Chun Mei Tong was convicted of wire fraud and aggravated identity theft and ordered to pay restitution. She first filed a § 2255 motion challenging the restitution order, arguing her trial counsel was ineffective for failing to contest the loss amount. The district court dismissed this motion without prejudice to amendment, ruling that § 2255 motions cannot be used to collaterally attack restitution orders because they are not available for relief other than release from custody. Tong then filed a second motion asserting new grounds for relief, including ineffective assistance of counsel regarding her trial and her habeas counsel. The district court denied this second motion as unauthorized and successive, referring the matter to the Ninth Circuit for authorization.
The court analyzed whether Tong's first motion dismissal constituted an adjudication on the merits under 28 U.S.C. § 2255(h). Citing McNabb v. Yates and Howard v. Lewis, the panel explained that a dismissal is on the merits if it conclusively determines that the claims presented cannot establish a ground for federal habeas relief, even if the underlying factual merits were not reviewed. Because § 2255 is strictly limited to claims for release from custody, a claim challenging restitution is legally non-cognizable. Therefore, the district court's dismissal was an adjudication on the merits that barred later claims on the same subject. The court noted that while dismissals for curable procedural deficiencies like failure to exhaust are not on the merits, a permanent bar to the type of relief sought is. However, the court distinguished the ineffective assistance of counsel claim regarding the first motion. This claim could not have been raised in the first motion because it concerns the failure of counsel to raise the initial claims. Since this claim was not and could not have been adjudicated on the merits in the first instance, it is not second or successive.
Tong's application to file a second or successive motion is denied, meaning she cannot pursue new claims challenging her restitution or trial counsel's performance in the Ninth Circuit. However, her specific claim that her habeas counsel was ineffective for failing to raise arguments in the first motion is transferred to the district court for initial consideration. This creates a narrow path for her to litigate the procedural failure of her previous representation while closing the door on other successive challenges.
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