Case Information
Unitеd States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 20, 2020 Lyle W. Cayce Clerk Roberto Beras,
Petitioner—Appellant , versus
Calvin Johnson, Warden , Oakdale Federal Correctional Institution,
Respondent—Appellee . Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:17-CV-276 Before Wiener, Engelhardt, and Oldham, Circuit Judges .
Per Curiam:
Roberto Beras is a federal prisoner. He sought postconviction review
of his conviction for money laundering. But he did not do it the normal way—
through a motion under 28 U.S.C. § 2255. Instead, Beras filed a § 2241
petition for habeas corpus, relying on our precedent in
Reyes-Requena v.
United States
,
I.
A. Roberto Beras was the co-owner and vice president of Dinero Express, Inc., which specialized in international money transfers. United States v. Dinero Exp., Inc. , 313 F.3d 803, 805 (2d Cir. 2002) (“ Dinero I ”). The Government filed an eighty-two-count indictment, alleging that Beras used Dinero to facilitate “an extensive international money laundering scheme” involving New York-area drug traffickers and “the proceeds of illegal narcotics sales.” Id. As relevant here, the Government charged Beras in Counts 3 through 35 with money laundering under 18 U.S.C. § 1956(a)(2)(B)(i) and in Count 1 with сonspiracy to commit money laundering.
Section 1956(a)(2)(B)(i) makes it illegal for anyone to “transport[], transmit[], or transfer[] . . . funds from a place in the United States to or through a place outside the United States” when the individual knows those funds “represent the proceeds of some form of unlawful activity” and also knows that the transfer is “designed in whole or in part . . . to conceal or disguise the nature, the location, the source, the ownership, or the control” of those proceeds. 18 U.S.C. § 1956(a)(2)(B)(i).
One of Beras’s main laundering practices “involved the transfer of
drug proceeds to the Dominican Republic under the guise of phony money
remittances through a four-step process.”
Dinero I
,
The cash was not always clean. One time, Dinero received $500,000 in cash in Miami. But it “smell[ed] like gasoline.” Dinero employees then took the cash on a bus with them to New Jersey, where they literally laundered the money by “run[ning] it through the washing machine.” The cash still stunk, but a bank accepted the deposit nonetheless. So in both literal and figurative money laundering, [1] Beras proved quite successful.
Second, after depositing the cash, “Dinero remittance invoices were
generated for fictitious transactions to the Dominican Republic; the invoices
used false identities and addresses and were made out in amounts small
enough to avoid currency reporting requirements.”
Dinero I
,
“Third, arrangements were made for a Dominican ‘peso supplier’ to
advance local currency. . . to Dinero’s Dominican office, which in turn
forwarded the cash to the drug traffickers’ Dominican personnel under the
pretense of fulfilling the fictitious remittances generated in New York.”
Dinero I
,
The fourth and last step involved “a wire transfer of funds from
Dinero’s New York operating account to the peso supplier’s bank accounts
in the United States.”
Dinero I
,
Beras was sentenced to 292 months’ imprisonment, three years’ supervised
release, and a $4,100 mandatory special assessment, and was additionаlly
subjected to an order of forfeiture in the amount of $10 million.”
Dinero I
,
B. Beras challenged his conviction. Because Beras’s previous challenges are relevant to his abuse of the writ in this proceeding, we recount the procedural history in some detail.
Beras appealed his conviction to the Second Circuit. It affirmed in two separate opinions, Dinero I and Dinero II , issued one day apart. The Supreme Court denied review on February 23, 2004. Beras v. United States , 540 U.S. 1184 (2004) (mem.).
While his direct appeal remained pending, Beras filed motions in the
trial court under Federal Rule of Criminal Procedure 12(b) for a new trial and
Rule 33 to dismiss the indictment. The district court denied both motions;
the Second Circuit affirmed each denial.
United States v. Beras
, No. 99-CR-
75,
Meanwhile, Beras filed a timely 104-page § 2255 motion in the
Southern District of New York on February 17, 2005.
See Beras v. United
States
, No. 99-CR-75,
The Second Circuit denied Beras a certificate of appealability because,
as relevant to his
Cuellar
claim, he failed to show “jurists of reason would
find it debatable whether the district court was correct in its procedural
ruling.”
