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The Death of the Savings Clause

by Dale Chappell

As most federal prisoners know, the so-called “Savings Clause” under 28 U.S.C. § 2255(e) is now dead in the wake of the ultra-conservative Supreme Court’s questionable decision in Jones v. Hendrix, 143 S. Ct. 1857 (2023). If you’re not aware, Hendrix ended the use of the Savings Clause, ruling that it was an unlawful workaround of the Anti-Terrorism and Effective Death Penalty Act’s (“AEDPA”) severe restrictions on filing more than one motion under 28 U.S.C. § 2255.

The Savings Clause was a lifeline for many, allowing for the filing of a habeas corpus petition under certain circumstances when a motion under § 2255 was inadequate or ineffective to test the legality of a prisoner’s detention. However, the Supreme Court’s ruling in Hendrix has closed this avenue, much to the dismay of those advocating for justice and fairness in the correctional system.

Historical Context and the Essence of Habeas Corpus

We won’t go into all the problems with Hendrix since I have addressed most of those in my other writings on the subject. Instead, let’s go over a remedy that remains available to federal prisoners who are serving a sentence in light of a statutory interpretation case that has rendered them “actually innocent” of their offense. It’s called habeas corpus. Maybe you’ve heard of it. It was the remedy federal prisoners had used for decades before Congress created a different remedy under § 2255 in 1948. See United States v. Hayman, 342 U.S. 205 (1952).

The way it worked was by filing a habeas petition under the traditional habeas statute, 28 U.S.C. § 2241, in the appropriate U.S. District Court. You may have heard of this because the Savings Clause petition under § 2255(e) was really a § 2241 petition, not a § 2255 motion. The reason Congress created § 2255 was because traditional habeas cases are filed in the court where the person is in custody, not where they were sentenced. This meant all the records (prior to electronic records) had to be delivered to the habeas court, and any hearing required the witnesses to travel to the habeas court, which could be hundreds of miles away.

The Aftermath of Hendrix and the Path Forward

Let’s take a look at the role traditional habeas corpus plays in challenging wrongful convictions and sentences today. Since Hendrix killed the Savings Clause, it may seem as though there’s little need for a § 2241 petition now, besides those challenging the denial of sentencing credits. This may be true for most federal courts, but there is still one court that accepts § 2241 petitions challenging sentences and convictions—the U.S. Supreme Court.

It’s well-known that the chances of having a case heard in the Supreme Court are dismal. The data indicates that out of 10,000 petitions a year, the Court hears maybe 100. But for someone serving an illegal sentence—someone who is actually innocent, that slim chance is better than no chance at all. But, filing a habeas petition in the Supreme Court is no small feat. It requires meticulous adherence to the Court’s procedural rules and a compelling presentation of the case.

How to File a Habeas Petition in the Supreme Court

First, a habeas petition is not the same as a petition for a writ of certiorari. Some people are familiar with the packet the Supreme Court will mail, upon request, to “petition” the Court for a writ of certiorari after being denied by a Court of Appeals. Recall, however, that a cert petition (as it’s called) is a petition asking the Court to hear an appeal. It’s discretionary, and the Court has no obligation to grant the request.

A habeas petition, on the other hand, invokes the Supreme Court’s original jurisdiction. All this means is that you’re not asking the Court to agree to hear your habeas petition; instead, you’re filing the petition and asking the Court to grant the relief requested in it. The lower courts have nothing to do with the petition. The law makes clear that the Supreme Court itself has the authority to grant habeas relief: “Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” § 2241(a).

Next, the form filed is the same one used to file a § 2241 petition in the lower courts. There is no difference in crafting a § 2241 petition in the District Court versus the Supreme Court. Of course, it is strongly suggested a memorandum of law with supporting facts is attached to the petition. Habeas cases rely heavily on facts to obtain relief. Also, there is no need for a COA, as in the case of a § 2255 denial since there is no lower court decision to appeal.

Finally, there are more reasons filing for in forma pauperis (“IFP”) in the Supreme Court than skipping the filing fee. If granted IFP, a petitioner doesn’t have to meet the Court’s unusual format style for filings or file the dozens of copies required by non-IFP petitioners. The Court has a form to file for IFP status, which is simpler than the form used for the lower courts.

If a habeas petition filed directly in the Supreme Court is denied, a motion for rehearing by the Court can be filed. If something was overlooked or things have changed since the Court’s decision, a rehearing is a valid way to resolve those issues. Also, be aware that the AEDPA doesn’t apply to the Supreme Court. This means more than one petition can be filed, even if it’s the same issue raised in a prior petition. Be careful, though, because the Court does not tolerate repeat filers who they believe abuse their procedures. The Court has imposed sanctions, such as barring any new filings unless the full fee is paid up front.

The Chances for Relief Are Slim but Always Have Been

If you are wondering how often the Supreme Court grants habeas petitions filed in the High Court, the research is sparse. This may be because hardly anyone knows that the Supreme Court is able to hear a habeas petition filed directly in the Court—and that the Court can even grant habeas relief itself. The Court also works in secret, not exposing all its decisions handed down without a hearing in open court. The handful of cases the public hears about are the typical big cases argued before a crowd in the Court. Often, relief for prisoners comes from the Court in unannounced decisions that receive no attention.


To wrap up this discussion, Hendrix was a big blow to federal prisoners whose only resort was the Savings Clause by way of traditional habeas corpus. But since then, the Supreme Court has made it clear that the doors of the Court are always open to prisoners filing habeas petitions in its court. In re Bowe, 2024 U.S. LEXIS 988 (2024). While there is but a sliver of hope that the petition may be granted, the Savings Clause was not even available to prisoners in some circuits. At least, habeas corpus in the Supreme Court is available to everyone.  


Dale Chappell is Criminal Legal News’ resident habeas expert. He has written more than 400 published articles and several books in the works on federal postconviction relief, and he is the lead consultant and owner of Zen Law Guy, LLC, a nationwide postconviction consulting firm. He can be reached on his blog at

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Jones v. Hendrix



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