Lead Opinion
Ezell Gilbert, a federal prisoner, wants to have an error of law in the calculation of his sentence corrected based upon a Supreme Court decision interpreting the sentencing guidelines, even though that decision was issued eleven years after he was sentenced. Gilbert insists that prisoners have a right to have errors in the calculation of their sentences corrected no matter how long it has been since the sentences were imposed. His insistence calls to mind Justice Holmes’ observation that “All rights tend to declare themselves absolute to their logical extreme.” Hudson Cnty. Water Co. v. McCarter,
The principles of policy that limit the right to be resentenced in accord with the latest guidelines decisions are those regarding finality of judgment and the important interests that finality promotes. For reasons we will discuss, the statutory provisions and the decisions furthering finality of judgment are strong enough to hold their own against Gilbert’s claimed right to have a long-ago error in calculating his sentence corrected.
In more technical terms, we granted rehearing en banc in this case to decide whether the savings clause contained in 28 U.S.C. § 2255(e) permits a federal prisoner to challenge his sentence in a 28 U.S.C. § 2241 petition when he cannot raise that challenge in a § 2255 motion because of the § 2255(h) bar against second and successive motions. The primary question, in plainer English, is whether a federal prisoner can use a habeas corpus petition to challenge his sentence. Our answer is “no,” at least where the sentence the prisoner is attacking does not exceed the statutory maximum.
I. BACKGROUND
The facts underlying the sentence in this case, and the procedural history, illuminate the issue and the competing considerations that we consider in deciding it.
On October 11, 1995, Ezell Gilbert set off for a day of work, plying his trade near the Cottage Hills Housing Project, a high crime area of Tampa, Florida. That day Gilbert was working out of his car, a four-door 1985 Chevrolet Celebrity. He was a drug dealer, and two officers of the Tampa Police Department, who were hidden from view, were conducting surveillance of illegal activity in the area.
Around 9:30 a.m. the officers spotted Gilbert as he stopped his car and allowed a man to enter it. Once inside, the man appeared to give money to Gilbert in exchange for some rocks of crack cocaine. The officers then saw the man exit the ear as he counted the rocks he had bought. A short time later, the officers saw another man enter Gilbert’s car and engage in another drug deal with him. At that point, the officers conducting surveillance notified a patrol car that was a few blocks away and provided the car’s license plate number. The officers in the patrol car discovered through a computer check that the plate number was assigned to a different make and model car. By this time Gilbert was on the move, driving in the direction of the patrol car, which was at a nearby intersection. The officers in the patrol car trailed Gilbert’s vehicle for about a block before it turned into the parking lot of a convenience store. When the officers approached Gilbert’s car, he tried to flee on foot but they stopped him.
The officers discovered that Gilbert had not been alone in the car. In a drug dealer’s version of “Bring Your Daughter to Work Day,” Gilbert had brought his five-year-old daughter, Keidra, along with him as he plied his trade. She had been seated in the back seat of the small car the whole time. She was there as two drug addicts climbed into the car to buy drugs from Gilbert, and he left her there as he attempted to run away from the approaching officer.
When police demanded to see the car’s registration, Gilbert reluctantly opened the glove compartment. A clear plastic bag containing what appeared to be crack cocaine fell out into his hand and into plain view. Shoving it back in the compartment, Gilbert told police that “nothing” was in the bag. At that point the police placed him under arrest and started to search the car. As the officers did so, Gilbert exclaimed, “[T]he car ain’t mine; I don’t know what’s in that car.”
What was in that car, in addition to Gilbert’s young daughter, was the bag that had fallen from the glove compartment. It contained 67 grams of crack cocaine, and there was a smaller bag containing 2 grams of powder cocaine in the glove compartment. And there were also 40 “ring baggies” containing a total of 111 grams of marijuana stashed under the car’s front seat.
The record does not reveal whether that day was the first time that Gilbert had taken his five-year-old daughter into harm’s way with him as he committed crimes, but it does reveal that this was not the first time he had committed crimes. Gilbert’s known criminal history began in 1989, when he was only 19 years old. In March of 1989 he was arrested on state charges for possession of cocaine and possession of alcohol by a minor, but those charges were dropped. Two arrests followed in May 1989 for possession of alcohol by a minor, but the State evidently did not pursue the charges.
Gilbert soon graduated to more serious crimes. In September 1989, while still 19 years old, he was arrested for striking a police officer who had been attempting to detain him for battery on a female. It appears from the record that Gilbert was later convicted for battery and obstructing
Instead of successfully completing probation, however, Gilbert chose to commit more crimes. As a result, a probation violation notice was filed on March 2, 1990, and a few days later Gilbert was arrested and charged with more state crimes, including possession of cocaine. He was convicted of the new cocaine charge on March 29, 1990, and on that date received a sentence of 2 years of community control.
Seventeen days later, on April 16, 1990, state authorities filed yet another notice that Gilbert had violated the terms of the probation that had been imposed on him just three months earlier. On June 6, 1990, he was found to have violated his probation and as a result was adjudicated guilty on the January 1990 crimes of possession of cocaine with intent to sell or distribute and carrying a concealed firearm. He was sentenced to 30 months imprisonment for those two crimes. On or about that same date, Gilbert also received the same sentence on the March 7, 1990 charge of possession of cocaine. Those sentences were imposed when Gilbert was 20.
How much time Gilbert actually served is unclear, but it certainly was not 30 months. By October 24, 1991, only 17 months after he had been sentenced, the 21-year-old Gilbert was free again, a fact we know because he was arrested on that date for possession of marijuana. Gilbert was convicted of that marijuana charge and on January 28, 1992, at age 22, he received yet another sentence of probation, this time for one year. Less than two months later, yet another probation violation notice had been filed, and in August of 1993, when Gilbert was 23, he was arrested yet again, this time on two counts of possession of marijuana with intent to sell or distribute. The State filed an “order of release” as to both those charges on September 8, 1993, but in what may have been a related action, on September 14 Gilbert was sentenced to one year imprisonment on the 1991 marijuana charge. He was then 23 years old.
Gilbert once again did not serve his full time in prison; instead, he was released on January 8, 1994, just four months into his one-year term. And once again, it was not long before Gilbert was caught committing another crime. That September, an officer who had stopped him for a traffic violation spotted a handgun next to Gilbert’s right leg, and a search of his car revealed 22.3 grams of crack cocaine. For some reason Gilbert, then age 24, was charged only with carrying a concealed firearm and being a felon in possession of a firearm. On December 19, 1994, shortly after he had turned 25, Gilbert was sentenced to three years probation for each crime. And true to form, Gilbert did not successfully complete his probationary period. Instead, he violated it when he committed the drug crimes involved in this case on October 11, 1995, about a month before he turned 26. This time he would not be treated leniently.
The State of Florida charged Gilbert with trafficking in cocaine, possession of marijuana, possession of drug paraphernalia, and child abuse, all in connection with his October 11, 1995 arrest. The child abuse charges stemmed from Gilbert’s having his daughter with him while he was
B. Gilbert’s Indictment, Conviction, and Sentencing
The indictment of Gilbert in December 1995 included one count of possession of crack cocaine with intent to distribute and one count of possession of marijuana with intent to distribute. The government filed a timely 21 U.S.C. § 851 notice of the prior drug convictions that it intended to rely on in seeking an enhanced statutory penalty range under 21 U.S.C. § 841(b)(1)(A). That notice listed three of Gilbert’s prior convictions: his March 1990 conviction for possession of cocaine; his June 1990 conviction for possession of cocaine with intent to sell or distribute; and his January 1992 conviction for possession of marijuana. Given the quantity of crack cocaine that Gilbert was charged with possessing with intent to sell, even without any of his prior convictions he faced a statutory range of ten years to life on that count. See 21 U.S.C. § 841(b)(1)(A) (1996) (“In the case of a violation of subsection (a) of this section involving ... 50 grams or more of a mixture or substance ... which contains cocaine base ... such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life.”) With any two of his three prior convictions listed in the § 851 notice, however, Gilbert faced a mandatory sen-fence of life imprisonment (without parole) on that count. See id. (“If any person commits a violation of this subparagraph ... after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release.... ”). On the second count, involving possession with intent to sell marijuana, without any prior convictions Gilbert would have faced a sentence of not more than five years. See 21 U.S.C. § 841(b)(1)(D) (1996). With one or more prior convictions for a felony drug offense he faced a sentence of not more than ten years on that count. See id.
