*3
PRYOR,
JILL
Circuit Judges.
PRYOR,
WILLIAM
Circuit Judge:
*4
appeal
This
requires us to decide wheth
er
change
in caselaw entitles a federal
prisoner tu an additional round of collater
al review of his
Congress
sentence.
gives a
federal
like Dan MeCarthan one
opportunity to move to vacate his sentence
unless that remedy is “inadequate or inef
fective to test
legality
of his detention.”
2255(e).
28 U.S.C.
When McCarthan
pleaded guilty
being
felon in posses
firearm,
sion of a
922(g),
U.S.C.
he
understood that
the district court would
enhance his sentence under the Armed
924(e).
Act,
Career Criminal
id.
He did
appeal
not
that sentence. When MeCar-
than
sentence,
later moved to vacate his
he
again
nothing
said
about the enhancement.
After
foregoing
opportunities
those
complain about the enhancement of his
Rudenstine,
Sonya
Sonya
Law Office of
sentence,
petitioned
MeCarthan
for a writ
Rudenstine, GAINESVILLE, FL, for Pe-
corpus.
of habeas
argues
MeCarthan
titioner-Appellant.
his earlier motion to vacate was inadequate
objection
to test his
to his sentence en
Bodnar,
Roberta Josephina
U.S. Attor-
hancement because our caselaw about the
Office,
ney’s
ORLANDO, FL, Todd B.
Armed Career
changed.
Criminal Act has
O’Neill,
Grandy, Robert E.
Sara C. Swee-
But
gave
because the motion to vacate
TAMPA, FL,
Hirsch,
ney,
A.
Lisa
MeCarthan an opportunity
challenge
his
Office,
Attorney’s
MIAMI, FL, for Re-
enhancement,
sentence
remedy
was not
spondent-Appellee.
inadequate or
legali
ineffective to test the
Frederick,
Jeffrey
David Charles
A.
sentence,
ty of his
regardless
any
later
Love,
Hansen, Todd,
Kellogg,
Figel &
change in caselaw.
Frederick, P.L.L.C., WASHINGTON, DC,
Amicus Curiae for NATIONAL
eighteen years,
ASSOCI-
For
our
has main-
Court
ATION OF CRIMINAL
change
may trig-
DEFENSE
tained that a
in caselaw
LAWYERS.
ger an additional round of collateral re-
(M.D.
2004).
Scott,
Sept.
Fla.
view,
v.
decision of the
I. BACKGROUND
precedent
circuit
that had foreclosed the
prisoner’s argument when he first moved
2003,
pleaded guilty
Dan McCarthan
to vacate his sentence.
firearm,
being
possession
a felon in
922(g),
maximum sentence
18 U.S.C.
The district court could have exercised
years imprisonment,
for which is ten
id.
jurisdiction
petition
over McCarthan’s
924(a)(2).
The district court enhanced
if it fell within the
clause of section
2255(e).
McCarthan’s sentence under the Armed
argued McCarthan
Chambers
Act,
924(e),
on the
Career Criminal
id.
actually innocent” of the
“ma[de] [him]
ground
prior
that he had five
convictions
sentencing
and made him eli
enhancement
or a
drug
for a “serious
offense”
“violent gible
for relief under the
clause.
924(e)(1), including one for
felony,”
§id.
petition
court dismissed the
The district
McCarthan,
escape.
States v.
No.
United
other
because McCarthan’s
convictions en
2003).
(M.D.
4,
Fla. June
8:02-cr-137
sured that his sentence did not exceed the
received a sentence of 211
McCarthan
statutory maximum. McCarthan v. War
appeal.
den,
Coleman-Medium,
He
Id.
months. Id.
did
5:09-cv-110
FCC
(M.D.
11, 2012).
Fla. Jan.
to vacate his
McCarthan later moved
sentence,
alleged
§ 2255. He
affirmed the dismissal of McCar
28 U.S.C.
We
Warden,
petition.
that he
ineffective assistance
than’s
McCarthan v.
had received
(11th
Estill,
1237,
counsel,
challenge
but he did not
the FCI
811 F.3d
Cir.
vacated,
2016), reh’g
granted, op.
The district
en banc
enhancement of his sentence.
(11th
12-14989,
Cir.
court denied the motion to vacate on the No.
Prisons, 713 F.3d savings,] Cir. not precise is the word” for “a considered the mean- This Circuit first from cover exempting statutory provision years ago saving eighteen ing of the otherwise be something that would age Wofford, a federal Charlie Garner, included,” A. Dic Bryan Garner’s Wofford. being guilty to a felon prisoner, pleaded (3d 2011); Usage 797 ed. tionary Legal conspiracy possession of a firearm saving a statute nothing to do with it has cocaine. intent to distribute possess with see, e.g., 28 unconstitutionality, from at 1237. The district Wofford, 177 F.3d 1333(1) in all (“saving to suitors U.S.C. his first mo- and this Court denied court they are remedies to which all other cases failed at- After several tion to vacate. Id. entitled”). otherwise vacate, motions to tempts to file successive change in case- whether a To determine a writ of habeas petitioned for Wofford section saving clause of satisfy can law argued 2241 and corpus under section First, 2255(e), matters. consider three we injus- manifest illegal sentence created circuits) (and other how we explain we be- argued that tice. Id. at 1238. Wofford Second, clause. interpreted successive the bar on second and cause fail to ad- why precedents our explain we reaching the court from prevented motions Third, clause. the text of here to claims, he satisfied of his new the merits the text incongruity of light in the Id. clause. explain our deci- precedents, we
and our relief, analy but our We denied Wofford precedents. our sion to overrule text of the paid scant attention to the sis began opinion with the
saving clause. We
in Hayman,
but
About
A. Our Precedents
very helpful”
it was “not
concluded
Saving Clause
lan
“saving[] clause
respect
to the
with
ad-
section 2255 to
Congress enacted
then discussed the
guage.” Id. at 1239. We
prob-
the “serious administrative
dress
Early
history. Id. at 1239-41.
legislative
requirement
that ha-
caused
lems”
saving clause focused
versions of the
brought in the district
petitions
beas
“found noth
problems, but we
practicable
incarceration,
far from where rele-
often
history explaining
legislative
in the
ing
located.
vant records and witnesses were
changed
was
why
language
the relevant
Hayman, 342
States v.
United
language means.” Id. at
what
the new
(1952).
263,
court should
would not
applied
not have
the career
“squarely resolved” Williams’s claim unless
guideline.
offender
Id. at 1301-02. On re
precedent
there was “adverse
...
banc,
hearing en
explained
we
unwilling
would have made us
to listen.”
but,
“only
any
test was
dicta”
Wofford
Id. at
1347. But there was “no Cir
event,
help
could not
Gilbert. Id. at 1319-
precedent
cuit
on the
during
books
20. Because
challenged only
Gilbert
Williams’s collateral attack” that foreclos
guidelines
use of the
in determining his
claim,
ed his
so we denied him relief. Id. at
actually
sentence and a
cannot be
1345, 1349.
innocent of a sentence within the
range,
apply.
did not
Id. at 1320
In Bryant,
again applied
we
Wofford
Wofford
*8
(“Gilbert’s position
treating
turns on
sen
granted
test and
a prisoner relief under
convictions,
tences
argument
and an
saving
clause for
the first
time.
depends
calling
donkey
that
a
duck
is Bryant,
Begay,
at the time of his first motion to
claim
motion,
Bryant
in-
file a successive
separate concurring opin
But a
vacate. Id.
of habeas cor-
petitioned for writ
stead
of our
ion called for a reconsideration
Id.
pus.
adoption
precedent
Bryant
plain
in the
text
interpretation
an
rooted
Bryant
part
satisfied each
of Wof-
(W.
Id. at 1275-76
saving
clause.
precedent
United States
test. Our
ford
(11th
J.,
1996),
concurring). And in
Hall,
Pryor,
held
Cortes-Mor
Brian satisfying the sav- Begay, larly atextual tests for argued He that as a result cited in ing Davenport, clause. In which we carrying a concealed his convictions
1085 the Seventh in a or Wofford, engaged inadequate Circuit ineffective to of the task analysis that adequate “should pragmatic providing petitioner with a chance to prisoner that “a a reasonable [has] mean” Prost, test his sentence or conviction.” 636 judicial to obtain a rehable opportunity F.3d at The in intervening change 587. legality determination fundamental easelaw does mean that the “process re Dav of his conviction and sentence.” In or inadequate was ineffective to test his 1998). (7th 605, 147 F.3d 609 Cir. enport, argument.” Id. at 580. And then Chief Fourth, Fifth, And the and Sixth Circuits Judge Frank Easterbrook reached required proof of actual innocence of contrary same conclusion circuit offense, in to other charged addition precedent that binds his court: “A motion factors, to saving obtain relief under the reasonably thought under 2255 could See, e.g., Cauley, Wooten v. 677 clause. or ‘inadequate legali ineffective to test the (6th 2012); 303, Reyes- 307-08 F.3d Cir. ty of if prisoner’s] [the detention’ a class States, 893, v. F.3d Requena United 243 excluded, argument categorically were but (5th 2001); Jones, 226 904 Cir. In re F.3d permissible when an argument but fails (4th 2000). 328, Cir. The Second 333-34 there problem the merits is no with holds that or ineffec “inadequate Circuit adequacy Caraway, 2255.” Brown v. “the which the tive” means set of cases in (7th 2013) 583, (Easter 719 F.3d Cir. cannot, reason, uti- petitioner for whatever brook, C.J., concerning the circulation un which the failure to lize 40(e)). der Circuit Rule collateral review raise seri- allow for would Bryant, briefly In we this considered questions.” ous constitutional Triestman v. interpretation textual of the saving clause (2d 124 F.3d Cir. United it as “in dismissed tension with 1997). The Third on when Circuit focuses precedent.” 738 But Court’s F.3d 1287. would the second successive limitations correctly as the Circuit explained, Tenth justice.” “complete miscarriage cause a precedent our did not address Wofford (3d Dorsainvil, In re 119 F.3d sup- the “textual and structural clues” that 1997). Eighth And in the and Ninth Cir. Prost, contrary port reasoning Circuits, a prisoner must not have had an experi- F.3d at With the benefit of our procedural present- unobstructed shot at ence, re- opportunity take this we now claim, changes ing that defined to include interpretation saving consider our Ollison, v. 519 F.3d law. Harrison clause. (9th 2008); Cir. 959-60 Abdullah 2004). Hedrick, 392 F.3d B. Text the Saving Clause Judge places great weight Martin’s dissent majority having arrived on the circuits feder provides result, same of their regardless at the only “remedy al relief when his reasoning, Martin Dissent at inadequate or ineffective motion n.7, inquiry begin our must with the but legality test of his detention.” text. 2255(e). text, U.S.C. When we read this important offer about several terms clues
Only the Tenth Circuit has
to—
adhered
test,”
“remedy,”
“inade
meaning:
its
“to
seriously
text of
even
considered—the
ineffective,”
quate or
and “detention.”
Prost,
clause.
the Tenth Cir-
of these terms and
language
review
plain
cuit held
“the
of Careful.
change
clear
says
what whole text makes
that a
says
2255 means what it
trigger
relief
proceed
it means:
can
2241 easelaw does
initial
circuit
precedent
if his
2255 motion was
clause. Whether
itself
*10
(2d
Nash,
Cir.
245 F.3d
147-48
has noth-
v.
prisoner
adverse to a
“was once
2001)
J.).
may
(Sotomayor,
prisoner
The
to
whether his motion
va-
ing to do with
Likewise,
pris-
claim.
a state
‘inadequate
bring
or ineffec-
still
is
cate his sentence
”
avail-
detention.’
the remedies
legality
“exhaust[]
of his
oner must
tive to test
(W.
J.,
Samak,
Pryor,
before
F.3d at 1276
in the courts of
State”
able
of habeas
concurring).
petitioning for a federal writ
2254(b)(1)(A) (empha-
corpus. 28 U.S.C.
that his sen
claim
McCarthan’s
added).
context, remedy
must
sis.
this
maximum is
exceeds
tence
process
sub-
refer to the available
—not
that a motion to
the kind of claim
exactly
re-
prisoner
a
who
stantive relief—because
“remedy,”
to
notwith
designed
is
vacate
no
court would have
ceived relief
state
“Remedy” as
standing
precedent.
adverse
That
petition.
a habeas
reason to file
promise
not
in the
clause does
used
by
argument was foreclosed
McCarthan’s
by
“remedy”
means
“[t]he
A
is
“relief.”
(as
wrong, un-
opposed
being
to
precedent
or the violation of
right
a
is enforced
which
barred, or unexhaust-
timely, procedurally
redressed,
compen
or
right
prevented,
is
a
ed)
irrelevant. The
to vacate
is
motion
Dictionary
Law
Remedy, Black’s
sated.”
challenge
adequate remedy
an
provided
(3d
1933). “Relief’ is “the assis
ed.
legality of his sentence.
tance, redress,
a com
or benefit which
hands of the court.”
plainant seeks at the
also could have “tested” the
MeCarthan
(3d
Dictionary 1523
Relief, Black’s Law
in his first motion
legality of his detention
1933).
inadequate
not
The “means” are
ed.
is,
That
have made the
to vacate.
he could
relief on
precedent
circuit
forecloses
when
prior
that his
convictions did
argument
a
to vacate
remedy
of motion
a claim.
un-
him for an enhanced sentence
qualify
bring his claim
MeCarthan to
permitted
legality
of his
the statute. “To test”
der
re
en banc or
and seek
clause,
satisfy
a
detention
of law.
change
the substantive rule
view
“to
his re-
required
is not
win”
prisoner
might reject
prisoner’s
a
ar
That a court
Test, 11
try.”
means “to
lease. “To test”
“remedy
his
gument
render
does
(1st
Dictionary 220
ed.
English
Oxford
inadequate
an
“means
which”
motion”
1933).
claim,
try
“petitioner
To
a
[must
A
legality
of his sentence.
challenge
opportunity
bring
argu-
an
have]
prevent success
might
rule that
procedural
Prost,
ment,”
oppor-
636 F.3d
motion does not render
particular
on
claim, however,
tunity
try
to test or
long as
remedy
inadequate
an
“means” so
requires
guarantees any relief nor
neither
“enforc[ing]” or “re
capable
it
success;
it
any particular probability
vacate
dressing]”
right.
The motion to
Id.;
guarantees
procedure.
access to a
see
remedy
be
adequate
is an
for MeCarthan
Taylor Gilkey,
also
314 F.3d
835-36
succeeds,
if
the court must “va
cause
he
2002) (“[To
implies a focus
test]
ei
judgment
and set the
aside” and
cate
rather
than outcomes.
procedures
retry
him. 28 U.S.C.
ther
release
err, but this does not
Judges sometimes
2255(b).
inadequate;
are
procedures
show that the
fallible.”). To
only
people
are
remedy
between
and re-
shows
The distinction
whether a
satisfies
throughout
system
lief
reflected
our
of determine
clause,
ask
whether
procedural
we
corpus.
example,
For
relief,
adequate procedure
is an
does motion to vacate
might prevent
bar
but
bar
prisoner’s
claim. And
answer
an ineffective
to test
not render the motion itself
See,
ask whether the
question,
we
inadequate remedy.
e.g.,
Jiminian
*11
permitted
would have
bring
been
duty to anticipate changes in the law at the
claim in a motion to vacate. In other
threat of having later claims based on
words,
has a meaningful oppor-
changes
those
by
barred
principles
pro
tunity to test his claim
default.”).
whenever section cedural
It is unclear why the
provide
2255 can
him a remedy.
chance to have precedent overruled en
banc
the Supreme Court would not
Despite
precedent,
circuit
McCar-
qualify as a theoretically successful chal
than could have tested the legality of his
lenge or meaningful opportunity. McCar
by requesting
detention
that we reconsider
than,
Chambers,
like
had a meaningful op
our precedent en
banc or
petitioning
portunity
present
his claim and test the
Court for a writ of certiorari.
legality of his sentence before the court of
panel opinion
The
stated that the purpose
appeals and
before the
Court. A
prevent
test is “to
us from
Wofford
test often failed can nevertheless be an
entertaining
petitions
2241
by federal
adequate test.
prisoners who could have at least theoreti
Adverse circuit precedent also did not
cally successfully challenged an ACCA en
make McCarthan’s first motion to vacate
hancement
in an earlier proceeding,”
his
“inadequate
sentence
or ineffective” to
McCarthan,
1245,
811 F.3d at
Judge
challenge his sentence. “Inadequate or in
Rosenbaum’s dissent argues
pris
that “a
effective” instead connotes that the saving
oner must have a ‘meaningful opportunity’
permits
to bring a claim
claim,”
present
Rosenbaum Dissent
petition
for
that could
at 1135-36. But if McCarthan had raised
not have been
raised
his initial motion to
earlier,
his claim
perhaps he could have
vacate.
term “inadequate,”
as defined
litigant
been the successful
Deondery
in the phrase “inadequate
law,”
remedy at
Larry Begay
Chambers or
later came to
means “unfitted or not adapted to the end
be. For example, Chambers raised the
in view.” Inadequate
Law,
Remedy at
does,
same claim
namely
McCarthan
(3d
1933);
Black’s Law Dictionary 940
ed.
his conviction
escape
was not a violent
see also Jordan Concurring at
(pro
felony under the Armed Career Criminal
viding a definition
“inadequate”
Chambers,
123,
Act.
The term “detention” only covers to the of a sentence, clause carries a saving meaning saving peti broader but clause and term appears than the “sentence” that tion writ corpus for a of habeas cover 2255(a) in the to challenges elsewhere statute. Section the execution of a sentence. Warden, Atlanta, a prisoner challenge only allows to his v. Antonelli U.S.P. Cf. 2255(a). (11th 2008) 1348, “sentence.” 28 U.S.C. But the 542 F.3d 1351 n.1 Cir. (“It preserves challenges clause to a is well-settled that a 2255 motion prisoner’s separate remedy “detention” that would other vacate is a distinct 2255(e). unremedied. go proper.... wise Id. When from habeas A pursuant uses Congress language custody “different simi to a court federal sections,” give judgment may proceed only lar we should those words 2241 CIA, meanings. scope different See Iraola & S.A. when claims he raises outside the is, Kimberly-Clark 2255(a), F.3d execu Corp., concerning 232 claims (11th sentence.”) (internal 2000); Cir. see also Scalia & tion of citations Garner, supra, Congress omitted); Flores, at 170. en States v. F.2d When United 1980) (“[The prisoner’s] acted section the word “detention” “[k]eeping remedy or custody appropriate meant confine is under ment,” Detention, English alleged Dic 28 U.S.C. since the errors Oxford (1st 1933), prior or Be tionary sentencing.”). ed. act of occurred at “[t]he keeping Congress back or either acci- used in one withholding, cause “sentence” that “insulate[s] in an- tation “has made a rule”
part of the statute
“detention”
other,
interpret
review,”
...
the statute
mistakes from
Martin
[our]
we should
1119, but,
always,
be-
every
traditional
er-
preserve the
distinction
Dissent
procedures
affirming
and the
make in
of a
tween those terms
ror we
denial
n
challenged.
they
subject
which
are
motion to vacate is
to review
for
And
petition
certiorari.
we did
petition does not fall within
McCarthan’s
make
rule that bars consideration
Nothing
the text of the
clause.
Congress
second
successive motions.
spe-
Congress gave
text
suggests
legislative
foreclosed,
did. The
branch defined both
by binding
cial status
claims
appropriate
sentence for McCarthan’s
opposed
claims
precedent, as
circuit
challenging
crime and the rules for
or substan-
procedurally
that are
defaulted
legality
recog-
of that
sentence.
Samak,
F.3d at 1295
tively wrong. See
mistakes,
nized
courts would make
(W.
J., concurring)
does
Pryor,
(“Bryant
provided
motions
but
successive
to offer
inter-
attempt
plausible
not even
specific circumstances.
statute limits
savingf ]
the text of the
pretation of
attack,
“single
each
to a
collateral
clause.”).
failure to
Neither McCarthan’s
[2255(h)
unless
conditions of
]
earlier
odds of
bring
claim
nor his
met.”