Beras v. United States
, No. 13-1800 (2d Cir. Jan. 8, 2014) (citing
Slack
v. McDaniel
,
Beras sought to raise his Cuellar claim again, this time in a successive § 2255 motion. But the Second Circuit denied authorization to file that § 2255 motion because Cuellar did not announce a “new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court.” Beras v. United States , No. 15-1324 (2d Cir. July 15, 2015) (quoting 28 U.S.C. § 2255(h)(2)). Instead, Cuellar was “limited to [a] question[] of statutory interpretation.” Id. Accоrdingly, it denied permission to file a second or successive § 2255 motion.
The Second Circuit denied a subsequent request to file a successive § 2255 motion on different grounds in 2016. Beras v. United States , No. 16- 2301 (2d Cir. Nov. 10, 2016). In the time since, Beras has made other filings in the Second Circuit for amendment, reconsideration, mandamus, &c. with varying degrees of success. For instance, in June 2019, the Southern District granted Beras’s request for various documents from his defense counsel about plea agreements and offers they received prior to his trial. Beras v. United States , No. 99-CR-75 (S.D.N.Y. June 10, 2019). Those Southern District of New York proceedings remain pending.
This is where things get interesting. Section 2255 motions must be filed in the prisoner’s court of conviction, whereas habeas petitions must be filed against the prisoner’s custodian. See United States v. Hayman , 342 U.S. 205, 210–19 (1952) (distinguishing § 2255 motions from habeas petitions). So while Beras was litigating his § 2255 proceedings in his court of conviction (in the Southern District of New York and the Second Circuit), he also chose to sue his custodian for habeas corpus under 28 U.S.C. § 2241.
Beras sued the warden оf his federal prison in Lisbon, Ohio in the Northern District of Ohio on March 27, 2012. He challenged his conviction on the grounds that the judge presiding over his trial violated his First Amendment, Sixth Amendment and Federal Rule of Criminal Procedure 10 rights. The district court denied his petition. Beras v. Farley , 2012 U.S. Dist. LEXIS 92371, *1 (N.D. Ohio July 3, 2012). And the Sixth Circuit affirmed. Beras v. Farley , No. 12-3896 (6th Cir. Sept. 11, 2013) (citations omitted). Once again, the Supreme Court denied certiorari. Beras v. Coakley , 573 U.S. 953 (2014) (mem).
Yet even while his first § 2241 application remained pending in the
Sixth Circuit, Beras filed a
second
§ 2241 application in the Northern District
of Ohio. In this application, Beras “argue[d] he [was] actually innocent of
money laundering because the Supreme Court in
Cuellar
issued a new
interpretation of . . . 18 U.S.C. § 1956(a)(2)(B)(i), which ma[de] this statute
inapplicable to him.”
Beras v. Coakley
,
Later, Beras was transferred to thе Federal Correctional Institute in Oakdale, Louisiana. Once in a new federal district, Beras filed two new § 2241 applications against his new custodian. The district court denied one; Beras appealed; we dismissed for want of prosecution. Beras v. Johnson , No. 18- 30823 (5th Cir. Sept. 19, 2018).
In Beras’s other § 2241 application, he raised the
Cuellar
argument
once again. The district court dismissed his application. Beras timely
appealed, and we appointed counsel to argue on his behalf. We review his
§ 2241 petition
de novo
.
Garland v. Roy
,
II.
We start with the procedural vehicle Beras chose for this proceeding:
Section 2241. One might reasonably wonder why Beras did not file under 28
U.S.C. § 2255, which is “the primary means of collateral attack on a federal
sentence.”
Cox v. Warden, Fed. Det. Ctr.
,
Beras instead argues that he has statutory escape hatches in §§ 2241
and 2255(e). The latter subsection allows federal prisoners to file habeas
petitions under § 2241 when § 2255 is “inadequate or ineffective.” In
Reyes-
Requena
, our circuit interpreted that text to allow claims based on new
interpretations of federal statutes—like
Cuellar
—when three prerequisites
are met.
Beras and the Government hotly dispute whether Beras and his Cuellar claim meet the Reyes-Requena prerequisites. But we need not decide that question because Beras’s § 2241 application fails on other grounds. See Hunter v. Tamez , 622 F.3d 427, 430 (5th Cir. 2010) (“We may affirm the district court’s denial of [§ 2241] relief on any ground supported by the record.”). It is an abuse of the writ of habeas corpus.
Section 2244(a) allows us to dismiss a successive habeas application.
See McClesky v. Zant
, 499 U.S. 467, 483 (1991). The Supreme Court has
interpreted this statute to be consistent with the common-law “judicial
evolution” of the “abuse-of-writ” principle.