After Gilbert’s motion to suppress was denied, he pleaded guilty in March of 1996. At the plea hearing, Gilbert admitted possessing with intent to distribute more than 50 grams of crack cocaine and more than 100 grams of marijuana. Given the prior drug convictions listed in the § 851 notice, none of which Gilbert ever denied, his guilty plea should have subjected him to a mandatory life sentence. See 21 U.S.C. § 841(b)(1)(A) (1996). But Gilbert pleaded guilty to the indictment “as originally charged without the enhancement,” meaning without “the [§] 851 enhancement.” The government did not object to Gilbert’s statement that the statutory enhancement would not be applied, and the non-application of it obviously was part of a plea agreement.
Gilbert was sentenced on March 25, 1997. Because the government waived the
Gilbert was sentenced as a career offender under § 4B1.1 based on two convictions: his June 1990 conviction for possession of cocaine with intent to sell, which was counted as “a controlled substance offense,” and his December 1994 conviction for carrying a concealed weapon, which was counted as a “crime of violence.” See id. § 4B1.1 (1995). Although Gilbert’s long criminal record included other drug charges, some of them had resulted in convictions for possession instead of distribution while a few had not resulted in convictions.
Gilbert was given a two-point downward adjustment for acceptance of responsibility, see id. § 3El.l(a) (1995), bringing his adjusted offense level to 35. His criminal history category would have been V,
If the § 4B1.1 career offender enhancement had not applied, Gilbert’s base offense level would have been 32 minus 2 levels for acceptance of responsibility, resulting in an adjusted offense level of 30. His criminal history category would not have been increased from level V, and the guidelines range would have been 151 to 188 months.
Gilbert objected on a number of grounds at sentencing, the only relevant one for present purposes being his objection to career offender treatment under the guidelines. He did not dispute that his prior conviction for possession of cocaine with intent to distribute was a “controlled substance offense,” but he did contend that his prior conviction for carrying a concealed weapon was not a “crime of violence.” In rebutting his objection, the government relied on United States v. Hall,
The district court overruled all of Gilbert’s objections and sentenced him on March 25, 1997. Acting under the then-mandatory guidelines system, the district court sentenced Gilbert to 292 months imprisonment on the intent to distribute crack cocaine count after the judge made it abundantly clear that he would have preferred to give Gilbert a shorter term of imprisonment. The court also sentenced Gilbert to 120 months imprisonment on the intent to distribute marijuana count, to run concurrently.
C. The Post-Sentencing Procedural History
On direct appeal Gilbert raised three issues, one of which was his contention that carrying a concealed weapon was not a “crime of violence,” as defined in § 4B1.2(a), for § 4B1.1 purposes.
In September of 1999 Gilbert filed pro se a 28 U.S.C. § 2255 motion raising a number of claims, none of which reiterated the contention he had already made at sentencing and on appeal that the § 4B1.1 career offender enhancement guideline should not have been applied in his case. The district court denied his § 2255 motion in July 2003.
There the matter was laid to rest, and there it rested until a series of events beginning in August 2008 led to its being exhumed. The United States Sentencing Commission had published Amendment 706 on November 1, 2007, which provided for a two-level reduction in base offense levels for crack cocaine offenses. U.S.S.G.App. C, amend. 706 (Supp.2007). That amendment, which was made retroactively applicable by Amendment 713 on March 3, 2008, allowed prisoners serving time for crack cocaine offenses to receive a reduction in their sentences. Id.; U.S.S.G.App. C, amend. 713 (Supp.2008).
On August 26, 2008, the district court on its own initiative issued an order directing the Federal Public Defender to represent Gilbert in an 18 U.S.C. § 3582(c)(2) proceeding before the court to determine whether he was entitled to have his sentence reduced under Amendment 706. The court also ordered the Probation Office to file a supplemental report in the case. After hearing from the Federal Public Defender and the United States Attorney’s Office, the court issued an order on January 21, 2009, concluding that Gilbert was not entitled to relief under Amendment 706. The court reasoned that while Amendment 706 did reduce Gilbert’s base offense level, it did not “have the effect of lowering the applicable sentencing guideline range because the career offender guideline, not the crack guideline, was applied at sentencing.” The court also briefly addressed and rejected the possibility of granting Gilbert relief under 28 U.S.C. § 2255 or § 2241.
Gilbert then filed through counsel what he styled a “Motion to Reopen and Amend First 28 U.S.C. § 2255 Motion” on January 28, 2009. See Gilbert v. United States,
The problem for Gilbert was that his Archer-based claim clearly was barred by the Antiterrorism and Effective Death Penalty Act of 1996’s (AEDPA’s) second and successive petitions provision, 28 U.S.C. § 2255(h). By styling his pleading as one to reopen the § 2255 motion that he had filed more than 9 years before, Gilbert was attempting to avoid that statutory bar. The government opposed that specific attempt and Gilbert’s motion in general.
Gilbert urged on the district court “two vehicles” by which it could grant him relief. He argued that the court could construe his motion as one under Fed.R.Civ.P. 60(b)(5) and (b)(6) to reopen and revisit its original order denying his initial 28 U.S.C. § 2255 motion. In the alternative, Gilbert argued that the court could treat his motion as one for relief under 28 U.S.C. § 2241 on the theory that the savings clause of § 2255(e), as interpreted in Wofford v. Scott,
The district court rejected both arguments. It concluded that Gilbert’s 60(b) argument was foreclosed by the reasoning in Gonzalez v. Crosby,
A panel of this Court reversed the district court’s denial of relief. See Gilbert II,
II. DISCUSSION
Gilbert’s savings clause contention requires much more discussion than his Rule 60(b) one, so we will address it first. Before doing that, however, we need to address some assumptions the parties make that relate to the issues we will be deciding.
A. Assumptions About the Effect of the Error in Calculating Gilbert’s Sentence
Gilbert’s arguments presume that if Be-gay and Archer had been on the books when his case arose he would have received a lighter sentence because the career offender enhancement, which those decisions rule out for his case, did increase his mandatory guidelines range. His arguments also presume that if he were re-sentenced today, which is the relief he is seeking, he would receive a lighter sentence with the career offender enhancement out of the picture. We are not so sure of either proposition.
If Begay had begotten Archer before Gilbert was sentenced and his sentence was affirmed on direct appeal, his earlier weapons conviction would not have been treated as a crime of violence under § 4B 1.2(a), and he would not have been classified as a career offender under § 4B1.1. As a result, Gilbert would have had a lower guidelines range in that preBooker, mandatory guidelines era and would have received a lower sentence if we assume that the government still would have waived its statutory right to have a mandatory life sentence imposed on him. But that is a big assumption.
On the possession of crack cocaine with intent to distribute charge, Gilbert faced a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A), which requires life imprisonment for anyone who possesses crack cocaine or other drugs with intent to distribute after being convicted of two or more felony drug offenses. The government filed a 21 U.S.C. § 851 notice listing three prior felony drug offenses that Gilbert had been convicted of before he committed the crack cocaine distribution offense in this case, all of which qualified him for the mandatory life sentence. See supra at 1298-99. Gilbert never denied the existence or validity of any of the three prior drug convictions listed in the § 851 notice (or any of his other convictions either). By failing to object to the part of the presentence report listing his prior convictions, Gilbert admitted them, see United States v. Bennett,
If the Begay decision had been on the books when Gilbert was facing these charges, the government would have known that the guidelines range he faced was 151 to 188 months instead of 292 to 365 months. Given a minimum sentence that was 141 months lower, the government might well have decided not to waive the § 851 notice and the mandatory life sentence it had an absolute right to insist on under § 841(b)(1)(A). It is one thing not to insist on a life sentence when the defendant is facing at least 292 months without the enhancement, and quite another to forgo it if he might be sentenced to less than half that much time.
While the government did waive its right to insist on a mandatory life sentence as part of a plea bargain, the record does not establish that it would have done so if it could not have counted on the career offender enhancement to double the sentence that Gilbert would receive. It is not as though the government needed a guilty plea because there was a risk of acquittal or the trial would have taken a long time. The evidence against Gilbert was overwhelming and the trial would have been short and simple. Two police officers saw Gilbert as he sold crack cocaine out of his car. Soon thereafter, when another officer approached him, Gilbert attempted to flee on foot. The charges against Gilbert were based on crack cocaine that was found in the glove compartment of his car, and marijuana that was bagged for sale and found under the seat. Even if Gilbert had wanted to take the stand and deny it all,
The point is that we cannot say with certainty that if Begay and Archer had been the law when Gilbert committed these crimes, he would have received a lesser sentence. Ironically, for the reasons we have just discussed, he might have received an even harsher one. Rather than speculate, however, we will assume for present purposes that if those two decisions had been on the books more than a decade earlier, Gilbert would have received a substantially lighter sentence then than he did — a sentence in the range of 151 to 188 months instead of 292 months.
