Filing a Motion for Authorization in the Court of Appeals

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

Where do you file for authorization to bring a successive § 2255?

You file a motion for authorization in the court of appeals for the circuit that includes your sentencing court — not the district court. Use that circuit’s own application form, attach your proposed §2255 motion and the prior filings, and make a prima facie showing under §2255(h). A three-judge panel must rule within 30 days.

Key takeaways on seeking circuit authorization

• The motion goes up, not down. 28 U.S.C. §2244(b)(3)(A): “[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.”
• Three judges, thirty days. Section 2244(b)(3)(B) requires a “three-judge panel,” and §2244(b)(3)(D) says the court “shall grant or deny the authorization … not later than 30 days after the filing of the motion.”
• “Prima facie” is a low bar, and it is not the merits. In re Lott, 366 F.3d 431, 433 (6th Cir. 2004): it means “simply sufficient allegations of fact together with some documentation that would ‘warrant a fuller exploration in the district court.'”
• A grant is not a win. Section 2244(b)(4) directs the district court to “dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.” In re Bowe, No. 24-11704 (11th Cir. Feb. 6, 2026), calls the panel’s ruling “only a threshold determination.”
• After Bowe, a denial is no longer the end of the road for a federal prisoner. Bowe v. United States, 607 U.S. 13 (2026), holds §2244(b)(3)(E)’s certiorari bar does not reach federal prisoners — so certiorari is available. It did not change what you must show.
• There is no right to appointed counsel on this motion. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987): “We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions.”

How do I file a motion for authorization for a successive 2255?

The sequence is fixed, and every step of it is statutory or in the Rules Governing Section 2255 Proceedings.

Rule 9 of the Rules Governing Section 2255 Proceedings states the requirement in a single sentence: “Before presenting a second or successive motion, the moving party must obtain an order from the appropriate court of appeals authorizing the district court to consider the motion, as required by 28 U.S.C. §2255, para. 8.” Paragraph 8 is what is now codified as §2255(h), which requires that a second or successive motion “be certified as provided in section 2244 by a panel of the appropriate court of appeals.”

That cross-reference takes you to §2244(b)(3), which supplies the procedure:

• (A) The applicant “shall move in the appropriate court of appeals for an order authorizing the district court to consider the application” — before the motion is filed below.
• (B) The motion “shall be determined by a three-judge panel of the court of appeals.”
• (C) The panel “may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.”
• (D) The panel “shall grant or deny the authorization … not later than 30 days after the filing of the motion.”
• (E) The grant or denial “shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari” — the certiorari half of which no longer applies to federal prisoners after Bowe.

In practice the filing is short. It is not the §2255 motion; it is a request for permission to file the §2255 motion, and the panel is deciding a threshold question on a paper record under a statutory deadline. Applications that read like merits briefs fail more often than applications that read like what they are.

Which court decides the authorization motion?

The United States Court of Appeals for the circuit that includes the district court that sentenced you.

That is worth stating flatly because it is the most common procedural mistake in this area. Not the district court. Not the Supreme Court. Not the circuit where you are currently confined — a §2255 motion is a continuation of the criminal case in the sentencing court, which is why the Advisory Committee Note to Rule 1 describes it as “a further step in the movant’s criminal case and not a separate civil action.” If you were sentenced in the Northern District of Texas and are now housed at a facility in Kentucky, your authorization motion goes to the Fifth Circuit.

The one narrow exception is historical rather than practical. In Felker v. Turpin, 518 U.S. 651 (1996), the Supreme Court held that §2244(b)(3)’s gatekeeping system “does not apply to our consideration of habeas petitions because it applies to applications ‘filed in the district court,'” so its own original habeas jurisdiction survives AEDPA. Felker was equally clear about how rarely that matters: a petitioner “must show exceptional circumstances warranting the exercise of the Court’s discretionary powers and must show that adequate relief cannot be obtained in any other form or from any other court.” Original habeas in the Supreme Court is not a realistic alternative to a circuit authorization motion, and Felker also held that AEDPA’s restrictions on successive petitions are “a modified res judicata rule” within the “abuse of the writ” tradition and “do not amount to a ‘suspension’ of the writ contrary to Article I, §9.”

The form, what it must contain, and how it gets filed

Every circuit publishes its own application form and its own local rule governing these motions, and most make a fillable version available on the court’s website. Form names and numbers differ by circuit and change over time, so confirm the current version on the specific circuit’s site before you file rather than relying on a copy someone in the law library has.