Id.
at 484 (citing
Sanders v.
United States
,
In general, there are two circumstances where a § 2241 application
should be dismissed as an “abuse of the writ.” First, “a petitioner can abuse
the writ by raising a claim in a subsequent pеtition that he could have raised
in his first, regardless of whether the failure to raise it earlier stemmed from
a deliberate choice.”
Id.
Second, it is an abuse of the writ for a prisoner to
raise the same claim a second time.
See Salinger v. Loisel
,
Both apply to Beras’s § 2241 application. Beras filed a § 2241
application in the Northern District of Ohio in 2012—almost four years after
Cuellar
—but did not include a
Cuellar
claim. Moreover, Beras raised his
Cuellar
claim in his second § 2241 application to the Northern District of
Ohio. As this circuit has said many times, subsequent § 2241 applications are
barred “if the same legal issue . . . [is] addressed and resolved in [a] prior”
application.
Tubwell
,
Yet Beras argues that this language
does
apply to him because his claim
is really a § 2255 motion in disguise, and thus there are no § 2244(a) limits.
That is obviously wrong. Our circuit in
Reyes-Requena
said that it was
“permit[ing]” federal prisoners to file “claim[s] under § 2241” because a
§ 2255 motion would be “inadequate or ineffective” for their claims.
Reyes-
Requena
,
Second, Beras argues that we should not dismiss because the Sixth
Circuit used an “incorrect” standard to assess his previous
Cuellar
claim.
But the Supreme Court has said that “the rule against repetitive litigation”
has “plenty of bite.”
Banister v. Davis
,
AFFIRMED .
Andrew S. Oldham, Circuit Judge , concurring :
I join the majority opinion because it correctly applies the abuse-of- the-writ doctrine. I write separately about our decision in United States v. Reyes-Requena , 243 F.3d 893 (5th Cir. 2001). In that decision, our court created a contra-textual exception to the limitations Congress imposed on federal habeas corpus. That was wrong. In an appropriate case, our en banc court should overrule Reyes-Requena and follow the statute Congress wrote.
Lest my criticisms seem quixotic or unduly harsh, it bears emphasis that Reyes-Requena is our canonical statement on the meaning of 28 U.S.C. § 2255(h). That statute, in turn, applies to every single federal prisoner seeking relief in a second-or-successive postconviction motion. We owe it to those prisoners, the rule of law, the separation of powers, and the Great Writ to recognize the magnitude of our mistake.
I.
A. It’s oft-said that habeas corpus originated in Magna Carta. [1] Chapter 39 of the Great Charter declared: “No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land.” Great Charter of Liberties , ch. 39 in Select Documents of English (1215), reprinted Constitutional History 42, 47 (George Burton Adams & H. Morse Stephens eds., 1929) (1901). When King John accepted the barons’ demands at Runnymede, the people of England got their first positive law—a statute of sorts—that protected them against arbitrary imprisonment.
When the Stuarts arbitrarily imprisoned English citizens, courts attempted to check the Crown’s abuses through habeas. Those efforts were often ineffective—which prompted Parliament to pass more habeas statutes. For example, a habeas case spurred the Petition of Right. See Darnel’s Case (“ Five Knights’ Case ”) 3 How. St. Tr. 1, 1–59 (K.B. 1627); Frances Relf, The Petition of Right 1–19 (1917) (Ph.D. dissertation, University of Minnesota) (noting the Five Knights’ Case was an essential predicate of the Petition). Habeas cases spurred Parliаment to abolish the King’s Court of High Commission. See, e.g. , Burrowes v. The High Commission Court 81 Eng. Rep. 42 (K.B. 1616); The Act for Abolition of the Court of High Commission, 17 Car. I c. 11 (1641), in The Constitutional Documents of the Puritan Revolution 1625–1660, at 186–89 (Samuel Rawson Gardiner ed., 3d ed. 1906); Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke 1552–1634, at 530 (1957). Habeas likewise spurred Parliament to abolish the Star Chamber. See Lilburne’s Case , 3 How. St. Tr. 1315, 1331–49 (1637); Habeas Corpus Act of 1641, 16 Car. I c. 10 (Eng.). And further habeas abuses prompted Parliament to pass the Habeas Corpus Act of 1679. See, e.g. , Earl of Clarendon Case , 6 Cobbett’s St. Tr. 317, 330–31 (Eng. 1667); 4 Parl. Hist. Eng. (1679) cols. 1148–49 (recording evolution of the Act to final form). The lattermost statute was the “stable bulwark of our liberties.” 1 W. Blackstone, Commentaries *137. Indeed, Blackstone called the 1679 habeas statute the “second magna carta.” Id. at *133. This noble history is what made habeas the “Great Writ.” See 3 Blackstone, supra , at *129 (describing habeas corpus ad subjiciendum as “the great and efficacious writ in all manner of illegal confinement”). [2]
B.