Gilbert also presumes that if he could just get a new sentence hearing, he will receive a shorter sentence than the one he now has. We have our doubts about that. It is true that if Gilbert is resentenced the calculation of his guidelines range will be free of any Begay/Archer error and he will not be treated as a career offender. His guidelines range will be lower. There is, however, no guarantee that his new sentence under the post-Booker advisory guidelines system will be shorter than 292 months. It could be the same or even longer.
There are a number of 18 U.S.C. § 3553(a) factors in Gilbert’s case that a sentencing judge could use to vary upward substantially from the advisory guidelines range. After all, in a six-year period when he was between the ages of 19 and 25, Gilbert committed and was convicted of five drug felonies and three weapons felonies. See supra at 1296-98. He is an eight-time drug and weapons felon. And his record includes a number of occasions on which he was shown leniency in the form of dropped charges, probationary sentences, or early release. Every time Gilbert received probation, he violated it. Every time charges against him were dropped or he was released early, he immediately went back to his life of crime. And, most disturbing of all, when Gilbert committed the serious drug crimes in this case he took his five-year-old daughter along with him to watch it all. He endangered his little girl by having her in the back seat of the small car in a high crime area as crack addicts climbed into the front seat and bought drugs from him.
A sentencing judge could easily decide to vary significantly upwards from the advisory guidelines range in view of: “the nature and circumstances of the offense and the history and characteristics of the defendant,” § 3553(a)(1); “the need for the sentence imposed ... to reflect the seri
Nonetheless, because it does not affect our reasoning or the result we reach, we will assume that Gilbert would receive a substantially lower sentence if he were resentenced today, just as we are assuming that his sentence would have been lower when he was sentenced in 1997 if the Begay and Archer decisions had been out at that time.
Begay and Archer were not, however, issued before Gilbert was sentenced. They were issued eleven years after Gilbert was sentenced, ten years after we affirmed his sentence on direct appeal, nine years after the Supreme Court denied certiorari review, and five years after his § 2255 motion was denied. Gilbert’s sentence had long since become final before those two decisions were issued. The question we face is whether there is a finality-shattering procedure that allows Gilbert to have his sentence vacated and entitles him to be resentenced all these years later.
B. The Savings Clause Issue
Having already unsuccessfully filed a § 2255 motion raising other issues, Gilbert concedes, and we agree, that he may not raise his Begay/Archer claim about the misapplication of the career offender guidelines in another § 2255 motion. Section 2255(h) bars second and successive motions except in two narrow circumstances, neither of which applies here. See 28 U.S.C. § 2255(h)(1) & (2).
Gilbert’s primary contention is that his claim is cognizable in a 28 U.S.C. § 2241 petition for a writ of habeas corpus. Section 2255(e), however, provides that a § 2241 petition “shall not be entertained” if the prisoner has failed to seek or has already been denied relief by § 2255 motion, as Gilbert has, “unless it also appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of his detention.” See 28 U.S.C. § 2255(e). The quoted exception to the § 2255(e) bar on § 2241 petitions, eom
1. Some Issues We Need Not Decide
The government asserts, as its first line of defense, that a guidelines misapplication claim may not be brought in any collateral attack, not even an initial one. We have no reason to decide that issue because this is not Gilbert’s first collateral attack on his sentence. He filed a § 2255 motion that was denied in 2003.
The government concedes that a claim that a sentencing error resulted in a sentence longer than the statutory maximum may be brought in an initial § 2255 motion or, if that remedy is foreclosed by § 2255(h), in a § 2241 habeas petition by virtue of the savings clause in § 2255(e). We have no reason to decide whether to write that concession into the law of this circuit because Gilbert was not sentenced in excess of the statutory maximum for his crimes.
We do need to explain here what we mean by “statutory maximum sentence.” For each crime, Congress prescribes a punishment ceiling beyond which no defendant convicted for committing that particular crime may be sentenced regardless of the circumstances of the crime, regardless of the defendant’s history, and regardless of the sentencing guidelines. In Gilbert’s case § 841(b)(1)(A) specified a punishment range of ten years to life for the crime of possession of 50 or more grams of cocaine base with intent to distribute.
That seems obvious, but attempting to bring himself within the scope of the government’s concession, Gilbert insists that the maximum sentence specified in the statute providing a punishment range for the crime of conviction is not really the statutory maximum sentence. Instead, he argues that with a pr e-Booker mandatory
In any event, Gilbert’s point is beside the point. The government can shape its concession as it pleases. The government concedes only that a sentence beyond the maximum punishment statutorily specified for anyone who commits the crime may be remedied in a § 2255 motion or through the savings clause in a § 2241 petition. And that is, once again, an issue we are not deciding.
2. The Text and History of the Clause
We turn now to the issue we are deciding. The text of the savings clause itself does not indicate that it authorizes the filing of a § 2241 petition to remedy a miscalculation of the sentencing guidelines that already has been, or may no longer be, raised in a § 2255 motion. The language of the savings clause provides that it applies, and a § 2241 petition may be filed, only when “the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [the petitioner’s] detention.” 28 U.S.C. § 2255(e). The history behind the savings clause does not provide much help with its meaning. See Wofford,
3. The Relationship of § 2255(e) and 2255(h)
Assuming that a sentencing guidelines error that resulted in a longer sentence may be remedied in a collateral proceeding, the reason Gilbert cannot obtain relief through a § 2255 motion now is that he
That simply cannot be, as every circuit to address the matter has pointed out. See e.g., Prost v. Anderson,
Fundamental canons of statutory construction support the conclusion that the generally worded and ambiguous savings clause, which was first enacted in 1947, cannot override the specifically worded and clear statutory bar on second or successive motions that was enacted as part of AEDPA in 1996. An ambiguous or general statutory provision enacted at an earlier time must yield to a specific and clear provision enacted at a later time. See Morton v. Mancari,
4. Finality Interests
The critically important nature of the finality interests safeguarded by § 2255(h) also weighs heavily against an interpretation of the savings clause that would lower the second or successive motions bar and permit guidelines-based attacks years after the denial of an initial § 2255 motion. Sentencing guidelines provisions are many and complex, the English language and those who use it are imperfect, and the case law about what various and sundry guidelines mean and whether they apply in different factual situations is in a constant state of flux. See, e.g., United States v. Williams,
The single guidelines term that gave rise to this litigation illustrates the phenomenon. Many are the decisional oars that have churned the law about the meaning of “crime of violence,” as it appears in § 4B1.1. See, e.g., Johnson v. United States, - U.S. -,
Of course, the finality-busting effects of permitting prisoners to use the savings clause as a means of evading the second or successive motions bar would not be confined to cases in which later case law development showed errors were made in applying the § 4B1.1 career offender enhancement. The rule Gilbert asks us to create for his benefit would apply to every type and kind of enhancement, of which there are scores in the sentencing guide
And the rule Gilbert is seeking could not be confined to sentence miscalculations based on enhancement errors. If the savings clause operates to allow attacks on old sentences that were lengthened by enhancements that later decisions have called into doubt, there is no reason it would not also operate to do the same with any other guidelines calculation error. As a result, no federal judgment imposing a sentence would be truly final until the sentence was completely served or the prisoner had gone on to face a different kind of final judgment. The exception that Gilbert would have us write into § 2255(h) using the savings clause as our pen would wreak havoc on the finality interests that Congress worked so hard to protect with the AEDPA provisions.
As we have pointed out more than once, “one of the principal functions of AEDPA was to ensure a greater degree of finality for convictions.” Johnson v. United States,
The statutory bar against second or successive motions is one of the most important AEDPA safeguards for finality of judgment. As we explained in our en banc decision in the Gonzalez case, “The central purpose behind the AEDPA was to ensure greater finality of state and federal court judgments in criminal cases, and to that end its provisions greatly restrict the filing of second or successive petitions.” Gonzalez v. Sec’y for Dep’t of Corr.,
That would be a bad thing because “[o]ne of the law’s very objects is the finality of its judgments.” McCleskey v. Zant,
No effective judicial system can afford to concede the continuing theoretical possibility that there is error in every trial and that every incarceration is unfounded. At some point the law must convey to those in custody that a wrong has been committed, that consequent punishment has been imposed, that one should no longer look back with the view to resurrecting every imaginable basis for further litigation....
Schneckloth v. Bustamonte,
We decline Gilbert’s invitation to undermine finality of judgment principles by using § 2255(e) to knock down the second or successive motions bar that Congress constructed in § 2255(h).
