United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-60352 FILED January 2, 2025 ____________ Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee,

versus Rasheed Ali Muhammad,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:23-CV-95 ______________________________ Before Dennis, Haynes, and Ramirez, Circuit Judges. Haynes, Circuit Judge: This case involves an issue of first impression: If a prisoner’s 28 U.S.C. § 2255 habeas petition is initially dismissed as too late, but, after that, we recall the mandate in the preceding direct appeal and affirm the conviction, and then the prisoner files another § 2255 habeas corpus petition, is that later habeas petition a “second or successive” habeas which requires an order granting it from the appellate court? 28 U.S.C. § 2255(h). The answer is no. If (1) no court has adjudicated a previous § 2255 habeas petition on the merits and (2) we recall the mandate in the direct appeal, we conclude that it resets the count of the prisoner’s habeas petitions to zero. Case: 23-60352 Document: 73-1 Page: 2 Date Filed: 01/02/2025

No. 23-60352

Accordingly, we REVERSE the April 24, 2023, order of the district court and REMAND for further proceedings. This case involves a unique procedural history. After Muhammad’s conviction, he appealed. The appeal was dismissed for want of prosecution. Muhammad later filed a § 2255 habeas petition, which the district court denied because Muhammad filed it too late. Thereafter, we granted Muhammad’s motion to recall the mandate in his direct appeal, allowing us to reassert jurisdiction and reconsider judgment on the merits of the direct appeal. We appointed an attorney, received full briefing and held an oral argument on the case. We then affirmed the judgment in September of 2021. United States v. Muhammad, 14 F.4th 352, 355 (5th Cir. 2021). The Supreme Court denied certiorari and denied a rehearing of the certiorari denial, completing its work in August of 2022. See Muhammad v. United States, 142 S. Ct. 1458 (2022) (denial of certiorari); Muhammad v. United States, 143 S. Ct. 55 (2022) (denial of rehearing). Thereafter, Muhammad filed another § 2255 habeas corpus petition in the district court. On April 24, 2023, the district court, without the benefit of this opinion, concluded that the habeas corpus petition was a “second or successive” habeas corpus petition under AEDPA and ordered it transferred to this court. See 28 U.S.C. § 2255(h). The Fifth Circuit clerk denied authorization to file what was then considered a “successive” § 2255 habeas corpus petition because Muhammad did not comply with certain appellate procedural requirements. Muhammad now appeals the district court’s order construing his habeas corpus petition as second or successive. We review de novo whether the habeas corpus petition is “second or successive” under AEDPA. United States v. Orozco-Ramirez, 211 F.3d 862, 865 (5th Cir. 2000). Under AEDPA, prisoners must obtain permission from the court of appeals before filing a “se