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U.S. Supreme Court Announces § 2255(e)’s ‘Saving Clause’ Does Not Enable Prisoners to File § 2241 Petition Based on AEDPA’s Rule Against Second or Successive § 2255 Motions

by Douglas Ankney

Resolving a split among the U.S. Courts of Appeals, the Supreme Court of the United States (“SCOTUS”) held that “§ 2255(e)’s saving clause does not permit a prisoner asserting an intervening change in statutory interpretation to circumvent AEDPA’s restrictions on second or successive § 2255 motions by filing a § 2241 petition.” [Note: Unless otherwise designated, all statutory references are to Title 28 of the United States Code.]

In 2020, Marcus Deangelo Jones was convicted of two counts of unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 924(g)(1), and was sentenced to 327 months in prison. His judgment was affirmed on appeal. United States v. Jones, 266 F.3d 804 (8th Cir. 2001) (“Jones I”). Jones subsequently filed a § 2255 motion that resulted in vacatur of one of his concurrent § 924(g) sentences. United States v. Jones, 403 F.3d 604 (8th Cir. 2005) (“Jones II”).

In Rehaif v. United States, 139 S. Ct. 2191 (2019), SCOTUS held that “a defendant’s knowledge of the status that disqualifies him from owning a firearm is an element of a § 922(g) conviction.” Rehaif abrogated the Eighth Circuit’s precedent which had been applied at Jones’ trial and on his direct appeal. Jones I.

Jones sought relief based upon Rehaif. Because § 2255(h) bars successive motions for claims not based on “newly discovered evidence” or on “a new rule of constitutional law,” Jones asserted that § 2255(e) permits him to raise his claim in a petition for writ of habeas corpus pursuant to § 2241. Jones filed his habeas petition in the U.S. District Court for the Eastern District of Arkansas (the district where Jones was incarcerated). The District Court dismissed for lack of subject-­matter jurisdiction. On appeal, the Eighth Circuit rejected Jones’ argument that he could raise his claim via § 2241 and rejected his argument that foreclosing his claim violates the Suspension Clause of Article I, § 9 of the U.S. Constitution (“Suspension Clause”). The Eighth Circuit’s holding further divided the split among the Courts of Appeals regarding whether prisoners in Jones’ situation may resort to § 2241 via the saving clause. SCOTUS granted certiorari.

The Court observed that § 2255 provides, in relevant part:

“(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence….

(e) An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.”

The Court, on the premise that “a page of history is worth a volume of logic,” observed the “First Judiciary Act authorized the federal courts ‘to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment,’ with a proviso that such writs could ‘extend to prisoners in’ jail only ‘where they [were] in custody, under or by colour of the authority of the United States, or [were] committed for trial before some court of the same, or [were] necessary to be brought into court to testify.’” Act of Sept. 24, 1789. “In 1867 Congress expanded the federal courts’ habeas powers to cover ‘all cases where any person may be restrained of his or her liberty in violation of the constitution, or any treaty or law of the United States.’” Ch. 28, 14 Stat. 385.

In 1948, Congress enacted the present Title 28 of the U.S. Code, recodifying “the federal courts’ preexisting habeas authority in §§ 2241 and 2243, which, respectively, confer the power to grant the writ and direct the issuing court to ‘dispose of the matter as law and justice require.’” 62 Stat. 869 (1948). “The ‘sole purpose’ of this innovation … ‘was to minimize the difficulty encountered in habeas corpus hearings by affording the same rights in another and more convenient forum.’” United States v. Hayman, 342 U.S. 205 (1952). That is, habeas corpus proceedings required that prisoners present their claims in the federal district court where the prisoners were confined. This caused an inordinate number of claims to be filed in a handful of federal courts, and those courts were often far removed from the jurisdiction where the prisoner was tried, leading to difficulty in obtaining complete records, witnesses, and other evidence.