5. Decisions of Other Circuits on This Issue
Every circuit to decide this issue has reached the same conclusion we do: the savings clause of § 2255(e) does not permit a prisoner to bring in a § 2241 petition a guidelines miscalculation claim that is barred from being presented in a § 2255 motion by the second or successive motions bar of § 2255(h). Not one circuit has held to the contrary.
The Fifth Circuit addressed the issue in Kinder v. Purdy,
The Fifth Circuit explained in Kinder that the savings clause had not been — and it should not be — applied to sentencing claims, such as a claim that the § 4B1.1 career offender provision had been erroneously applied. Id. The Court acknowledged that some courts had held that the savings clause applies where the petitioner can show actual innocence of the crime of conviction itself. Id. at 213-14 (“Where the petitioner’s case has been viewed as falling within the savings clause, it was in part because the petitioner arguably was convicted for a nonexistent offense. Thus, in each case, the petitioner could claim he was actually innocent of the crime of which he was convicted.”) (footnote and citations omitted). But it correctly distinguished actual innocence of the crime of conviction from a claim that the petitioner was “innocent” of some guidelines enhancement, such as the one for career offenders. See id. at 213 (“Kinder’s argument that he is actually innocent of being a career offender in light of [a later decision], however, is not the type of argument that courts have recognized may warrant review under § 2241.”); accord Padilla v. United States,
The Sixth Circuit agrees. In United States v. Peterman,
The Sixth Circuit reversed that application of the savings clause to sentencing claims, holding that while the savings clause applies to claims of actual innocence of the crime of conviction, it does not apply to sentencing claims, at least not where the sentence being attacked does not exceed the statutory maximum. Id. at 461-62. In reaching its decision, the Court warned that: “The circumstances in which § 2255 is inadequate and ineffective are narrow, for to construe § 2241 relief much more liberally than § 2255 relief would defeat the purpose of the restrictions Congress placed on the filing of successive petitions for collateral relief’ in the AED-PA. Id. at 461. The Sixth Circuit acknowledged that some courts had held the savings clause applies to claims based on intervening changes in the law establishing a petitioner’s actual innocence of the crime of conviction, but the Court was firm in its conclusion that the clause was not available to the three petitioners in that case who were challenging only their sentences. Id. at 462.
The Third Circuit has reached the same conclusion. See Okereke v.United States,
While acknowledging that no circuit has embraced her position, one of our dissenting colleagues views the Seventh Circuit’s decision in In re Davenport,
There were two petitioners in that case — Davenport and Nichols. Davenport,
[Davenport] complains that if he is indeed innocent of the “armed career criminal” offense, it is atrocious that he should have no remedy against languishing in prison except for an appeal, which is quite likely to be futile, to executive clemency. But if this complaint were to be accepted, it would make an arbitrary hole in the Antiterrorism Act. Davenport is attacking his sentence rather than his conviction, for the armed career criminal act is a sentence-enhancement statute; he is “innocent” (if his claim has merit) only in a technical sense. For him to be able to file successive motions for postconviction relief, but not someone who had been denied all right to counsel or had a confession beaten out of him but was unable to argue that he had in fact been innocent of the crimes of which he had been convicted, would correspond to no intelligible concept of either legal or substantive justice. And the privileged status for which Davenport contends would if accepted allow him to file not just one successive appeal; a prisoner who was claiming to be innocent could by the logic of Davenport’s argument file an indefinite number of successive motions for postconviction relief — could indeed file an identical new motion every day of his incarceration.
Id. (emphasis added). That explanation, and the decision it accompanied, strongly supports the conclusion we reach and is at war with the dissenting position.
At the same time it rejected Davenport’s claim, the Seventh Circuit ordered relief granted to Nichols, the petitioner whose case had been consolidated with Davenport’s. See id. at 607, 610-12. But that part of the Davenport decision is fully consistent with the denial of relief to Gilbert in the present case. Nichols, unlike Gilbert and unlike Davenport, “ha[d] a claim that he [was] indeed being held in prison for a nonexistent crime.” Id. at 610. Nichols had been convicted for violating 18 U.S.C. § 924(c) by possessing a firearm in the commission of a drug offense. Davenport,
The Seventh Circuit reasoned: “A procedure for postconviction relief can fairly be termed inadequate when it is so configured as to deny a convicted defendant any opportunity for judicial rectification of so fundamental a defect in his conviction as having been imprisoned for a nonexistent offense.” Id. at 611 (second emphasis added). The savings clause contained in § 2255(e) saved Nichols, who was convicted of a non-existent crime, but it did not save Davenport, whose sentence had been erroneously enhanced under the ACCA. See id. at 609 (“Davenport is attacking his sentence rather than his conviction, for the armed career criminal act is a sentence-enhancement statute; he is ‘innocent’ (if his claim has merit) only in a technical sense.”). So, instead of supporting the dissenters’ position in this case that the savings clause extends to sentencing claims, the Davenport decision rejects that position.
The Seventh Circuit reiterated the point in Taylor v. Gilkey,
What Davenport strongly implied — what we now make explicit — is that a claim of error in addressing the sort of constitutional theory that has long been appropriate for collateral review does not render § 2255 “inadequate or ineffective.” [Section 2255(e)] poses the question whether the remedy is adequate “to test the legality” of the detention. This implies a focus on procedures rather than outcomes. Judges sometimes err, but this does not show that the procedures are inadequate; it shows only that people are fallible. How often to rerun a search for error is a question to which § 2255[(h)] speaks directly, and the statutory limitation to a single collateral attack, unless the conditions of § 2255[(h)] (elaborated in 28 U.S.C. § 2244) have been met, does not render § 2255 inadequate or ineffective. If it did, then the statute would be internally contradictory. It would not be sensible to read § 2255[(h)] as making § 2255 “inadequote or ineffective” and thus nullifying itself. This is a subject on which the courts of appeals are in agreement. Every court that has addressed the matter has held that § 2255 is “inadequate or ineffective” only when a structural problem in § 2255 forecloses even one round of effective collateral review — and then only when as in Davenport the claim being foreclosed is one of actual innocence. See, e.g., Cradle v. United States ex rel. Miner,290 F.3d 536 , 538-39 (3d Cir.2002); In re Jones,226 F.3d 328 , 333-34 (4th Cir.2000); Reyes-Requena v. United States,243 F.3d 893 , 902-03 (5th Cir.2001); United States v. Peterman,249 F.3d 458 , 462 (6th Cir.2001); Wofford v. Scott,177 F.3d 1236 , 1244 (11th Cir.1999).
Id. at 835-36 (emphasis added). The Seventh Circuit’s position on the issue before us could not be clearer: Section 2255(e)’s savings clause does not apply to sentencing claims.
Contrary to Judge Martin’s characterization of our position, we do not categorically state that every other circuit has interpreted the savings clause of § 2255(e) to rule out sentencing claims. See Dissenting Op. of Martin, J., at 1335. We do categorically state, however, as Judge Easterbrook did in Taylor, that every circuit called upon to actually decide this issue has concluded, as we do, that the savings clause does not apply to sentencing claims, at least not to those where the sentence imposed was within the statutory maximum. Not one has held to the contrary.
Instead, our intent is to apply the law to the facts of the case that is before us. That is our duty. In carrying it out, we do not question our dissenting colleagues’ sincerity, nor do we charge them with any offense more serious than sincerely disagreeing with our view about the meaning and effect of § 2255(e)’s savings clause in these circumstances. The circumstances are that an unquestionably guilty defendant, who was sentenced to less than the statutory maximum, claims that the sentencing guidelines were misapplied in his case based on decisions that were issued years after his sentence became final on direct appeal and years after his § 2255 motion was denied.
6. The Suspension Clause
None of the other circuits that have refused to apply the savings clause of § 2255(e) to sentencing claims have felt that by declining to do so they were violating the Suspension Clause of the Constitution, Art. I, § 9. Nor do we. Our dissenting colleagues disagree. In her dissenting opinion, Judge Martin relies on United States v. Hayman,
The Supreme Court did have something to say in Felker v. Turpin,
Although Felker was a § 2254 case, the Suspension Clause issue is essentially the same in § 2255 cases. The changes made by the AEDPA restrictions on second or successive filings are materially identical in both types of cases, the evolution of the remedy and restrictions on it are materially identical, and the relationship of the AEDPA changes to that evolution are materially identical. Central to the dissenters’ position is the premise, which Judge Barkett articulates, that “§ 2255(e) operates to ‘save’ § 2255 from violating the Suspension Clause of the United States Constitution.” Dissenting Op. of Barkett, J., at 1329. The Felker decision demonstrates why that crucial premise cannot be right. There is no savings clause in § 2254. Yet the Supreme Court held in Felker that § 2254’s restrictions on second or successive petitions, which are materially identical to those in § 2255, do not violate the Suspension Clause. Therefore, the savings clause cannot be essential to the constitutional operation of the restrictions on the second or successive filings that are contained in §§ 2254 and 2255. That clause need not, and should not, be used to punch holes in the operation of the § 2255(h) restrictions. We conclude, in keeping with the Supreme Court’s decision in Felker, that the restrictions § 2255(h) places on second or successive motions do not violate the Suspension Clause.