Taylor,
been
314 F.3d
are
on the merits
relevant to
success
alleges
“newly
McCarthan neither
dis-
inquiry.
McCarthan
Because
inno-
covered evidence” establishes his
attacking
filed a
claim
his sen-
traditional
cence nor that “a new rule of constitutional
in a
brought
tence that he could have
*14
law,
cases
made retroactive to
on collateral
vacate,
remedy by
to
motion is
motion
Court,
that was
review
legality
to
adequate and effective
test the
previously unavailable” warrants relief. 28
of his detention.
2255(h).
cannot bring
U.S.C.
He
a sec-
The
of section
whole text
2255 confirms
collateral
ond
attack.
saving
clause.
reading
“[TJhere
our
justification
needlessly
can
no
for
ren-
create
saving clause does not
dering provisions
they
in conflict if
can be
exception.
Congress explic
a third
“Where
harmoniously.”
interpreted
& Gar-
Scalia
itly
certain
to a
exceptions
enumerates
ner, supra,
a
Allowing
at 180.
general prohibition,
exceptions
additional
cognizable
with a claim that is
in a motion
not to be
An
implied.”
are
TRW Inc. v.
nulli-
saving
to vacate to access
clause
drews,
122
151
procedural
fies
hurdles of section
(2001) (quoting
L.Ed.2d 339
Andrus v.
undermines
venue provisions.
616-17,
Co.,
Constr.
Glover
(1980)).
saving
“guaranteed
If the
clause
multi-
motion, prisons, federal inconvenience for or else the motion becomes inade- far nesses must travel from where every procedural time a rule like who quate place he is procedural prisoner was tried to where of limitations or default statute detained, requirement that wardens procedural bars prevents success. resentencing. nothing they Hayman, if can be defend See mean avoided 213, also clause. U.S. at 263. It through procedural jurisdictional creates does allow access to section new not pro- for district courts tasked with untimely 2241 whenever a claim is wrinkles does cedurally implementing relief the statute defaulted otherwise statute Hill Civil inadequate contemplate. Sepanek, or ineffec- not v. would render itself 14-85-ART, at *5-9 true for the on No. WL tive. The same must be bar (E.D. 2017) J.) Contrary Ky. (Thapar, to Jan. or successive motions. second (“[Practical dissent, any ... problems Martin arise under Judge Dissent Martin’s clause that saving! also do somehow construction ] means meaning.”); its inadequate- comport plain or ineffective cir- does not with become when 1:09-cv- abrogated prison- Hogsten, after a Love Civil Action No. precedent cuit is (N.D. 2134-JEC, *4 has filed his first motion to vacate. 2012 WL er 2012) (J. (“Insist- J.) Carnes, prisoner a a Ga. Sept. When limits sin- vacate, ing essentially claim gle motion to it does render the that what is a “remedy by inadequate or ineffec- ... be deemed a 2241 claim motion instead detention,” of his ... from legality [shifts] tive to test the the venue the district 2255(e); sentencing it instead limits each to the district in which the 28 U.S.C. confined!,] . petitioner meaning . . prisoner to one test. is § 2241 potential multiple there for Allowing bring federal districts, saving! multiple clause claims ] petition successive claim in a a writ of confusion, effort, duplicative creating corpus logic also defies results.”). Allowing potentially inconsistent provisions. venue A federal must bring access to the clause to ordi in the file a motion to vacate court that nary sentencing challenges disregards him, tried and sentenced where he can Congress’s system decision bifurcate the challenge his trial issues about and sen- challenges collateral review between 2255(a). contrast, tencing. he See id. prisoner’s challenges sentence and to the petition bring must for a writ of habeas Limit prisoner’s of a sentence. execution in the in which he impris- district ing the that are not saving clause claims oned, challenge where can deten- he *16 cognizable that cannot remedied un 2241(d). § tion. See id. The United States system respects der section 2255 the entire Attorney sentencing who participated of federal collateral review. prisoner’s to the trial challenges defends 2255(a). § But sentencing. the war- Id. government some of prison challenges the to the den of defends argue inter separate opinions the that our 2241(d). § prisoner’s detention. Id. mean pretation renders the clause 1111; Allowing prisoner bring ordinary ingless, a an Concurring to see Jordan disagree. on his in the Martin attack sentence district where Dissent but we meaning detained this It The clause has because he is eviscerates structure. all by the 2255 not claims can be remedied section problems resurrects section solve, heavy prisoner by enacted such as bur- 2255. A a federal was to sentenced court, may for a example, petition dens on located in districts with for file a courts corpus challenge habeas to expect writ of clause to say if “sentence” sentence, of his as the execution such de- only to applied sentencing claims. And the good-time parole privation credits phrase “a prisoner who” highlights that See, e.g., Hajduk, determinations. F.2d prohibition on petitioning for a writ The saving at 796. allows a also corpus applies habeas to a kind of person, prisoner bring petition to a a writ of for namely prisoner “a in custody sen- under corpus sentencing when the court tence of a court established by Act of is unavailable. Other have held circuits Congress,” 2255(a), id. not a kind of prisoner may for petition that a file a a claim. The better interpretation of “pursu- corpus sentencing writ of habeas if his ant to section” this is in opposition to Prost, has been court dissolved. See 636 prisoners pursuant authorized to a differ- (explaining military at 588 F.3d that for section, ent such as “a person custody “the prisoners resort to 2241 is the norm pursuant judgment to of a State court” than exception rather ... due to the code, in the neighboring Section of the id. pro- nature of evanescent court martial 2254(a). ceedings: sentencing literally court dis- Despite the attempt dissent’s to limit the sentencing after no longer solves and is meaning of portions “authorized” to sec- to test a prisoner’s available collateral at- tion contain 2255 that grants affirmative to tack”). Or, held, as our sister circuit has prisoner, as opposed in- processing to (such practical perhaps considerations court, structions to Rosenbaum Dis- courts) multiple sentencing might prevent sent at the text will not bear this from petitioner filing a motion to vacate. interpretation. phrase “pursuant to F.2d Cohen United 1979). this section” refers all to of section n.12 only 771 & “But ordinary the first subsection alone. An kinds of limited those circumstances is [the by speaker English remedy ‘inadequate or ineffec- would not understand a motion] ” legality prisoner permission tive to test the who lacks his detention.’ to file a Samak, (W. J., Pryor, 766 F.3d at any second or successive motion to be 2255(e)). concurring) (quoting 28 U.S.C. to apply more “authorized for than relief’ prisoner a claim with outside of section Judge Judge Rosenbaum’s dissent and 2255(a). if that prisoner But can instead concurring opinion argue Jordan’s our petition a writ for of habeas then corpus, interpretation conflicts with text of 2255(h) section becomes a in- nullity. Our because, view, prisoner statute their terpretation prisoner that a is “authorized petition corpus can for a writ of habeas apply by relief pursuant for motion challenge the execution of sentence section,” 2255(e), id. if he is “in accessing without clause. custody sentence of a court estab- 1124-29; Dissent at Jordan Rosenbaum 2255(a), Congress,” lished Act of id. Concurring at they misinterpret 1109. But nullity. But importantly, avoids this most “a who prisoner authorized even if a with a section,” claim based pursuant relief motion to this 2255(e), of his petition id. execution sentence could mean 2255(a). for a of habeas bringing a claim under writ without section *17 clause, 1124-29; saving saving still Rosenbaum Dissent at Jordan clause would Concurring apply at 1108. The to situations which a federal sen- use of broad- suggests tencing er “detention” dissolves or word that sav- court access to ing applies remedy by impractical. clause to claims the exe- motion is in- about The of a presented by cution sentence we terpretation Judge because would Rosen- 1094 (1868); 651, Felker, at L.Ed. 518 U.S. Judge Jordan’s concur 332 dissent and
baum’s
2333). Judge
dis-
proves nothing about whether
116
Rosenbaum’s
ring opinion
S.Ct.
change
on
is not
argues
Original
with a claim based
a
sent
Writ
or a
with claim based
for
common law
adequate
in caselaw
an
substitute
saving
actual innocence satisfies the
it would
impractical
on
writ because
clause.
the writ.
Supreme
rarely grants
Court
“judg-
Dissent at 1146-47. But
Rosenbaum
Judge Rosenbaum’s
con
dissent
of the writ
proper scope
ments about the
of
interpretation
that our
tends
”
make.’
‘normally
Congress
are
for
Clause,
Suspension
violates the
U.S.
clause
Felker,
664,
at
Nothing in the Antiterrorism
Penalty
referring
Act
an
without
the matter
“strangle^]
Effective Death
individual
Lonchar,
to a
at
power
Supreme
grant
Court to
court.”
U.S.
Samak,
“As limited
the act of
Original
an
F.3d
S.Ct. 1293.
Writ.”
(W.
J.,
im-
Pryor,
(citing
did not extend to cases of
concurring)
[the writ]
2333).
Felker,
conviction,
prisonment after
under sen-
S.Ct.
”
transgress
competent
Act
the constitu
tences of
tribunals....
Ex
“The
cannot
Wall.)
(8
Parte
75 U.S.
at 101.
rights
prisoners
allege
Yerger,
tional
who
heavily
erroneously'
Judge
relies
they have been
sentenced or
Rosenbaum’s dissent
Bush,
Supreme
unfairly tried when the
Court
Boumediene
553 U.S.
(2008),
power
an
Courts
overruling
precedents
Marine
our
three
decisions,” Moragne
step
v. States
of
403,
First,
they
Lines, Inc.,
375,
wholly
are
divorced
U.S.
90 S.Ct.
reasons.
398
(1970),
Second,
the text.
reliance
1772,
L.Ed.2d 339
because
from
interests
26
third,
precedents
minimal. And
our
predictability
and
are essential
are
“[s]tability
Continuing to
of the rule
fol
proper operation
proved
in the
have
unworkable.
factors
Prichard, 661
would
law,”
precedents
v.
low these erroneous
do
City
Bonner
(11th
1981).
1206,
good.
harm than
1209
Stare more
F.2d
Cir.
when we
especially important
is
decisis
First,
precedents are not faithful to
our
re-
“Congress
because
construe statutes
above,
the text of the statute. As discussed
have done.”
free to alter what we
mains
palpably
test is
and
“plainly
the Wofford
R.
& Gravel Co. v. United
John
Sand
al.,
Garner,
at
wrong.”
supra,
et
750,
130, 139,
S.Ct.
128
colleagues writing separately
our
Even
(2008)
Patterson
(quoting
Duckworth,
Contrary
argu
remedy by
to McCarthan’s
motion to
motion
ment,
appeal presents
“adequate
an
for
problems
no
was
effective means
Prost,
justiciability.
argument.”
an
F.3d
argues
testing
McCarthan
be
such
parties accept
cause both
test
cannot now
580. He
use the
Wofford
un-
Court,
previously
that was
in a
petition
claim
make that
clause to
available, or
corpus.
of habeas
a writ
statutory law,
(3)a
made
new rule
to cases on collateral
retroactive
CONCLUSION
IV.
Court,
Supreme
review
reasons,
overrule
we
all the above
For
previously unavailable.
that was
Bryant and
applied in
test as
the Wofford
been, Congress
that would have
Simple as
denying
the order
AFFIRM
Mackey and
Instead,
excep-
it.
it limited
did not do
of habeas
for writ
petition
McCarthan’s
tions to two.
corpus.
would have us
dissenting opinion
by writing in the
the statute
“improve”
CARNES,
concurring:
Judge,
ED
Chief
favors,
cannot do
but we
exception that
of the Court and
join
opinion
in full the
I
Court has instructed
that. As the
point
emphasize
separately
Court,
write
not this
Congress,
“It is for
us:
passing.
that it makes
if
statute
it believes
amend the
§of
provisions]
interplay
[some
dissenting opinion
Judge Rosenbaum’s
ability
unduly
prisoners’
restricts federal
effect,
anoth-
that there should be
says, in
motions.” Dodd
or successive
to file second
to the bar on second
exception'
er
United
permit
motions to
claims
successive
(2005).
2478, 2483,
HOI
Sec’y
Dep’t
Corr.,
1245,
for
278 F.3d
late.” Henslee v. Union Planters Nat. Bank
(11th
2002) (“Our
Co.,
Cir.
function is to
& Trust
335 U.S.
69 S.Ct.
statutes,
carry
out
expression
290, 293,
powers, but that constitutional doctrine is son, J., (“I dissenting) see no why reason I best served respecting the fundamental consciously should be wrong today principle that it is because Congress, the role of I unconsciously was wrong Courts, yesterday.”). I to decide what the prefer to put it more colloquially: be, Wofford law is to has done that in was a 2255(h). up; screw To repeat error We honor the separation of revising that opinion’s revision of powers the sav- doctrine when we temp- resist the ing clause in another tation, attempt to seem, improve may irresistible as it judi- text the statute would be cially another revise statutes to suit our sense of up. screw Once is enough for me. policy. sound dissenting opinion repeatedly pro- JORDAN, Judge, Circuit concurring in tests -that it example “judicial an part and dissenting in part. activism,” using phrase more than a 2255(e) The text of 28 U.S.C. dozen times to answer an re- charge. unstated mained unchanged since despite painful accuracy, And with opinion Congress’ significant overhaul charges of federal being among me with judges collateral review 1996. who Given the diffi- attempted improve *24 2255(e) cult task of deciphering language designed § by interpretation. of for a bygone post-AEDPA world, era in a Rosenbaum culpa. Dissent 1157. Mea As it is no wonder that federal courts have the author of the opinion Wofford and its dicta, struggled to reach a uniform I am understand- the one who laid out the ing. Recognizing that meaning of seedbed grown from which the weeds have 2255(e) easy solution,” “is not of around in United this issue our circuit. Having to States v. Universal Corp., C.I.T. Credit watch for the past years my woefully 218, 221, 73 S.Ct. wrong L.Ed. 260 opinion Wofford worked its mischief (1952), I my offer own perspective. price sin, is the I paid my or at least for that particular one. And no one I agree majority’s with the ultimate con- sin knows like an old sinner. clusion that “saving clause” of 2255(e) brings
Which
to mind the various formu-
permit
does not
sentencing
lations that
judges
other
have used to ad-
claims like the
by
one asserted
Mr.
mit
Nearly
their mistakes.
everyone’s fa-
my reading
McCarthan. But
of
“saving
vorite is Justice Frankfurter’s:
‘Wisdom clause” is broader than the one articulated
comes,
too often never
ought
by
view,
and so one
majority.
my
the “saving
reject
not to
it merely because it comes
clause”
allows a federal
seek
law,
or issue
a claim
controlling
in
change
to 28
corpus pursuant
writ
on
a defendant
against
decided
that was
relief is unavail-
§if
§ 2241
U.S.C.
the basis for
(and
may not be
appeal
direct
governing)
and a new
to him
able
Mr.
So
proceeding.”).
in a
relief
of conviction
of the statute
interpretation
his trial
in his motion that
Unlucky alleges
he never committed
demonstrates
assistance
ineffective
reading of
counsel rendered
majority’s
Because
crime.
an evi
court holds
sentencing. The district
a habeas
forecloses
apparently
§ 225|5(e)
rejects the ineffective
circumstances,
dentiary hearing,
I concur
remedy
such
merits,
grants
and
claim on the
ness
judgment.
Eleventh
The
appealability.
certificate of
I
the district
subsequently affirms
Circuit
Unlucky’s motion to
Mr.
court’s denial .of
a new
enacts
Suppose that
vacate,
again
Court
de
Supreme
and the
999.99,
and
statute, 18 U.S.C.
criminal
nies certiorari.
punisha-
that statute
makes a violation
The
years
prison.
ten
by up to
ble
later,
de-
years
Two
per-
of Justice believes
Department
and
Unlucky’s,
Mr.
just
a case
like
cides
A and B violate
who commit acts
sons
A
commits acts
person
that a
who
holds
persons
999.99,
prosecute
out to
and sets
§ 999.99. This deci-
B
not violate
and
does
have,
acts.
committed those
who
Court,
course,
sion
jury in the Southern
grand
A federal
criminalized
never
means that
999.99
Unlucky for
indicts Joe
Florida
District of
B,
judicial construction
A and
for “[a]
acts
A
committing acts
violating
999.99
an authoritative statement
a statute is
that,
trial,
Unlucky argues
Mr.
B. At
and
before as well as
the statute meant
of what
the statute does
properly,
when read
giving rise to
of the case
after the decision
B. The district court
acts A and
criminalize
Roadway
Ex
that construction.” Rivers
and instructs
rejects
argument
298, 312-13,
Inc.,
114 S.Ct.
511 U.S.
press,
guilty
may return a verdict
jury that it
(1994).
decision,
L.Ed.2d 274
acts
Unlucky
Mr.
committed
if it finds that
moreover,
to cases on
fully
retroactive
government puts
B. Because the
A and
Bousley v.
United
collateral review
Unlucky
that Mr.
did
evidence
undisputed
B,
jury finds
A
commit acts
fact
(1998).
H03 [person], guilty legality would have found the fective to test the of his deten- offense,” is a tion. or where there “new rule of law,
constitutional made retroactive to (brackets added). by Supreme on collateral review cases 2255(e) § The first is the “au- Court, previously was unavailable.” clause,” thorization and the second 2255(h)(1)-(2). § Mr. U.S.C. Un proven clause—the one that has most diffi- lucky any newly does discovered cult figure out—is the “saving clause.” evidence, and the new Court de As I hope explain, Mr. Unlucky can use § interpreting statutory, cision 999.99 is the “saving clause” to file a habeas corpus Thomas, In re not constitutional. See 823 petition “remedy because a by [§ 2255] 2016) (“We F.3d have motion inadequate or ineffective to test held that Supreme Court has not [the] legality of his detention.” announced new rule constitutional law A interpreted merely existing
when an statute.”). He cannot satisfy therefore “Congress’ use of a signifi- verb tense is 2255(h) requirements filing for a sec statutes,” cant in construing United States ond or successive motion to vacate. Wilson, (1992), 117 L.Ed.2d I begin so wanting years Not more waste his with Congress the verbs that chose to use crime, in prison life for a non-existent Mr. 2255(e). §in Judge correctly As Martin Unlucky, relying “saving on the clause” of points out in dissenting opinion, her see 2255(e), corpus petition files habeas Martin Dissent at Congress’ requests 2241. He pursuant that the choice of “saving the word “is” in the court his conviction district vacate based clause” significant. new decision and The “authorization clause” twice em- custody. order release from (“has ploys past tense failed” and “has uses, denied”), “saving while the clause” Mr. setting, Unlucky can use the (“is”) ^single present-tense right verb be- “saving clause” to seek re- “inadequate fore the words or ineffective.” lief? I think so. Congress present-tense Because used a clause,” verb in “saving it seems to me II that we at Mr. Unlucky’s pres- must look situation, ent not at what happened Comprised single, of a bedeviling sen- past, to determine whether a clauses, 2255(e) tence with various states currently.“inadequate motion “is” or inef- as follows: Case, fective.” A See Jennifer Text Me: An application for writ of habeas Interpretation Text-Based 28 U.S.C. corpus in a prisoner behalf of who is 2255(e), (2014-15) Ky. L. J. apply authorized to for relief motion (“Another textual mistake that the circuit section, pursuant to this shall not be courts often make when interpreting appears appli entertained if it 2255(e)’s [s]aving[ replace ] [c]lause is to relief, cant has failed to word ... verb ‘is’with the ‘was.’ When motion, (as to the which court sentenced linking is read verb *26 him, it) tense, or that such court has denied him present wrote the the relief, [2] unless it also appears that the cannot access § 2241 unless § 2255 is—at remedy by inadequate petition § the moment 2241 motion is or inef- her is filed 1104 “inad- a motion to would be inadequate ineffective because vacate [or]
federal court—
meaning
within the
equate
ineffective”
legality.”).
the detention’s
to test
(which
§ 2255
paragraph
of the last
of
majority’s
we
Contrary
approach,
to the
2255(e)).
