In re: Scott Rendelman

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 21, 2025
• Docket: 23-257
• Status: Published

Opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-257

In re: SCOTT LEWIS RENDELMAN,

Movant.

On Motion for Authorization to File Successive 28 U.S.C. § 2255 Motion in the United States District Court for the District of Maryland, at Greenbelt. (8:07−cr−00331−JKB−1)

Argued: September 26, 2024 Decided: February 21, 2025

Before DIAZ, Chief Judge, RUSHING, Circuit Judge, and KEENAN, Senior Circuit Judge.

Motion granted by published opinion. Chief Judge Diaz wrote the opinion, in which Judge Rushing and Senior Judge Keenan joined.

ARGUED: Caroline Anna Schechinger, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C., Washington, D.C., for Movant. Jason Daniel Medinger, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Respondent. ON BRIEF: Erek L. Barron, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Respondent. USCA4 Appeal: 23-257 Doc: 41 Filed: 02/21/2025 Pg: 2 of 12

DIAZ, Chief Judge:

In 2008, Scott Rendelman was convicted for mailing threatening communications

under 18 U.S.C. § 876(c). The district court instructed the jury that the government need

prove only that a “reasonable person” would find Rendelman’s communications

threatening. Fifteen years later, the Supreme Court held in Counterman v. Colorado, 600

U.S. 66 (2023), that the First Amendment requires the government to prove—in true-

threats cases—that the defendant was subjectively aware of the threatening nature of his

statements. Id. at 73.

Rendelman now seeks authorization to file a successive 28 U.S.C. § 2255 motion to

vacate his conviction based on Counterman. The government agrees that Rendelman has

satisfied the gatekeeping requirements in 28 U.S.C. § 2255(h) but asks that we also impose

a plausibility requirement. We decline to do so. Because Rendelman has satisfied the

gatekeeping requirements, we grant his motion seeking authorization to file a successive

§ 2255 motion.

I.

A.

In 1986, Rendelman was serving a state prison term for embezzlement. He alleges

that while incarcerated, his cellmate raped him. Rendelman then sent threatening letters to

those involved with his embezzlement case, who he “felt had put him in that situation.”

J.A. 167. Those letters landed Rendelman in federal custody, where he says that he was

raped four more times. During this time, he grew to blame “prison and government

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officials . . . for putting him in rape situations,” J.A. 168, so he expanded his letter-writing

campaign to federal judges and public officials.

Despite the additional state and federal convictions and the mounting prison

sentences that resulted from his actions, he “felt he had to continue writing the letters for

as long as he remained incarcerated” to show that his imprisonment failed to “achieve[] the

government’s goal of rehabilitating [him] to a crime free life.” J.A. 169. Rendelman’s

state and federal sentences ended in 2001, and he was released from prison.

In 2005, Rendelman was arrested on an outstanding state warrant, apparently

stemming from a threatening letter he sent to a Maryland judge. While incarcerated,

Rendelman picked up where he left off and mailed the letters leading to the conviction he

now seeks to challenge. These letters threatened bodily harm to a state court judge, a state

prosecutor, a local attorney, the President of the United States, and White House

employees. In a letter he sent during this time, Rendelman explained, “I write the letters

as my way of demonstrating to the officials that this is not the way you treat someone if

you are trying to achieve a positive result.” J.A. 21–22.

A grand jury indicted Rendelman on six counts of mailing threatening

communications, in violation of 18 U.S.C. § 876(c). 1

At trial, Rendelman represented himself with the help of standby counsel.

Rendelman wanted to present a defense that the letters were not in fact threats but merely

1 Rendelman was also indicted on one count of threatening the President, in violation of 18 U.S.C. § 871. That count was later dismissed on the government’s motion.

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“protests.” J.A. 26–29. But the district court informed him that “[i]t is not what is in

Mr. Rendelman’s mind that is relevant. It’s what a reasonable person receiving that

communication would believe it to be, and that’s how I intend to instruct the jury on the

question.” J.A. 29.

After the prosecution rested, Rendelman moved to dismiss the indictment on the

ground that there was no evidence that his threats were “true threats.” J.A. 48. The district

court denied the motion, reiterating that the test is what a “reasonable person” receiving

the communications would think.