In their dissenting opinions, Judges Barkett and Martin express their view that Boumediene v. Bush,
The question was not whether the detainees in Boumediene were entitled to multiple rounds of habeas review of their detention but whether they were entitled to any habeas review at all. It was in that context the Court made the statement that Judges Barkett and Martin rely on, about each detainee having been denied “a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law.” Boumediene,
7. The Actual Innocence Exceptions
Section 2255(h) itself contains an actual innocence exception to its bar against second or successive motions, but it is a narrow one. The exception applies only when the claim is based on “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense.” 28 U.S.C. § 2255(h)(1). As Gilbert concedes, this exception is of no help to him because his claim is not based on newly discovered evidence, and he does not pretend to be innocent of the offense for which he was convicted, possessing crack cocaine with intent to distribute.
A number of courts have held that the savings clause permits a claim of actual innocence of the crime of conviction to be brought in a § 2241 petition when it cannot be brought in a second or successive motion because of § 2255(h). This decisional law exception is broader than the statutory one contained in § 2255(h)(1), because it encompasses innocence based on changes in the law where the evidence remains the same. The exception’s primary function to date has been to permit claims based on Bailey v. United States,
Bailey actual innocence claims are what the Wofford panel had in mind when it stated that the savings clause would permit a prisoner to bring a § 2241 petition claiming that a retroactively applicable, circuit law-busting decision of the Supreme Court established that he had been convicted of a nonexistent crime. See Wofford, in F.3d at 1242-45. That statement was, however, only dicta because all Wofford’s claims were sentencing claims, “none of which rest[ed] upon a circuit law-busting, retroactively applicable Supreme Court decision.” Id. at 1245. All of them could have been presented at trial or on appeal. Id. The actual holding of the Wofford decision, which is undoubtedly correct, is simply that the savings clause does not cover sentence claims that could have been raised in earlier proceedings. See id. at 1244-45 (expressly noting that there was no need to decide which sentencing claims, if any, the savings clause does cover).
The Wofford dicta and the Bailey-related actual innocence decisions of other
Nor is Gilbert helped by the actual innocence of sentence exception set out in Sawyer v. Whitley,
There are four reasons the Sawyer actual innocence of sentence exception does not apply in this case. First, the Supreme Court emphasized in Sawyer that its exception to the rule against second and successive petitions for actual innocence of the sentence was “a very narrow exception,” id. at 341,
Because death is different, neither the Supreme Court nor this Court has ever applied the Sawyer actual innocence of the sentence exception except in death penalty cases, and the better view is that the exception does not apply to non-capital sentencing errors. See United States v. Richards,
The second reason that the Sawyer exception does not apply here is that it operates where there is constitutional error, not statutory or guidelines interpretation error. The Supreme Court expressed the holding in these terms: “We therefore hold that petitioner has failed to show by clear and convincing evidence that but for constitutional error at his sentencing hearing, no reasonable juror would have found him eligible for the death penalty under Louisiana law.” Sawyer,
The Sawyer requirement that the claim be a constitutional one is borrowed from the actual innocence exception to procedural bars for conviction claims in capital and non-capital cases. See Schlup v. Delo,
The third reason the Sawyer exception is of no help to Gilbert is that even if it were not limited to death sentences, and even if it reached non-constitutional claims, he still would fail to meet the exception’s requirement that but for the claimed error he would not have been statutorily eligible for the sentence he received. See Sawyer,
Finally, Gilbert is also outside the scope of the Sawyer exception for a reason explained by the Seventh Circuit in Hope v. United States,
The “actual innocence” exception of the prior law was judge-made, and so its contours were appropriately judge-fashioned and permissibly judge-expanded. The exception in the new law is graven in statutory language that could not be any clearer. When we consider how limited the review of sentencing traditionally was, how strongly Congress evidently disfavors successive rounds of collateral attacks on duly reviewed convictions such as that of [the defendant], how doubtful it is that any violation of the sentencing guidelines rises to the level necessary to justify collateral relief even under the standards of the old law, and the absence of any indication in the legislative history that “offense” was being used in some special sense different from its ordinary meaning, we think it highly unlikely that Congress intended the word to bear a special meaning.
Id. at 120 (citation omitted). In other words, the actual innocence of sentence exception to the bar against second or successive motions involving sentence claims, as narrow as it was, did not survive AEDPA.
For all of these reasons, we conclude that the Sawyer actual innocence of sentence exception does not apply to claims that the guidelines were misinterpreted to
C. The Rule 60(b) Issue
Although he does not spend much of his argument effort on the issue, Gilbert does contend that the district court should have treated his “Motion to Reopen and Amend First 28 U.S.C. § 2255 Motion” as one under Rule 60(b)(5) & (6) and used that procedural vehicle to re-open and vacate his sentence. The district court declined to do so based on the reasoning of Gonzalez v. Crosby,
The petitioner in Gonzalez was a state prisoner trying to get around the § 2244(b) bar, not a federal prisoner like Gilbert trying to get around the § 2255(h) bar, and the Supreme Court did explicitly limit its consideration to state prisoner cases. See id. at 529 n. 3,
We join every other circuit that has addressed the issue in concluding that the standard announced in Gonzalez applies to federal prisoner cases as well. See United States v. Buenrostro,
III. CONCLUSION
We do not decide whether a claim that the sentencing guidelines were misapplied may be brought in a first time § 2255 motion. Nor do we decide if the savings clause in § 2255(e) would permit a prisoner to bring a § 2241 petition claiming that he was sentenced to a term of imprisonment exceeding the statutory maximum. What we do decide is that the savings clause does not authorize a federal prisoner to bring in a § 2241 petition a claim, which would otherwise be barred by § 2255(h), that the sentencing guidelines were misapplied in a way that resulted in a longer sentence not exceeding the statutory maximum. We also decide that the reasoning, standards, and tests announced by the Supreme Court in Gonzalez, which involved a state prisoner case, also apply to federal prisoner cases.
AFFIRMED.
Notes
. The PSR states, "[t]here is no plea agreement in this case,” but the record shows that there was an agreement that Gilbert would be sentenced without the statutory enhancement. A defendant cannot escape the effect of a § 851 notice and the resulting enhanced penalty ranges set out in § 841(b)(1) without the government’s agreement. The United States Attorneys’ Manual provides that the government may waive or withdraw a § 851 notice as part of a plea agreement so long as its action is made known to the sentencing judge. See Dep’t of Justice, United. States Attorneys’ Manual § 9-27.300(B) cmt. (1997). Here the fact that the statutory enhancement notice was being withdrawn obviously was made known to the judge, because the judge was the first one to note at the plea hearing that Gilbert was pleading guilty without the enhancement.
That part of the colloquy went as follows:
*1299 The Court: "I understand that you're pleading guilty to the indictment as originally charged without the enhancement; is that correct?”
Defendant: "Yes, sir.”
[Defense Attorney]: "That’s the 851 enhancement.”
The Court: "The 851 enhancement.”
At the sentence hearing, Gilbert's attorney stated, without objection from the government, that: "[0]n page one of the sentencing memorandum, they have the mandatory minimum of life, which is no longer applicable in this case, it’s a ten-year mandatory minimum.” And the Addendum to the PSR states: "The government has indicated that the enhancement in this case for a Life sentence was withdrawn at the time of the defendant’s plea.”
. The 1990 conviction on the cocaine charge was listed in the § 851 notice, while the 1994 carrying a concealed weapon conviction was not. The reason is that the § 851 requirement applies only to drug convictions used to enhance the statutory range under § 841(b)(1); it does not apply to controlled substance or crime of violence convictions used to obtain § 4B1.1 enhancements under the guidelines. See Young v. United States,
. At the time of Gilbert’s sentencing, the guidelines definition of a "controlled substance offense” was contained in § 4B 1.2(2) (1995). Although that provision has since been renumbered § 4B 1.2(b) (2009), the content has not changed.
. At the time of Gilbert's sentencing, the guidelines provision containing the substituted offense level for a career offender whose current offense carried a statutory maximum penalty of life imprisonment was contained in § 4B1.1(A) (1995). Although that provision has since been renumbered § 4Bl.l(b)(A) (2009), the content has not changed.