SCOTUS stated that § 2255 “solved these problems by rerouting federal prisoners’ collateral attacks on their sentences to the courts that had sentenced them. To make this change in venue effective, Congress barred federal prisoners ‘authorized to apply for relief by motion pursuant to’ § 2255 from applying ‘for a writ of habeas corpus’ under § 2241.” § 2255(e).

“But, in a provision that has come to be known as the saving clause, Congress preserved the habeas remedy in cases where ‘the remedy by motion is inadequate or ineffective to test the legality of [a prisoner’s] detention.’”

“Traditionally courts have treated the saving clause as covering unusual circumstances in which it is impossible or impracticable for a petitioner to seek relief from the sentencing court,” according to the Court. For example, if the sentencing court no longer exists, § 2255 becomes “inadequate or ineffective.” Witham v. United States, 355 F.3d 501 (6th Cir. 2004). And, in the era before interstate and commercial air travel, extremely long distances from the prisoner’s place of incarceration to the location of the sentencing court rendered § 2255 inadequate. Stidham v. Swope, 82 F. Supp. 931 (N.D. Cal. 1949).

The Court explained that the saving clause of § 2255(e) “does not displace § 2241 when a prisoner challenges ‘the legality of his detention’ without attacking the validity of his sentence.’” For example, § 2241 remains available to a prisoner alleging that he has been “unlawfully denied parole or good-­time credits, or that an administrative sanction affecting the conditions of his detention is illegal.” Samak v. Warden, FCC Coleman-­Medium, 766 F.3d 1271 (11th Cir. 2014).

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which “strictly limited ‘second or successive’ § 2255 motions to those that ‘contain (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish clear and convincing evidence that no reasonable factfinder would have found movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.’” § 2255(h).

Shortly before the AEDPA’s enactment, SCOTUS had interpreted then-­existing 18 U.S.C. § 924(c)(1) more narrowly than many of the federal circuits. See Bailey v. United States, 516 U.S. 137 (1995). Under Davis v. United States, 417 U.S. 333 (1974), “Baily’s narrowing interpretation was grounds for a collateral attack by federal prisoners who had been convicted under the Courts of Appeals’ broader interpretation.”

However, many prisoners with Bailey claims had already filed a § 2255 motion. As a workaround, the majority of the Courts of Appeals held that “§ 2255 was ‘inadequate and ineffective’ under the saving clause – and that § 2241 was therefore available – when AEDPA’s second-­or-­successive restrictions barred a prisoner from seeking relief based on a newly adopted narrowing interpretation of a criminal statute that circuit precedent had foreclosed at the time of the prisoner’s trial, appeal, and first § 2255 motion.” (The Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, and Eleventh Circuits all adopted this view. See opinion for case citations.)

Turning to the present case, the Court rejected the workaround adopted by those Courts of Appeals and held that “the saving clause does not authorize such an end-­run around AEDPA.”

The Court reasoned that in § 2255(h), “Congress enumerated two – and only two – conditions in which a second or successive § 2255 motion may proceed. Because § 2255 is the ordinary vehicle for a collateral attack on a federal sentence, the straightforward negative inference from § 2255(h) is that a second or successive collateral attack on a federal sentence is not authorized unless one of those two conditions is satisfied.” Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (“The expression of one thing implies the exclusion of others.”). By expressly authorizing a successive collateral attack based on new rules of “constitutional” law, Congress did not authorize successive collateral attacks on new rules of “nonconstitutional” law, the Court further reasoned, adding, “Had Congress wished to omit the word ‘constitutional,’ it easily could have done so.”

Accordingly, the Court affirmed the judgment of the Court of Appeals. See: Jones v. Hendrix, 143 S. Ct. 1857 (2023).   

Writer’s note: It is this writer’s opinion that it was the conservative Justices who did an “end run around” a prisoner’s right to challenge a criminal judgment obtained “in violation of the laws of the United States.” (emphasis added) See § 2255(a). To paraphrase President Biden’s comments regarding Putin: “These justices cannot be allowed to remain in power.” The time for a rebel yell has passed. The time for action is now!

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