§
to what
identical
is now
ineffective-
inadequacy and
must assess
claims,
to such
least some
response
his
Unlucky
the time Mr.
files
whether,
as of
ness
analyzed
federal courts
the
§
of
2241
filing
petition,
of the
the
and not as
time
petition,
§ 2241 habeas
“inadequate
§
motion was
or ineffec-
2255
he
his initial
time when
submitted
good example
A
the discussion
tive.”
Otherwise, “Congress[’]
§ 2255 motion.
former Fifth Circuit
a case where
the
verbs,
distinct
sets of
with
use of different
prisoner, having
the
twice been denied
pointless[.]” Freeman
... would be
tenses
relating
on a
to
§ 2255 relief
claim
Loans, Inc.,
624,
Quicken
U.S.
132
v.
566
§ 2241
corpus petition.
filed a
habeas
plea,
(2012).
2040,
2034,
prisoners (5th sometimes added (emphasis 122 Cir. omitted).1 § 2241 corpus petition file a habeas citations could temporal we applying particularity, al are confident 1. For other cases a similar clause,” see, “saving e.g., scope United necessary District of and if Southern Ohio 205, 223, Hayman, 72 States Appeals appeal, the Court Sixth (1952) (“Nothing been L.Ed. 232 Circuit, things. cognizance take of two would stage holding warrant our at this shown to is, therefore, every assurance that ... There proceeding procedure [§ ] sentencing [c]ourt and the Sixth Circuit 'inadequate respon- if will be ineffective' hearing requires will accord the law present hearing for a in the [district dent is grant the relief will which circumstances case.”) (emphasis on remand [c]ourt added); (emphasis justify.”) and Johnson v. States, added); Waugaman v. F.2d United (5th United F.2d Cir. 1964) (rejecting prisoner's 1971) (dismissing corpus petition be- argument that a .would be 2255 motion sought prisoner had to file a cause “inadequate when or ineffective”: "But if and “Nevertheless, vacate: we note presented are factu- motion to claims] with sufficient [the
HQ5
portionate;
B
lacking in
or in
effectiveness
conformity
prescribed
to a
standard or
(in
majority says
The
that the word “or”
measure.”
Law Dictionary
Black’s
902
ineffective”)
phrase “inadequate
1951)
added).
ed.
(emphasis
merely
See also
“syn-
introduces “ineffective” as a
”
onym
equivalent’
for “in- The
Dictionary
‘definitional
Concise Oxford
of Cur-
(which
adequate”
majority
(3d
1944) (“Not
re-
rent English 573
ed.
ade-
law”).
placed
remedy
with
“inadequate
(to
quate
insufficient.”);
purpose);
Web-
Maj. Op.
at 1087-88. Like Judge
(2d
ster’s New Collegiate Dictionary 419
Rosenbaum, see
Dissent at
Rosenbaum
1949) (“Not
deficient;
ed.
adequate;
insuf-
1130,
I disagree. The
Court has
ficient.”). So, contrary to
majority’s
“ordinary
told
[of
us
use
the word
suggestion, one
of “inadequate”
definition
disjunctive,
is,
is
always
‘or’]
almost
effect, i.e.,
is tied to the ultimate
the re-
given
the words it
are to be
sepa-
connects
sult.
meanings.” Loughrin
rate
v. United
-U.S.
States,
“ineffective,”
-,
134
The
S.Ct.
word
like the word
(2014) (rejecting
ability to obtain thought inadequacy an could indeed ... be sult. dimensions.”); In re Dor of constitutional (3d 1997) sainvil, 245, 251 Cir. 119 F.3d C “saving may clause” (recognizing that the case, fictional Mr. Un- Returning to our § 2241 a enough broad to allow file a second or succes- lucky unable to is corpus petition where “a defendant [is] to vacate based on the § sive 2255 motion intervening that an imprisoned for a crime interpretation of Supreme Court’s it, I negates”). As see decision Mr. [later] 2255(h) § § is because 999.99. That clause,” Unlucky “saving has satisfied or motion to permits a second successive corpus petition pur- can file a habeas newly is evi- there discovered vacate when §to relies on new suant 2241 which demonstrating, by clear and convinc- dence interpreting decision evidence, no factfinder ing reasonable ex rel. Leguill 999.99. United States Cf. person guilty have found would (3d 681, Davis, 212 F.2d 684 lou v. Cir. offense, is a rule of or where there new 1954) paragraph the last (interpreting law, made retroactive constitutional “[W]e the former 2255: think version by review the cases on collateral can be remedy by ‘inadequate motion Court, previously that was unavailable. As legality to test of ... or ineffective earlier, Unlucky not have Mr. does noted only if it can be shown that detention’ evidence, and his claim is newly discovered scope procedure or some limitation of new rule of on a constitutional based prevent proceeding would 2255 from [§ ] law. affording a full hearing Unlucky, If who innocent of adjudication wrongful Mr. of his claim of deten- tion.”).3 him prison, landed can- charge that has or 2255
not even file second successive D motion—and definition cannot succeed remedy by “the a motion—then such prob- In order avoid constitutional “inadequate or inef- presently 2255(e) motion” is lems, “saving clause” of must legality fective” to test his detention. meaning. have some See Boumediene v. 605, Davenport, Bush, 776, 147 611 723, 2229, See In re F.3d 553 128 S.Ct. U.S. (7th 1998) (“A Swain, procedure posteon- (2008); Cir. 171 430 L.Ed.2d 41 U.S. fairly 381-82, 1224; can be termed inade- viction relief 97 United States v. S.Ct. configured deny 205, 223, 263, quate Hayman, when it is so as to (1952). any opportunity for L.Ed. have a duty convicted defendant 96 232 We judicial effect, every “give possible, rectification of so fundamental a if clause and statute,” Walker, of a having been word Duncan v. 533 defect in his conviction (4th 1951) (concluding pre-AEDPA 677 that the deni- are some other decisions Cir. There remedy analyzing what makes a "in 2255 IFP render a al of status does not 2255 ineffective,” adequate they but are not of ineffective”). or "inadequate motion Cf. help here because those cases there much Pressley, U.S. Swain prison available to consider the was a court (1977) (interpret- S.Ct. L.Ed.2d 411 See, e.g., v. Ha motion to vacate. Adam er’s ing provision "saving clause” in a similar 1963) (hold gan, 325 F.2d post-convic- ruling D.C. that a Code and place ing that the distance between the "inadequate or remedy tion is not ineffective” sentencing and the court does confinement just an I because it is resolved Article "inadequate make a 2255 motion court). Welch, ineffective”); Scott v. F.2d
H07
167, 174,
150 L.Ed.2d
intervening change in
taken,
law] well
(2001),
and if the “saving clause” did then Davis’ conviction
punishment
are
anything
not amount to
in a post-AEDPA for an act that
the law does not make
*29
world, Congress likely would not have car-
criminal. There can be no room for doubt
ried it over wholesale in 1996.What makes
that such a circumstance inherently results
this case hard is
out
figuring
proper
in a complete miscarriage
justice
(and balance)
interplay
between the “sav- presents]
exceptional circumstances that
2255(e)
§
ing clause” of
and the restric-
justify
2255.”) (in-
§
collateral relief under
2255(h)
§
places
tions that
on second or
omitted).
quotation
ternal
marks
successive motions to vacate. The content
Even those who advocated for a narrow-
“saving
clause” must be meaningful,
er scope of federal
prior
habeas review
but not
so broad that
swallows
AEDPA recognized that the writ should be
2255(h).
§
available in cases where “a convicted de-
My solution is to
upon
draw
the undis
fendant makes a
showing
colorable
that an
puted
too often forgotten principle
—but
—
error,
not,
whether constitutional or
may
is,
core,
corpus
“habeas
its
an
producing
punishment
continued
equitable
Delo,
remedy,” Schlup v.
513
an innocent man.” Henry Friendly, Is In-
298, 319,
851,
U.S.
115 S.Ct.
130 L.Ed.2d
nocence Irrelevant?: Collateral Attacks on
(1995),
808
“saving
and read the
clause” to
Judgments,
Criminal
38 U.
L.
Chi.
Rev.
allow an innocent person
Unlucky
like Mr.
(1970).
142, 160
I cannot
believe
a
First,
§
to obtain
2241 habeas relief.
from
court,
federal
with.
“saving
clause”
days
earliest
of the Republic, the Su
available, would deny habeas corpus relief
preme Court has granted habeas corpus
person
to a
who does not have a
relief and ordered the
discharge
federal
show,
remedy available
can
but
based on a
prisoners where
alleged by
the facts
(and governing) decision,
new
that he nev-
government did not
a
constitute
federal
er committed a federal crime.4
(4
Bollman,
parte
crime. See Ex
8 U.S.
Cranch) 75, 136,
(1807) (Mar
with which
prisoners
stand charged
§ 2241
relatively
does
little harm to the
committed,
has not been
the court can
gives
structure of
2255. It
“saving
Second,
direct them to be discharged.”).
clause” a
important scope,
narrow but
importance
deep
of innocence runs
in does not do too much
violence
jurisprudence,
our habeas
and there is
2255(h)’s
restrictions on
second
suc-
nothing
inequitable
having
more
than
a
cessive motions to vacate.
person serve
prison
a sentence
a federal
drawn,
The line I
admittedly,
have
is not
for a
why
non-existent crime. That is
If
perfect.
Unlucky
Mr.
Court,
able
seek
pre-AEDPA, ruled that
(and
relief
claims of
because
new
innocence based on
statutory
new
governing) statutory
interpretations
ruling
can
shows that he
be asserted under
crime,
States,
2255.
never
why
See Davis v. United
committed
shouldn’t
333, 346,
U.S.
94 the writ also be
Judges
L.Ed.2d
available—as
Mar-
(1974) (“If
this contention [about the
tin and Rosenbaum contend—when a new
that,
Perkins, - U.S. -,
strong concept
Innocence
McQuiggin
is so
when
133 S.Ct.
1924, 1931-35,
sufficiently proven,
(2013);
it even constitutes a
§ prisoner bring 2255 authorizes the a Importantly, ... if motion [to vacate]. Ill t satisfied, is no [authorization [c]lause (e) plays determining subsection no role majority, understanding The bring can whether habeas 2255(e)’s “saving § clause” allow for must Case, Me, Ky. L. petition.” Text 103 J. at in some corpus relief circumstances habeas 187.5 illusory, being carves out some avoid posits “saving territory where that the majority incorrectly assumes that 2255(h)’s § override restric- clause” can prisoners challenging determinations about examples It offers two main of sce- tions. credits, or parole attacking and good-time First, § can 2241 be used. narios where by military a sentence tribunal imposed 2255(e) § majority says may be exists, that no can file a motion to longer challenging de- by prisoners used federal § vacate 2255. the words of parole good-time about 2255(e)’s clause,” terminations prison- “authorization 1089, Maj. Op. at credits. See 1092-93. ers in were never “au- these two scenarios Second, like majority, the Tenth Cir- by pur- thorized to for relief motion apply Anderson, 578, [i.e., cuit in Prost v. F.3d 636 2255]” suant to this section 2255(e) (10th 2011), says Cir. place. prisoners 588 first I’m not sure that And allows a federal file a habeas sentenced in dissolved territorial courts petition sentencing any his or her court “saving when are different. A (like 2255(e)) available, longer is such as when a no clause” the one requirements military prisoner’s general tribunal has been dis- carve-out from the statute, does at 1092-93. of a and if the statute problem solved. See id. aptly explains 2255 Judge in her dis- are authorized to file motion. In- Rosenbaum stead, senting opinion that not all collateral federal "[o]nly prisoners who federal have claims are "authorized” motion under eligi- been a federal court are ‘sentence[d]’ Rosenbaum at 1126-28. 2255. See Dissent ble.” See id. at 1126. And, significantly, prisoners all federal
H09
with,
begin
then the
victed
“saving
military
and sentenced in
tribunals
play.
clause” never comes into
long
been able to file traditional ha-
See,
corpus
beas
petitions.
e.g., United
A
348,
Augenblick,
350,
States v.
393 U.S.
89
528,
(1969);
21
challenging
Federal
L.Ed.2d 537
prisoners
determi-
Burns v.
Wilson,
good-time
nations about
parole
137, 139-142,
credits
346 U.S.
73 S.Ct.
can seek
corpus
pursuant
1045,
habeas
relief
(1953);
lawfulness the sentence noted, majority As cites the Tenth brought court. Such an action must be as a approval, Circuit’s decision in Prost with petition corpus pursuant for writ of habeas but in my opinion aspect of Prost is 2241.”). result, § to 28 As a Judge U.S.C. flawed. Prost an earlier Tenth relied on prisoners Rosenbaum is correct such decision, Novak, Circuit v. Ackerman do not come within “authorization (10th 2007), support F.3d 647 Cir. for its 2255(e), § clause” of and therefore do not suggestion military prisoner may that a “saving need the clause” to avail them- “saving resort to the clause” and file a remedy. selves of a habeas See Rosenbaum § § 2241 petition a 2255 motion Dissent at where 1127-28. (now brought to be in the nonexis
“ha[s] B tent) court, sentencing that remedial [and] necessarily inadequate mechanism [is] prisoners challeng- The same is true of legality ineffective to test of his deten ing military a in a conviction secured tribu- ” Prost, tion .... at 636 F.3d 588. But the nal. Like federal who prisoners wish panel holding challenge Prost missed Ack parole determinations about good-time credits, prisoners federal erman. con- by a Ackerman, petitioner was sentenced a convict- because federal 1944.”). military au- court-martial convened military sought by a court-martial
ed Circuit, see from the Tenth thorization C 2244(a), or suc- § to file a second
U.S.C.
under 28
corpus petition
cessive
in territorial
prisoners
As for
convicted
Ackerman,
at
§
483 F.3d
2254. See
U.S.C.
exist,
longer
no
that is a more
courts that
first ex-
panel
648-49.
Ackerman
But
to me
nuanced matter.
it is not clear
terms,
pris-
in no uncertain
plained,
“saving
prisoners
such
need
in,
by, a
convicted
and sentenced
oner
peti-
corpus
to file a 2241 habeas
clause”
collateral review
military tribunal can seek
First,
ques-
if the
tion.
territorial courts
way
corpus petition
only by
.habeas
by
legislature
tion are created
pris-
§ 2241. See
at 649. Such
id.
territory,
they
then
not “courts estab-
are
provi-
cannot use
2254 because
oner
Congress”
an Act of
lished
within
in state cus-
prisoners
sion is reserved
2255(a).
Moran,
meaning of
In re
cannot use
2255 because
tody, and
96, 104,
51 L.Ed.
cannot
military tribunal has
dissolved
Oklahoma);
(Territory of
Connèlla
attack. See id.
entertain
collateral
1907)
Haskell,
F.
con-
panel
& n.2.
Ackerman
649-50
(same).
courts, therefore, could never
Such
that,
military court-mar-
because a
cluded
§a
2255 motion in the first
entertain
a “court
States”
tial is not
United
meaning that
the “authorization
place,
2244(a),
pris-
meaning
within
2255(e)
not be satisfied.
clause” of
would
not need
circuit authori-
oner did
to obtain
Second,
being
jurisdiction
if territorial
peti-
to file a
2241 habeas
zation
located
exercised
federal district courts
tion. See id.
651-53.
*32
territory pursuant to an act of Con-
in the
enter-
then those district courts can
gress,
then,
Ackerman,
provides
support
no
vacate,
§
and the
tain a
2255 motion to
Prost,
majority
by
by
claim
majority
suggested by
scenario
—that
here,
military prisoner
that a
needs
sentencing
longer ex-
of a
court that no
2255(e)
file a
“saving
§
clause”
to
imagined
more
than real. See
ists—is
corpus
Simply
§ 2241
stat-
petition.
habeas
370,
Hinshaw,
v.
F.2d
371
Madsen
237
ed, military prisoner
§a
2241 reme-
a
has
1956)
Alaska).
(9th
(Territory of
Cir.
§ of 2255.
dy
independent
that is available
529,
Goldsmith,
relatively
where
v.
In the
unusual scenario
See Clinton
state,
n.11,
territory
and the feder-
119
HH questions who, prisoner MeCarthan, there are more than answers. but not to a like a example, very For case similar to argues his sentence exceeds the statu- Spaulding, former Fifth ex- tory Circuit my opinion, maximum. In the savings Alaska, the state courts of plained applies types to both of prisoners. A statehood, following admission to Alaska’s prisoner who actually is innocent is in the consider willing post-conviction were position same whose sen- con- by prisoners previously motions filed tence exceeds the maximum— victed of territorial offenses. See Hutson v. deprived, each is being of his lib- (5th Zeigler, 362 F.2d & n.9 Cir. erty though even no law authorizes the 1966). result, As those had prisoners deprivation. my colleague As Judge Hill § 2254 in but proceed federal court petitioner once said: “If a can show that he had to their in the first exhaust claims incarcerated, illegally he is entitled to Alaska state courts. id. release. Fairness it. requires Justice is the goal in grant ultimate of the Writ.” I tapestry,
Given this do not understand Rozier v. United 701 F.3d possible application “saving what 2012) (Hill, J., dissenting). the majority’s clause” has under rationale. majority It seems to me that the has come that, least, Justice demands very dangerously sapping “saving close MeCarthan receive a chance to “test the any meaning. clause” of his legality detention.” See 28 U.S.C. 2255(e). IV 2255(e) I “saving read the clause” of MARTIN, Judge, joined Circuit permit corpus petitions 2241 habeas PRYOR, Judge, dissenting. JILL Circuit longer prisoners federal who can no file who, a motion to vacate and based MeCarthan Dan sentenced to was serve (and decision, new governing) statutory (17.5 years) prison months based on custody despite having never com- are Court’s mistake law. Mr. mitted a crime. Mr. Because MeCarthan felony MeCarthan had been convicted of innocence, I asserting such claim of life, offenses earlier and he was judgment. concur firearm, with a he go found so was due to *33 Ordinarily, felon prison. a convicted WILSON, Judge, joined by Circuit possessing up a firearm years faces to 10 PRYOR, Judge, dissenting: JILL Circuit in prison, but no more. 18 U.S.C. I would reverse the denial of Dan 924(a)(2). hand, On the other when the claim and for the McCarthan’s remand person has three earlier convictions for in court to district consider merits that felony” crimes are either a “violent am, part, first I for instance. the most offense,” drug a “serious the Armed Ca- Judge interpreta- persuaded by Jordan’s 924(e), (ÁCCA), reer Act id. Criminal I savings agree tion clause. with his his sentence no less than 15 increases clause, analysis textual but I believe years up and to life. Because Mr. MeCar- equitable nature of the Great Writ under than was sentenced ACCA as dictates a different result than he reaches. convictions, though qualifying he had three a Judge equitable got that he sentence that seven and one- Jordan states was longer him the statute years nature of the leads to conclude half than would Writ got He savings applies prison- that the to a have otherwise allowed. this much longer past who a of actual innocence sentence because his he had er asserts claim case, think en rehear- walkaway might his one banc escape,1 and convicted of been precedent ing good characterized news for Mr. McCar- Eleventh Circuit would be walkaway felony.” a “violent See escape as today’s majority than. opinion But Gay, States 251 F.3d 953-55 United v. change nothing does Mr. MeCarthan’s curiam). 2001) (11th (per But this Cir. win, puts into relief of reach loss a out Gay ruling wrong. was Well Court’s for have been sentenced based others who began serving Mr. his after' McCarthan words, a this legal mistake. other sentence, 17.5-year rehear Mr. Court voted to MeCarthan’s is not a escape us that “violent taught the Court case not because believed Begay felony.” Its United decisions application in its of our panel wrong was States, 1581, 553 U.S. 128 S.Ct. precedent, circuit but instead because (2008), and Chambers v. Unit L.Ed.2d Majority prece- to overturn that wanted ed today, path to relief for dent. Before (2009), overturned our deci L.Ed.2d prisoners like Mr. McCarthan has been Lee, Gay. States v. See United sion narrow, Today’s majority opinion indeed. 2009). (11th 859, 874-75 Cir. F.3d entirely. path cuts off that now us to asking Mr. McCarthan is Majority The concludes that Mr. MeCar- go wrong caused to right make what we recognized than’s claim cannot be 17.5-year The got he his sentence. when governs postcon- the federal statute heard Mr. panel first MeCarthan’s challenges by My viction federal prisoners. (I member) applied case was a Eleventh say colleagues in dissent that the law rec- precedent. McCarthan v. War Circuit claim, ognizes and would remand Mr. den, Estill, FCI 811 F.3d to be anew on MeCarthan’s case evaluated 2016). precedent, panel Under different, My slightly view is so merits. satisfy could not concluded that he say I separately I write how believe Mr. jurisdictional test our Court created out, should and MeCarthan’s case turn seeking cases in which imposed why. sen- wrongly relief from ACCA him Id. So we denied relief. at 1256-
tence. government rehearing did not seek I. THE SAYINGS CLAUSE Indeed, the ruling. from our United States juris- to this Circuit’s habeas subscribed majority opinion characterizes in the prudence set out McCarthan dry complex case as rather exercise opinion, anyway it won. panel had could statutory construction. A reader almost miss the fact what we are Nevertheless, majority of this Court who, talking among about is the hundreds opinion panel’s to vacate the voted human incarcerated beings en thousands of Mr. MeCarthan’s case banc. Since hear *34 in have access to relief government prisons, never asked us to rehear U.S. will 1992, 15, February [sic]. was He failed to return 1. In Mr. McCarthan convicted of a.m., escape walking away required. in Florida for from an by to The defen- 1:30 [sic] facility per- without unsecured correctional p.m. dant the center on returned to at 12:58 escape The describes his convic- mission. PSR 15, report February escape [sic]. The tion as follows: 15, February p.m. was canceled. At 3:30 on records, 14, According February on to court 1988, left without the defendant the center signed the defendant out for work escape again permission, report and an was Tampa Community from the Corrections initiated. time of Center with a return 1:30 a.m.