What the forms have in common is the information they demand:

• Identification of the prior §2255 motion or motions — district, case number, filing date, disposition date, and whether the denial was on the merits.
• The claim or claims you want to raise, stated separately.
• Which §2255(h) gateway each claim runs through — newly discovered evidence under (h)(1), or a new retroactive rule of constitutional law under (h)(2).
• The supporting facts and documentation for that showing.
• Whether the claim was raised before, and if so, where. After Bowe, a repeat claim is no longer automatically dismissed — but the panel still asks the question, and answering it honestly is better than being caught.
• The proposed §2255 motion, which most circuits want attached.
• Copies of the prior motions and the orders denying them. In re Lott describes what a panel typically has in front of it as “the application itself and documents required to be attached to it, consisting of the previous motions and opinions in the case.”

Mechanically: the motion is filed in the court of appeals, not the district court. A §2255 motion itself carries no filing fee — the Advisory Committee Note to Rule 1 of the §2255 Rules explains that the motion is “a further step in the movant’s criminal case and not a separate civil action,” and points to the Rule 3 note for the no-filing-fee consequence — but circuits handle any fee for the authorization application under their own rules, so check the local rule. A movant in custody gets the benefit of the prison mailbox rule for filing dates — see prisoner mailbox rule — and should keep proof of the deposit date.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The authorization motion is the shortest document in federal post-conviction practice and the one that most rewards discipline. A panel has thirty days, a paper record, and a threshold standard. The applications that succeed name the Supreme Court decision, state in one sentence why it is a rule of constitutional law rather than statutory interpretation, identify the holding that made it retroactive, and attach the proposed motion. The applications that fail bury all of that inside twenty pages of merits argument the panel is not deciding. If the claim is genuinely outside §2255(h), the better filing is often not an application at all — it is a district-court motion with an explanation of why the filing is not second or successive in the first place.

What is a prima facie showing?

Less than most movants assume, and the leading statement of it is generous.

In In re Lott, 366 F.3d 431, 433 (6th Cir. 2004), the Sixth Circuit adopted Judge Posner’s formulation for the Seventh Circuit and held that a “prima facie showing” is “not a difficult standard to meet.” Quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997), the court explained: “By ‘prima facie showing’ we understand … simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.” And in its own words: “‘Prima facie’ in this context means simply sufficient allegations of fact together with some documentation that would ‘warrant a fuller exploration in the district court.'”

Three things follow from that.

It is a screening standard, not a merits standard. The panel is not deciding whether you win. It is deciding whether a district court should look. In re Bowe makes the point from the other side: the panel’s finding “is only a threshold determination, and the district court determines whether the criteria have actually been met.”

“Some documentation” is not “no documentation.” The word “allegations” does real work in Lott, but so does “documentation.” An application asserting newly discovered evidence with nothing attached is asking the panel to take the applicant’s word for the one thing §2255(h)(1) requires. For a (h)(1) claim, that means declarations and records; for an (h)(2) claim, it means the decision itself and the authority making it retroactive.

The showing is measured against §2255(h), not §2244(b)(2). This is a live distinction and it favors federal prisoners. Bowe holds that §2255(h) supplies the content requirements for a federal prisoner’s application, and §2255(h)(1) is textually more forgiving than §2244(b)(2)(B): it does not contain §2244(b)(2)(B)(i)’s due-diligence condition, and it asks whether “no reasonable factfinder would have found the movant guilty,” without §2244(b)(2)(B)(ii)’s additional “but for constitutional error” clause. In re Lott was a §2254 state-prisoner case applying §2244(b)(2)(B)(ii), so use it for what “prima facie” means, and use §2255(h) for what must be shown.

How long does the court of appeals take?

The statute says 30 days. Do not build a filing schedule on it.

Section 2244(b)(3)(D) provides that the court of appeals “shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.” That is a statutory instruction to the court, and panels frequently do rule inside it on straightforward applications — particularly (h)(2) applications where the retroactivity question is already settled in that circuit. But the courts of appeals have not treated the 30 days as a jurisdictional limit on their own authority, and applications raising factually complex (h)(1) claims routinely take longer. Bowe itself does not address whether the deadline is mandatory or advisory.

The planning consequence is the one that hurts people. The one-year period in §2255(f) keeps running while your application is pending. Bowe said so directly, in the passage the Eleventh Circuit quoted on remand: even a claim that meets §2255(h)’s “strictly limited” requirements “must still conform with the demanding statute of limitations contained in §2255(f).” So the correct sequence is to compute your deadline first, file the application with time to spare, and have the proposed §2255 motion ready to file the day authorization issues. Compute the date at the 2255 deadline calculator and check the full map at post-conviction deadlines.

