August 8, 2022: Jones v. Hendrix, No. 21-857 (S. Ct.)
Even though the government has convinced some federal courts that relief under the savings clause should not even exist for prisoners under 28 U.S.C. § 2255, it has now changed its tune and argued in the Supreme Court that it was wrong and savings clause relief should be made available to prisoners in certain cases.
Interestingly, the government’s position mostly aligns with the more liberal position of the courts in the Fourth and Seventh Circuits, and specifically rejects that of the Tenth and Eleventh Circuits, which have completely cut off any savings clause relief in those courts.
The government’s “argument” in its response brief starts this way and mostly sums up the government’s position in this case:
This case presents the question whether and under what circumstances a federal prisoner who has previously filed a motion under 28 U.S.C. 2255 may file a habeas petition claiming that an intervening decision of statutory interpretation establishes that he was convicted of conduct that is not criminal. Since AEDPA adopted Section 2255(h)’s limits on second or subsequent motions, the government and the lower courts have struggled to reconcile the implications of those limits with Section 2255(e)’s saving clause, which AEDPA left undisturbed.
Initially, the government argued that habeas relief is categorically unavailable for statutory claims. In 1998, after several courts of appeals rejected that “restrictive reading,” Triestman v. United States, 124 F.3d 361, 376 (2d Cir. 1997), the government reconsidered the matter. From 1998 until 2017, the government argued that the saving clause sometimes allows a prisoner to seek habeas relief based on a new decision of statutory interpretation. Most courts of appeals agreed—though they differed somewhat on the circumstances when such relief is available. See Br. in Opp. at 10-11, Ham v. Breckon, No. 21-763 (Feb. 24, 2022) (collecting cases). The Tenth and Eleventh Circuits, however, adopted the categorical position that habeas relief is never available. See McCarthan v. Director of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076, 1099-1100 (11th Cir.) (en banc), cert. denied, 138 S. Ct. 502 (2017); Prost v. Anderson, 636 F.3d 578, 588 (10th Cir. 2011) (Gorsuch, J.), cert. denied, 565 U.S. 1111 (2012). In 2017, the government reconsidered the matter again and returned to that position.
In light of its varying positions on this important and difficult question, the government reexamined the issue anew after this Court granted certiorari in this case. Based on fresh consideration of the statutory text, con-text, and history, the government has determined that neither of its prior positions reflects the best interpretation of Section 2255. The categorical position the government urged below is difficult to reconcile with Section 2255(e)’s text and rests on an overly expansive negative inference from Section 2255(h). But the government’s pre-2017 position was also insufficiently grounded in the text and in important respects too broad.
The position set forth in this brief follows from a natural reading of Section 2255(e), which allows a prisoner to rely on habeas if the Section 2255 remedy “is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. 2255(e) (emphasis added). That present-tense language requires an assessment of the adequacy and efficacy of the Section 2255 remedy at the time the prisoner seeks to file a habeas petition, not in the past. And the text and context make clear that the yardstick for measuring Section 2255’s present adequacy and efficacy is the habeas remedy that Section 2255 was adopted to replace. Section 2255(e) thus generally permits reliance on habeas if Section 2255 does not enable consideration of a claim that would be cognizable in habeas.
In other words, the government was wrong all these years and the savings clause should be available for cases where the Supreme Court has interpreted a criminal statute, making the petitioner innocent of the offense or punishment that was imposed.
So, what kind of case would this apply to? A statutory interpretation decision by the Supreme Court is not a constitutional decision for the purposes of filing a second or successive § 2255 motion under § 2255(h)(2). That has left many prisoners hanging in certain courts because they can’t file another § 2255 motion to attack their conviction or sentence, if they’ve already filed on earlier and got denied, and the savings clause has been shut down for these types of claims by most of the courts.
But the government is now urging the Supreme Court to allow the savings clause for these types of claims in all federal courts, and not just the lucky petitioners who happen to be imprisoned in the Seventh or Fourth Circuits.
The Supreme Court had a chance to fix this deep circuit split many times over the years but has always rejected hearing the issue at the last minute. This time they finally granted certiorari to (hopefully) fix the problem.
Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. He is a consultant in federal post-conviction procedure and an authority on federal sex offense issues.