§ 2255 collateral attack — categorical-approach sentencing errors after Borden

What 28 U.S.C. § 2255 actually does

Section 2255 of Title 28 permits a federal prisoner to move the sentencing court to vacate, set aside, or correct the sentence on the ground that the sentence was imposed in violation of the Constitution or laws of the United States, that the court lacked jurisdiction, that the sentence exceeded the maximum authorized by law, or that the sentence is otherwise subject to collateral attack.¹

The statute is the principal post-conviction remedy for federal prisoners. It is filed in the sentencing court, not in the district where the prisoner is confined. The motion is essentially a habeas vehicle that has been moved from the prisoner’s district to the conviction’s district for administrative reasons.

Read § 2255 at law.cornell.edu/uscode/text/28/2255.

Borden and the categorical-approach narrowing

The Supreme Court in Borden v. United States, 593 U.S. 420 (2021), held that a criminal offense with a mens rea of recklessness does not qualify as a “violent felony” under the Armed Career Criminal Act’s elements clause at 18 U.S.C. § 924(e)(2)(B)(i).² The decision interpreted the phrase “use of physical force against the person of another” to require purposeful or knowing conduct.

Borden built on the line of categorical-approach cases — Johnson v. United States, 559 U.S. 133 (2010); Mathis v. United States, 579 U.S. 500 (2016); and United States v. Davis, 588 U.S. 445 (2019), among others — that have progressively narrowed the universe of state offenses qualifying as ACCA and career-offender predicates.

The practical effect on Texas defendants: certain Texas offenses that include reckless conduct in their elements no longer qualify as ACCA or career-offender predicates. The Texas assault statute at Penal Code § 22.01 is one example — § 22.01(a)(1) reaches intentional, knowing, and reckless conduct. After Borden, some § 22.01-based prior convictions used as ACCA predicates may no longer qualify.

Retroactivity for collateral attack

The threshold question in any Borden-based § 2255 motion is retroactivity. A new rule of constitutional law is retroactive to cases on collateral review if it falls within one of the categories under Teague v. Lane, 489 U.S. 288 (1989), as refined by later doctrine.

Borden is a statutory-interpretation decision, not a constitutional decision. That posture matters for retroactivity. Statutory interpretation cases are generally treated as retroactive to collateral review under Welch v. United States, 578 U.S. 120 (2016) (which held Johnson 2015 retroactive), and the Fifth Circuit has applied similar reasoning to other statutory-interpretation decisions affecting ACCA and career-offender predicates.

In re Rodriguez, 18 F.4th 841, 842 (5th Cir. 2021) (squarely holding that Borden v. United States, 593 U.S. 420 (2021), cannot support authorization to file a successive § 2255 motion under § 2255(h)(2) because Borden announced a rule of statutory construction, not a new rule of constitutional law); see also United States v. Hanner, 32 F.4th 430 (5th Cir. 2022); United States v. Sosebee, 59 F.4th 151 (5th Cir. 2023). For initial § 2255 motions still in the limitations window, Borden remains available under § 2255(f)(1).

The one-year filing window

Section 2255(f) imposes a one-year statute of limitations running from the latest of:

1. The date the judgment of conviction becomes final.
2. The date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed.
3. The date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized and made retroactively applicable to cases on collateral review.
4. The date on which the facts supporting the claim could have been discovered through the exercise of due diligence.

For a Borden-based motion, subsection (f)(3) is the relevant trigger. The clock starts running from the date the Supreme Court decided Borden — June 10, 2021 — assuming Borden is treated as retroactive to cases on collateral review.

A prisoner whose conviction became final more than a year before Borden was decided may still be timely under (f)(3) if Borden is retroactive. A prisoner whose conviction was already final and who waited more than a year after Borden was decided has a much harder timeliness argument unless equitable tolling applies.

Pleading a Borden-based § 2255 motion

The motion has to allege:

1. The original sentence relied on one or more predicate convictions classified as ACCA or career-offender qualifiers.
2. At least one of those predicate convictions, when analyzed under the categorical approach in light of Borden, does not qualify as a violent felony or crime of violence.
3. Without the qualifying predicate, the ACCA mandatory minimum or career-offender enhancement should not have applied.
4. The resentencing would produce a different, lower guideline range or mandatory minimum.

The categorical-approach analysis is the heart of the motion. The court compares the elements of the state offense — as defined by state law at the time of the conviction — to the federal generic definition. If the state offense’s mens rea reaches recklessness, Borden controls.

Second-or-successive 2255 motions

If the prisoner has already filed one § 2255 motion, a second motion must be authorized by the court of appeals under 28 U.S.C. § 2255(h). Authorization is available only if the second motion is based on:

• Newly discovered evidence that, if proved and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty; or
• A new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court that was previously unavailable.