Just as statutes framed the writ of habeas corpus in England, so too
here. Our Nation’s foundational habeas case—which arose from the Burr
conspiraсy—turned on the Supreme Court’s interpretation of § 14 in the first
Judiciary Act.
See Ex parte Bollman
,
Of course, only Congress can write law.
See id.
at 95 (noting the
“privilege” of habeas corpus “would be lost” if no statutory “means be . . .
in existence”). And since it’s Congress’s law to write, it’s also Congress’s
law to shape.
See id.
at 94;
Felker v. Turpin
,
Congress has exercised its habeas power ever since the Judiciary Act
of 1789.
See
Judiciary Act of 1789, ch. 20, 1 Stat. 73, 81–82;
Dep’t of Homeland
Sec. v. Thuraissigiam
, 140 S. Ct. 1959, 1974 n.20 (2020) (“[T]he scope of
habeas has been tightly regulated by statute, from the Judiciary Act of 1789
to the present day . . . .”). And Congress has made many changes over the
last two centuries. At first, the federal writ of habeas corpus could only test
the lawfulness of fеderal custody.
See
Judiciary Act of 1789,
Congress made further changes in the middle of the last century. “In 1948, as part of a general revision of the federal codes and in recognition of . . . judicially wrought changes in the scope of habeas corpus, habeas was split into three distinct statutes.” Nancy J. King & Joseph L. Hoffman, Habeas for the Twenty-First Century 9–10 (2011). All three can be found in title 28 of the United States Code. Congress maintained a descendant of the original writ in § 2241. But Congress imposed limits on state prisoners in § 2254. And as most relevant to Beras, Congress imposed limits on federal prisoners in § 2255.
“The need for Section 2255 is best revealed by a review of the
practical problems that had arisen in the administration of the federal courts’
habeas corpus jurisdiction.”
United States v. Hayman
, 342 U.S. 205, 210
(1952). By 1948, five districts (including those which encompassed Alcatraz
and Leavenworth) accounted for most federal prisoners, and these districts
“were required to handle an inordinate number of habeas corpus actions.”
Id.
at 214;
see McNally v. Hill
,
The most recent overhaul of § 2255 came when Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996. AEDPA “contained a series of amendments to existing federal habeas corpus law.” [4] Felker , 518 U.S. at 656. Among these amendments, Congress created “for the first time a fixed time limit for collateral attacks in federal court on a judgment of conviction.” Mayle v. Felix , 545 U.S. 644, 654 (2005); see 28 U.S.C. § 2255(f ). Congress also enacted gatekeeping provisions to limit the types of claims that federal prisoners could bring in “second or successive” motions. See 28 U.S.C. § 2255(h). These provisions limit those motions to two types of claims. A federal prisoner can bring (1) a claim based on “newly discovered evidence” or (2) a claim based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavаilable.” Id. § 2255(h) (emphasis added).
That is where Congress left the “written law” of federal
postconviction review.
See Bollman
,
II.
Lower federal courts had other ideas, however. Around the same time
that Congress enacted AEDPA’s new limits on federal claims, the lower
federal courts faced a predicament: what to do about claims based on the
Supreme Court’s two decisions in
Bailey v. United States
,
In
Bailey
, the Supreme Court confronted 18 U.S.C. § 924(c)(1), which
criminalized the “use” of a firearm “during and in relation to any crime of
violence or drug trafficking crime.” Interpreting the word “use” had “been
the source of much perplexity in the [lower] courts.”
Bailey
,
In
Bousley
, the Supreme Court decided that its
Bailey
decision would
apply retroactively to federal prisoners collaterally attacking their § 924(c)(1)
convictions under § 2255.
That did not stop us in
Reyes-Requena
. The United States convicted
Jose Evaristo Reyes-Requena under § 924(c)(1).
But Reyes-Requena had a problem: he had already challenged his
conviction in a § 2255 motion.
Id.
at 895. Therefore, before we could reach
either
Bailey
or
Bousley
, we had to confront AEDPA’s prohibition on second
or successive § 2255 motions.