Rendelman didn’t testify at trial, nor did he call any witnesses. As relevant here,

the district court instructed the jury:

A statement is a threat if it was made under such circumstances that a reasonable person hearing or reading the statement would understand it as a serious expression of intent to inflict injury. To determine whether or not the defendant made a threat, you should consider the circumstances under which the statement was made, including its context with respect to surrounding conversation, the language the defendant used, and the reaction of those who heard or read the statement.

J.A. 77.

The jury found Rendelman guilty on all six counts, and the district court sentenced

him to fifteen years in prison and three years of supervised release. 2 We affirmed his

conviction. United States v. Rendelman, 641 F.3d 36 (4th Cir. 2010).

2 Rendelman has served his prison term for this conviction. But he has yet to serve the three-year term of supervised release imposed because he is incarcerated on a separate conviction for contempt of court, retaliating against federal officials, and threatening the President. United States v. Rendelman, 495 F. App’x 727, 728 (7th Cir. 2012).

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Rendelman twice tried to vacate his sentence under 28 U.S.C. § 2255. The district

court denied his first § 2255 motion. And we later declined to authorize Rendelman to file

a second § 2255 motion.

B.

In 2023, the Supreme Court decided Counterman v. Colorado. Counterman was

convicted for making threatening statements under an objective standard that didn’t require

the state to prove he had any subjective intent to threaten. 600 U.S. at 70–71. He appealed,

arguing that the First Amendment requires such proof in a criminal prosecution for a true

threat. Id. at 72–73.

The Court explained that true threats of violence fall outside the First Amendment’s

protections and can be prosecuted as crimes. Id. at 69. Though a statement can be

considered a true threat “based solely on its objective content,” id. at 72, the Court held

that the First Amendment requires more in a true-threat prosecution. The government must

prove the defendant had “some understanding of his statements’ threatening character.”

Id. at 73. At a minimum, it must prove a mens rea of recklessness, meaning the defendant

“consciously disregarded a substantial risk that his communications would be viewed as

threatening violence.” Id. at 69.

Rendelman now seeks to challenge his true-threat conviction in light of

Counterman. He asserts that he was “unconstitutionally prevented from arguing and

introducing evidence to prove his lack of subjective intent to make true threats against the

recipients of his letters.” Movant’s Opening Br. at 8 (cleaned up). He argues that under

Counterman, the district court’s jury instructions violated the First Amendment and

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allowed the jury “to find [him] guilty of conduct the Supreme Court has now made clear is

not criminal.” Id. at 16.

Because Rendelman previously sought § 2255 relief, he moved pro se for this

court’s authorization to file a successive motion. We appointed counsel to represent

Rendelman. 3

II.

This motion presents two issues: whether Rendelman has satisfied the gatekeeping

requirements in 28 U.S.C. § 2255(h) and whether we require anything more to grant his

authorization motion. We address each in turn.

We first consider whether Rendelman has satisfied the § 2255(h) gatekeeping

requirements to file a successive § 2255 motion. We conclude that he has.

After a prisoner has filed an unsuccessful § 2255 motion challenging his conviction,

the court of appeals must give authorization for him to file another. 28 U.S.C. § 2255(h).

To receive authorization, a movant need only “make a prima facie showing that his claim

satisfies the § 2255(h) gatekeeping test”—or, in other words, that his claim satisfies either

§ 2255(h)(1) or (2). In re Graham, 61 F.4th 433, 442 (4th Cir. 2023) (cleaned up).

We’re grateful to Caroline A. Schechinger for her fine representation in service to 3

Rendelman and the court.

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This prima facie showing is “simply a sufficient showing of possible merit to

warrant a fuller exploration by the district court.” 4 In re Williams, 330 F.3d 277, 281 (4th

Cir. 2003) (quoting Bennett v. United States, 119 F.3d 468, 469–70 (7th Cir. 1997)). If “it

appears reasonably likely that the motion satisfies the stringent requirements for the filing

of a second or successive petition, we shall grant authorization.” Graham, 61 F.4th at 442

(cleaned up).

The parties say that Rendelman’s Counterman claim satisfies the relevant

requirements, which allow for successive motions where (1) “a new rule of constitutional

law” (2) “made retroactive to cases on collateral review by the Supreme Court” (3) “that

was previously unavailable” entitles a movant to relief. 28 U.S.C. § 2255(h)(2). We agree.