1H3 a The corpus.2 goáls under writ of habeas writ of While the tight statute’s of deadlines habeas is of such fundamental im- corpus and finality might desirable, seem they portance legal system to this nation’s that were implemented at the same time the it is as the known Great Writ. See Ex prison population federal exploding; was parte Bollman, (4 Cranch) 75, 95, 2 federal sentences getting longer; were C.J.). (Marshall, L.Ed. 554 Sentencing U.S. Guidelines were re- recognized writers of our Constitution quiring to judges many make rulings be- importance the writ of of habeas fore arriving imposed.3 at the sentence So they when enshrined its existence in that it is a fact life for these prisoners that 9,§I, document. Const. art. cl. U.S. 2. The they jail can in for years sit even dec- Great to Writ is tool meant be avail ades before the Court comes to able to any person jail who finds himself in (like one) tell inferior federal courts this when not ought he be there. about a mistake the court made when a imposed. sentence was explained by happened for reasons This Rosenbaum, Majority Judge Mr. McCarthan many 28 U.S.C. and so others. § in This Court wrong 2255 was enacted. Then was it when said that Mr. Penalty Antiterrorism and Effective Death McCarthan’s earlier conviction for (AEDPA) escape Act added walkaway required limitations his sentence to today. which in effect (significantly) longer remain Under 28 be ten-year than the prosecution once a cap by U.S.C. federal called for the statute that otherwise conviction, in prisoner results a final is governed would have his sentence. So generally challenge legality allowed to while is this case about we how construe only through of his detention a statute, the words of is also about motion, through petition writ whether Mr. McCarthan and those like' 2255(e) corpus. habeas 28 U.S.C. him should continue to bear the burden of (“An for a application writ of cor- the mistake the federal courts made pus of a is behalf who author- I sentencing part ways him. with the Ma- pursuant ized to for relief jority, motion I think because not. And while the section, to this shall be enter- Majority highlights the rule the Tenth ”). Significant many Circuit, tained .... cases every the fact is that most other like Mr. McCarthan’s is that the relief Appeals U.S. Court of reached § 2255 narrowly offered defined and question not as well. thinks tightly A prisoner gener- administered.
ally to.challenge allowed his conviction and History of Section 2255 by way just of a motion sentence in the Eleventh Circuit time, 2255(h), one challenge id. and that year generally generally must made within one Section 2255 allows a (the 2255(f). final, becoming bring his conviction id. attack new statute uses the 58,838 Department people prisons; 2. The of Justice estimates that in incarcerated in federal (the year publis later, latest for which it has had decade that number risen to 328,500 statistics), people ed there were 133,921. Statistics, h See Bureau of Justice U.S. custody. federal correctional See Bureau of Justice, Dep't (Aug. 2000 2 Prisoners in Statistics, Justice, Dep’t Justice Cor above, 2001). As mentioned the latest avail- Populations United rectional approxi- able data that there are now show 2016). (Dec. at 12 *35 n 328,500 mately people prison. in federal pra note 2. 2255(f) (h) passed 3. and were Sections in part 1996 as of AEDPA. In there were 1114 motion”) interpre its first his clause. The Court offered on or successive
term “second one of in savings if his claim falls into clause Wofford v. tation conviction 2255(h). Scott, 1999). § categories (11th in narrow the two 177 F.3d Cir. 1236 Wof (1) innocence a claim of actual That is: that, prison in order for ford established evidence, id. newly discovered based on clause, rely savings he had to to on er “a 2255(h)(1); based on § or claim “squarely claim fore show his had been law, retro- made rule of constitutional new circuit at the time of his by law closed” by the on collateral review to cases active trial, § and first 2255 motion. 177 appeal, Court, un- previously that was Supreme words," prisoner at 1244. other F.3d 2255(h)(2). available,” §id. courts required was show McCarthan, want Mr. who like against Prisoners ruled him would have this Circuit on the basis challenge their detention he was convicted this claim the time on statutory interpretation new, retroactive sentenced, appealed, when he and and and Court, fall under do not for postconviction he filed relief when 2255(h). hanging §of He is category either § 2255 To the I way of a motion. extent statutory not a new hat on rule his cases, I been involved these have have proceed cannot law. Since he constitutional wrong was always believed that Wofford 2255(h), un proceed § he seeks to rulings savings this and Court’s 4 2255(e). § “savings clause” of der the cases that have since followed clause Wof bypass says a can savings clause Bryant, wrong are well. See 738 ford as 2255(h) file a ha and the constraints (Martin, J., concurring part F.3d at 1300 if it detention challenging his petition beas v. dissenting part); Williams War mo remedy by [§ 2255] that the “appears den, Prisons, 713 Fed. Bureau of F.3d to test the inadequate tion ineffective is (11th 2013) J., (Martin, 1332, 1350-56 Cir. 2255(e). of his detention.” Id. legality Gilbert, dissenting); 640 F.3d 1330-36 Mr. McCar That leaves us decide for (Martin, J., dissenting). others): (and §is 2255 many when than legal test the “inadequate or ineffective to “squarely require- foreclosed” Wofford’s ity prisoner’s] detention”? [a became the bedrock of this Court’s ment Bryant, savings jurisprudence. spilled many ink has lives A lot of (‘What F.3d at 1272 makes 2255 of this 738 touched as a result have been savings ‘inadequate, or ineffective’ for proceeding on how to Court’s work Bryant custodian.”); against colleagues join writing about action My who I tional Warden, Coleman-Medium, 738 adopted FCC F.3d case the term v. McCarthan's have Mr. (11th 2013) ("[The] exception 1262 Cir. opposed “saving clause” as to the term See, 2255(e)'s “savings petition §a 2241 is bar on always used: clause.” Court has Warden, commonly 'savings Mackey referred to as e.g., v. FCC Coleman-Medi ”); 2014) clause.’ Gilbert v. United F.3d um, (11th F.3d Cir. (en (11th 2011) banc) 1305-06 Cir. 2255(e)'s (“[The] exception §to bar on a 2255(e) ("The exception to the bar on [] commonly petition referred to petitions, commonly referred to as the Warden, clause.’"); 'savings Samak clause,’ issue[.]”). 'savings the focus of our Coleman-Medium, F.3d FCC 2014) William, J., (Pryor, concur recognize While I that the (“That exception 'savings clause'— ring) “saving term clause” in Bourne- used the —the diene, recognizes "saving” that a to vacate a sentence motion courts still use both "sav- is, may inappropriate, 'in ings” sometimes in this I will continue as we context. ineffective,' have, judgment adequate any that circum value so in not because of term, Majority’s but I about the new because stance allows federal grown legality to the old. of his in the tradi- accustomed 'test the detention’
H15
he
Bryant
‘genu- problems
resulting
is that
had no
petitioner
from this circuit’s
924(e)
§
opportunity’ to
his
claim
bring
“squarely
ine
play
foreclosed” rule
out over
precedent squarely
Circuit
fore-
years.
because
example,
For
in Albert
trial,
that claim
his
throughout
di-
closed
Williams’s
appeal,
2013
this Court
him
left
motion.”).5
§
appeal,
(more
and
rect
first
to serve a 293-month sentence
than
“squarely
Under
Court’s
foreclosed”
years),
that, by
rather than a sentence
each
we consider a
requirement,
pris-
law,
time
should
capped
years.
at 10
been
relief,
claim for
clause
savings
Williams,
oner’s
we
at 1334.
to
F.3d
Relief had
look
ask
must
backward and
whether the
him,
said,
be denied to
this Court
because
original § 2255
petitioner’s
proceeding was
challenged
the time he
his
on
sentence
“inadequate
legal-
or ineffective
test the
appeal,
direct
then again
at the time
But
ity
savings
his detention.”
motion,
§
he filed his
our
had
clause nowhere
us to
requires
do this.
never decided
issue of
whether his
Rather,
says
the savings clause
that
prior
burglary
convictions for
should be
preserved
writ
is
considered “violent felonies” to enhance
§
in
“is inadequate
eases
which
his sentence.
Id.
1348. The Williams
legality
pris-
ineffective to test the
of [the
panel blinded
to what
itself
the state of the
2255(e).
§
detention.”
oner’s]
28 U.S.C.
law was at the
we
§
time
ruled on his
plain
pris-
The
text of the statute allows a
motion
said that
We
because no
2013..
§
to seek
when
oner
habeas relief
2255 is Eleventh
precedent
Circuit
had
ruled
“inadequate
bring
or ineffective” to
his
burglary
whether a Florida
conviction is
challenge
legality
current
his
an ACCA-qualifying offense at
the time
detention. When the statute is read as
appeal
direct
his claim
not
was
it,
present tense,
wrote
in the
meant,
“squarely
Id. That
so
foreclosed.”
bring
is clear that a
can
a habeas
went,
§a
logic
2255 motion would
§if
the time
petition
peti-
2255 is—at
way
have been ineffective as a
raise
is filed in
“inadequate
tion
federal court—
claim,
and Mr.
so
Williams was
legality
ineffective”
to test the
of the
my part
entitled to relief. Id. at 1345. For
detention.
as a
I
panel,
member of
Williams
Majority
says
when it
asked how the world this Court’s lack of
right
having
question
the rules this Court
for these
ruled on a
past
created
cases
I
keep
have not worked
have seen
could
us the
possibly give
power
well.
Bryant,
five-part
tencing,
appeal,
pro-
§
this Court created
test
direct
first
pass
must
before he is allowed to
ceeding,
binding precedent
our
had
Circuit’s
claim,
savings
access the
to make a
specifically
prior
[his]
addressed
distinct
state
like the one Mr.
makes
McCarthan
here: that
924(e)
triggered §
had
conviction that
previous
wrongly
of his
one
convictions was
924(e)
squarely
[his]
foreclosed
claim
felony”
characterized as a
under
"violent
erroneously
he
sentenced
10-
was
above the
924(e) causing
him to receive a sentence of
year
penalty
maximum
924(e)
years
at least 15
under
rather than a
Bryant
924(a).”).
step
test
The second
10 years
sentence
no more than
“squarely
re-
further enforces the
foreclosed”
924(a).
five-part
This
test
found nowhere
(“[The
quirement.
petitioner]
See id.
must es-
in the words of the
It was this five-
statute.
subsequent
tablish that ...
to his first 2255
Bryant
part
required
panel
test that
proceeding,
[a]
Court[] decision
deny relief to Mr. McCarthan.
...,
[his]
as extended
this Court to
distinct
Bryant
step
first
test is the
conviction,
prior
prec-
our Circuit
overturned
requirement.
“squarely
foreclosed”
squarely
edent
[his]
that had
foreclosed
Bryant,
(“[The petitioner]
Mr. Williams (7th Caraway, 583, 586 v. 719 F.3d the Brown gave us years when never 2013) (“First, must prisoner the show Cir. than keep him in for more power prison to statutory-interpretation on a that he relies (Martin, J., dissenting) at 1353 10. Id case, rather than a case. Sec- constitutional (“The question ask is whether correct ond, that he prisoner the must show relies erroneously was sentenced Mr. Williams that he could not on a retroactive decision light of career criminal in as an armed § invoked in first 2255 motion. have his was, Begay. never If he federal courts third condition is that sentence The him jurisdiction to sentence above had enough have grave been a enhancement by law. The year maximum allowed 10 justice miscarriage to be deemed a error prece- circuit or nonexistence of existence corpus in a habeas corrigible therefore Begay cannot conflicts with dent which (quotations proceeding.” citations on this jurisdiction confer operate to See adopted)). omitted and alterations also Court.”). and this years passed Now Surratt, 240, 274 States v. 797 F.3d United ques- recently resolved Court (4th 2015) J., dissenting), (Gregory, Cir. (the burglary same tion of whether Florida granted reh’g (Dec. 2, 2015) banc en litigating back Mr. Williams was statute (“§ ‘inadequate when 2255 is or ineffective’ 2013) felony” purposes a “violent for is change retroactivély-applicable ACCA, held it United is not. See prisoner that the to take advan- law seeks Esprit, (11th v. 841 F.3d 1237 States subsequent of occurs to his first tage 2016). Meanwhile, re- Mr. Williams Cir. motion....[,] § 2255 the asserted error mistake we prison mains in based on this defect, a fundamental represents [and] lengthening made in his sentence.6 satisfy cannot gatekeeping file § 2255 to I read allow he relies on a provisions of 2255 because petition savings a habeas under new rule that not one of constitutional that, point he shows at some after when (quotation omitted and alterations law.” proceeding, first 2255 there was adopted)). an authoritative retroactive decision from Legislative History of Section 2255 court, which a statute interpreted
federal Supreme and the Court’s way in a that now a fundamental reveals Jurisprudence prisoner’s in that or sen- defect conviction Both the Sixth and Circuits tence. Seventh legislative history 2255 and savings way. interpret clause this corpus juris- Court’s habeas Masters, Hill v. F.3d Before prudence confirm this view. 2016) (“When under seeking petition prisoners became law federal who sentence, misapplied § 2241 based on collaterally attack their convic- wanted (1) show of statuto- petitioner must a case petition or sentence file a tion had to for (2) retroactive ry interpretation, corpus they where the district habeas not have in the and could been invoked the few prison. were This caused dis- motion, § 2255 that the mis- prisons initial located federal trict courts near presents petitions. sentence an error suffi- applied be overwhelmed with Hayman, miscarriage States ciently grave to be deemed a See United quest granted permission this issue Court Mr. Williams to file 6. Mr. Williams’s for relief on petition July gave ret- continues. Since a second successive serving relief to sen- roactive some inmates ACCA, improperly this tences enhanced
1H7
205, 213-15,
263, 269-70,
prisoner’s]
[a
96 L.Ed.
detention.” 28 U.S.C.
(1952).
2255(e).
Congress enacted
2255 to
problem.
The new
address
statute
Congress passed AEDPA to
“replaced
traditional habeas
amend
by adding
(among other
*38
prisoners
process
...
a
federal
with
that
2255(h)
things)
§
filing
limitations on
allowed the
file a motion
to
with more than one motion under that statute.
sentencing
court.” Boumediene v.
time,
At the
Congress
same
nothing
did
to
Bush,
774,
723,
2229,
553
128
U.S.
S.Ct.
clause,
savings
disturb the
and it remains
2264,
(2008).
H19
”
filing
contrary.’
restrictions on the
of successive
(quoting Hamdan v. Rums
feld,
Major-
Under the
motions.
rule the
557, 575,
ity
long
so
adopts today,
as the
(alteration
his sentence unless he can meet one of
people’s liberty for longer than the law
2255(h)’s
exceptions
two
succes-
particularly
allows. This is
here,
striking
This,
course,
sive-motions bar.
reads the
where both of the other
gov-
branches of
savings
right out of
I
the statute. As
make
ernment
our mistake clear. The Leg-
before,
“[b]y
said
the re-
grafting
branch passed
islative
law allowing
Mr.
2255(h)
quirements
savings
§of
onto the
punished
McCarthan’s crime to be
for up
clause,
Majority
stripped
years
prison,
to ten
no
but
more. The
any independent meaning.”
clause of
Gil
rejected
position
Executive branch
bert,
(Martin, J.,
F.3d at
dissent
*40
Majority takes
the
here —to
extent
ing).
our Court had' to bring
lawyer
in another
lawyers,
taught
As
we’re
that an inter-
to even advocate for
position
the
it adopts
pretation rendering
a
today. And
Majority,
now the
on behalf of
princi-
meaningless violates the “cardinal
branch,
the Judicial
has made a rule that
ple of statutory construction”:
that we
prevents federal judges from correcting an
effect, if
“give
possible,
every
must
to
illegal
A system government
sentence.
of
clause and word of a statute.”
v.
Williams
set up with branches to check and balance
Taylor,
362, 404,
1495,
529 U.S.
120 S.Ct.
each
simply
other
not
should
work this
1519,
(2000).
issue pointed any indication —much In the midst of all of this debate about less a clear statement —from 2255(h) statutes, important these it is that it for now re- repeal intended 2255(e). turn Mr. I agree to McCarthan’s ease. with savings Majori- clause of So the Rosenbaum ty’s reading Judge that Mr. McCarthan’s should stand. See Boume diene, at case be to the should remanded District However, (“Congress presumed separately should ‘not to Court. I write be- have denial of relief I believe limits effected such cause the law what the unmistakably My absent an clear statement District Court can do on un- remand. proof any prior no of convictions other tells Mr. law me derstanding it listed in McCarthan’s than three Mr. habeas relief un eligible for McCarthan indictment, being Mr. McCarthan is held clause, I turn to the savings so der the 924(a)(2), a which sets ten Mr. in violation of McCar petition. his habeas merits of year prison term. to a limit on he term argues was sentenced than beyond that authorized imprisonment government asks a court to When the three he does law because the term give a a sentence above person necessary to felony predicate convictions limit, government the statute sets as enhancement. He is the ACCA support longer proving bears the burden him relief. grant I would right, and law and proper sentence is under the Lee, facts the case. 586 F.3d of Mr. Throughout prosecution its (“The the burden of possession [government] bears being for a felon McCarthan un- firearm, pointed proving sentencing enhancement government of a warranted.”); three) see (and der the ACCA is also prior convictions three Young, 527 F.3d enhancement. United States predicates for the ACCA 2008). (1) Here, govern- conviction in Flori- were: Those to ment for an enhanced sentence for cocaine with intent asked possession for da (2) deliver; solely in Mr. based three a 1992 conviction McCarthan sell in- a 1994 convictions listed Mr. McCarthan’s escape; convic- Florida government never men- third-degree murder. dictment. in Florida for tion any in tioned other basis for an enhanced prior convictions were listed Only these And these convictions were sentence. the indictment. at Mr. McCarthan’s only ones offered It is true that the PSR listed two other justify 15-year hearing to guilty plea Mr. McCar felony earlier convictions for *41 Again under ACCA. minimum sentence than, being Georgia two convic those sentenced, the McCarthan was
when Mr. It is possession tions for cocaine. also other mentioned no convic- government that, Mr. sentencing, true at McCarthan him for an sen- qualifying tions as ACCA any object prior did not to convic tence. PSR, tions in the and that the District facts in the PSR. agrees adopted Mr. Court stated Everyone that McCarthan’s identify But not convic accepted not as the PSR did which escape conviction would him if tions Mr. for an predicate qualified for he were McCarthan a valid ACCA today. So when he did not Both the Court ACCA enhancement. sentenced Lee, PSR, Mr. said so. 586 contest the McCarthan conceded and this Circuit have Chambers, 874; 122, only Georgia U.S. at that these cocaine convictions at F.3d means, qualify if these convictions at 687. This even we existed. Whether drug under ACCA that Mr. two remain- as “serious offenses” assume McCarthan’s separate a one that was nev properly support question, his ing prior convictions sentence, any proceeding er even court all have is two discussed longer we ACCA that in his 211-month This is short of the number resulted sentence. predicates. one government never mentioned them. to Mr. required keep of 'convictions judge sentencing for more 10 The never mentioned behind bars than McCarthan reject any years. separately them. I idea escape qualify Because does write Mr. required upon three for it was incumbent McCar- convictions one hearing, interrupt sentencing than ten than longer an sentence of ACCA nervously years, time he was no doubt government and because the offered where
H21 fate, awaiting up to bring predicates. hear his these could serve as ACCA 738 F.3d no one thought other convictions that else at 1279. “government cannot offer for worthy simply of mention. had no He bur- the first appeal time on predicate new something to disprove government den conviction in support an enhanced sought prove place. never in the first To Petite, ACCA sentence.” United States v. him place surely burden on would 2013). 703 F.3d n.2 sentencing process turn the on its head. be, This is itas should because our Court has never allowed criminal defendants to To on him place that burden also defies contest their harsh appeal sentence on for precedent. our own Court has a Our waiv- they presented reasons had to the says government rule that er where (or sentencing court. I cannot sanction apply- never told the District for that ing sentenced) different opposing parties rules to being ap- matter the defendant pearing particular conviction is a this Court one and reason to the same sentence, impose longer government proceeding. barred appeal arguing on from that the I grant would Mr. McCarthan relief and felony can previously unmentioned now send his case to the District Court with place take the of a conviction that was direction that he be resentenced to a term upon court, sentencing relied but of no years. more than ten Mr. McCarthan longer no supports
which
sentence. In
has,
course,
already served more than
Bryant,
rejected
this Court considered and
years
ten
penitentiary.