See
28 U.S.C. § 2255(h). Again, that provision
bars all such motions unless the prisoner can satisfy one of two statutory
exceptions. Reyes-Requena did not base his claim on new evidence, so
§ 2255(h)(1) was irrelevant. And Reyes-Requena did not base his claim on
the Constitution—after all,
Bailey
was a
statutory
decision—so § 2255(h)(2)
was irrelevant. Thus, Congress’s written law plainly barred Reyes-Requena’s
successive claim.
See Reyes-Requena
,
We nevertheless opened the door that Congress closed. The key was
§ 2255(e)—the subsection known as the “savings clause.” The savings
clause provides that a federal prisoner may bring claims under § 2241
only
if
a § 2255 motion proves “inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). The
Reyes-Requena
panel held that
Congress made § 2255 motions “inadequate or ineffective” by failing to
include a third exception in § 2255(h) for statutory claims.
The court then created three prerequisites for future federal prisoners to evade the strictures of § 2255(h). A federal prisoner, otherwise barred by § 2255(h), could file a § 2241 application when:
(1) the petition raise[d] a claim “that [wa]s based on a retroactively аpplicable Supreme Court decision”; (2) the claim was previously “foreclosed by circuit law at the time when it should have been raised in petitioner’s trial, appeal or first § 2255 motion”; and (3) that retroactively applicable decision establishe[d] that “the petitioner may have been convicted of a nonexistent offense.”
Garland v. Roy
,
III.
Reyes-Requena
was wrong the day it was decided. And in the years
since, its reasoning has been rejected by jurists around the country.
See, e.g.
,
Wright v. Spaulding
, 939 F.3d 695, 706–07 (6th Cir. 2019) (Thapar, J.,
concurring);
McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.
, 851 F.3d
1076, 1097 (11th Cir. 2017) (en banc);
Samak v. Warden, FCC Coleman-
Medium
,
A. Let’s start with the illusory constitutional problem. The Suspension Clause of the Constitution provides: “The 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. The Reyes- Requena сourt implied that preventing second or successive claims based on new interpretations of statutes—as Congress did in § 2255(h)—“suspends” the privilege of the writ of habeas corpus. 243 F.3d at 901 n.19. Thus, the court had to create its exception to avoid enforcing statutory limits that violated the Suspension Clause.
That’s wrong. Since the Founding, the federal courts have
countenanced two types of Suspension Clause claims. The first might be
called
de jure
claims, where Congress or a federal official proclaims that the
privilege of the writ of habeas corpus is suspended. Thus, during the Civil
War, the writ of habeas corpus was suspended by proclamation and
legislation by “President Lincoln and then by Congress, and later during
Reconstruction by President Grant.”
Thuraissigiam
,
The other type of suspension claim is a
de facto
one. In recent times,
the Supreme Court has evaluatеd “major legislative enactments” to
determine whether they effectively suspended the privilege of habeas corpus.
Boumediene v. Bush
,
Most relevant to the present discussion, the Supreme Court emphatically rejected Reyes-Requena ’s central premise almost 25 years ago. In Felker , the Court considered whether Congress effectuated a de facto suspension of the writ by generally prohibiting second-or-successive habeas petitions from state prisoners. These provisions are in pari materia with those Congress imposed on federal prisoners in § 2255(h). See In re Lampton , 667 F.3d 585, 588 n.6 (5th Cir. 2012). In both sections, Congress restricted second-or-successive claims to (1) certain new factual predicates or (2) certain new rules of constitutional law. See 28 U.S.C. §§ 2244(b)(2), 2255(h).
The
Felker
Court held these restrictions easily survived Suspension
Clause scrutiny. For decades the federal courts had “restrain[ed]” multiple
filings by prisoners under the “abuse of the writ” doctrine.
Felker
, 518 U.S.
at 664. This doctrine represented the accumulation of a “complex and
evolving body of equitable principles informed and controlled by historical
usage, statutory developments, and judicial decisions.”
Ibid
. (quotation
omitted). And it was Congress’s prerogative to “add[] restrictions” in
AEDPA on “second habeas petitions . . . within the compass of this
evolutionary process.”
Ibid.
Thus, the restrictions Congress enacted in
AEDPA presented no Suspension Clause problems. Indeed, it’s hard to
imagine how they could. A statute that allows prisoners to collaterally attack
their sentence once—and sometimes two, three, or more times—is more
than enough to “avoid[] any serious question about [its] сonstitutionality.”
