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Federal Habeas Corpus: The Savings Clause Remedy for Federal Prisoners

by Dale Chappell

When the remedy under 28 U.S.C. § 2255 cannot be used to correct a major defect that arises later on in a federal prisoner’s case, most federal courts have recognized the use of the “savings clause” to fix the problem. § 2255(e). But in order to use this remedy, a petitioner must meet some very strict guidelines—and those guidelines keep changing, making the remedy a fast-moving target for most people. Let’s go over the savings clause and make some sense of this ever-elusive remedy.

The Purpose of the Savings Clause

It used to be that a federal prisoner would challenge his criminal judgment using the “classic” habeas corpus remedy under 28 U.S.C. § 2241. This petition would be filed in the court where the prisoner was confined, which often wasn’t his sentencing court. Since federal prisoners can be moved to any prison across the country, this meant that a court, usually having had nothing to do with the prisoner’s case, was tasked with deciding whether relief should be granted from the judgment.

This didn’t make much sense, practically speaking, so Congress adopted a new remedy in 1948 under § 2255 that required a motion for relief to be made in the sentencing court, not the court where the prisoner was confined. This took the load off the U.S. District Courts where most of the federal prisons were located, and it made things easier if a hearing had to be held since the case files were already at that court. The only movement needed was the prisoner himself for the hearing. Hayman v. United States, 342 U.S. 205 (1952).

But § 2255 is a limited remedy. Sometimes, issues come up that don’t fit neatly within § 2255, so Congress left an option available for a federal prisoner to resort to habeas corpus as a remedy: “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.” 28 U.S.C. § 2255(e).

The term “inadequate or ineffective” was not defined by Congress, and the Supreme Court glossed over it in Hayman, only saying that “where the § 2255 procedure is shown to be inadequate or ineffective, the section provides that the habeas corpus remedy shall remain open.” But this provision likely didn’t get much attention because the courts had discretion to hear more than one § 2255 motion, if a major defect came up later on, and to grant relief from a criminal judgment at any time.

And then the Antiterrorism and Effective Death Penalty Act (“AEDPA”) happened in 1996, killing any chance of using another § 2255 motion to challenge even the most obvious defects in a criminal judgment. The AEDPA also created a strict time limit of just one year to file a § 2255 motion, forcing federal prisoners to rush their first motion to meet that deadline. If something came up later, they had no real way of challenging that issue. Filing another § 2255 motion under the AEDPA is extremely difficult, with only two rare circumstances that qualify.

The first court to tackle the “savings clause” provision, as it came to be known, was the Second Circuit in Triestman v. United States, 124 F.3d 361 (2d Cir. 1997). The federal prisoner in that case had used his one good shot at § 2255 relief, and then, the Supreme Court subsequently narrowed the scope of his statute of conviction, making him innocent of the offense. The big question before the Court was whether § 2255 was “inadequate or ineffective” to allow the petitioner to resort to the savings clause to challenge his now-unlawful conviction.

The Court concluded that the savings clause applies to “a set of cases in which the failure to allow for collateral review would raise serious constitutional questions.” Since the Supreme Court case at issue there, Bailey v. United States, 516 U.S. 137 (1995), wasn’t a retroactive constitutional decision, but it was still a substantive decision removing a class of people from the criminal statute’s reach, the Court said that the savings clause applies to such a scenario.

The Savings Clause Remedy

Bailey led numerous federal courts to consider the savings clause for those who were innocent of their offenses and had no other option to challenge their invalid judgments. Unfortunately, this began the practice of the courts confining the savings clause remedy to only the same facts as those cases impacted by Bailey: “(1) that the claim was foreclosed at the time of the first § 2255 motion and appeal; (2) that a retroactive Supreme Court case removed that obstacle; and (3) that the petitioner is actually innocent of the offense.”

While the retroactive Supreme Court decision remained as one of the steps to savings clause relief, the innocence prong was changed to “miscarriage of justice” by most courts, which was not limited to just innocence. The Supreme Court has yet to weigh in on a savings clause case, but when it had the perfect chance to do so, the Office of the Solicitor General (“OSG”) (which represents the government before the Supreme Court) filed a response requesting the Supreme Court to remand the case to the lower courts for more analysis. Importantly, the OSG admitted that relief would be warranted if the three criteria noted above were met. The Supreme Court agreed and sent it back down to the lower courts. OSG’s Response, Persaud v. United States, 517 U.S. 1172 (2014).