I respectfully
government’s
bring up
effort
on
dissent from this Court’s treatment of Mr.
appeal
Bryant’s
new bases for Mr.
longer
McCarthan,
remaking
as well as its
of our
sentence,
gave
when the reasons it
at the
law as it governs
for those
sentencing
longer
time of his
no
supported
sentenced
.this Circuit.
Bryant,
here,
sentence
got.
he
like
government sought
to substitute a pri-
ROSENBAUM,
Judge,
Circuit
burglary
conviction for a concealed-fire-
dissenting:
longer worked,
arm conviction
no
during Bryant’s
no
“[a]t
when
time
direct
I agree
Majority
with the
that we incor-
proceedings
government
criminal
did the
2255(e)
rectly
interpreted
U.S.C.
rely
burglary
ever
on the
conviction as a
Scott,
least five occasions:
Wofford
924(e)
predicate felony
purposes.”
*42
(11th
1999),
H23 pris- rule of law until after the clause or applicable allow second successive claims that, McCarthan’s, initial 2255 claim been re- oner’s like are based on a new solved. statutory retroactive rule of construction that, if applicable, would mean that Indeed, 2255(h)(2) implicitly recog- applicant imprisoned beyond has been val- this fact to pertains nizes second or congressional itself, id By authorization? on claims a new retroac- successive based the statutory language of the saving clause tively applicable rule of constitutional law. tells us the to the question first answer § 2255 authorize But since does not second “yes.” second, To resolve we must or claims on a successive based retroac- statutory consult the language Su- and the tively applicable statutory new rule of law preme jurisprudence Court’s on habeas though Suspension requires Clause corpus. they Together, reveal an- that the courts’ consideration of such claims when a swer question to the “yes.” second is also has not had a previously meaning- opportunity ful had such claims
heard, saving necessarily must clause A. language saving clause of allow these claims in order save necessarily contemplates that the sav- unconstitutionality. from ing bring clause will used to least types some second or succes- Dan McCarthan’s claim relies on a new sive claims. retroactively rule of applicable statutory So I would the district law. reverse court’s statutory construction, In all cases we and petition dismissal of his remand for analysis by start our lan- examining the of the merits. consideration guage un- “plain of the statute for a and explains This first sdction of this dissent ambiguous meaning regard with the text of why 2255 and Court particular dispute in the case.” Barnhart corpus, jurisprudence Sus- Co., Inc., Sigmon Coal Clause, retroactivity necessar- pension L.Ed.2d 908 require saving clause allow ily for (citation quotation and internal marks or of second successive consideration omitted). if inquiry Our ends here as well retroactively appli- claims based on a new the statutory language “unambiguous rule Part II statutory cable law. of the statutory scheme is coherent and Majority’s dissent addresses the criticism (citation consistent.” and internal quo- Id. theory I in Part I. In Part espouse omitted). case, can tation marks this we III, explore why Majority’s I construc- question answer our first —whether saving cannot be correct tion clause saving for clause allows consideration text second or claims of at least successive IV, precedent. in Part I re- And type solely consulting some the statu- — Carnes’s concur- spond Judge Chief tory language. rence. clause, in the context 2255(e), provides,
I. application An a writ of habeas cor- To assess whether the clause re- au- pus in behalf of who is quires consideration of McCarthan’s sec- claim, we must thorized to for relief motion ond successive answer first, section, questions: pursuant shall not be two does appears appli- if it that the permit least some second successive entertained *44 so, relief, by second, apply cant to for saving claims? And if does the has failed case, cannot the motion, escape that we to the court which sentenced him, saving him language that such court has denied conclusion that the or appears it also that the relief, plainly unless clause envisions consideration of at inef- remedy by inadequate motion or least or successive claims.4 some second legality to test the of his deten- fective
tion. clause, petitioner saving B. Under a the 2255(e) added). (emphasis § U.S.C. may a second or successive 'bring court” refer to “the court words “such retroactively a new claim based on him,” so the words “such which sentenced applicable rule law of unambiguous- him relief’ court has denied means that his sentence exceeds what ly prisoner that a contemplate previously validly authorized. motion,3 § 2255 at least a first and made clause allows at saving Since the least denied That means sentencing court it. claims, some second or successive the any such claim that seeks the is, question ones?” When we view “Which saving to necessari- bring under clause saving light the terms of the clause ly a claim. must be second successive precedent, of the answer then, By'its language, saving clause saving clause becomes clear. The allows courts specifically requires to consider a (1) that, for two of claims: those categories prisoner’s or successive claim when second though permissible 2255’s provi- “it appears remedy also clause, cannot, saving sions other than the inadequate motion is ineffec- [§ 2255] reasons, practical logistical for legality prisoner’s] tive of [the to test (2) brought provisions, under those Id. detention.” those otherwise be brought that cannot Any reading saving clause parts under the other 2255 and that precludes courts from consider- completely constitutionally to be required are consid- ing second or successive claims can achieve ered, that assert a including those only by ignoring language that result govern- in violation of the detained him has denied relief’ and its “such court ment’s, government’s, or a branch of the “duty But the meaning. natural court has a by a powers, supported retroactively as effect, every if to give possible, clause applicable new rule substantive law. Walker, and word of a statute.” Duncan v. 167, 174, To second identify particular or suc- (2001) (citation saving L.Ed.2d 251 and internal cessive claims for which clause omitted). consideration, on, quotation requires we must marks When we do focus motion, opposed 3. refers filers in the This must be are first-time sense that motion, 2255(a) any they yet kind of other for two reasons: have not filed motion (1) "by preceding term motion” is short- with the that sentenced them. court This lan- "by pursuant guage appears disjunctive, hand for the motion to this in the as an alter- earlier phrase section” used native to has denied him "such court relief.” claimants, type relevant applicants no other motion would be So like first-time who sentencing claims, court. filed with the bring or successive are second also bring petition entitled under the clause, course, provided the clause is language Of filing otherwise satisfied. These first-time claimants anticipates the also of some initial who, reasons, practical employs would be those for language, statute claims. The relief, “adequate” through cannot obtain relief applicant has failed "the motion, him," 2255(a) proceeding which in the court that sen- to the court sentenced applicants that the whom it tenced at 1130-32. which means them. infra
H25 (a) parts language three particular, plainly subsection prisoner authorizes a 2255(e): (1) is author- prisoner apply § “a who to relief under of for the circumstances (a). apply by motion,pursuant to for relief ized set forth in subsection Id. (emphasis (2) section”; added). “legality of his deten- to
tion”; “inadequate ineffective to (d) Similarly, subsection states that “[a]n filters, phrase a test.” Like series of each appeal may taken to ap- the court of claims, preceding limits the universe peals from the order entered on mo- yielding successively smaller universe. judgment tion as from final on applica- a claim for to be to consider- So entitled tion for a writ of corpus.” Id. clause, pass ation under the it must 2255(d) added). § (emphasis Under our all through three filters. system, losing litigant may ap- take an peal permitted. where So like subsection prisoner ap- “a to who is authorized (d) (a), subsection an applicant authorizes ply by pursuant for relief motion to take action. this section” But of the remaining parts none making applicable By clause § “prisoner” any- 2255 “authorize” a to do to apply to “a who is authorized Rather, thing. they give in- processing by pursuant relief motion to this sec- for (b), the court. structions to Subsection tion,” the first filter im- states, in example, part, relevant poses availability restricts its to sentenced prisoners type federal who raise a of claim motion Unless the and the files rec- 2255(a) § permits. unambiguous case conclusively ords of the show that § language of 2255 dictates this relief, is entitled to no construction. ... [engage court ac- shall various If the court certain find- tions]. [makes explain why, begin by evaluating
To we ings], the court shall vacate and set the any § 2255 for language that authorizes a aside and judgment appro- shall [take review of petitioner for relief. A priate corrective action]. § language 2255’s reveals that of it parts “prisoner” that “authorize” a 2255(b) added). Likewise, (emphasis § Id. 2255(a) anything do include subsections (c) provides may subsection court “[a] (d). (a) Subsection provides, determine entertain and such motion with- prisoner in custody A under sentence of production out requiring prison- a court established Act of 2255(c) hearing.” (emphasis er at the Id. claiming right upon to be released added). (g) subsection enables the And ground was im- sentence appoint proceedings court to counsel for posed violation of the Constitution (“[I]n all 2255(g) 2255. See id. laws of the United or that the section, brought proceedings under this jurisdiction impose court was without counsel....”) may ... appoint the court sentence, or that was such the sentence added). 2255(h) (emphasis Subsection tells in excess of the maximum authorized process a second or the court how suc- law, or subject is otherwise to collateral 2255(h) (“A cessive motion. See id. sec- attack, may im- move the court which ond or successive motion must be certified vacate, posed the sentence to set aside by panel appropriate ... court or correct the sentence. added). (emphasis All of appeals....”) 2255(a) added). (emphasis By parts 28 U.S.C. these 2255 instruct a court move,” directing “prisoner may that a ... a 2255 application. how to handle *46 applicant an First, language requires (f), the AEDPA’s statute Finally, subsection custody.” 28 U.S.C. prisoner in to be “[a] limitations, jurisdictional a re- either is of 2255(a). self-explan- is requirement § That an reviewing court or for quirement the atory. defendant, the de- defense for affirmative Second, circuit construes “under sentence of pending language on which Congress” Williams, by Act of 713 a court established Compare, e.g., provision. a federal prisoner must be means that Artuz, 221 1338-40,5 with Acosta F.3d at See id. prisoner. 2000). (2d Either 117, 121-22 F.3d to authorize a purport way, may it does' Third, just any prisoner federal jurisdictional § A anything. Only to do federal prisoner for relief under apply case, by “sentence[d]” to hear a who have been prisoners a court provision empowers to seek relief eligible court are a federal is a tool that a defense while an affirmative (“[a] prisoner id. the statute. See under suit.- may use to bar defendant ...”) (emphasis add- sentence ... under (a) (d) short, only and subsections ed). So, example, pretrial for detainee take action.6 So we prisoner to authorize § to seek relief. may not use to deter- must review those subsections (a) last, subsection And under —and (a) and prisoners subsections mine which (e) only those therefore under subsection — (d) § 2255. for relief under permit apply to prisoners “claiming federal sentenced ground upon [a] [that to released right be (d), per- as it Beginning with subsection (a) right to be specifies]” subsection —“the author- that subsection prisoners, tains to the sen- ground upon released claims from denied only appeals izes in violation of the Con- imposed tence was (a). result, As a under subsection brought States, or or laws of the United stitution prison- category of expand it does not jurisdiction to court was without that the by relief mo- apply “authorized to for ers sentence, or that the sentence impose such beyond what pursuant [§ 2255]” tion maximum authorized in excess of the was (a) provides. subsection law, subject to collateral or is otherwise attack,” bring id.—are “authorized” (a). By its I turn to subsection therefore § 2255 motion. (a) terms, applicant an subsection allows right to seek relief meeting qualifications “claiming four The clause (“A may ground[s] prisoner upon [articulated ... released under (a) ”). a restrictive clause ]”7 subsection move.... decision, retroactively applicable new obviously, rule today's at least 5. After Ironi- at 1150-51 & 1151 n.22. interpretation of law. See aspects of Williams’s some infra Majority and 2255(e) cally, though, if the is correct longer are no valid. Whether (h) (f) 2255(e) pris- also "authorize” jurisdictional subsections determination apply relief under fact sponte abrogation our oner to for sua withstands our 2255(e) Majority's criti- would undermine some prior interpretation in cases such my theory ways additional to those cism as Williams is unclear. (f) (h) do not subsections exist if (f) Majority argues that subsections 6. The un- prisoner to for relief "authorize” a (h) apply "authorize” a also id.; also id. at 1146. der 2255. See see language on the of these sec- relief. Based tions, at the are understood disagree. 7.The words "who is” respectfully But even if I that, right "claiming beginning clause right no Majority is about it would have upon ground[s] [articulated impact that the be released on the ultimate conclusion See, (a)].” e.g., William Strunk Jr. requires consideration of sec- subsection clause White, Style 16 The Elements based on a & E.B. claims that are ond or successive
H27
subject
reason,
Turning
that modifies the
subsec-
to the second
if Con-
(a)
gress had intended
custody
(e),
under subsection
tion
“[a]-—
Majority
as the
suggests,
to include as
of a court established
Act of
sentence
prisoners
“authorized” to bring a
Restrictive clauses limit and
Congress.”
motion,
prisoners
those
bringing any kind
subjects they modify,
and unlike
define
claim,
*47
of collateral
Congress
a ready
had
clauses, they
non-restrictive
are
set off
way
expressing
of
that —which it chose not
White,
&
by
supra,
commas. See Strunk
(e),
to use. In
Congress
subsection
could
Significantly,
“claiming”
in
clause
phrase
relied on the
prisoner
“[a]
in
(a) is not
from
separated
subsection
custody under
of a court
[order]
estab-
subject
by
plainly
a comma and is
by
lished Act Congress,”
of
similar to what
intended as a restrictive clause. It there-
(a)
it employed in subsection
before limit-
“prisoner
fore limits and defines the
in
ing
phrase
laundry
spe-
with a
list of
custody” clause. As Justice Scalia and
cific permissible claims. See 28 U.S.C.
noted,
Bryan
Congress
Garner have
(e).
2255(a),
§
so,
Congress
Had
done
“presumed
grammatical
to be
in
com-
[its]
would have authorized
any
consideration of
positions.”
Bryan
Antonin
&
A.
Scalia
Gar-
collateral claim of a
prisoner
federal
—not
ner, Reading Law: The Interpretation of
just
relating
collateral claims
to sentenc-
(2012).
reason,
Legal Texts 140
For this
ing.
only
prisoners
those sentenced federal
But
did
do that.
custody
claiming
specif-
who are
one of the
Instead,
it relied on- a different and
(a)
ic
violations set forth
subsection
slightly longer phrasing. Under subsection
“may move” for relief—and are therefore
(e)
Congress actually
it,
enacted
apply
by §
“authorized to
for
relief’ —
provision allows for consideration of an
motion.
application
only
prisoner
from
“a
who is
Majority incorrectly
contends that
apply
by
authorized to
for relief
motion
(e)
Congress intended under subsection
2255(e).
pursuant
to this section.” Id.
So
prisoners
bring
include as
“authorized” to
prisoner
“a
who is
apply
authorized to
for
motion,
prisoners
those
bringing
2255],”
by
relief motion pursuant to
id.
[§
any type
just
something
collateral claim at all—not
must mean
different than “[a]
custody
challenges
prisoner
to sentences that
of a
[order]
subsection
(a)
by
court
Act of Congress,”
established
id.
Maj. Op.
allows. See
at 1092-93. That
2255(a),
generally
because
seek to
“[w]e
independent
cannot be correct for three
respect Congress’ decision to use different
First,
above,
reasons.
as explained
the text
categories
terms to describe different
grammatical
structure of the
people
things.”
Mohamad
Palestini
Majority’s
clause do not bear the
proposed
Auth.,
an
Second,
interpretation.
comparison
(2012).
1708, 182L.Ed.2d 720
(a)
(e)
wording of subsections
does not
support
Majority’s theory.
finally,
And
And,
indeed,
phrase
does mean
the function of
2255 has
ever dealt
something
prisoner
different.
who is
“[A]
prisoners’ sentencing
with federal
claims
authorized to
for relief
motion
2255],”
and not indiscriminately
2255(e),
with all kinds of pursuant to
28 U.S.C.
[§
necessarily
collateral claims.
means
sentenced federal
2000)
hear.”).
(providing
example
ed.
as an
of a re-
couldn’t
clause, “People sitting
strictive
in the rear
Doing
imposed
expense
so
both the
custody who seeks relief on one
prisoner in
(a)— transporting
from their
specified
subsection
witnesses
of the claims
is,
custody
after
home district
to the district where the
a federal
judicial
“claiming
right
was housed and
cost
who is
sentencing,
requiring
judge
a second
to familiarize
ground
sen-
upon
be released
prisoner’s
with the
case and sen-
imposed in
of the Con- herself
tence was
violation
tencing.
Congress passed
2255 as a
of the United
So
stitution or laws
jurisdiction
any way
substitute that did not in
without
habeas
that the court was
sentence,
limit
but
scope
or that the sentence
the substantive
impose such
merely
the maximum authorized
shifted
forum
cases involv-
was in excess of
law,
ing
prisoners challeng-
sentenced federal
subject
otherwise
to collateral
or is
2255(a).
sentences,
attack,”
ing
their
to the district of the
id.
*48
court,
sentencing
often a district different
Returning
language
to the
of subsection
from the district of confinement. See id. at
(e),
provides
petition
it
that the habeas
of
263;
Pressley,
Swain v.
430
prisoner
apply
“authorized to
for relief’
372, 377-78,
1224, 51
97 S.Ct.
L.Ed.2d
if it
§
under
2255 “shall not be entertained
(1977).
has failed to
appears
applicant
relief,
practical
...
concerns that motivated
by
for
motion
apply
[§ 2255]
§of
remedy by
pertain
that the
the enactment
claims
appears
unless
also
involving sentencing
or ineffec-
and related conviction
inadequate
motion is
[§ 2255]
terms, §
challenges,
by
pro-
so
its
legality
tive to test the
of his detention.”
2255(e).
remedy
§
con- vides a substitute
for habeas cor-
language expressly
Id.
This
pus
only
clause allows
those collateral claims that
templates
petitions
only
sentencing
to consider habeas
raise
and related conviction
courts
(feder-
2255(a)
challenges.
§
of the four
prisoners bringing
those
one
See 28 U.S.C.