The authorization motion, step by step

What happens at each stage, what governs it, and what it means for you

Stage	What happens	Governing authority	What it means in practice
1. Where it is filed	Motion for authorization filed in the court of appeals for the circuit containing the sentencing district — not the district court, not the circuit of confinement	28 U.S.C. §2244(b)(3)(A); Rule 9, Rules Governing Section 2255 Proceedings	Filing in the district court instead is the most common error and costs months
2. The form	That circuit’s own application form and local rule; forms differ by circuit and are published on each court’s website	Circuit local rules	Confirm the current form on the circuit’s own site; do not reuse an old copy
3. What it must contain	Prior §2255 motions and dispositions; each claim stated separately; which §2255(h) gateway it runs through; supporting facts and documentation; the proposed §2255 motion attached	28 U.S.C. §2255(h); In re Lott, 366 F.3d 431, 433 (6th Cir. 2004)	It is a permission request, not a merits brief
4. Who decides	A three-judge panel of the court of appeals	28 U.S.C. §2244(b)(3)(B)	No district judge, no magistrate judge, no single circuit judge
5. The standard	Prima facie showing that the motion satisfies §2255(h) — “sufficient allegations of fact together with some documentation” warranting fuller exploration below	28 U.S.C. §2244(b)(3)(C); In re Lott, 366 F.3d at 433	Low bar, but not a bare assertion; attach something
6. The clock	Panel “shall grant or deny” within 30 days of filing	28 U.S.C. §2244(b)(3)(D)	An instruction to the court, not a guarantee; the §2255(f) year keeps running
7. If granted	The proposed motion may be filed below. The district court then decides the §2255(h) question again, on a full record	28 U.S.C. §2244(b)(4); In re Bowe, No. 24-11704 (11th Cir. Feb. 6, 2026)	A grant buys you a forum, not relief
8. If denied	No appeal, no rehearing. For a federal prisoner, certiorari is available after Bowe	28 U.S.C. §2244(b)(3)(E); Bowe v. United States, 607 U.S. 13 (2026); Upchurch v. United States, No. 26-1114 (7th Cir. Aug. 4, 2026) (single-judge in-chambers opinion; rehearing bar survives)	The route that opened in 2026 is certiorari, not rehearing
9. Filed below without permission	District court has no jurisdiction; it may dismiss or transfer under 28 U.S.C. §1631	In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008); Handlon v. United States, No. 2:26-cv-01762 (M.D. Fla. Aug. 20, 2026)	Nothing is preserved, and the §2255(f) clock does not stop

What happens after the panel grants authorization

You get a forum. You do not get relief, and the distinction is statutory.

Section 2244(b)(4) provides that “[a] district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.” The district court is not bound by the panel’s prima facie finding. It decides the gateway question over again, on a developed record, with the Government responding.

In re Bowe states the relationship precisely: the court of appeals’ determination “that an applicant has made a prima facie showing that the statutory criteria have been met is only a threshold determination, and the district court determines whether the criteria have actually been met.”

Two things follow. First, the same evidence has to be presented twice, and the second time it has to be better. An (h)(1) claim that got past the panel on declarations will face an adversarial test below, with discovery under Rule 6 and record expansion under Rule 7 of the §2255 Rules, and possibly a hearing under Rule 8. Second, timeliness re-enters the picture at the district court. The Eleventh Circuit noted in In re Bowe that “potential untimeliness isn’t relevant to our threshold determination,” because the limitations period “is not a jurisdictional bar” at the authorization stage. That is a reprieve at the panel and a trap below: an application can be granted and the resulting motion still dismissed as untimely.

The ordinary post-filing sequence — screening under Rule 4(b), the Government’s answer, expansion of the record, hearing, ruling — is described at what happens after filing a 2255, and whether a hearing is required at all at 2255 evidentiary hearing.

Can I appeal a denial of authorization?

This is where the law changed in 2026, and it is also where it is being overstated. Both halves need to be said in the same breath.

What changed. Bowe v. United States, 607 U.S. 13 (2026), decided January 9, 2026, held that §2244(b)(3)(E)‘s certiorari bar does not apply to federal prisoners. The provision says a grant or denial of authorization “shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” The Court held that §2255(h)’s cross-reference “incorporates the procedures in §2244 only as they relate to how a panel certifies a second or successive filing,” and that the certiorari bar is not such a provision — noting that, “[u]nlike the provisions governing authorization decisions for state prisoners, §2255(h) does not mention this Court’s certiorari jurisdiction, let alone purport to limit it.” Bowe also held that §2244(b)(1)’s old-claim bar does not reach federal prisoners, so a claim you raised in a prior application is not automatically dismissed on that ground.