Swain v. Pressley
,
And even if we could imagine a post-
Felker
Suspension Clause
problem, the Supreme Court retains “its power to grant an Original Writ.”
Samak
, 766 F.3d at 1291 (W. Pryor, J., concurring). Nothing in AEDPA
changes that.
See Felker
,
With a case so on-point from the highest court in the land, it’s quite
surprising that the
Reyes-Requena
court
did not even cite Felker
. It’s even more
surprising that our circuit would find § 2255(h)’s restrictions likely
unconstitutional when the Supreme Court had held the exact same
restrictions were
in fact
plainly constitutional.
See Felker
, 518 U.S. at 664.
And it’s no answer to say that
Felker
dealt with only state prisoners. Even
though Congress enacted two separate statutory regimes for state and federal
prisoners, the Supreme Court has routinely interpreted them in “lockstep.”
King & Hoffman ,
supra
, at 111;
see, e.g.
,
McCleskey v. Zant
,
The Supreme Court has answered our Suspension Clause question.
Reyes-Requena was wrong not to listen.
B. Without a Suspension Clause sword hanging over § 2255, we must consider the statutory text as Congress wrote it. Compare St. Cyr , 533 U.S. at 314 (interpreting statute to avoid “adopting a construction that would raise serious [Suspension Clause] questions”), with Thuraissigiam , 140 S. Ct. at 1983 (interpreting the statutory text when the Suspension Clause and the Due Process Clause were not violated). A plain reading of the text shows Reyes-Requena was wrong.
The full text of § 2255(e) provides:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention .
28 U.S.C. § 2255(e) (emphasis added). The last clause of this provision— italicized above for ease of reference—is the savings clause.
The textual key to understanding § 2255(e) is that it contrasts two different things: “relief” and “remedy.” “Relief” is “[t]he redress or benefit . . . that a party asks of a court.” Relief , Black’s Law Dictionary (11th ed. 2019). For a federal prisoner filing a motion under § 2255, the relief is vacatur of his conviction or sentence. By contrast, the “remedy” is “[t]he means of enforcing a right or preventing or redressing a wrong.” Remedy , Black’s Law Dictionary (11th ed. 2019) (emphasis added). So the § 2255 motion itself is the “remedy” (the means) a federal prisoner uses to seek “relief” (from custody). [5]
The savings clause is triggered only where “ the remedy by motion is inadequate or ineffective to test the legality of [the prisoner’s] detention.” 28 U.S.C. § 2255(e) (emphasis added). That is, the § 2255 motion itself (“the remedy”) must be inadequate or ineffective. It’s often true that § 2255 is inadequate or ineffective to provide “ relief ”—that’s why there are individuals in federal prisons with unvacated convictions and sentеnces. But that’s irrelevant. The savings clause springs into action only where a federal prisoner cannot avail himself of § 2255 at all —that is, “the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of his detention.” Ibid.
For instance, we have held that § 2255 is an inadequate remedy to
attack “the manner in which a sentence is executed.”
Tolliver
, 211 F.3d at
877. This makes some sense because a § 2255 motion can only be used to
attack the
validity
of a prisoner’s sentence,
see
28 U.S.C. § 2255(a), not how
the Bureau of Prisons executes it. Section 2255(e) therefore allows federal
prisoners to bring § 2241 petitions for the latter. Thus, we have permitted
§ 2241 challenges to the computation of good-time credits by prison officials,
see, e.g.
,
United States v. Cleto
,
Section 2255 is also an “inadequate or ineffective” means to challenge
convictions when the prisoner’s sentencing court
no longer exists
. Again, that
makes sense. Section 2255 motions must be filed in the court “which
imposed the sentence.” 28 U.S.C. § 2255(a). But attempting to submit such
a motion to a court that no longer exists would plainly be an “inadequate or
ineffective” remedy. Take, for example, challenges to military convictions.
See Fletcher v. Outlaw
,
Beyond these limited lacunas, the § 2255 remedy is generally both adequate and effective. See, e.g. , Hill v. United States , 368 U.S. 424, 427 (1962) (“[Section] 2255 was enacted . . . simply to provide in the sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus . . . .”); Hayman , 342 U.S. at 223 (finding that § 2255 is adequate and effective bеcause “[n]othing has been shown to warrant” a contrary holding). The types of claims that can be brought under this remedy are extensive to put it mildly. [6]
But most relevant here,
Bousley
itself proves that § 2255 is perfectly
adequate and effective. After all, the prisoner in that case filed his
Bailey
claim under § 2255.
