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Fourth Circuit Expands Savings Clause of § 2255(e) to Include Later Retroactivity of New Rule

The U.S. Court of Appeals for the Fourth Circuit held on March 4, 2020, that the savings clause of 28 U.S.C. § 2255(e) is available even if based on a court decision that existed earlier but was not made retroactive until after the direct appeal and first motion under § 2255.

When Quentin Braswell was sentenced after his 2009 conviction for federal drug and firearm charges, the Government relied on his prior 1997 North Carolina conviction for possession with intent to sell cocaine to require the sentencing court to impose a mandatory minimum sentence of at least 10 years in prison.

Because at the time the Fourth Circuit’s rule looked at the maximum sentence any defendant could have faced for a prior North Carolina conviction, Braswell’s prior met the criteria for the federal enhancement: “an offense that is punishable by imprisonment for more than one year.”

But then United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), was decided, which held that under the North Carolina sentencing scheme, a federal court cannot assume the maximum possible for sentence for any defendant for use of a prior conviction but “may only consider the maximum possible sentence that the particular defendant could have received.”

This took Braswell’s prior conviction out of the reach of the federal enhancement because he, in particular, could not have been sentenced to more than a year in prison. He filed a § 2255 motion, his first, to invoke the new Simmons rule, but the district court ruled that Simmons does not apply retroactively.

Six months later, the Fourth Circuit held in United States v. Miller, 735 F.3d 141 (4th Cir. 2013), that Simmons applies retroactively on collateral review. Braswell attempted another § 2255 motion but was denied, the court saying that it was an improper “second or successive” motion.

Braswell then turned to the “savings clause” of § 2255(e), which allows a resort to classic habeas corpus under 28 U.S.C. § 2241 when the remedy under § 2255 is “inadequate or ineffective.” This time, the district court rejected his petition because he couldn’t meet the savings clause criteria for the Fourth Circuit. Specifically, the court said that because Simmons was decided after Braswell’s § 2255 motion but not made retroactive until after his motion was denied, he could not use the savings clause. He appealed.

The Fourth Circuit’s
Savings Clause Test

Under United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), the Fourth Circuit devised a four-part test for use of the savings clause:

“(1) at the time of sentencing, the law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner’s direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.”

It was the second prong of the Wheeler test that held up Braswell. The district court ruled that “Wheeler requires both the substantive law to change and for that change to be retroactive subsequent to petitioner’s first § 2255 motion.” On appeal, the Government argued that the use of the word “and” instead of “or” in the second prong meant that the change in law and retroactivity determination both had to be done after the § 2255 motion to invoke the savings clause.

Because the Fourth Circuit is one that considers the judge-made savings clause criteria to be jurisdictional, the Court had to decide first if it had jurisdiction to hear the appeal. This meant that if Braswell couldn’t pass the Wheeler test, his appeal would be denied.

The Court found that the Government’s argument (and therefore the district court) was incorrect, and he passed the test. “Wheeler demonstrates that the change in settled substantive law and retroactivity determination work together as a package deal,” the Court said. The whole idea is whether the change in law was made retroactive to allow use of that new rule, the Court said. “Otherwise, the prisoner would not be able to ‘test the legality of his detention’ in a § 2241 proceeding, which is the ultimate goal of the savings clause.”

It’s the “retroactive change” in the law that renders the sentence fundamentally defective, the Court explained. Wheelercould not receive the benefit of Simmons on § 2255 because it didn’t exist. In the same vein, Braswell could not receive the benefit of Simmons on§ 2255 because it was not yet retroactive. “If we adopted the government’s contrary view, we would in essence punish [Braswell] for being too diligent or for submitting his petition to an efficient court,” the Court reasoned. “If [Braswell] had waited longer to file his first § 2255 motion, or if the district court had processed his case more slowly, his claims could have been successful.”

A Wrongful Mandatory Minimum Sentence Is a Fundamental Defect

The Government also argued that because Braswell was sentenced within the statutory range even without the wrongful mandatory minimum, his sentence with the mandatory minimum was not a fundamental defect to allow the savings clause under the fourth prong. However, the Court reiterated that Wheeler expressly rejected such an idea. “An increase in the congressionally mandated sentencing floor implicates separation of powers principles and due process rights fundamental to our justice system,” the Court said, and it’s a “fundamental defect” because it “wrongly prevents the sentencing court from exercising the proper range of its sentencing discretion.” Braswell’s erroneous mandatory minimum was therefore a “fundamental defect” for the fourth prong, the Court held.

The Court also mentioned that while this rule would not apply to Braswell, who was sentenced as a career offender under the advisory Guidelines, it would apply to career offenders sentenced under the mandatory Guidelines. See Lester v. Flournoy, 909 F.3d 708 (4th Cir. 2018).

Braswell’s Plea Agreement Waiver

Finally, the Government invoked Braswell’s plea agreement waiver to argue he wasn’t entitled to postconviction relief. In his plea agreement, Braswell waived his right to file “any postconviction proceeding.” The Court rejected this position, noting its longstanding rule that it would not enforce a waiver if “to do so would result in a miscarriage of justice.” The Government did acknowledge this rule and that Wheeler foreclosed the argument, but it nonetheless said that it “believes that the waiver in the plea agreement signed by [Braswell] remains valid.”

Finding no good reason to uphold the waiver under the Government’s contradictory argument, the Court ruled that Braswell’s waiver did not prevent savings clause relief.


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