Lead Opinion
Affirmed by published opinion. Judge AGEE wrote the majority opinion, in which Chief Judge TRAXLER joined. Judge GREGORY wrote a dissenting opinion.
In 2005, after pleading guilty to conspiracy to'distribute cocaine, Raymond Surratt was sentenced to life imprisonment. We affirmed his conviction and sentence on appeal, and Surratt’s motion to vacate his conviction and sentence under 28 U.S.C. § 2255 was likewise denied. Neither Sur-ratt’s direct appeal nor his § 2255 motion questioned the legality of his mandatory life sentence.
Several years later, Surratt returned to this Court and asked for permission to file a second or successive § 2255 motion. Surratt’s request was premised on United States v. Simmons,
In the district court, Surratt had simultaneously filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 seeking the same Simmons-based relief. As a federal prisoner, however, Surratt cannot challenge his conviction and sentence under § 2241 unless 28 U.S.C. § 2255(e) — also called the “savings clause” — applies. The district court concluded that § 2255(e) did not in fact confer jurisdiction to consider Surratt’s claim in a § 2241 petition, so it denied Surratt’s petition.
Surratt now appeals from the judgment of the district court. We are not unsympathetic to his claim; like the dissent, we recognize the gravity of a life sentence. However, Congress has the power to define the scope of the writ of habeas corpus, and Congress has exercised that power here to narrowly limit the circumstances in which a § 2241 petition may be brought. Surratt’s petition does not present one of the permitted circumstances. Accordingly, we agree that the district court lacked jurisdiction under § 2255(e) to consider Surratt’s § 2241 petition and affirm the judgment below.
I.
In 2004, a grand jury indicted Surratt on several drug-related counts, including conspiracy to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. The Government then filed a timely information indicating that it would seek enhanced
Four months after his indictment, and despite the prospect of a life sentence, Surratt pleaded guilty to the conspiracy count. He acknowledged in his written plea agreement that the district court could not impose a sentence below any statutory minimum unless the United States sought a reduction for substantial assistance. He also waived any rights to further appeals, save in a few narrow circumstances. Surratt did not stipulate, however, to any prior felony drug convictions.
After Surratt’s plea, but before his sentencing, we decided United States v. Harp,
The district court sentenced Surratt to life imprisonment in October 2005. Initially, the court expressed some misgivings about a life sentence and questioned whether a different sentence would apply had it been free to consider the factors listed in 18 U.S.C. § 3553(a). But the Government had declined to move for any substantial-assistance reduction, as it regarded Surratt’s cooperation as “halfhearted ... at best.” J.A. 223. Consequently, the district court determined that it was “required” to impose the life sentence “because of [Surratt’s] prior criminal history and his engagement in this drug trafficking and, for whatever reasons, his inability to render substantial assistance.” J.A. 222. We affirmed Surratt’s sentence on appeal. United States v. Surratt,
Surratt then moved for post-conviction relief under 28 U.S.C. § 2255 in April 2008. In that motion, Surratt claimed that he had received ineffective assistance of counsel during his initial plea and sentence, and further sought a sentence reduction based on an amended Sentencing Guideline. He did not challenge his mandatory minimum sentence. The district court denied and dismissed the motion. Surratt v. United States, Nos. 3:08cv181, 3:04cr250,
More than three years after Surratt filed his first § 2255 motion, we decided Simmons. Overruling Harp, the Simmons en banc majority held that a prior North Carolina conviction will constitute a felony for purposes of an enhanced punishment only if the prior conviction was actually punishable for more than one year of imprisonment as to that defendant.
Seeking to take advantage of Simmons, Surratt sought relief in both this Court and the district court in August 2012. He first asked this Court to permit him to file a second or successive § 2225 motion. Because Surratt’s motion fell outside the statutorily enumerated exceptions permitting that type of motion, see 28 U.S.C. § 2255(h), we denied him permission to file. See In re Surratt, No. 12-283 (4th Cir. Sept. 13, 2012), ECF No. 6. On the same day that he filed that request, Sur-ratt also moved in the district court to vacate his sentence under §§ 2241 and 2255, or for writ of coram nobis. Surratt maintained that, in light of Simmons, he was “innocent” of the career offender enhancement and was a victim of fundamental error. In particular, Surratt argued that he should not have been subject to a mandatory life sentence. The Government did not oppose Surratt’s § 2241 request.