The Courts Vary Widely on the Savings Clause

After the Fourth Circuit expanded the savings clause a few more times, while the petition was still pending in that case, the District Court eventually granted relief five years later. See Persaud v. United States, 2019 U.S. Dist. LEXIS 93810 (W.D.N.C. June 5, 2019).

The Seventh Circuit has also been rather generous with savings clause relief. In a case where a petitioner’s challenge to his enhanced sentence would have been pointless at the time of sentencing and appeal, the Seventh Circuit granted savings clause relief when a new constitutional and retroactive Supreme Court decision that did not qualify under the savings clause would have now been successful under § 2255 had it been in effect at the time of his original § 2255 motion and appeal. See United States v. Cox, 2019 U.S. App. LEXIS 8830 (8th Cir. Mar. 25, 2019) (explaining the relief granted).

But the Tenth and Eleventh Circuits have effectively shut down any chance of savings clause relief in the District Courts in those circuits. In Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011), Neil Gorsuch, before he became a Supreme Court Justice, wrote an opinion foreclosing savings clause relief that would have a major impact on other circuits’ efforts to curb habeas relief to federal prisoners.

The Eleventh Circuit, sitting en banc in McCarthan v. Dir. Of Goodwill Indus., 851 F.3d 1076 (11th Cir. 2017), adopted the reasoning in Prost and held that § 2255 was almost never inadequate or ineffective merely because someone was foreclosed from raising the claim earlier, no matter what the Supreme Court later says. But nearly half the court dissented, protesting the slim majority’s opinion.

The one thing all the courts have agreed on is that the savings clause cannot be used to circumvent the AEDPA’s restrictions on § 2255. That is, the savings clause cannot be used merely because the AEDPA prevents another § 2255 motion, and it also may not be used if § 2255 is still available for the claim. Charles v. Chandler, 180 F.3d 753 (6th Cir. 1999).

Savings Clause Filing Procedures

Since the savings clause allows federal prisoners to resort to classic habeas corpus under § 2241, the savings clause petition is filed in the District Court where the petitioner is confined. It does not go to the sentencing court. However, if the sentencing court’s savings clause rules would be more favorable, you can ask the District Court to transfer your petition to the sentencing court. While this is rarely granted, it’s an option worth considering. See In re Baer, 763 Fed. Appx. 278 (3d Cir. 2019).

Where the District Court gets its jurisdiction to hear your savings clause petition is up for debate. Some courts say it comes from § 2255(e) itself as part of the § 2255 remedy. Webster v. Caraway, 761 F.3d 764 (7th Cir. 2014). Other courts say that if you don’t meet the judge-made criteria for the savings clause, then the District Court doesn’t have jurisdiction to hear the petition. This point may be moot anyway since not meeting the criteria would get your petition denied, but it could affect your ability to refile a petition with the same claim should things change. A dismissal for lack of jurisdiction should be without prejudice to allow filing of the petition again if the error can be corrected.

Appealing the Denial of Savings Clause Relief

Appealing the denial of your savings clause petition is surprisingly straight-forward. First, you have 60 days to file a notice of appeal in the District Court under FRAP 4(a) because the government is a party to your case. You also don’t need a certificate of appealability like you would with a § 2255 denial. Instead, you simply file your appeal brief when the clerk gives you the briefing schedule.

If the District Court considered your savings clause petition to be a second or successive § 2255 motion and transferred it to the Court of Appeals for authorization, you do not file an appeal. Instead, you would file a “motion to remand” in the Court of Appeals where the petition was transferred to, asking the Court to send it back to the District Court. Again, you do not file an appeal if this happens.


The savings clause is entirely circuit-specific, and the criteria changes on a regular basis. However, most of the general rules and procedures apply in every circuit. Get a handle on these procedures, and you have a good chance of convincing the court to grant savings clause relief if you meet the criteria.  


Dale Chappell has hundreds of published articles on federal habeas relief for state and federal prisoners and is the author of the Insider’s Guide series of post-conviction books. Follow his blog at and on Twitter—@zenlawguy.

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