. Gilbert had a criminal history score subtotal of 7 before two points were added because he had been on probation at the time he commit
. At the time of Gilbert's sentencing, the guidelines provision mandating that a career offender’s criminal history category should be VI was contained in § 4B1.1 (1995). Although that provision has since been renumbered § 4B 1.1(b) (2009), the content has not changed.
. At the time of Gilbert’s sentencing, the guidelines definition of a “crime of violence’’ was contained in § 4B 1.2(1) (1995). Although that provision has since been renumbered § 4B 1.2(a) (2009), the content has not changed. To avoid confusion, throughout this opinion we refer to the current enumeration, § 4B 1.2(a).
. Between the filing of the § 2255 motion and the ruling on it, the case was reassigned to a different judge, and there was some confusion about the pleadings, and Gilbert fired his attorney, and the new district court judge recused himself, and the third judge referred the matter to a magistrate judge, and so on. As a result, it took four years for Gilbert's § 2255 motion to be decided.
. This was the series of events the district court had in mind when, denying Gilbert § 3582(c) relief, it commented: “Unfortunately, Mr. Gilbert is in the unenviable position of having to remain in prison even though under the present interpretation of the law he is no longer deemed a career offender and has served the time that would be required of him were he sentenced today.”
. Actually, the assumption might extend to an even lower guidelines range. If Gilbert had not been classified as a career offender under § 4B1.1, he would have been eligible for resentencing consideration under Amendment 706. The district court held in Gilbert’s 18 U.S.C. § 3582(c) proceeding that he was ineligible for resentencing under that amendment because it does not apply to career offenders. See United States v. Moore,
. Justice Kennedy's plurality opinion in Harmelin is the opinion of the Court on the proportionality issue. United States v. Farley,
. We realize, of course, that the judge who sentenced Gilbert in 1997 wanted to give him a shorter sentence. That judge, however, would not be handling any resentencing of Gilbert, because he was a visiting judge from New York who has not been back to the Middle District of Florida in at least a decade.
. Our decision not to decide whether Gilbert’s Begay/Archer claim could be brought in a first § 2255 motion renders irrelevant some of the decisions that Gilbert relies on. See, e.g., Davis v. United States,
. If that issue were before us, we would not be bound to accept the government's concession. See Roberts v. Galen of Va., Inc.,
. An amendment to § 841 effective August 3, 2010 changed "50 grams or more” to "280 grams or more.” See 21 U.S.C. § 841(b)(l)(A)(iii) (2010).
. Some of the listed decisions concern the definition of “violent felony” in the ACCA, but we have held that term is "virtually identical” to "crime of violence” in § 4B1.1, so that decisions about one apply to the other. See United States v. Harris,
. Those terms, in the order listed, appear in at least the following provisions of the sentencing guidelines: §§ 2A2.4(b)(1)(A); 2A2.2(b)(3); 2A2.3(b)(l)(B); 2A2.1(b)(l)(A); 2A1.4(a)(2)(A); 2A3.1(b)(3)(A); 2A3.5(b)(2)(B); 2A6.1(b)(4)(A); 2A6.2(b)(1)(D); 2B1.1(b)(9)(B); 2Bl.l(b)(15)(B); 3B1.3 (2010).
. Gilbert’s contentions have a little more allure because he is the one who first litigated what would become known as the Archer issue and the first one to have the issue decided against him in this circuit. There is, however, no trailblazer exception to the § 2255(h) bar against second or successive motions or to the inapplicability of the savings clause to guidelines misapplication claims. There could be no principled basis for a special exception that would grant relief to the first petitioner to raise an issue but deny it to all who came after him. The rule that is announced must apply to all.
. Judge Martin seeks comfort for her position in Triestman v. United States,
To the extent that the dissenters would have us uproot the "serious constitutional issue” standard that Triestman applied to claims of actual innocence and transplant it into cases involving misapplications of the sentencing guidelines, no court of appeals, including the Second Circuit, has ever done that. Moreover, Triestman’s squishy standard has not been favorably received by other circuits. See Reyes-Requena v. United States,
. The Wofford opinion also contains dicta that the savings clause "may conceivably” apply to some sentencing claims in some circumstances where there was a fundamental defect in sentencing that the prisoner had no opportunity to have corrected before the end of his § 2255 proceeding. See id. at 1244-45. What the Wofford panel may have had in mind are pure Begay errors, by which we mean errors in the application of the "violent felony” enhancement, as defined in 18 U.S.C. § 924(e)(2)(B), resulting in a higher statutory minimum and maximum sentence under § 924(e). A Begay error in the classification of a prior conviction that was used to impose an enhanced sentence under § 924(e) would necessarily have resulted in the defendant being sentenced to a term of imprisonment that exceeded what would have been the statutory maximum without the error. Compare 18 U.S.C. § 924(a)(2) ("Whoever knowingly violates subsection ... (g) ... of section 922 shall be ... imprisoned not more than 10 years....”), with 18 U.S.C. § 924(e)(1) ("In the case of a person who violates section 922(g) ... and has three previous convictions ... for a violent felony or a serious drag offense ... such person shall be ... imprisoned not less than fifteen years.... ”).
For that reason, a pure Begay error would fit within the government's concession that the savings clause applies to errors that resulted in a sentence beyond the statutory maximum that would have applied but for the error. See supra at 1306-07. That is not, however, the claimed error we have in this case. Instead, Gilbert’s claim is that his sentence calculation involved an Archer error in the application of § 4B 1.1 of the guidelines, and that error did not result in a sentence beyond the statutory maximum. For that reason, we have no occasion to decide whether what the Wofford dicta conceived might be the law, and what the government concedes should be the law, is actually the law. What we do decide is that the savings clause does not apply to sentencing errors that do not push the term of imprisonment beyond the statutory maximum.
. The Eighth Circuit had previously applied the actual innocence exception to a non-capital sentencing case in Pilchak v. Camper,
. After the panel issued its decision, it ordered Gilbert released from prison immediately. That order, which was issued on July 1, 2010, is rescinded immediately on the date this opinion is issued.
Concurrence Opinion
concurring:
I join fully in the opinion of the majority. I write separately to respond to the dissenting opinions, which argue that this Court is “morally bankrupt,” Dissenting Op. of Hill, J., at 1337, unless we find some
The dissents argue that Gilbert has not had a “meaningful opportunity” to challenge the legality of his imprisonment, Dissenting Op. of Barkett, J., at 1329; Dissenting Op. of Martin, J., at 1335 n.3; Dissenting Op. of Hill, J., at 1337, but that assertion is silly. To the contrary, the federal judiciary knows Ezell Gilbert well: Gilbert pleaded guilty to drug charges in 1996; he appealed his sentence to this Court, and we affirmed, United States v. Gilbert,
Several constitutional provisions grant rights to criminals like Gilbert, but the Suspension Clause is not one of them. The Supreme Court explained, shortly after the ratification of the Constitution, that “for the meaning of the term habeas corpus, resort may unquestionably be had to the common law.” Ex parte Bollman,
The arguments of my dissenting colleagues that the Suspension Clause enti
Because the Suspension Clause does not provide any rights to prisoners convicted and sentenced by courts of competent jurisdiction, any relief that Congress chooses to provide to federal prisoners is, to borrow language from a dissent, a “gift[ ] that may be bestowed or withheld.” Dissenting Op. of Hill, J., at 1337 n.2. And if a federal prisoner suffers some “injustice” that Congress has not empowered the courts to correct, the President can exer
But the dissents fret, what is a judge to do when he or she thinks Congress was not generous enough when it gave prisoners the right to attack collaterally their sentences? The dissents offer an answer: Help Congress and the President with their work. After all, the President may be too busy “with the vast responsibility of exercising executive powers,” Dissenting Op. of Martin, J., at 1333, and Congress may be too busy with other legislative responsibilities to provide relief to a recidivist serving a federal sentence that is less than the statutory maximum. In the light of the growing national debt, releasing Gilbert from prison may also be a good idea because his incarceration is “very expensive.” Id., at 1334.
