Fifth Circuit Announces When Initial § 2255 Petition Not Decided on Merits and Appeals Court Later Recalls Mandate Dismissing Direct Appeal and Affirms Conviction, Subsequent § 2255 Petition Not ‘Second or Successive’ Under AEDPA

In a case of first impression, the United States Court of Appeals for the Fifth Circuit held that, where a defendant’s 28 U.S.C. § 2255 petition was not decided on the merits and the Court afterward recalled the mandate dismissing the direct appeal and affirmed the conviction, a subsequent § 2255 petition …