2255(a),
§
types
prisoners may bring
of claims articulated in
al
claims under
§
only'if
appears
“claiming
right
“it also
that the reme-
to be released
upon
ground that
dy by
inadequate
motion is
or ineffective
sentence was
legality
prisoner’s]
imposed
de-
in violation of the Constitution or
[the
to test the
laws of the United
or that the court
tention.”
jurisdiction
impose
was without
such
surprisingly,
straightforward
Not
sentence, or that the sentence was in ex-
entirely
interpretation is also
consistent
law,
cess of the maximum authorized
§
pro-
with
2255’s intended function—to
subject
is otherwise
[that
sentence]
vide,
practical
remedy
a more
substitute
attack, may
collateral
move the court
corpus
pris-
for habeas
cases
federal
vacate,
imposed
which
the sentence
set
challenge their sentences.
oners who
Con-
sentence”) (emphasis
or correct the
aside
§
gress enacted
2255 in 1948 to address
added).
problems
by large-scale
created
ad-
Indeed,
Among
the same
of financial
corpus.
ministration of habeas
oth-
concerns
judicial economy
practical problems,
expense
er
it was not economi-
and cost in
do
multiple
types
cal to haul
witnesses across the
in the context of other
claims,
country
hearing
for a
on a collateral chal-
collateral
such as execution-of-sen-
lenge to a sentence
a forum where the
tence
claims.
execution-of-sentence
claims,
located in
generally
had not been sentenced. See
witnesses are
filed,
§
2241 claim is
Hayman,
United States v.
the district where
(1952).
familiarity
prisoner’s underly-
H29 ing sentencing required 2255(a); § case and is not oí Congress,” id. claims, in sentencing
the same extent as if fact that only 2255 has ever dealt with required it is at all. prisoners’ federal sentencing claims and pretrial-de- execution-of-sentence or So collateral claims that do not raise claims, tention all demand the following challenges prisoner’s to a sentence have conclusion: the first limitation subsection brought been able to be habeas (e) unambiguously imposes on the avail- under 22418 since its enactment at the ability of habeas-corpus relief through the 2255,9 same time as and those claims requires petitioner that a in any way by have never been affected sentenced federal custody 2241; 2255. See 28 U.S.C. see also who is making expressly a claim author- Warden, Atlanta, Antonelli v. U.S.P. (a). ized subsection 2008) (“chal- F.3d lenges sentence, to the of a execution rath- “legality of his detention” itself, validity er than the of the sentence Next, (e) subsection filters the universe 2241”). properly brought are under of claims that qualifying prisoner may True, attacking collateral claims the validi- (a), otherwise raise under subsection allow- ty of a federal conviction and sentence ing through only those claims that test the normally may not be in a brought “legality applying prisoner’s] [the deten- petition 2241—but because *49 2255(e). § tion.” See 28 U.S.C. plain § expressly specific carves out those language phrase of this eligible limits § claims from 2241’s authorization of only claims to those where prisoner’s the courts’ consideration of habeas claims. See success his claim would result in a 2255(e). § § 28 U.S.C. Since 2255 does not period reduced of detention. non-sentencing cover claims in the first and, indeed, place, there is no need it for— example, prisoner may For be sen- saving would make no sense for—the tenced two or more concurrent terms of exempt § clause to from coverage 2255’s imprisonment. If that prisoner does collateral claims that do not raise sentenc- challenge the conviction or sentence ing challenges. longest period imprison- resulted the ment, (1) summarize, challenge “legality he does not plain meaning To and his detention.” That’s because even if that grammatical structure the text of sub- (e) claim, (a); prisoner succeeds on his he will sections the deliberate dif- remain legally ference detained for the exact same phrasing prison- between the of “a period er who is for which he was to detained by authorized to for relief be 2255],” claim, pursuant motion before he filed his since his unchal- [§ 28 U.S.C. 2255(e), prisoner lenged in custody requiring “[a] un- sentence that will remain instance, der sentence of a court saving established Act force. In that treatment, directly fer, 8. Section 2241 “descends from 14 ... or conditions of confine- 1789[,] Judiciary added). Act of author- (emphasis Though [which provides ment." it ized federal courts to issue writs of habeas jurisdiction they for no for such claims when corpus,] and the [that 1867 Act amended the combatants, by enemy are raised the unam- Judiciary Cyr, 1789].” Act of INS v. St. biguous negative implication is that courts n.25, U.S. 305 & 121 S.Ct. jurisdiction non-enemy-com- to entertain (2001). L.Ed.2d 347 prisoners’ petitions raising batant exe- cution-of-sentence claims. See Scalia & Gar- 9. Both statutes were enacted in 1948. Section ner, supra, at 107-11. 2241(e)(2) expressly petitions refers to habeas detention, "relating any aspect trans- 2255(a) Notably, “synonym-introducing or” prisoner’s not reach does See, Warden, Majority on “is exception that relies e.g., Brown v. FCC claim. Coleman-Low, typically set off commas.” Scalia & Gar- F.3d 2016) (“When ner, But supra, has one at 122. that is not case sentence, “inadequate or ineffective” his detention is with the words conviction and legal. saving How- in the clause. long as his sentence is legal ever, multiple sen- serving if a So, explain how it reaches this conclu- if tences, may legal even his detention “synonym- natural sion that the far less not.”). not all his sentences is So one of conjunc- introducing exception or” to the 2255(a) necessarily challenge claims tive/disjunctive applies to the “or” in canon “legality prisoner’s] detention.” And [a clause, saving Majority simply 2255(e)’s survive sec- only those that do reading of the states that “it is the better filter. ond the terms share the same ordi- text when Maj. nary meaning.” Op. at 1088. But this “inadequate to test” or ineffective reasoning circular: to decide the mean- 2255(e)’s Finally, we come to third ings “inadequate” and “ineffective” “inadequate or ineffective to test.” filter: clause, Majority relies on 2255(b). Congress’s use of the 28 U.S.C. exception, “synonym-introducing or” disjunctive phrase “inadequate in the it, turn, relies on because it finds which significance. When Con- ineffective” meaning. have the the words same “or,” “the gress employs the word words law, specialized is a area of the Habeas given separate are to be mean- connects law, specialized areas of the words - ings.” Loughrin v. United specialized with mean are often endowed 2384, 2390, 189 -, L.Ed.2d ings creating “terms of art” —as in the — (2014) (citation quotation and internal Indeed, case of the clause. both omitted). clause, in the marks So *50 are in “inadequate” and “ineffective” used “inadequate” and “ineffective” the words jurisprudence legal terms of art. habeas meanings. have different and distinct And Majority But the does not even consider “ór,” joined by are because these words . this fact prisoner must demonstrate that his claim Majority’s application And the satisfies one of these standards “synonym-introducing exception to the or” both): (though satisfy claims will the some conjunctive/disjunctive canon cannot be § remedy by 2255 must be either “inade- Majority’s the correct for another reason: prisoner’s “ineffective” for a quate” or “inadequate” and “inef- interpretation of 2255(e)’s § pass through claim to third does not equivalents fective” as definitional filter. any way saving in for the clause’s account Majority' resists this intuitive inter function. crucial constitutional-failsáfe See pretation, turning meaning the natural at 1132-34. infra view, Majority’s “or” on its head. the saving saving the uses “or” to the “or” in the clause indi- “introduce[ ] clause Since Maj. “ineffective” synonym equivalent.” “inadequate” or definitional cates that other, Garner, (citing meanings & have different from each Op. at 1087-88 Scalia 122). each encom- supra, Majority’s at So under the we must consider what word meanings the these analysis, Congress passes. intended for “inade We acquired through Supreme quate” and “ineffective” to mean same words precedent. habeas thing saving clause. Court .
H31
“inadequate
...
a.
to test”
1128), §
at
inadequate
if practical
effectively
actually
considerations
ren
Beginning
“inadequate,”
with the term
der the procedures
establishes un
appears
jurispru-
this term of art
equity,
jurispru-
dence of
of which habeas
testing
available for
the legality of pris
Boumediene,
part.
dence is a
553 U.S.
So,
oner’s detention.
example,
imagine
(“Habeas
‘is,
at
H33
2255(a)
(“The
§
minimum
that the
constitu-
must not
govern-
limited
brought
previously.
powers
principle
this claim
or the
of
nity” to have
by exceeding
pow-
constitutional
ment
its
minimum,
Suspension
the
Clause
At a
i.
ers.
claims al-
consideration
requires
of
Clause,
turn,
in
Suspension
safe-
imprisonment
leging
prisoner’s
that a
corpus,
guards the writ of habeas
so
government
in excess
imposed
was
of
necessarily constitutionally requires con-
powers.
revealing that a
sideration of claims
considering
types
the
of
begin by
We
its
government
branch of the
has exceeded
requires
Suspension Clause
claims that the
powers to the same extent
constitutional
precedent
Supreme Court
be heard. As
Indeed,
that habeas does.
demonstrates,
Suspension Clause de-
explained
Suspension
that the
raising
claims
chal-
consideration of
mands
“protects
rights
of the detained
Clause
imposed
a sentence was
lenges that
a means consistent with
essential
pow-
valid
government
of a
branch’s
excess
...
design of the Constitution
to maintain
ers.
governance’
the ‘delicate balance of
that is
safeguard
liberty.”
itself the surest
of
described the
Court has
Boumediene,
745,
at
553 U.S.
128 S.Ct.
powers as the “essential de-
separation of
(quoting
Rumsfeld,
Hamdi v.
Boumediene,
sign of the Constitution.”13
507, 536,
2633,
159 L.Ed.2d
745,
help
at
H35
-
2255(e)
Kebodeaux,
U.S. -,
reveal
the claims under
for
133 S.Ct.
constitutionally
(2013).
can
So,
which
defi-
H37
1604; Welch,
Bailey,
136 S.Ct. at
Court construed
924(c)(1), which,
time,
1264-67.
U.S.C.
at the
imposed prison
upon
term
person
who
what
And
does
Court use
“during and
relation
any
.... drug
qualifies
to determine whether a new rule
trafficking crime ... uses or carries a
a new rule of substantive law?
Our old
firearm,”
require
evidence that the de
separation-of-powers
friends the
doctrine
actively
fendant
employed the firearm dur
limited
and the
principle
government
*56
in
ing and
relation to the predicate crime.
course,
of
powers,
retroactivity
since
doc-
142-43,
Bailey, 516 U.S.
gress meant
substantive rules are retro-
new
prohibited
imposing
from
likewise is
very reason that “where the
active for the
beyond what Con-
punishment
criminal
in
au-
conviction or sentence
fact is not
by a
law.
gress in fact has enacted
valid
law,
by’
finality
...'
thorized
substantive
power
a court lacks the
In either case
are at
weakest. As Justice
interests
their
that has not been au-
penalty
exact a
is little societal
explained,
Harlan
‘[t]here
by any valid criminal statute.
thorized
permitting
process
interest in
the criminal
(citation omitted).
Welch,
H39 congressionally imposed it exceeds statu- tained under challenged provision tory maximum. separation violation of the powers or the principle of government limited always ex- is, All of this—that the existence of ret- regardless of whether that new rule that, isted — roactivity analysis for pur- —shows statutory or constitutional in nature. poses understanding meaning “ineffective,” timing everything when it Nor has the Supreme Court suggested having comes to a “meaningful opportuni- that a different standard of retroactivity ty” opportunity that is not constitu- applies for second or successive claims —an tionally present deficient—to claims that than for initial claims on collateral review. ultimately governed by are new rules of Why it? discussed, would As we have substantive law. separation-of-powers doctrine and the principle of government limited powers are Bousley,
And as
involved a new
which
animating
why
reasons for
a new rule
law,
Welch,
statutory
rule of
which
of substantive law must
retroactively
concerned a new rule of constitutional
applicable on collateral review. A sentence
law, show, the separation-of-powers and
imposed in excess of the court’s constitu-
limited-government-powers
concerns are
tional authority
separation
violates the
exactly
retroactively
the same for both
powers just as much if it is raised in a
applicable
new rules of
law and
second or successive claim as it
if
does
it is
retroactively applicable new rules of con-
raised
an initial claim.
Compare Bousley,
stitutional
law.
(statutory
rule),
(con-
Welch,
with
at
one on an initial claim any more than it is
rule).
reason,
stitutional
For
new on
claim
direct review if the initial
is de
statutory and constitutional rules must be
retroactively
nied and a new
applicable
retroactively applicable on collateral re-
rule subsequently establishes
that
cases',
view to the same extent. In both
a
right not to be detained under the detain
government
branch of the
has exceeded
case,
ing mechanism at issue in the
powers.
its constitutional
So on initial col-
separation
violation of the
of powers and
review,
petitioner may
lateral
a
make a
principle
government
of
pow
limited
Supreme
claim based on the
Court’s new ers,
always
existed.
28 U.S.C.
Cf.
during
petition-
rule that did not exist
2255(h)(2)
(permitting consideration of
direct appeal,
though
peti-
er’s
even
second or successive claims based on a
opportunity
tioner had the
to raise the
retroactively applicable new rule of consti
appeal.
same issue on direct
law).
Suspension
tutional
Because the
preserves
Clause
protect against
habeas to
just any opportunity
That’s because not
government action in excess of constitu
to raise an issue will do under habeas
tional powers,
Suspension
Clause re
corpus jurisprudence;
comport
with con-
quires consideration of second or
requirements,
stitutional
succes
opportunity
rely
retroactively
to raise an
sive claims that
on a new
meaningful.
issue must be
And
opportunity
applicable
an
rule of
that
direct review is not
law
was not avail
meaningful if a
during
appeal
claim is denied and a new able
direct
or earlier collat
retroactively
here,
applicable
subsequently
proceedings.16
rule
eral
it
For
“where
that
right
establishes
not to be de-
conviction
sentence
fact is not
reason,
test,
Bryant’s
16. For this
see 738 F.3d
the time of his first motion to vacate in order
requires
binding prece-
through
which
for the
to access habeas
clause,
prisoner’s
dent have foreclosed the
claim at
cannot be correct. Under
law,”
an initial or
that “final-
ture and whether raised as
by substantive
authorized
Welch,
collateral claim—we
weakest.”
second
successive
are at their
ity interests
fact,
allows for
review whether
at 1266.
Clearly,
claims.
it
consideration of such
course,
say
that no
is not
Of
retroactively ap-
based on
does for claims
here,
limi-
play
for
are
finality interests
new constitutional rules. See 28
plicable
exist on the habeas-
can and do
tations
2255(h)(2).
language
express
U.S.C.
a claim based on a
bring
corpus right
(h)(2) provides that
sec-
“[a]
of subsection
rule of sub-
retroactively applicable new
motion must be certified
ond or successive
corpus
peti-
entitles
law. Habeas
stantive
by
panel
in section 2244
of
provided
as
meaningful opportunity to
tioner to one
appeals
court of
to con-
appropriate
if,
example,
his claim. So
present
law,
a new rule of constitutional
tain —
a claim based on a new
prisoner presents
retroactive to cases on collateral re-
made
retroactively applicable rule of law
Court,
pre-
view the
was
loses,
habeas-corpus rights have been
viously unavailablé.”
satisfied,
may not continue to file
and he
claim,
raising the same
see
petitions
new
expressly
§in
allows
nothing
But
2244(a),
without the
28 U.S.C.
consideration of second or
successive
intervening
an
new
having issued
Court’s
raising
retroactively applicable
claims
retroactively applicable rule.
statutory
contrary,
law. On the
new rule of
2255(h),
conjunction
with
28 U.S.C.
per-
not otherwise
2255 does
C. Section
§ 2244
provisions
incorpo-
second or succes-
mit consideration of
reference, precludes consideration
rates
rule
claims based on a new
sive
relying
retroactively applica-
claims
on a
statutory law that reveals a violation
rule of
law. Because the
ble new
separation
powers, so such
requires consideration
Suspension Clause
cognizable
must be
claims
yet §
of these claims and
2255 otherwise
2255(e).
2255(e)
them,
per-
must
does not allow
bring
that habe- mit a
such claims
an
Now that we have established
corpus.17
requires
peti-
application
of a.
for writ of habeas
consideration
*59
rely
since McCarthan seeks to
on a
retroactively ap-
claim based on a
And
tioner’s
retroactively applicable rule of statu-
rule of substantive law— new
plicable new
he
statutory
tory
in na-
law that was not available when
whether constitutional or
2255(h)(2).
Congress
my
§
Bryant,
enacted
Based on
whose claim is
one
however,
precedent,
Supreme
review
precedent
squarely
that establishes the
that
2255(h)
§
that
was
I believe the answer is
the claims of those who come after
forecloses
Congress’s effort to ensure that constitutional-
meaningful opportunity
present
him has no
ly required second or successive claims not be
claim based on the
his second or successive
precluded by
But
AEDPA’s amendments.
statutory
retroactively applicable
new
rule of
1996,
2255(h)
Congress
§
enacted
when
present
law that allows those who follow to
yet
Court had not
ruled
new
once the
their second or successive claims
statutory
just
rules could be retroactive
like
retroactively
Court issues its new
Instead,
new
rules could be.
constitutional
applicable
rule of
law.
time, as far as claims based oh retroac-
concerned,
why Congress
tively applicable new rules were
might wonder
did
17. A reader
along
Congress likely
type
with
understood the Constitution
not enumerate this
of claim
2255(h),
require
§
consideration of
those claims
types
the two
of claims listed in
2255(h)(2).
rules of constitu-
particularly
question
§
ini-
based on new substantive
This
law,
Mackey
extensively
as Justice Harlan's
concur-
tially
me as well. So I
tional
bothered
2255,
suggested. Mackey, 401 U.S. at
legislative history
§
rence had
examined the
for
684,
J.,
(Harlan,
concurring).
why
explanation for
H41
2255(e)
petition,
his initial
scope
filed
“addressed the
for
authorizes consideration of his claim.18
executive detainees
‘where no trial has
distinguished
been held’ and
decisions like
Because the district court did not con-
Felker, which a
sought relief
sider McCarthan’s claim on the merits in
judgment
imposed
‘fair,
from a
in a
adver
instance,
the first
I would reverse the dis-
”
sary proceeding.’ Maj. Op. at 1094-95
trict
court’s dismissal of McCarthan’s
Boumediene,
(quoting
732, 774,
553 U.S. at
claim
remand
for consideration of the
2229).
782, 128
face,
On its
might
merits.
good way
seem like a
distinguishing
II.
Boumediene —until we look at how this
Majority’s
my proposed
The
criticism of
uses Boumediene.
actually
dissent
interpretation
clause focuses
First,
on Boumediene primarily
rely
I
(1)
reliance on Boume
things:
my
on three
principles
for citation of
universally appli-
diene,
(2)
723,
2229; my
553 U.S.
128 S.Ct.
cable to habeas corpus
Suspension
and the
retroactivity
conclusion that
doctrine is
regardless of
posture
constitutionally
Clause —
required; and
the al
litigating prisoner.
example,
For
I cite
Felker v.
leged mooting
my theory by
Boumediene
interpretation
its
Turpin, 116 S.Ct.
Hayman
Swain standing
as
for the
(1996).
Majority
L.Ed.2d 827
mis
proposition that
failure to interpret
taken on all three counts.
saving clause as a constitutional
failsafe
Majority’s
A. The
my
attack on
reliance
question[s]
would raise “serious
about the
on Boumediene does not withstand
Swain constitutionality of [§
2255].”
scrutiny.
Hayman
prisoners
involved
who had al-
Majority
my
ready gone
“fair,
takes issue with
through
presumably
reli-
ance on Boumediene
adversary proceeding”
because
case
and had been sen-
2255(h)
Congress's
Hayman
So while I read
as
proposition
at-
stand for the
that the
tempt
preserved
Suspension
ensure
habe-
Clause does not resist innovation
2255(e)
Boumediene,
scope,
corpus.”
as’s constitutional
I read
in the field of habeas
Congress
tandem a
553 U.S. at
failsafe mechanism that
but it did not. To the
that an
extent
*60
omitted)).