Bousley
,
C.
Reyes-Requena
held that the § 2255 remedy was “inadequate or
ineffective” anyway. The panel’s theory appeared to be that § 2255 as a
whole was inadequate or ineffective because subsection (h) would bar Reyes-
Requena from raising his
Bailey
claim.
See Reyes-Requena
,
assistance of counsel);
United States v. Stricklin
,
And although § 2255(h) generally bars second-or-successive motions—as
Congress directed—federal prisoners can and sometimes do thread the needle.
See, e.g.
,
United States v. Dixon
, 799 F. App’x 308 (5th Cir. 2020) (per curiam) (authorizing
successive petition based on
Davis
);
United States v. Chaney
,
First, the inadequacy or ineffectiveness of § 2255 does not turn on
whether a prisoner will win.
But see Reyes-Requena
,
Second, a contrary holding creates all sorts of anomalies. Take the
statute of limitations for example. AEDPA imposes a one-year limitations
period on federal prisoners.
See
28 U.S.C. § 2255(f). Doеs that mean that
§ 2255 is inadequate or ineffective as to every prisoner who files after the
365th day? Of course not.
See Molo v. Johnson
,
Third, far from prohibiting statutory claims, § 2255 expressly
authorizes them.
See
28 U.S.C. § 2255(a) (authorizing claims that a
conviction or sentence violates the “laws of the United States”);
see also
Davis v. United States
,
Fourth, § 2255 does not become “inadequate or ineffective” because
a new Supreme Court precedent came down after a prisoner filed his first
§ 2255 motion.
See Bousley
, 523 U.S. at 623 (explaining that an on-point
Supreme Court decision issued after default had no effect because “futility
cannot constitute cause if it means simply that a claim was unacceptable to
that particular court at that particular time” (quotation omitted)). Obviously,
it becomes far easier to raise an argument after the Supreme Court tells us
it’s a winner. But the savings clause does not turn on ease of use. As long as
the sentencing court still exists, the prisoner
could
use § 2255 to raise any
claim he wanted—even in the absence of any precedent whatsoever. The
prisoner can
even
use § 2255 to raise claims that are losers (under then-
current precedent).
See, e.g.
,
United States v. Morales-Rico
, No. 03-CR-281,
Fifth, the limits on second-or-successive § 2255 motions in subsection
(h) do nothing to make § 2255 inadequate or ineffective. Those limits have
deep roots in the abuse-of-the-writ doctrine that evolved from common law.
See McCleskey
,
[AEDPA’s] new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice ‘abuse of the writ.’ In McCleskey [], we said that the doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions. The added restrictions which the Act places on second habeas petitions are well within the compass of this evolutionary process . . . .
Felker , 518 U.S. at 664 (quotation omitted). How can Congress enact a provision that fits comfortably within the historical basis for testing the legality of a prisoner’s custody, yet also provide a remedy that’s inadequate for that purpose? Obviously, it cannot.
Sixth, we can’t hold § 2255 inadequate or ineffective because dоing so
would render § 2255(h) meaningless. Congress enacted specific procedural
requirements for § 2255 motions. We cannot simply ignore them.
See Pack
,
Seventh, finally, and most importantly,
Reyes-Requena
violates the
separation of powers. A panel of our court rewrote § 2255 to say that habeas
claims are allowed when “the remedy by [second or successive] motion [for
a claim of statutory interpretation]” is “inadequate or ineffective.”
Reyes-
Requena
, 243 F.3d at 904. But it’s not our job to rewrite statutes—it’s
Congress’s.
See McCarthan
,
Our Founders, who knew that “public Virtue is the only Foundation of Republics,” believed in the greatness of the American people. They trusted the people’s representatives to weigh competing interests and make difficult policy choices. That’s why they tasked Congress with making the laws and gave life-tenured judgеs the more modest job of applying them.
Wright
,
* * * Reyes-Requena deviated from these principles. And its mistakes cast long shadows over the work of this court because we continue to apply its ratio decidendi every day in deciding second-or-successive motions. In an appropriate case, we should overrule it.