For thirty years the settled assumption — grounded in Felker‘s statement that §2244(b)(3)(E) “prevents this Court from reviewing a court of appeals order denying leave to file a second habeas petition by appeal or by writ of certiorari” — was that a denial was final. Felker was a state-prisoner §2254 case, and it remains good law on its own facts. For a federal prisoner, Bowe now supplies a different answer.

What did not change, stated precisely. Bowe did not touch §2255(h). It quotes Jones v. Hendrix, 599 U.S. 465, 477 (2023), for the “two—and only two—conditions in which a second or successive §2255 motion may proceed,” and holds only that “when a federal prisoner moves for authorization, a panel can authorize the filing if it satisfies one of the two grounds in §2255(h).” Nothing in the opinion relaxes the certification requirement, expands the two gateways, or lets a federal prisoner file a second motion in the district court without a panel order. The Court said the opposite about the practical stakes: all claims, including repeat ones, “must meet the ‘strictly limited’ threshold requirements of §2255(h),” and if they survive that, “must still conform with the demanding statute of limitations contained in §2255(f)…. Very few claims will satisfy either, let alone both.”

District courts are already having to say this out loud. In Handlon v. United States, No. 2:26-cv-01762 (M.D. Fla. Aug. 20, 2026), a movant argued that Bowe had removed the second-or-successive restrictions altogether. The court dismissed for lack of jurisdiction: the certification requirement “has not been altered by Bowe,” and “[i]n the absence of an order authorizing the undersigned to consider a second or successive motion, the current motion must be dismissed for lack of jurisdiction.”

Rehearing is a separate question, and the answer so far is no. In Upchurch v. United States, No. 26-1114 (7th Cir. Aug. 4, 2026) — a published in-chambers opinion by a single circuit judge, construing the filing as a motion for leave decidable by one judge under Fed. R. App. P. 27(c) — the court held that “[n]otwithstanding Bowe, … the bar on petitions for rehearing in §2244(b)(3)(E) applies to federal prisoners proceeding under §2255(h),” because “[t]he holding in Bowe applies only to the certiorari bar.” The reasoning is that the certiorari bar is jurisdiction-stripping and therefore required a clear statement, while the rehearing bar “is not jurisdictional” because “[n]o federal statute governs the rehearing process.” Treat that as persuasive rather than settled: it is one judge, in one circuit, and the question has not been decided by a panel of any court of appeals in a published decision as of this writing.

The practical takeaway. If a panel denies your authorization motion and you are a federal prisoner, a petition for certiorari to the Supreme Court is available under Supreme Court Rule 13’s ordinary 90-day period. That is a real change and worth preserving. A petition for panel rehearing or rehearing en banc is not. And neither route revisits what you had to show in the first place. The appellate standard for a denial of the §2255 motion itself, once it is filed, is different again and is covered at certificate of appealability.

Do I get a lawyer for the authorization motion?

Not as of right, and this is the hardest structural fact about the filing.

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), holds that “[w]e have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, and we decline to so hold today,” and states the rule that governs everything downstream: “[o]ur cases establish that the right to appointed counsel extends to the first appeal of right, and no further.” There is no Sixth Amendment right to counsel at the authorization stage, and no due process right either.

What exists instead is discretionary appointment. Under 18 U.S.C. §3006A, a court may appoint counsel for a financially eligible person seeking §2255 relief when “the interests of justice so require,” and the Rules Governing Section 2255 Proceedings make that mandatory in two situations — but both are in the district court, after the motion is filed. Rule 6(a) provides that “[i]f necessary for effective discovery, the judge must appoint an attorney for a moving party who qualifies,” and Rule 8(c) provides that “[i]f an evidentiary hearing is warranted, the judge must appoint an attorney to represent a moving party who qualifies,” adding that the rules “do not limit the appointment of counsel under §3006A at any stage of the proceeding.”

The practical shape of that is worth being blunt about. The stage with the strictest deadline, the least familiar court, and no automatic counsel is the stage that comes first. A movant who will eventually get appointed counsel in the district court after a hearing is ordered has to get through the authorization motion alone to reach that point. That is why the filing rewards preparation more than length, and why the proposed §2255 motion should already be written when the application goes in. Who handles this work, and at what stage counsel typically enters, is discussed at post conviction attorney and habeas corpus attorney.