Borden, as a statutory-interpretation decision, does not on its face satisfy the second-or-successive standard, which requires a new rule of constitutional law. Prisoners with prior § 2255 motions face a harder pleading task. Some have proceeded under the “savings clause” of 28 U.S.C. § 2241, although the Supreme Court’s decision in Jones v. Hendrix, 599 U.S. 465 (2023), substantially narrowed that route.

When the modified-categorical approach applies

The categorical approach compares the elements of the state offense to the federal generic definition. When the state offense is “divisible” — when it contains multiple alternative elements that could be charged as separate offenses — the federal court may apply the modified-categorical approach.

Under the modified-categorical approach, the federal court looks at a limited universe of record documents (the charging document, the plea colloquy, the jury instructions, and similar materials) to identify which alternative the defendant was actually convicted of. The Supreme Court’s decision in Mathis v. United States, 579 U.S. 500 (2016), set the framework for when a statute is divisible.

For Texas Penal Code § 22.01 (assault), the divisibility question is litigated. The statute reaches intentional, knowing, and reckless conduct in § 22.01(a)(1), and several different theories of liability in other subsections. Whether the statute is “divisible” under Mathis controls whether the federal court can look beyond the elements to identify the specific theory of conviction.

For the Borden analysis, the question is whether the defendant’s Texas conviction was on a theory that included a non-reckless mens rea or whether it was on a theory that included recklessness. Without record materials proving the former, the categorical approach treats the conviction as reaching recklessness — and under Borden, the conviction is not a violent felony.

Record development for a § 2255 motion

The § 2255 motion is generally decided on the existing record — the federal-court sentencing record plus the state-court record materials underlying the predicate convictions. Substantial record development is sometimes required.

1. Federal sentencing record. The PSR, the sentencing transcript, the court’s findings, and any objections are the starting point.
2. State-court conviction documents. The certified judgment, the charging document (indictment or information), and the plea paperwork from each predicate conviction.
3. State-court plea colloquy. If the state-court plea transcript is available, it may identify which theory of conviction the defendant pleaded to.
4. State-court jury instructions. For predicates that went to trial, the jury instructions are the operative statement of what the jury was permitted to convict on.
5. Sentencing Commission materials. The current Guidelines Manual, prior editions in effect at the time of the original sentencing, and any relevant background commentary.
6. Fifth Circuit case law. Recent decisions applying the categorical approach to Texas statutes.

The motion itself should attach the predicate-conviction documents and lay out the categorical analysis for each predicate. The federal court’s analysis will be exhaustive; the better the record presented, the cleaner the ruling.

Practical effects on Texas predicate convictions

The most common Texas predicates that may be affected by Borden:

Texas Penal Code § 22.01 (assault)

Reaches intentional, knowing, and reckless conduct. Convictions under § 22.01(a)(1) may not qualify as violent felonies post-Borden unless the record shows a non-reckless mens rea theory.

Texas Penal Code § 22.02 (aggravated assault)

Generally requires intentional, knowing, or reckless conduct with either serious bodily injury or use/exhibition of a deadly weapon. Some § 22.02 convictions may still qualify depending on which alternative the defendant was convicted of.

Texas Penal Code § 19.04 (manslaughter)

Reckless homicide. Generally categorically reckless, so may not qualify post-Borden.

Texas Penal Code § 19.05 (criminally negligent homicide)

Negligent homicide. Generally below the recklessness threshold, so already did not qualify under prior doctrine.

Texas Penal Code § 22.04 (injury to child, elderly, or disabled)

Reaches intentional, knowing, and reckless conduct in some subdivisions. Categorical-approach analysis turns on the specific theory of conviction.

For each predicate, the analysis turns on the elements as defined by Texas law at the time of the conviction. Counsel must work from the version of the statute in effect at the relevant time, not the current version.

What to do if you are a federal prisoner facing a categorical-approach issue

The pre-filing work is documentary and analytical.

1. Pull the federal judgment, the presentence investigation report (PSR), and the sentencing transcript. Identify the predicate convictions used.
2. Pull the certified judgments and charging documents from each state-court predicate conviction.
3. Analyze each predicate under the categorical approach. Some predicates may not have been challenged at sentencing because the law at the time treated them as qualifying.
4. Identify which predicates fail under Borden or related doctrine.
5. Compute the alternative guideline range and mandatory minimum exposure without the disqualified predicates.
6. If the result is materially lower, file the § 2255 motion in the sentencing court within the one-year window from the relevant trigger event.

Federal collateral attacks are time- and procedure-sensitive. The pleading window is narrow and the second-or-successive bar is real.