This grandiose conception of judicial supremacy would threaten the separation of powers and undermine the rule of law. The fundamental “role of the courts” is not to “hear [the] cases” presented by prisoners “detained without a remedy” and give them relief not provided by law. Id. at 1336. The Supreme Court has held that, subject to constitutional limitations, rules that govern the application of the writ “reflect a balancing of objectives (sometimes controversial), which is normally for Congress to make, but which courts will make when Congress has not resolved the question.” Lonchar,
After charging that this Court is “morally bankrupt” unless it can find a way to do “justice,” Dissenting Op. of Hill, J., at 1337, Judge Hill’s dissent notes that the law sometimes provides relief to individuals as unsympathetic as Gilbert, such as the rapist Ernesto Miranda, id. at 1337, but Miranda’s victory does not mean that the judiciary must correct every error committed at trial or sentencing years after the sentence has become final. The first citation of Miranda v. Arizona,
Congress generously has made the writ available to prisoners serving sentences imposed by state and federal courts even though those prisoners would not have been entitled to the writ in 1789. We have entertained thousands of petitions from prisoners sentenced by state and federal courts. The primary effect of the expansion of the availability of the writ beyond the requirements of the Suspension Clause has not been to vindicate the rights of prisoners, but to undermine the finality of judgments. A recent empirical study found that, for most state prisoners, the writ is an illusory remedy as it is granted for only 0.35 percent of petitions filed by state prisoners not sentenced to death. Nancy J. King & Joseph L. Hoffmann, Habeas for the Twenty-First Century 79 (2011). In addition, state prisoners sentenced to death, but whose guilt is beyond dispute, routinely use postconviction remedies provided by Congress and by state governments to litigate the legality of their sentences for decades following conviction. See, e.g., Harvey v. Warden, Union Corr. Inst.,
It is also absurd to assert that we have “rendered] the savings clause a dead letter.” Dissenting Op. of Martin, J., at 1332. By operation of the savings clause for motions to vacate, 28 U.S.C. § 2255(e), Congress has allowed federal prisoners to petition for writs of habeas corpus when a decision of the Supreme Court applies retroactively and “establishes the petitioner was convicted for a nonexistent offense” and circuit precedent prevented the petitioner from raising the issue on direct appeal or in a motion to vacate. Wofford v. Scott,
The dissents trivialize the Great Writ when they argue that it must issue to reverse the sentence of a confessed and recidivist drug dealer, who has already challenged his conviction and sentence both on direct and collateral review, only so that he may be resentenced by a court that could impose a sentence even greater than the one originally imposed. See Schneckloth v. Bustamonte,
Judges cannot mold the Suspension Clause to provide relief whenever they feel sorry for a prisoner or to comport with their personal sense of justice, and that fact does not mean that the “Great Writ is dead.” Congress allowed prisoners to attack collaterally their sentences, but Congress had every right to restrict second or successive collateral attacks. Gilbert is not entitled to relief.
Dissenting Opinion
dissenting, in which HILL, Circuit Judge, joins:
I join in full the dissenting opinions authored by Judge Martin and Judge Hill. I write separately to emphasize that 28 U.S.C. § 2255(e) is referred to as the “savings” clause for a reason. By permitting a federal prisoner to bring a habeas corpus petition under 28 U.S.C. § 2241 where § 2255 proves “inadequate or ineffective remedy to test the legality of his detention,” § 2255(e) operates to “save” § 2255 from violating the Suspension Clause of the United States Constitution. In a recent landmark decision comprehensively interpreting the Suspension Clause, the Supreme Court squarely held that the Suspension Clause is violated when a prisoner is denied “a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law.” Boumediene v. Bush,
. Judge Pryor's concurring opinion is premised on the view that the Suspension Clause applies only where a prisoner has been convicted and sentenced by a court of incompetent jurisdiction. That view, however, is not one shared by the Supreme Court. See Boumediene,
. Relying on Felker v. Turpin,
. Not only does Judge Pryor dispute this point, he deems it "silly.” But every court to review Gilbert's meritorious claim, which he has pursued with diligence, has lacked the authority to correct the legal error he identified. Judicial review of this sort is vacuous and hollow, not meaningful. See Boumediene,
Dissenting Opinion
dissenting, in which BARKETT and HILL, Circuit Judges, join:
Ezell Gilbert is now before us asking to be relieved of the consequences of a mistake we made in his direct appeal in 1998. He told us then that the District Court was wrong in sentencing him substantially more harshly based on that court’s decision that carrying a concealed weapon is a crime of violence. We rejected his argument, and affirmed his sentence of more than 24 years. United States v. Gilbert,
The effects of our mistake are quite dire for Mr. Gilbert, insofar as his properly calculated (and advisory) guideline range would today be 130-162 months, or approximately 11 to 13 years. As I write this, I understand that he has already served more than fourteen years in prison. And yet the majority opinion tells Mr. Gilbert that the laws and Constitution of this country offer him no relief. I differ with the majority insofar as I believe the statute offers Mr. Gilbert a remedy under these extraordinary circumstances. If, on the other hand, I must accept the majority position that Mr. Gilbert has no statutory remedy, I say that he has been subjected to a deprivation of liberty of such magni
In order to more clearly delineate Mr. Gilbert’s avenue for relief, it is necessary to review the remedies that are not available to him. First, because Mr. Gilbert raised the issue of his career offender enhancement in his direct appeal, and because the Supreme Court had not yet decided Begay v. United States,
Second, 28 U.S.C. § 2255(h), which was enacted into law as a part of AEDPA, and permits a second or successive petition for relief, is not available to Mr. Gilbert. In order to be eligible to file a second or successive motion for relief under § 2255(h), the statute requires a showing either that (1) there is newly discovered evidence which would, under a strict standard of review, result in no reasonable fact finder finding him guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that had not been previously available. We have held that the “newly discovered evidence” requirement of this statute refers to the offense of conviction, so it cannot be relied upon by someone, like Mr. Gilbert, who is challenging his sentence. See, e.g., In re Dean,
For me, Mr. Gilbert’s particular circumstance is addressed by 28 U.S.C. § 2255(e), which was already in existence at the time of AEDPA’s passage, and not expressly
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
Mr. Gilbert did not fail to apply for relief, but rather has diligently pursued every legal avenue available to him, including, of course, direct appeal to this Court. Since Mr. Gilbert still faces a sentence of more than 24 years despite our admission that we decided his case wrongly, his efforts can only be said to have been of no effect. Therefore, proceeding under the plain terms of the statute, as we must, § 2255 has been both inadequate and ineffective for Mr. Gilbert. See Connecticut Nat’l Bank v. Germain,
Shortly after Mr. Gilbert was convicted, we mentioned the possibility that relief for a “fundamental defect” in a sentence might be available by way of this savings clause. Wofford v. Scott,
The majority today forecloses the possibility we left open back in 1999. This decision removes any possibility of habeas relief for Mr. Gilbert by equating the requirements for relief under § 2255(e) with those under § 2255(h) and, in the process, renders the savings clause a dead letter. So now it is true that there is no relief in Alabama, Florida or Georgia for any person who is, for some reason, barred from relief under § 2255 but wrongfully incarcerated on account of a sentencing error. This is so, even here, where that sentencing error leaves him incarcerated for a decade or more beyond what is called for by law.
While the Hayman court was addressing § 2255 well before the enactment of the AEDPA amendments, I am aware of no development in the decades that have passed since the ruling in Hayman, including the passage of AEDPA, that was intended to remove the power and responsibility of the judiciary to enforce § 2241. Our duty to interpret that provision according to its plain terms is especially robust in light of the Suspension Clause of the U.S. Constitution. By today’s decision we have shirked our duty in that regard, and in doing so we diminish the institution of the federal courts.
As if to highlight the harm we do to the court, during oral argument the government stated that the only possible avenue of recourse for Mr. Gilbert is to seek clemency from the Executive Branch of government. Surely we neglect our responsibility when we turn away a wrongfully incarcerated defendant with the suggestion that he seek relief from the branch already charged with the vast responsibility of exercising executive powers. The responsibility for assuring individual justice is ours.
The plain text of § 2255(e) permits Mr. Gilbert to petition for habeas corpus through a § 2241 motion. My application of the majority’s own analysis leads to this conclusion as well.
a. Statutory Construction
In construing the enactment of 28 U.S.C. § 2255(h) to deplete the importance of the previously existing § 2255(e) the majority says: “[fjundamental canons of statutory construction support the conclusion that the generally worded and ambiguous savings clause, which was first enacted in 1947, cannot override the specifically worded and clear statutory bar on second or successive motions that was enacted as part of AEDPA in 1996.” Maj. • Op. at 1308. This ignores another fundamental canon of statutory construction, recognized by the Supreme Court in the very case relied upon by the majority, which disfavors repeal of a statute by implication. Morton v. Mancari, 417 U.S. 535, 549-50,
b. Finality
In this case of statutory construction, the majority also speaks of the importance of finality. Surely Mr. Gilbert’s case is a poor vehicle to promote the idea that finality builds confidence in our criminal justice system. Today we tell a man he must sit in the penitentiary for years beyond the sentence that a proper application of the law would have imposed, when we rejected his correct interpretation of what the law meant back in 1998.