Notes
[1] The practice of money laundering is ancient. Yet the term itself seems to have first come into use in the twentieth century. Some say the term stems from Al Capone and Prohibition. In addition to his more infamous illicit activities, Capone ran a number of laundromats. As the story goes, Capone would try to hide the source of his ill-gotten gains by mixing the cash from his illegal businesses with the cash he earned from those laundromats. By so laundering his dirty money, Capone sought to hide its source. Research Handbook on Money Laundering 3 (Brigitte Ungеr & Daan van der Linde eds., 2013); Brian O’Connell, What Is Money Laundering and What Is Its History? , The Street (Mar. 20, 2019). Others suggest the term stems from a more prosaic, though now obscure, activity. In the early twentieth century, many more people than today used coins—for taxis, tips, and the like. At the time, many people also wore white gloves. To avoid dirty coins leaving stains on white gloves, some places, like casinos and fine hotels, offered a service to clean coins. Thus, dirty money was laundered clean. Research Handbook on Money Laundering , supra , at 3.
[2] The fraudulent remittances were not the only means by which Beras moved drug money between the United States and the Dominican Republic. He used “a number of different techniques.” United States v. Dinero Exp., Inc. , 57 F. App’x 456, 458 (2d Cir. 2002) (“ Dinero II ”) (per curiam). One technique involved aluminum cans and suitcases. Beras and others would fill aluminum cans with cash. The cans would be “seal[ed]”and a fake label put on. Then, Beras and others would take these cans of cash in suitcases “aboard airlines” to destinations abroad. Id. at 458.
[3] Since he filed his two § 2241 applications in this circuit, the Bureau of Prisons
moved Beras to Moshannon Valley Correctional Center in Philipsburg, Pennsylvania.
Under Fifth Circuit precedent, this subsequent relocation does not affect our power to hear
this case.
See Griffin v. Ebbert
,
[4] Congress slightly changed § 2244(a)’s text in AEDPA, but we have said the same
abuse-of-the-writ principles continue to apply.
See, e.g.
,
Davis v. Fechtel
,
[1] See, e.g. , Amanda L. Tyler, A “Second Magna Carta”: The English Habeas Corpus Act and thе Statutory Origins of the Habeas Privilege , 91 Notre Dame L. Rev. 1949, 1957 (2016). The proposition is not without controversy. See, e.g. , W ILLIAM J. C UDDIHY , T HE F OURTH A MENDMENT : O RIGINS AND O RIGINAL M EANING 109–15 (2009) (arguing that Coke basically made this up).
[2] This of course is not to say that English courts did not play a powerful role in fashioning the writ as it existed at our Founding. See, e.g. , Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror , 120 Harv. L. Rev. 2029, 2044 (2007) (arguing that judge-made habeas law was “not only historically dominant, but also, for the most part, historically successful”); Paul D. Halliday & G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications , 94 Va. L. Rev. 575, 611 (2008) (“[T]he writ was fashioned by judges, not handed down by Parliament. A persistent misapprehension about the English history of habeas is that ‘the Great Writ’ was a parliamentary rather than a judicial gift.”). Jurists like Edward Coke are rightly celebrated for their use of common-law writs to check royal abuses in the seventeenth century. See, e.g. , Bowen, supra , at 291–92, 295–306. It is nonetheless also true that enduring reforms came from Parliament. As Coke himself argued, the whole reason England needed the Petition of Right was that common-law habeas alone was insufficient: “The [Five Knights] hath sued for remedy in King’s Bench by habeas corpus and hath found none. Therefore it is necessary to be cleared in Parliament.” Id. at 488.
[3] In exceptional circumstances not relevant here, the Court has noted “the absence of any express statutory guidance from Congress” and then “filled the gaps of the habeas corpus statute.” Brecht v. Abrahamson , 507 U.S. 619, 633 (1993); see, e.g. , id. at 633–38 (identifying a statutory gap and supplying a harmless-error rule); Wainwright v. Sykes , 433 U.S. 72, 81 (1977) (identifying a statutory gap and supplying a procedural-default rule).
[4] Since the exception created by Reyes-Requena is limited to claims brought by federal prisoners, this analysis is confined to the changes Congress made to § 2255 motions. AEDPA similarly made numerous changes to claims brought by state prisoners under § 2254.
[5] This dichotomy is evident elsewhere in the habeas statutes too. For example,
§ 2254 requires state prisoners to “exhaust[ ] the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(1)(A). Thus, they must use the avenues available to test their
convictions in state court before seeking to use “remеdies in Federal Courts.”
Id.
§ 2254;
see O’Sullivan v. Boerckel
,
[6] Federal prisoners have raised a variety of statutory and constitutional challenges
in § 2255 motions.
See, e.g.
,
United States v. Carreon
,
[7] We know that’s true because the Supreme Court did not grant relief to Bousley.
See