First, Counterman announced a new rule of constitutional law. “[A] case announces

a new rule when it breaks new ground or imposes a new obligation on the [government].”

Teague v. Lane, 489 U.S. 288, 301 (1989). But a rule isn’t new if it was “dictated by

precedent existing at the time the defendant’s conviction became final.” Id. A rule is

“dictated by precedent” if it was “apparent to all reasonable jurists.” In re Thomas, 988

F.3d 783, 789 (4th Cir. 2021) (quoting Lambrix v. Singletary, 520 U.S. 518, 527–28

(1997)).

4 In In re Williams, 330 F.3d 277 (4th Cir. 2003), we addressed the prima facie standard in 28 U.S.C. § 2244(b)(3)(C) in the context of an authorization motion for a successive habeas corpus petition challenging a state conviction. Id. at 278. Because 28 U.S.C. § 2255(h) incorporates by reference the certification procedures for successive applications from § 2244, a prisoner seeking to file a successive § 2255 motion challenging a federal conviction must make the same prima facie showing—but for one of the two § 2255(h) standards. Graham, 61 F.4th at 439.

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Counterman’s rule—that in true-threat prosecutions, the First Amendment requires

the government to prove “that the defendant had some subjective understanding of the

threatening nature of his statements,” 600 U.S. at 69—wasn’t dictated by precedent. Prior

to Counterman, “[c]ourts [were] divided about . . . whether the First Amendment requires

proof of a defendant’s subjective mindset in true-threats cases.” Id. at 72. Compare, e.g.,

United States v. White, 810 F.3d 212, 220 (4th Cir. 2016) (no), with United States v.

Heineman, 767 F.3d 970, 975 (10th Cir. 2014) (yes). And two Justices dissented from the

Court’s decision in Counterman.

“As the arguments by several circuit courts and the dissent[s] in [Counterman]

reflect, the rule ultimately adopted was open to reasonable debate and not dictated by

[precedent].” Thomas, 988 F.3d at 789 (cleaned up); see also Butler v. McKellar, 494 U.S.

407, 415 (1990). Therefore, Counterman announced a new rule.

Second, Counterman applies retroactively to cases on collateral review. New

substantive rules apply retroactively; new procedural rules don’t. Edwards v. Vannoy, 593

U.S. 255, 276 (2021).

A new rule is substantive when it “alters the range of conduct or the class of persons

that the law punishes,” Schriro v. Summerlin, 542 U.S. 348, 353 (2004), in other words,

“plac[ing] particular conduct or persons covered by the statute beyond the State’s power to

punish,” id. at 352. Such rules generally apply retroactively because they “necessarily

carry a significant risk that a defendant stands convicted of an act that the law does not

make criminal.” Id. (cleaned up).

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Counterman placed particular conduct—making communications that are

objectively threatening but not subjectively understood by the speaker as threatening—

“beyond the State’s power to punish.” Id. Thus, Counterman’s rule is a substantive one

that applies retroactively.

Finally, Counterman was previously unavailable to Rendelman. A new rule is

previously unavailable if it “was not available to the petitioner ‘when he brought his last

federal proceeding—including an authorization motion—challenging his conviction.’”

Graham, 61 F.4th at 442 (quoting Thomas, 988 F.3d at 790). Rendelman’s “last federal

proceeding . . . challenging his conviction” was the authorization motion he filed in 2015.

As Counterman was decided in 2023, its rule was unavailable to him during the 2015

proceeding.

In sum, Counterman announced a new rule of constitutional law that applies

retroactively and was previously unavailable to Rendelman. The jury that convicted

Rendelman wasn’t instructed that it must find that he “had some subjective understanding

of the threatening nature of his statements” as required by Counterman. Counterman, 600

U.S. at 69. Thus, Rendelman has met the standard for filing a successive motion to

challenge his conviction based on this instructional error.

Yet the government urges us to deny Rendelman authorization because he hasn’t

stated a plausible claim to relief. We rejected this reading of our precedents in In re

Graham, 61 F.4th 433 (4th Cir. 2023), and we do so again here.