Congress may
So the fact that
have
might
Congress kept
be made that
the
scope
narrowly
viewed
of habeas
in 1996
separate
for the
reason that the clause
Supreme
no
is
answer to the
Court’s current
provide
practical
was needed to
relief where
arose,
explanation
Suspension
Clause’s consti
Congress
considerations
could have
scope.
tutional
expressly
amended the clause to
limit it to
situation,
by explicitly referring
that
such as
"practical
course,
by removing
to
considerations” or
18. Of
to the extent that McCarthan
language
Again,
"or ineffective.”
it did
procedurally
gov
defaulted the claim and the
might
defense,
not. And
extent that some
note
ernment raises this as an affirmative
always require
that habeas
did not
McCarthan would have to show "cause and
retroactively
what are now
prejudice”
considered to be
for the default or “actual inno
applicable
new rules of
construction
cence” in order for his claim to be considered
retroactively applicable,
Supreme
to be
Bousley,
on the
See
at
merits.
621-
"Felker, Swain,
Court has stated that
and
H43 detention in violation of the un- they claim, “doctrinal cause even when act to bar a is, derpinnings of habeas review”—that de- they meaningful do not bar a opportunity separation tention violation present words, the claim. In other it is powers principle and the govern- limited possible review, to obtain collateral long so powers. ment petitioner complies with these pro- cedural rules. Majority has no sufficient answer to Instead, responds by confusing this. it two But that is not the case with a second or distinct concepts: retroactivity doctrine claim successive that rests on a new retro- First, procedural barriers. See id. actively applicable statutory rule of law. At states, Majority the Supreme “When every stage of the proceedings through right retroactively Court makes a available review, initial collateral a petitioner may review, collateral does not mean that argument raise the on which the new rule prisoner is constitutionally entitled to (thereby is based not procedurally default- have a court review a violation of that ing) may file a second or successive right agree. on the merits.” Id. I But a year claim within a of the Court’s constitutionally entitled to a announcement of a retroactively applicable meaningful opportunity to have a court new rule of law. But in the ab- right review a violation of that on the clause, sence of the provides merits. opportunity present no the claim if the Majority appreciate does not the Supreme recognize, Court does not until meaningful opportu- difference between a after the initial collateral claim has been nity to a claim unquali- heard and an of, disposed right always that the ex- right constitutional to have a claim isted. And since the doctrinal underpin- fied heard, regardless prior availability nings of constitutionally habeas require meaningful opportunities to have done meaningful one opportunity present so. So it next the existence of invokes claim on a retroactively applicable based procedural procedur- barriers such as the statutory law, rule of Majority’s con- al-default rule and the statute of limita- struction of not to provide such an supporting tions as evidence its incorrect opportunity suspension amounts to a premise. Id. writ. sure, procedural pro-
To be barriers like C. Felker does Majority’s not solve the cedural default and the statute of limita- problem. may constitutionally tions preclude pris- bringing oner from his claim aon new In response problem, Majori- to this retroactively applicable rule. But that has ty Maj. Op/ invokes Felker. at 1095. The nothing why retroactivity to do with doc- Majority “interpreta- reasons that its own constitutionally required. trine is or is not suspend tion of the clause cannot anything Nor does it have to do with Original writ because Writ meaningful whether a has a op- available, Supreme Court remains portunity bring procedur- his claim if he at common law did not ally defaults it or files it after the statute prisoners compe- sentenced a court of expired. of limitations has jurisdiction, tent and the decision of the Procedural barriers like procedural upheld de- Court in Felker ... a bar fault and against the statute of limitations can on successive motions constitution- constitutionally Maj. limit access to collateral challenge.” Op. al at 1093-94. None of through retroactivity review in- arguments Majority’s doctrine be- these saves the *62 adjudicating prisoners’ federal from con- courts saving clause terpretation of the federal like McCarthan’s enforce claims peril. stitutional correcting values separation-of-powers Majority’s third ar- the Beginning with Article or sentences where an convictions first, that the Majority asserts gument au- congressionally its III court exceeded sup- in opinion Felker Supreme Court’s powers. thorized limitations the conclusion ports 2255(h) pro- a federal collateral aspect That on second or succes- places present is not ceeding like McCarthan’s constitutional. are absolute and sive claims a adjudication pris- state a federal-court premise based on the argument This can- A state court petition. or oner’s habeas that the second succes- that Felker held separa- act in violation of the federal seeking not prisoners for state sive restrictions the state court is relief, powers tion of because codified at 28 U.S.C. federal habeas Judiciary. part a of the federal So 2244(b),19 Suspension do not violate Felker, § 2254 does not contain surprisingly, Clause. See clause, unlike with habeas re- are since Because those restrictions S.Ct. 2333. cases, review of habeas second or suc- view of federal significantly similar to the 2255(h), separation-of- state cases does not raise and be- cessive restrictions con- powers limited-government-powers or limitations on successive state cause the clause, result, in Felker had cerns. As a the Court not contain a petitions do not consider the does, no reason to and did argument goes, like 2255(h) analysis in its be- separation powers must be constitu- restrictions Here, 2244(b) case. cause it was irrelevant are con- tional if the restrictions contrast, doc- separation-of-powers Maj. at 1095. Op. stitutional. See analysis trine drives the appealing, but logic superficially meaning. clause’s it fails to take into account fundamental Majority responds important to this prisoners’ federal col- difference between and state habe- habeas difference between federal prisoners’ lateral claims and state “ by calling ‘interpretive jiggery-pok and limited- separation-of-powers claims: ” “ignore[ I ery’ suggesting ]” concerns can constitu- government-powers govern principle for federal fact that the of limited tionally require habeas relief corpus. animates habeas powers are irrele- ment also prisoners, while these doctrines Burwell, Maj. King v. availability Op. (quoting of ha- at 1095 determining vant to - -, 2480, 2500, 192 Federal prisoners. relief for state beas (B)(i) 2244(b) predicate the claim provides, the factual for 19. Section (b)(1) previous- not have been discovered presented A in a second or could claim corpus application under diligence; successive habeas ly through exercise of due presented prior 2254 that was in a section application shall be dismissed. claim, (ii) underlying if the facts presented A claim second light evi- proven and viewed in corpus application un- successive whole, would be sufficient to dence as presented that was not der section 2254 convincing evi- establish clear prior application be dismissed in a shall error, that, but constitutional dence unless— factfinder would have no reasonable (A) applicant the claim shows that applicant guilty underly- found law, relies on a new rule of constitutional ing offense. made retroactive to cases on collateral Court, by the that was review unavailable; previously
H45 (2015) (Scalia, J., Felker, dissenting)). In the L.Ed.2d Court held that 2244(b)’s irony Majority’s in Setting aside the the stripping of Supreme the point: charge, Majority the misses the the jurisdiction appellate Court’s to review powers of limited principle government court of denial appeals’s of a prison- state context of habeas is the principle the er’s motion for leave to file a second habe- not government may federal exceed the petition as in the district court not did powers granted to it the Constitu- Supreme original juris- affect the Court’s separa- concept tion. Neither this nor original diction to entertain habeas peti- tion-of-powers doctrine when a play Felker, 658-61, tions. See U.S. at grants court ha- prisoner’s federal a state This S.Ct. 2333. conclusion consequently context, petition. In that the state’s beas the need to address the con- “obviate[d]” adjudication yields of a claim to federal stitutionality Congress’s jurisdiction- interpretation of law governing under Clause; stripping under the Exceptions supremacy of federalism and principles Supreme juris- since the Court retained its concepts of federal distinct from the law— original diction to entertain an petition, the and the separation-of-powers doctrine reasoned, plausible Court “no argument” principle government limited drive 2244(b) could exist that violated the Ex- prisoners. for federal habeas ceptions Id. at Clause. 2333. Majority suggests also that we need consider the in in- Suspension Clause Then the Court turned for the first time clause because a terpreting 2244(b) challenge to the under petitioner has an would-be like McCarthan Suspension Significantly, Clause. the Court obtaining route for the relief he alternate did not rule that-those restrictions did may petition “Original he for seeks: an Suspension violate the Clause because the In Supreme sup- from the Court. Writ” “Original was still Writ” available in Pryor’s port, Majority Judge cites con- Supreme any for number Samak, turn, which, currence cites precluded claims the seeond-or-succes- Maj. Op. See Felker. 1094. fact, sive the Court in analysis bar. its Suspension Clause issue did not reading dispels But careful of Felker the origi even consider Court’s notion that the the Origi- existence of jurisdiction nal to hear petitions. Congress preclude nal Writ allows relief 2244(b) Instead, the Court held that the second or required successive claims passed restrictions muster under the Sus Suspension permit- Clause substantially pension they Clause because sure, To be Felker on the avail- ted. relied mirrored common-law habeas rules. id. ability original ju- Court’s 664, 116 2333. Felker requires thus challenge to strike risdiction down a 2244(b) us to ask not whether the narrowest ave under the Clause.20 Exceptions Writ, relief, such as the Original nue for Notably, though, rely on it chose not to exists, still but rather whether the statuto availability jurisdic- original the Court’s ry provision adequately at issue challenge to strike down a substi tion 2244(b) Suspension under the Clause. tutes for common-law habeas rules. Exceptions provides, Exceptions, Regulations and under Clause rele- such part, III, vant "In all the other Cases ... shall make.” U.S. Const. art. supreme appellate Court shall Jurisdic- 2,§ cl. 2. tion, Fact, both as to Law with such materially differ- at issue in Felker was or successive comes to second itWhen Original more conducive to ent—and far retroactively applicable based on claims *64 under the law, availability that at issue statutory the review—than Writ new rules Felker, In the Court relied adequately not clause. Original does of the Writ safeguard jurisdiction habeas rules original for common-law on its substitute incorrect decisions against three reasons. individual for denying make in might court appellate an First, that the Su- it is not even clear on the mer- availability of habeas relief the jurisdic- original have would preme Court these hope We would given its of a case. expressly claim that is to entertain a tion few, any relatively but cases would be 2255(h). If, Majority the by § as precluded 2244(b) event, does not on procedure the concurrence Judge Carnes’s and Chief class of deny relief to an entire its face Maj. atOp. see effectively argued, are entitled to prisoners who we know 1100,-only a 1093-94; Op. at E. Carnes relief. or successive claim second prisoner whose 2255(h)’s “author- bars is
complies with
however,
That,
the situa
would not be
there-
2255 and
proceed
ized” to
if
with second or successive
prisoners
tion
2255(h)’s
clause, §
under the
fore
retroactively applicable
claims based on
arguably restrict the
then also
bars would
statutory
all had to use
new rules of
law
Felker, 518
U.S.
Supreme Court.
Original
to obtain relief to which
the
Writ
Cf.
(pondering
ap-
the
H47
view,
Majority’s
in the
could en-
I respectfully disagree.
system
Such a
(internal
view. the lack of a mean- First, fatal three flaws. it defies the statu- ingful system habeas review would violate tory text purports Second, it to respect. it the Suspension Clause. shortchanges Supreme jurispru- Court putting Majority’s argument So the in dence on Suspension Clause and habe- light, question the best is one of de- corpus. third, And it inexplicably limits gree. respectfully I submit that using the the meanings general definitions it Original regular only pro- Writ as a cites to shoehorn them into supporting the cessing mechanism an entire class of Majority’s incorrect construction of the second or successive claims that are consti- saving clause. tutionally required to be considered amounts to not providing meaningful a ha- A. Majority’s interpretation system beas-review for those claims. It saving clause contradicts the text of repeating bears the claims we are § 2255. talking required by Suspen- about are sion Clause to receive consideration. Though question my I do not colleagues’ proposed earnestness their construction Majority’s
As for argument that ha- clause, Majority opinion’s beas corpus apply at common law did not approach deciphering prisoners text of sentenced court of com- jurisdiction, 1094-95, disappointingly, is like petent Maj. Op. something right out at of Alice’s Adventures in itself has noted that Wonderland.21 “Felker, Swain, True, Hayman Majority opinion repeatedly stand for proposition analysis that the claims that its Suspension nothing Clause does more does not resist innovation in the than plain meaning field of 2255’s Boumediene, See, corpus.” 1080, 1082, e.g., Maj. Op. 553 U.S. at text. Carroll, active-use/pdi/Alice_in_Wonderland.pdf (last 21. Lewis Alice's Adventures in Won- (BookVirtual 2000), Digital derland Ed. 3, 2017). v.1.2 accessed Jan. https://www.adobe.com/be_en/ available for the necessary, or works 1095-97, saying designed, so—no 1099. But (or, as the Mock Turtle purpose times —doesn’t make asserted many matter how interpre- say, “for the assert- fact, Majority opinion’s might In Wonderland so. Carroll, sig- at 154- supra, text clashes porpoise”). tation of the ed actually the text ways what nificant with says. Majority responds problem to this starters, Majority opinion seems For theory saying that the defect its that exeeu- when it asserts
most confused nothing about whether “proves may brought un- claims tion-of-sentence change in caselaw with a claim based on support of its saving clause. der the claim on actual or a with a based opinion reasons that Majority theory, the Maj. satisfies the clause.” innocence “ ‘inadequate or ineffective 2255 is It Op. at 1093-94. True. doesn’t. claim about the execution prisoner’s test’ But not intended to. The first section it’s that claim is of his sentence because already why a explains dissent 2255(a).” Maj. section cognizable under retroactively applica- claim on a new based deleted; original (emphasis atOp. *66 statutory interpretation ble rule of —not added). emphasis caselaw,” as the Ma- just any “change exactly why execution-of-sen- But that’s my dissent jority incorrectly characterizes under the brought be tence claims cannot under the arguing be considered —must are those claims saving clause—because incorrect- saving clause. I write about the Proceeding § under 2255. cognizable Majority’s argument solely in ness of the actually § that type a of claim on prevent sup- our Circuit from an effort to prerequisite for authorizes is an absolute eighteen years precedent with planting to considered under petition habeas be that can- interpretation of the law another 1124-29; see supra at saving clause. See all, you “if possibly be correct. After 2255(e) (the peti- § also 28 U.S.C. ‘poison,’ ... from a marked it drink bottle “authorized to tion of a you, disagree almost certain to with is ... not be by motion shall [§ 2255] relief Carroll, supra, at 10. sooner or later.” appears ... unless it also entertained does Majority’s textual confusion remedy by motion is inade- [§ 2255] its incorrect insistence not end with legality to test the quate or ineffective may claims execution-of-sentence added). detention”) uni- (emphasis Rather, saving brought under the clause. “authorized,” § of claims that verse Majority’s interpretation just gets however, include execution-of- does not Carroll, supra, and curiouser!” “[c]uriouser Majority’s by the claims—even sentence pris- Majority also asserts that at 15. The it make sense for admission. Nor would “ a crimi- ‘[kept] custody’ without oners claims to be consid- execution-of-sentence heard may nal sentence” have their claims they saving clause because ered under Maj. saving Op. clause. through the § under without re- are authorized 1089. Antonelli, 542 F.3d at gard to 2255. See 1352. opposite precisely But unambiguous lan- saving what the clause’s an execution-of-sentence bringing
So Only who have guage permits. prisoners saving § 2255’s clause would claim under by a federal court already been sentenced putting gear lot like scuba be a saving underwater; advantage take eligible are so it could breathe swordfish to do so to only they need gear nor scuba clause—and neither the clause
H49 did, prisoners access habeas relief because who Majority would not need to invoke yet have not been sentenced are not sub- canon.
ject may pro- 2255’s strictures and Second, to the extent gener- directly ceed supra al/specific canon even applies to the analy- 1124-29. That’s because the sis of in invoking the general/spe- presented allows consideration of claims construction, cific canon of Majority by only prisoners those “authorized ap- gets backwards; things wrongly charac- ply for relief [§ 2255] motion.” 28 terizes the clause as the general 2255(e). turn, U.S.C. Section (h) provision and subsection as the more only authorizes the prison- claims those specific provision. The general/specific can- ers “under sentence of court established on states that “[i]f there is a conflict be- 2255(a) Act of Congress.” Id. (empha- general provision tween a and a specific added). sis provision, specific provision prevails.” Garner, Sealia & supra, at 188. This canon that, only Not but 2255 authorizes relies on the principle that provi- “the two solely challenging those claims sentences. conflict, sions are not in but can exist in Only in See id. Wonderland would it make harmony.” Id. at 185.As Justice Sealia and sense for an unsentenced bring Bryan explained, Garner have specif- “The challenging claim his sentence. Car Cf. provision ic does not negate general (“Sentence roll, supra, at 187 first—verdict entirely, one but application its afterwards.”). the situation that specific provision Majority goes But the deeper even down covers.” Id. hole,
the rabbit
asserting next that
*67
Applying
general/specific
the
canon can
saving clause does not allow for consider-
be challenging because it is
always
ation of second or successive claims that
easy to ascertain
provision lays
which
the
satisfy
requirements
do not
the
of subsec- general
specific.
rule and which the
Id. at
(h)’s
tion
bar on second or successive 187; see also
at
(quoting
id.
Radza
1089-91;
Maj. Op.
2255 motions. See
at
Co.,
nower v. Touche Ross &
see also E. Carnes
atOp.
Major-
1100. The
H51 Court, unavailable,” previously that was 28 cases on collateral review. As a matter of 2255(h)(2), U.S.C. must also assert a fact, then, accounting for the Majority’s “right newly recognized has been by [that] (e) view that subsection incorporates sub- Supreme retroactively Court and made (f)’s section limitations, statute of second applicable review,” on cases collateral or successive claims that depend on new 2255(f)(3). § id. retroactively applicable statutory rules of right right That is the protected by the 225,5’s law do not evade statute of limita- Suspension Clause not to be detained in tions.22 separation violation of the of powers or the Second, even if
principle government of limited second or powers, successive through impermissible interpretation claims “right based on a has [that] been of the statute or other device used to newly recognized by Supreme Court prisoner, detain the that has since been and made retroactively applicable to cases by invalidated Court’s retro- review,” on 2255(f)(3), collateral do id. actively applicable new rule of substantive limitations,23 avoid the statute of statutory. law—whether constitutional or grounds sufficient to disregard the sav- (f)(3) And since imposes subsection a one- ing clause’s constitutional-failsafe function year statute of limitations on all claims interpret prohibit 2255 to claims involving retroactively applicable rights— constitutionally that are required. If Con- respect they without to whether are based gress wants to impose a statute of limita- on a statutory new rule of or constitutional claims, tions on saving-clause nothing law—if it is incorporated into subsection stops it from doing so.24The same is true (e), necessarily imposes a one-year stat- requiring prisoners to seek a certificate ute of limitations on second or successive appealability bring to' claims based on a a right depends claims raise on a new retroactively applicable rule rule statu- statutory new law made retroac- tively applicable to tory law. upshot 22. The Majori- petition of this fact is that the tion 2255 can for a writ of habeas (f) (h) ty’s contention that subsections corpus. Maj. Op. at 32-33. That has never prisoners apply Rather, “authorize” for relief my argument. been I contend that a motion, Maj. Op. see prisoner whose second or successive sentenc- bearing no ultimate construction of the ing by § claim is otherwise barred 2255 from require clause to consideration of sec- being brought may have his claim considered rely ond or successive claims that aon new under the if failure to con- retroactively applicable statutory rule of law. sider the claim would render 2255 constitu- (f) (h) Even if subsections "authorize” deficient, tionally as in the case of second motion, prisoners by § for relief retroactively ap- successive claims based on a (f) necessarily means that subsection im- plicable new rule of law. *69 poses one-year statute of limitations on sec- rely ond successive claims that on a new 24. Indeed, exactly that’s what did law, retroactively applicable statutory rule of respect with to the claims identified at begin which does not to run until the Su- 2255(f) passed when it AEDPA. Before preme recognizes right by the announc- enacted, AEDPAwas habeas doctrine' allowed rule, ing (h) give new the and subsection must petitions courts to consider "filed even after way saving to the clause to the extent its extraordinary delays.” Day McDonough, v. failure to do so would cause 2255 to violate 198, 215, 547 U.S. 126 S.Ct. Suspension the Clause. (2006) (Scalia, J., dissenting) L.Ed.2d 376 ‘ (citing Majority inaccurately petitions
23. The
cases where
were entertained
characterizes
taking
position
years,
years,
years
any
dissent as
the
and 24
after the
sentenced).
any procedural
filing prisoner
who fails
bar in sec-
was
undertake this
understanding. When we
the
Interpretation
Majority’s
B. The
jurispru-
change in our
of drastic
type
Su-
Ignores Critical
Saving Clause
dence,
responsibili-
deepest
have the
we
Precedent.
preme Court
new solution
try to ensure that our
ties to
sav
interpretation of the
support
To
its
accounted
at least that it has
is correct —or
clause, Majority’s opinion purports
ing
concerns.
for constitutional
dictionaries, Judge
rely primarily on
Samak
Pryor’s concurrence
William
short shrift to
Majority gives
But the
Coleman-Medium,
Warden,
766 F.3d
FCC
barely men-
Suspension
Clause
(W.
