TONG V. UNITED STATES OF AMERICA, No. 23-48 (9th Cir. 2023)
Annotate this Case
Petitioner filed a Section 2255 motion in the district court challenging her restitution order in a case in which Petitioner was convicted of wire fraud and aggravated identity theft. The district court dismissed the motion on the ground that restitution claims are not cognizable in a Section 2255 motion. Petitioner then filed a second-in-time Section 2255 motion asserting new grounds for relief. The district court denied it as an unauthorized second or successive motion filed in violation of 28 U.S.C. Section 2255(h). Pursuant to Circuit Rule 22-3(a), the district court referred the matter to this court, which opened the matter as an application for authorization to file a second or successive motion.
The Ninth Circuit denied Petitioner’s s application for leave to file a second or successive motion. The panel held that the district court’s dismissal of Petitioner’s first motion constitutes an adjudication “on the merits” for purposes of the second-or-successive bar. The panel explained that when an initial petition or motion is dismissed because its claims cannot be considered by the court or do not otherwise establish a ground for habeas relief, regardless of their underlying merits, any later-filed petition or motion is second or successive. Accordingly, to the extent Petitioner's second motion raises claims that could have been adjudicated on the merits when she filed her first motion, that aspect of her second motion is second and successive for purposes of Section 2255(h). Because Petitioner has not argued or otherwise made a showing that she meets the requirements of Section 2255(h), the panel denied her application to file a second or successive motion.
Court Description: 28 U.S.C. § 2255 The panel (1) denied Chun Mei Tong’s application for leave to file a second or successive motion under 28 U.S.C.
§ 2255 in a case in which Tong was convicted of wire fraud and aggravated identity theft; and (2) to the extent Tong’s second motion raises claims that could not have been adjudicated when she filed her first § 2255 motion, transferred that aspect of the second motion to the district court.
Tong filed a § 2255 motion in the district court challenging her restitution order. The district court dismissed the motion on the ground that restitution claims are not cognizable in a § 2255 motion. Tong then filed a second-in-time § 2255 motion asserting new grounds for relief. The district court denied it as an unauthorized second or successive motion filed in violation of 28 U.S.C.
§ 2255(h). Pursuant to Circuit Rule 22-3(a), the district court referred the matter to this court, which opened the matter as an application for authorization to file a second or successive motion.
The panel held that the district court’s dismissal of Tong’s first motion constitutes an adjudication “on the merits” for purposes of the second-or-successive bar. The panel explained that when an initial petition or motion is dismissed because its claims cannot be considered by the court or do not otherwise establish a ground for habeas relief, regardless of their underlying merits, any later-filed petition or motion is second or successive. Accordingly, to the extent Tong’s second motion raises claims that could have been adjudicated on the merits when she filed her first motion, that aspect of her second motion is second and successive for purposes of § 2255(h). Because Tong has not argued or otherwise made a showing that she meets the requirements of § 2255(h), the panel denied her application to file a second or successive motion.
In her second motion, Tong claims that her habeas counsel provided ineffective assistance by failing to raise various grounds for relief in her first § 2255 motion. The panel wrote that this claim could not have been adjudicated on the merits of her first motion, and thus, is not second or successive. The panel transferred this aspect of Tong’s second motion to the district court to consider it in the first instance.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.