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The government argues that, in addition to the § 2255(h) gatekeeping requirements,

Rendelman “must show that his claim is ‘plausible’” to make the required “prima facie

showing.” Gov’t’s Resp. Br. at 13–14 (quoting In re Irby, 858 F.3d 231, 233 (4th Cir.

2017)). The government concedes that there was instructional error. But even so, it

contends that Rendelman “fails to demonstrate a plausible claim to relief based on the facts

of his case,” id. at 3, because he can’t show that the instructional error “had substantial and

injurious effect or influence in determining the jury’s verdict,” as required for relief under

§ 2255, id. at 18 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); United States

v. Said, 26 F.4th 653, 660–61 (4th Cir. 2022)). As the government would have it,

Rendelman’s “repeated, graphic, hateful” threats demonstrate “a reckless disregard for how

his actions would be received by his victims,” which would satisfy Counterman’s

minimum mens rea of recklessness. Id. at 10.

Rendelman counters that this is a merits argument that “asks [us] to go beyond the

statutory gatekeeping requirements.” Reply Br. at 4. In Rendelman’s view, the focus of

the “prima facie showing” required at this stage is “‘whether [the movant] is reasonably

likely to satisfy the § 2255(h) standard,’ not . . . whether his claim is ‘plausible’ as a matter

of fact.” Id. at 6 (quoting Graham, 61 F.4th at 442 n.4). We agree.

In Graham, we reiterated that the focus of the “prima facie showing” is whether a

movant can satisfy the § 2255(h) standard. Graham, 61 F.4th at 442 n.4. We observed

that some of our precedents interpreted that showing to require that a movant “make a

‘plausible’ claim for relief.” Id. (quoting Irby, 858 F.3d at 233). But because this

requirement departs from our earlier decision in In re Williams, 330 F.3d 277 (4th Cir.

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2003), we explained that we are required to “adhere to the earlier of the conflicting

opinions.” Graham, 61 F.4th at 442 n.4 (cleaned up).

In Williams, we adopted the Seventh Circuit’s “prima facie” standard requiring “a

sufficient showing of possible merit to warrant a fuller exploration by the district court.”

330 F.3d at 281 (quoting Bennett, 119 F.3d at 469). That showing “relates to the possibility

that the claims in a successive application will satisfy the stringent requirements for the

filing of a second or successive petition, not the possibility that the claims will ultimately

warrant a decision in favor of the applicant.” Id. at 282 (cleaned up).

We recognized that “a cursory glance at the merits” may sometimes be necessary—

for example, to confirm that a movant seeking authorization to challenge his conviction

based on a constitutional error has alleged “some constitutional violation.” Id.; see also In

re Hubbard, 825 F.3d 225, 231–32 (4th Cir. 2016). But that cursory glance is a far cry

from the plausibility requirement the government asks us to impose. 5 Rather, “the focus

of [our] inquiry” at this stage “must always remain on the [§ 2255(h) gatekeeping]

standards.” Williams, 330 F.3d at 282; see also Graham, 61 F.4th at 442 n.4.

We’ve already found that Rendelman has satisfied the § 2255(h) gatekeeping

requirements. There isn’t an additional plausibility requirement he must meet. And if the

5 We have at times found it appropriate to reach certain issues preliminary to the merits at the authorization motion stage. E.g., In re Vassell, 751 F.3d 267, 271 (4th Cir. 2014) (considering “preliminary question” of timeliness where movant’s “successive § 2255 motion [was] plainly [time-]barred as a matter of law”). But the government has not raised such issues here.

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“cursory glance” envisioned in Williams is warranted here, it’s no barrier to Rendelman’s

motion, which alleges a constitutional violation.

Counterman is on point. Rendelman was prosecuted for a true-threat offense. The

jury wasn’t instructed that the government had to prove beyond a reasonable doubt that he

subjectively intended to threaten another, and the government acknowledges that this

omission was error. Gov’t’s Resp. Br. at 18. Whether that error warrants relief under

§ 2255 is a merits question for the district court to decide in the first instance when it

considers Rendelman’s § 2255 motion. See Hubbard, 825 F.3d at 231.

III.

For these reasons, we authorize Rendelman to file a successive § 2255 motion.

MOTION GRANTED