Finality is valued in our system insofar as it promotes certain principles: (1) to build confidence in the integrity of the judicial system; (2) to minimize administrative costs and delay; (3) to avoid spoilatión of evidence; and (4) to honor comity. See United States v. Addonizio,
First, denying relief does not build confidence in our court system because this looks to the world like a court refusing to acknowledge or make amends for its own mistake. Second, to the extent that there have been administrative costs and delay in considering Mr. Gilbert’s request for relief, they have already been incurred, and we need only grant him that relief to end his very expensive incarceration. Third, because the only issue before us is a purely legal one, there is no evidence we must consult. Thus spoliation is not a concern. And finally, Mr. Gilbert’s case presents no comity concerns insofar as he seeks to correct a sentence imposed in federal court and not by the state.
It is worth pausing briefly to properly emphasize that this case does not raise comity concerns because we are asked to correct a mistake we ourselves made in federal court. We are not reviewing a state court conviction which would require our deference. To be sure, AEDPA was designed “to further the principles of comity, finality, and federalism.” Williams v. Taylor,
Finality has special importance in the context of a federal attack on a state conviction. Reexamination of state convictions on federal habeas frustrated] ... both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights. Our federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of the State to pass laws means little if the State cannot enforce them.
McCleskey v. Zant,
c. Jurisprudence from Other Circuits
The majority states categorically that every other circuit court has refused to interpret the savings clause (28 U.S.C. § 2255(e)) “in a way that would drop the § 2255(h) bar on second and successive motions.” Maj. Op. at 1308. Such a definitive statement is not accurate for two reasons. First, the Second and Seventh Circuits have left the question open. Second, no other court has addressed this legal question in the context of facts which carry the magnitude of the impact this case has on Mr. Gilbert. I do agree with the majority that the Third, Fifth and Sixth Circuits have either denied the relief which Mr. Gilbert seeks here, or at least strongly indicated that such relief is not available. For that reason, I will elaborate only on the opinions from the Second and Seventh Circuits.
In Triestman v. United States,
We have already stated that “inadequate or ineffective” is not limited merely to the practical considerations suggested by the government, but refers to something that is still less than the full set of cases in which § 2255 is either unavailable or unsuccessful. We now hold that that “something” is, at the least, the set of cases in which the petitioner cannot, for whatever reason, utilize § 2255, and in which the failure to allow for collateral review would raise serious constitutional questions.
Id. at 377. In contrast to the majority’s reading of this case, I do not read it to foreclose relief to Mr. Gilbert. Surely it must be true that keeping someone in the penitentiary for such a substantial duration beyond what the correct sentence would call for constitutes a “serious constitutional question.”
I also see the Seventh Circuit’s opinion in Davenport,
While we may be enriched by the consideration our sister circuits have given to the substantial legal issues we consider here, the decision in Mr. Gilbert’s case is ours. For the reasons set out above, I see no impediment imposed by statute or legal precedent which prevents this court from correcting the mistake we made in Mr. Gilbert’s case so long ago. To the contrary, I see it as our duty to do so.
Finally, I do not share the majority’s concern that giving Mr. Gilbert relief under these extraordinary circumstances will open the floodgates to other prisoners. Indeed if there are others who are wrongfully detained without a remedy, we should devote the time and incur the expense to hear their cases. What is the role of the courts, if not this? But what is important today is the consequence to Mr. Gilbert of our unwillingness to correct our past legal error.
For these reasons I respectfully dissent. I would vacate Mr. Gilbert’s sentence and remand his case to the District Court so that he can be resentenced with the law correctly applied.
. The commonly referred to Suspension Clause of the U.S. Constitution provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2.
. I recognize that my estimate of the difference between Mr. Gilbert’s current sentence, and what his sentence would be if he were sentenced today makes the generous assumption that the District Judge would again impose a sentence at the low end of the guidelines. My estimate comes from subtracting the number of months which constitute the low end of what we now know to be Mr. Gilbert’s correct guideline range from the sentence he is serving. The majority's estimate is much higher. The majority speculates that Mr. Gilbert could be resentenced to 292 months of incarceration or could get an even longer sentence. In order to get to this number the majority has second guessed the charging decisions made by the prosecutor with regard to Mr. Gilbert. This is not permitted by our precedent. United States v. Smith,
. As the Supreme Court explained in Pelker, the “abuse of the writ” doctrine constitutes "a modified res judicata rule.”
Dissenting Opinion
dissenting, in which BARKETT, Circuit Judge, joins:
Ezell Gilbert’s sentence was enhanced by eight and one-half years as the result of his being found by the district court— reluctantly and at the explicit urging of the government — to be a career offender. Ezell Gilbert is not now, nor has he ever been, a career offender. The Supreme Court says so.
Today, this court holds that we may not remedy such a sentencing error. This shocking result — urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice — and accepted by a court that emasculates itself by adopting such a rule of judicial impotency — confirms what I have long feared. The Great Writ is dead in this country.
Gilbert raised his claim of sentencing error to every court he could, every chance he got. No court correctly resolved his claim until the Supreme Court made clear that Gilbert’s claim was meritorious — he was never a career offender. Now, he has come back to us for relief from his illegal confinement. Our response to him is that he cannot apply for relief under § 2255 because he has done so before, and, although we erroneously rejected his claim, the statute does not permit such reapplication. Of course, had he not applied for § 2255 relief, we would be holding now that he had procedurally defaulted his claim by failing to raise it before.
This “Catch-22” approach to sentencing claims is nothing more than a judicial “gotcha.” Through our self-imposed limitations, we have found a way to deny virtually all sentencing claims. We do this, avowedly, in the pursuit of “finality.” But, in so doing, we cast a pall of unconstitutionality over the otherwise beneficial provisions of § 2255.
Furthermore, to “seal the deal” on finality, we hold today that even the savings clause of § 2255 — which appears to permit resort to the Great Writ itself in circumstances such as these — provides no avenue to relief for Gilbert because confinement pursuant to sentencing errors such as his does not offend the Constitution. Rather than acknowledging that Gilbert’s sentence is fundamentally defective and a miscarriage of justice, we hold that the error
The government even has the temerity to argue that the Sentencing Guidelines enjoy some sort of legal immunity from claims of error because they are not statutes at all, but mere policy suggestions. And the majority appears not to understand that Gilbert’s imprisonment — no matter how his sentence was calculated — is the act of the Sovereign, who is forbidden by our Constitution to deprive a citizen of his liberty in violation of the laws of the United States.
I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing-more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity.
A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.
Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position — sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.
One last thought. The majority spends an enormous amount of time arguing that Gilbert is not a nice man. Perhaps. But neither, I expect, was Clarence Gideon, the burglar, or Ernesto Miranda, the rapist. The Supreme Court managed to ignore this legal irrelevancy in upholding the constitutional principle under attack in those cases. Would that we could have also.
I respectfully dissent from the majority’s holding. With the addition of these
. I refer the reader to the original panel opinion, now vacated but originally published at
. The government's suggestion, at en banc, that an application for clemency by Gilbert might be favorably received by the government mocks our constitutional guarantees by implying that they are gifts that may be bestowed or withheld at the whim of the Sovereign.
Concurrence Opinion
concurring specially:
Even though I initially agreed with the panel opinion, I now concur fully in the well-reasoned majority opinion and write separately to emphasize that after studying the issue further and having the benefit of en banc oral argument and briefing, I am persuaded that Gilbert’s sentencing guidelines claim does not fall within the savings clause of 28 U.S.C. § 2255, and that the policy principles regarding finality of judgment weigh most heavily in denying Gilbert the relief he seeks. As the majority opinion states, “one of the principal functions of AEDPA was to ensure a greater degree of finality for convictions.” Johnson v. United States,
Concurrence Opinion
concurring, in which EDMONDSON, Circuit Judge, joins:
I fully agree with the court’s explanation of why the district court could not grant Gilbert the relief he seeks, but feel obliged to make the following observations.
First, I think it unnecessary to describe in detail the circumstances of Gilbert’s crime — including the presence of his five-year old daughter — and Gilbert’s criminal record, and then posit that, if he were to be resentenced, the district court would likely impose the same sentence he received in the first instance. None of that is relevant. I therefore do not join in part II.A of the court’s opinion. The sole issue we are called upon to decide is whether the savings clause applies in this ease. The court holds, correctly, that it does not.
Second, having decided that the savings clause does not apply in this case, we do not need to imagine the potential consequences of a contrary holding. I therefore decline to join part II.B.4 of the court’s opinion.