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: The single most common thing we see go wrong at this stage has nothing to do with the legal argument. It is sequencing. Someone waits for a retroactivity decision, then starts assembling the application, then files it, and by the time the panel rules the §2255(f) year is gone — so the authorization they won is worth nothing. The order that works is the reverse: compute the deadline first, draft the proposed §2255 motion first, and file the application knowing exactly what will be filed below the day permission arrives. The application is a gate, and gates should be approached with the next step already in hand.

What happens if you file in the district court without permission

Nothing good, and the reason is jurisdictional rather than discretionary.

A second or successive §2255 motion filed below without a panel order is not merely weak. The district court has no authority to act on it. Handlon applied the rule directly in August 2026: “[i]n the absence of an order authorizing the undersigned to consider a second or successive motion, the current motion must be dismissed for lack of jurisdiction.”

What the court does next varies, and the leading statement of the options is In re Cline, 531 F.3d 1249 (10th Cir. 2008): “[w]hen a second or successive §2254 or §2255 claim is filed in the district court without the required authorization from this court, the district court may transfer the matter to this court if it determines it is in the interest of justice to do so under [28 U.S.C.] §1631, or it may dismiss the motion or petition for lack of jurisdiction.” Transfer is discretionary, not mandatory. Cline lists the factors: “whether the claims would be time barred if filed anew in the proper forum, whether the claims alleged are likely to have merit, and whether the claims were filed in good faith or if, on the other hand, it was clear at the time of filing that the court lacked the requisite jurisdiction.” And where “there is no risk that a meritorious successive claim will be lost absent a §1631 transfer,” a district court “does not abuse its discretion” in declining to transfer.

Districts within other circuits reach the same two options through their own authority, so the practical answer to “what will happen to my filing” is: dismissal or transfer, and which one is up to the judge. In either case the merits are never reached, months are lost, and the §2255(f) clock does not stop.

One related trap. In re Cline also holds that “[i]t is the relief sought, not [the] pleading’s title, that determines whether the pleading is a §2255 motion.” A filing labeled as something else — a Rule 60(b) motion, a motion to correct the record, a §2241 petition — is treated as a successive §2255 motion if it attacks the validity of the conviction or sentence. That is why a Rule 60(b) motion in a 2255 case is its own question, and why Jones v. Hendrix, 599 U.S. 465 (2023) closed the §2241 route for intervening statutory-interpretation claims — as covered at 2255 vs 2241. Where the underlying claim is one a first §2255 motion should have raised, such as counsel’s failure to advise about immigration consequences under Padilla v. Kentucky, the successive posture is frequently the hardest part of the case. And if your filing is a state-court habeas matter rather than a federal §2255, the vehicle and the forum are different — see petition for writ of habeas corpus.

Why work with Elizabeth Franklin-Best, P.C.

Elizabeth Franklin-Best founded the firm in 2019 and practices federal criminal appeals and post-conviction relief nationwide, with more than 20 years of federal and appellate criminal defense experience. She is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit — and has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record. She is recognized by Best Lawyers in America 2026 for Appellate Practice and by Chambers USA 2026 for Litigation: White-Collar Crime & Government Investigations, and wrote “What Justices’ Bowe Ruling Could Mean for Federal Prisoners” for Law360 Expert Analysis in 2025.

Christopher Zoukis, JD, MBA, is the firm’s Managing Director and a nationally recognized federal prison expert, author of the Federal Prison Handbook and four other books on the federal system, and Chairman of the Board of the Human Rights Defense Center.

An authorization motion is an appellate filing under a statutory clock, and the firm’s practice is admitted in the courts of appeals where these motions are decided. The firm runs a national federal practice on an intentionally small caseload, from offices in Columbia and Mount Pleasant, South Carolina, and is admitted pro hac vice in federal courts from Montana to Florida.

Talk to a federal post-conviction lawyer

If you have been told your filing is second or successive, or a district court has already dismissed one for lack of jurisdiction, the next filing goes to a court of appeals under a statutory deadline. Schedule a case review or call (843) 620-1100. Bring your prior §2255 motion and the order denying it, the judgment, the docket sheet, and the decision you believe opens the gateway. If you are still working out whether your filing is second or successive at all, start at second or successive 2255 or at the hub, federal 2255 motion lawyer.

Frequently Asked Questions About Motions for Authorization

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026