2014)
(11th
Pryor,
Cir.
1275-95
impor-
retroactivity doctrine or
tions
J.,
the Tenth Circuit’s
concurring), sepa-
of the
jurisprudence
in habeas
tance
Anderson, 636 F.3d
in Prost v.
decision
principle
ration-of-powers doctrine and
(on
2011)
Judge
which
Having a
government powers.
of limited
concurrence,
turn, re
Pryor’s Samak
saving
clause without
discussion about
.
lies)
con-
into all of these constitutional
delving
Prost, however, specifically declined
trying
play
like
football
cepts is a lot
when,
“whether,
ap-
how the
consider
correctly.
done
a ball: it can’t be
without
2255(h)’s
limits on second
plication
saving clause is to save
point
of the
(ever) raise a
might
motions
successive
any
unconstitutional
potential
§ 2255 from
question.”25 Id. at
constitutional
serious
1132-34;
at
see also Boume
ity.
supra
(acknowledging
594;
n.4
also id. at 583
see
diene,
2229. If
may require
Clause
Suspension
permit
did not
consideration
attack”). So
of collateral
“some avenue
constitutionally required, it
claims that are
not account for—and
analysis does
Prost’s
supra
unconstitutional. See
would be
for—the Sus-
purport
to account
does
addressing the Constitu
1132-34. So
and its attendant constitu-
pension Clause
Suspension
particular,
tion’s—and
expressly
Yet Prost
tional considerations.
critical to the
requirements
Clause’s—
the extent that
2255’s
recognized that to
saving
clause.
interpretation
correct
motions vio-
on second or successive
bans
doc
separation-of-powers
since the
And
Constitution, § 2255 could not be
lated
principle
govern
of limited
trine and
(“[Courts] [Wav-
id. at 586 n.6
upheld. See
Suspension
Clause’s
powers
ment
drive
(if different) hierarchy
our own
ing created
claims,
con
we must
protection of habeas
claims,
say
it’s hard to
Con-
of innocence
of those doctrines as well
sider the role
own—
entitled to enact its
gress wasn’t
Final
clause.
when we construe
hierarchy in
particular
course its
unless of
require
same concerns
ly, because these
way can be said to violate
Consti-
some
retroactivity of new rules of both constitu
tution.”).
law,
we must also
tional and
posture
than the
are
a different
We
retroactivity
analysis.
in our
account for
abrogate nearly
Today we
Tenth Circuit.
analysis
all
Majority’s
But the
dismisses
precedent on our inter-
years
of Circuit
adequate reason-
replace
of these concerns without
clause and
pretation
Felker for
Majority’s reliance on
ing.
framework of
entirely
an
different
with
appears
detention claims. That construction
Though
Majority claims to follow
clause,
interpretation
*70
the
see
purely
Prost's
of
of
originated as
an invention
to have
adopt
Maj. Op. at
Prost also does not
Samak,
Judge Pryor’s.
H53 Original-Writ to the Suspension applicable its answer rule of law.26 aAs result, problem Felker the Majority’s interpretation Clause fails because does of the Suspension problems saving not hold that Clause clause renders 2255 unconstitu- may be the existence by origi- resolved of tional. jurisdiction. at supra
nal See 1143-48. Nor C. The Majority’s interpretation relies the Majority importance does address the on artificially definitions, limited the separation-of-powers of doctrine and contorted to the Majority’s desired government principle powers of limited fit construction saving clause. in habeas and Suspension jurispru- Clause of And Majority Opinion dence. while the The Majority identifies and defines four “retroactivity,” mentions it does not ac- saving terms from the clause: “remedy,” knowledge retroactivity exists because test,” “to ineffective,” or “inadequate required. is constitutionally Majori- Maj. Op. “detention.” at 1085. None of ty neglects give any likewise consider- requires these terms the construction that requir- ation the constitutional reasons the Majority today. devises And none pre- ing Maj. 1095; retroactivity. Op. at see cludes the interpretation of the saving at supra 1141-43. permit clause to second or successive claims retroactively based on a applicable Instead, Majority opines that deter- new rule of statutory law. mining whether a rule of law “applies new retroactively on collateral review can be a Majority by begins defining “reme- difficult and controversial task” and then dy” by which right “[t]he means is employs opinion as a reason to sup- right enforced or the violation of a pre- port interpretation its vented, redressed, compensated.” Id. at Majority’s because the construction conve- Remedy, 1086 (quoting Black’s Law Dic- niently require (3d 1933)) does not courts to deter- tionary ed. (quotation mine whether a applies omitted). new rule retroac- marks itAnd asserts that “reme- tively. Maj. Op. at 1098-99. But courts’ dy” necessarily equate does not with “re- convenience cannot failure excuse to com- lief.” 'quarrel See id. I have no with this requirements. with ply constitutional And up definition point. Majority does not account for the con- fact, I it. agree with And the inter- retroactivity stitutional basis for doctrine pretation of the clause that I offer arriving at all in construction its entirely with this consistent definition. saving clause. §of language “right Under the enforced,”
Because the does not Majority adequate- right pro- [to id. is the be] see ly Clause, consider Suspension Suspension the doc- tected Clause not to be separation powers prin- separation trine of and the detained in violation ciple government powers, powers of limited principle govern- limited retroactivity doctrine, Majority powers, through impermissible ment does recognize interpretation clause re- of the statute or other de- quires prisoner, consideration of second or succes- vice used to detain the that has rely retroactively sive claims that on new since been the Supreme invalidated Instead, Again, Majority misrepresents my argument. procedur- I contend that a dis- response, sent when it "[T]he asserts in writ al mechanism that fails allow for consider- suspended rely has not been ation whenever of second or successive claims that retroactively applicable cannot file a successive collateral attack.” on a new rule statu- Maj. Op. tory Suspension my has never law 1095. That been violates the Clause. *71 (1st 1933)). It Dictionary 220 ed. then retroactively applicable rule of new Court’s “to argue or in order law—whether constitutional turns to Prost to that substantive test,” at 1132-40. statutory. supra oppor an “petitioner [must have] a (quot tunity bring argument.” his Id. the Supreme of whether Regardless 584) Prost, ing (quotation 636 F.3d at rule is character- new substantive Court’s omitted). mo Setting marks for the aside in na- statutory constitutional or ized as expressly that de ment the facts Prost ture, that right the under which access to issues in clined to consider constitutional claimed is constitutional —a consti- rule is its see at interpretation, supra protected by Suspension the right tutional “meaning opportunity” that “an must be a not to excess of the be detained Clause 1135-40, I And, ful see id. at do powers. opportunity,” as a practical government’s . matter, this right, that which is not take issue with construction constitutional a law on new rule of substantive based dictionary Majority’s And the as with re- retroactive to eases collateral made “remedy,” definition of the construction Court, Supreme that by pre- the was view the clause that I offer in this dis- saving unavailable, cannot be viously vindicated Majority’s sent is with initial consistent the the Court announces Supreme until after “to test.” A whose prisoner definition of rule.27 the new on a argument depends “right has [that] in the absence But newly recognized by Supreme been clause, or provide “remedy,” not does retroactively applicable to Court and made enforced,” Maj. by right which a is “means argu- no cases on collateral review” has to new at when it comes rules Op. ment on that until the Su- right based reason, § 2255 statutory law. For preme recognized has newly Court clause) (without the fails to provide right rule on which the invoked based for a “meaningful opportunity” retroactively appli- that rule and rendered legality to test detention when opportuni- that no cable. So has retroactively Supreme Court issues ty certainly meaningful opportu- no —and new rule of law. See applicable nity legality test the of his detention —to result, con- supra at 1135-40. As Supreme until announces a after Court put clause that I struction retroactively applicable new rule of sub- ini- comports Majority’s with the forward law, whether stantive constitutional “remedy.” definition of proposed tial statutory. Next, initially “to Majority defines object Majority’s try.” Maj. Nor I initial meaning Op. “to do test” “detention,” (citing Test, English definition of which defines 1086-87 Oxford Majority argument "this made to cases on col- 27. The asserts that stantive law retroactive argu- ignores litigants review, that often make novel previously lateral was unavail- hope adopt in the a court ments will able, litigants mean have does not an impression them as a matter of first or in a meaningful op- opportunity at all—let alone a rejection past precedent” and that "[i]t right portunity invoke a that is based on a —to why precedent unclear the chance to retroactively applicable new rule of substan- Supreme en Court overruled banc or Court, Supreme tive law issued which theoretically qualify would as a successful prior recognized was challenge meaningful opportunity.” Maj. could liti- Court's announcement of it. How Op. argument 1091. This misses the yet gants had not when the Court may point. litigants fact raise novel right recognized very rule on which their arguments to courts before such time that the Supreme issued a new rule of sub- relies?
H55 confinement,” custody “[k]eeping as in or have had the opportunity to have made the Detention, Maj. (quoting 3 on Op. argument general at the same issue on his (1st motion, English Dictionary 266 ed. initial the Supreme before Oxford 1933)), act back or keeping and Court announced a retroactively appli- “[t]he new withholding, accidentally or de- cable rule of either constitutional law on that sign, thing,” Necessarily, then, id. De- person (quoting issue. in the Majority’s (3d tention, view, Congress Law Dictionary Black’s could chosen have to ban 1933)). again, interpretation ed. Once the second or successive claims based on a saving presented retroactively applicable of the clause in this dis- new rule of consti- comports sent with these definitions of tutional law. “detention” ascribes a mean- and different Congress’s But inclusion of the subsec- ing to and “detention” as used “sentence” (h)(2) tion exception to the ban on second supra (citing at 2255. See 1129-30 optional. successive motions not was 1284).
Brown, at As I have ex- 817 F.3d Suspension required Clause it. See plained, “legality testing of detention” supra discussed, at 1133-40. As we that, correct, a claim if bringing means separation-o‘f-powers doctrine and the a reduced deten- period would result in principle limited government powers tion, just a reduced on a sentence purpose “must inform the reach and of the given may or may count that not affect the Boumediene, Suspension Clause.” period overall of detention. added). at (emphasis S.Ct. 2229 explanation
But
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Under the “detention,” (h)(2), Maj. saving nary the absence of definitions for see subsection bring Op. clause allow a it on no sources that would not relies it,28 Pryor’s support Judge a second or claim based on a other than own successive Samak, it retroactively applicable consti- conflicts di- new rule of concurrence §of rectly plain language tutional would law because with cases, they any way, Majority ing they but assert that execu- 28. The cites several proposition exeCu- do not stand for appropriately are not tion-of-sentence claims cognizable claims are tion-of-sentence brought under rather under 2255 but Maj. Op. See clause. at 1089-90. my point exactly. § 2241— contrary, mentioning On the without the sav- reason, Chief, beautifully writ- at 1147-49. For this concurrence supra to its easy it would be to succumb ten. So correct. cannot be song considering seductive Siren without all, glaring of Finally, perhaps most in the concurrence whether comments *73 “inadequate or Majority’s definition of the fact, are, in correct. entirely account for the ineffective” fails to But let’s take a moment to think about func- constitutional-failsafe saving clause’s premise. In the concur- the concurrence’s [Supreme] know that Court tion. “[t]he We view, excep- I have “added a third rence’s saving explicit upon reliance placed [the (h)’s second or tion” to subsection bar on U.S.C. provisions upholding [28 in clause] claims, so and I have done be- successive equiv- and the District of Columbia 2255 allegedly that is the result I desire. cause chal- against constitutional 2255] alent of 1100. as sees Id. at So the concurrence 776, Boumediene, at 128 lenges.” 553 U.S. analysis of things, before we even start our 381, Swain, at (citing 430 U.S. S.Ct. clause, necessarily saving the must we 1224; Hayman, at 97 S.Ct. saving agree ground to a rule that the 263). If, Majority’s construc- S.Ct. have a clause cannot constitutional-failsafe suggests, the “ineffective” does tion term as it relates to second or succes- purpose claims that the require not consideration of any For if it constitu- sive claims. does and heard, Suspension requires Clause be what tionally required second or successive saving consid- clause authorizes part claims are accounted for subsection when challenges of constitutional eration (h)’s exceptions to on second or the bar Majori- §of part no other 2255 does? claims, judge who observes successive alternative, though no ty offers even deficiency must judicial this be a activist. acknowl- Supreme repeatedly Court has twist, though, § 2255’s constitutional-failsafe func- In an ironic the concur- edged judicial approach rence’s itself embodies tion. See id. reviewing activism: instead of the text and reasons, Majority’s these For all of seeing they where precedents relevant cannot interpretation clause us, begins it end in mind take with an correct. analysis even it does so before starts —and the fact despite that the IV. on has reminded us more than one occa- Judge as- must have a Carnes’s concurrence sion clause Chief in engage judicial protect I activism29 function to serts that constitutional-failsafe “ dissent, ‘improving]’ unconstitutionality. the statute 2255 from See this Boumediene, exception in the at writing [I] favor[ ].” Swain, always (citing at Op. E. Carnes 1100. As with 430 U.S. at judiciary,” "judicial[l]y with revis[ed] The Chief’s takes issue role of the concurrence statute!],” my "musings, imposed ... [the] charg- my characterization of its criticism as otherwise,” pragmatic on the stat- whether ute, judicial ing engaged that I have activism. statute, "design[ed]” a and "rewritten]” Op. pause E. Carnes So I 1100-01. My goodness! the statute. Id. 1100-01. way. explain why I describe its criticism that very busy sure been concurrence thinks I’ve True, actually employs the concurrence never legislators’ doing jobs. "[(legislating our And Instead, “judicial phrase it de- activism.” just] ... name for [is from the bench another " my having ‘improve[d]’ scribes dissent as judicial lipping, Legis- activism.” Thomas L. by writing exception that [I] the statute in the lating From the Bench: The Greatest Threat to statute,” favor[],” engaged “amend[ed] Independence, L. Rev. Judicial 43 S. Tex. (2001). activity proper "the an that is not in line with
H57 1224; Hayman, 342 U.S. at S.Ct. the Chiefs concurrence does direct its 263). any particular criticism to step my anal- ysis, just instead asserting that I have if concur- accept Even we were exception added a third 2255’sbar on- value, exactly rence’s at face accusation second or successive motions. analysis in when does the en- dissent gage judicial spends activism? acknowledge When it I this dissent may parsing text, gram- pages present seventeen new theory why on the saving mar, §of it requires and function 2255? When re- consideration second or Hayman, lies on Court cases successive claims based a retroactively Swain, and Boumediene for proposi- applicable new rule of law— course, tion that the clause acts consti- though, as a opinion is not the first *74 protect § tutional from failsafe 2255 to conclude that second successive unconstitutionality? When it invokes claims on a retroactively based applicable Boumediene, 84, The Federalist No. and of statutory may new rule law be consid- separation-of- See, Hamdi to show the ered saving under the e.g., clause. (E. powers principle Wofford, doctrine and the limit- 177 Carnes, of F.3d at 1244 government J.);30 ed powers States, drive and habeas Triestman v. 124 United F.3d (2d 361, the Suspension perhaps 1997); Clause? Or when Dorsainvil, 363 Cir. re In 245, (3d 1997); this Justice concur- dissent cites Harlan’s 119 F.3d Cir. In re (4th Jones, rence in and the Mackey Supreme 2000); Court’s 226 F.3d 333-34 Cir. opinions Bousley in and Reyes-Requena Welch to show v. United 243 F.3d (5th including 2001); that retroactivity ret- Cir. v. Cauley, Wooten doctrine— (6th roactivity it 2012); doctrine as relate to rules new F.3d 307-08 In Cir. re statutory required by of law—is the same Davenport, F.3d 611-12 Cir. (D.C. 1998); Smith, separation-of-powers and re limited-govern- F.3d ment concerns that animate and 2002).
the Suspension Clause? however, Presenting a theory, new is not
Maybe judicial thing judicial activism occurs when the same as engaging were, this con- If it suggests Majority’s dissent activism. we could not have pre- judicial tention that execution-of-sentence and circuit splits unless activism oc- trial may any detention claims be considered circuit in- that arrived an curred — court’s, saving under the clause conflicts first terpretation contrary with to the language function of necessarily and 2255. I don’t resolution the issue would I judicial just by know. And the reason don’t is that engaging pro- know activism 30. The position Chief's concurrence falls on its share the concurrence’s that our Wof eloquent analysis sword in the most should not fashion. start ford Op. Though help analysis E. Carnes at 1101. I can't from it. Id. “revisfe]” Wofford's Instead, begin analysis but admire and be entertained Chief’s our must with words, function, informed, way statutory I with see no for the text and reason apologize ambiguous, Supreme concurrence to for its where the text is Wofford progeny. impose precedent. I aim to on the end wherever do not blame Court And should prior analysis may jurispru Chief or this for our take some Court us—without preexisting dence on the clause. Our idea of where that should be. I understand ing develop my response point of the law cite ulti should Wofford precedent, agree Court and I with mate conclusion—that or successive second retroactively applicable that we concurrence should reconsider claims based on a statutory may our views when another in new rule of law be considered demonstrates existing precedent. I correctness of an also under the clause—is not novel. retroactively on claims based fact successive But the mere theory. a new
posing an- law new rules applicable the mean- may disagree over judges fall within by. may an alter- nounced offer provision ing of invokes Since McCarthan category. the basis for theory explain native rule, judge I reverse the denial mean that a would such disagreement does court for the district and remand judicial activism. his claim engaged first instance. merits to consider the by how the Instead, evaluate that we that, I respectfully do we don’t Because consid- must theory supported. We new dissent. theory is new based er whether statutory text and interpretation fair I submit respectfully
binding precedent. theory is.
that this dissent’s meaning plain relies on the
This dissent text, that it is the extent 2255’s it is extent that
unambiguous. And to the considers, reviews,
not, this dissent existing, though out simply points then LAMBRIX, Cary Michael *75 observed, lines previously perhaps Petitioner-Appellant, to inform the cases among Supreme Court clause’s constitu- meaning of judicial That is not function.
tional-failsafe SECRETARY, DEPART FLORIDA activism; analysis. legal it is CORRECTIONS, MENT OF Respondent-Appellee. Y. courts— interpretations range No. 16-10251 2255(e) §to applied ours—have including Appeals, States Court United clause construing may make Eleventh Circuit. law Kobayashi Maru31 of like seem But, actually, training exercises. Filed: Date 03/15/2017 meaning, single has a correct it in the understanding lies secret to clause, by the as informed text of the function
constitutional-failsafe consider- meaning requires That
clause. claims, the second or successive
ation of render to consider would
failure of which constitutionally deficient. Second commanders, universe, ship unbeknownst to Kobayashi Maru skills Star Trek In the cadets, Academy designed as an training exercise for Starfleet the exercise is is a it, determine wheth- the cadet must cadets. and is administered for scenario unwinnable Maru, Kobayashi attempt a rescue of the er to testing character of the purpose ship, risking death to the a disabled Starfleet Pictures, (Paramount Trek cadets. See Star rescuers, to decline or whether instead Entertainment, Robot, Mavro Spyglass Bad Maru, risking Kobayashi death rescue of 2009); Star & Co. KG Pictures GmbH cine Though the stranded vessel. to those onboard (Paramount Pic Wrath Khan Trek II: The taking training exercise are under cadets 1982). tures strategic tests their impression that