unavailable to him 

during his initial habeas proceeding. Again, we do not doubt 

that he faced difficulties in asserting his Davis argument. He 

has limited education, English is not his first language, he 

lacks legal experience, and he had a relatively short time—

approximately three months—to discover the new rule 

established in Davis and amend his § 2255 motion.5 But 

these characteristics, and the relatively short time frame he 

faced, are not the kinds of circumstances that render a claim 

based on a new rule of law “previously unavailable.” The 

new rule existed; Muñoz had the facts that he needed for his 

claim; no systemic or external barrier prevented him from 

presenting his claim in his initial habeas proceeding; and 

Muñoz was clearly aware of Davis because he cited it in his 

reply brief in his initial habeas proceeding.

Therefore, we conclude that Muñoz cannot show that his 

new Davis argument was unavailable during his initial 

habeas proceedings. Nothing relevant to our inquiry changed 

5 Muñoz argues that his limited access to a law library prevented 

him from amending his petition. But he does not allege that he was 

prevented from visiting the law library or that there were prison 

conditions, such as lockdowns or placement in a secure housing unit, that 

prevented him from regular access. Indeed, Muñoz states in his 

declaration that he could research cases on LexisNexis, and that during 

the time he was writing his reply brief for his initial petition, he visited 

the law library five times.
16 MUÑOZ GONZALEZ V. UNITED STATES

between when Muñoz asserted his first Davis argument in 

his initial habeas proceeding and when he asserted his new 

Davis argument in his request for leave to file a second or 

successive habeas motion. The law and the factual basis on 

which he relies in asserting his new claim was available to 

him during his initial habeas proceeding. That he may not 

have recognized the specific Davis argument that he now 

seeks to raise until after his initial proceeding was concluded 

is no different from any other prisoner who fails to raise a 

habeas claim due to ignorance or lack of diligence, and it is 

not a basis for granting leave to file a second or successive 

habeas motion.

Muñoz’s request for leave to file a second or successive 

§ 2255 habeas motion is DENIED.