Despite the parties’ agreement, the district court denied Surratt’s motion. Surratt v. United States, Nos. 3:04-CR-250-19, 3:12-CV-513,
Surratt appealed, arguing that the district court should have permitted him to proceed under § 2241. The Government agreed and also elected not to enforce the appeal waiver in Surratt’s plea agreement. Therefore, in light of the Government’s position, we appointed amicus curiae to defend the district court’s judgment.
II.
In the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress circumscribed the ability of federal prisoners to request post-conviction relief. See Rhines v. Weber,
Specifically, courts may hear second or successive petitions only if they pertain to (1) “newly discovered evidence ... [clearly and convincingly establishing] that no reasonable factfinder would have found the movant guilty of the offense” or (2) “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h). We have already held that Surratt’s claim does not fall into either of these categories, so § 2255(h) does not permit him to file a second or successive motion under § 2255.
Surratt is a federal prisoner who means to file a § 2241 petition for post-conviction relief. Therefore, we must assess whether § 2255 is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). We consider that question de novo. See Yi v. Fed. Bureau of Prisons,
III.
A.
We have determined that § 2255 was inadequate or ineffective in only one prior instance. In that case, petitioner Byron Jones argued that Bailey v. United States,
(1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner’s direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatek-eeping provisions of § 2255 because the new rule is not one of constitutional law.
Jones,
In short, Jones opened a narrow gateway to § 2241 relief for certain prisoners found actually innocent of their offenses of conviction, allowing relief only where the acts for which the defendant was convicted are not a crime. Since then, we have focused on this aspect of Jones — actual innocence of a criminal act — when characterizing the decision. See, e.g., Farrow v. Revell,
The dissent mistakenly tries to read the actual innocence requirement out of Jones. That course ignores the clear limitation in Jones that, before the case can be used to invoke § 2255(e), the law must have changed “such that the conduct of which the prisoner was convicted is deemed not to be criminal.”
B.
Jones simply does not apply here, as Surratt is not innocent of anything. All parties agree that Simmons did not decriminalize any part of Surratt’s underlying conduct. Surratt admits that he conspired to distribute drugs, the offense for which he was convicted.
He nevertheless argues -that his predicate convictions constitute elements of a separate, aggravated offense for recidivists. If that proved true, we might say that Surratt was not guilty of the prior conviction “element,” and therefore innocent of the recidivist offense. Yet we do not treat a prior conviction “as an element of [the] offense.” Almendarez-Torres v. United States,
Surratt insists that his sentence enhancements are different. They are not. We have treated the predicate convictions described in § 841 as sentencing enhancements, not elements of a separate crime. See, e.g., United States v. Smith,
Regardless, Alleyne held that facts other than a prior conviction that increase a mandatory minimum amount to “elements” of the crime.
To say “that a petitioner can be ‘actually innocent’ of a sentencing enhancement,” rather than an element of the actual crime, “would require a great deal of both verbal and logical gymnastics.” Turner v. Warden Coleman FCI (Medium),
The traditional view of actual innocence focuses on the elements of the crime of conviction, see United States v. Mikalajunas,
C.
We recognize that we have applied broader concepts of actual innocence in other contexts. In United States v. Pettiford,
Even if we apply Pettiford’s broader view, however, we still cannot call Surratt “actually innocent.” “[A]ctual innocence,” the Supreme Court has told us, “means factual innocence, not mere legal insufficiency.” Bousley v. United States,
IV.
Although Jones does not present a portal through which Surratt may pass to obtain post-conviction relief, Jones is not the exclusive route to § 2255(e) relief in all situations. As the Government observes, we “had no occasion” in Jones “to consider whether sentencing errors” like the one claimed here “are redressable under the savings clause.” Gov’t Br. 23; see also Illinois v. Lidster,
The parties principally discuss whether Surratt’s case presents a “fundamental
Such an approach would confuse the question of cognizability (that is, what motions may be brought via § 2241 generally) with the separate question that we address here (that is, what § 2241 claims are barred by § 2255(e)). And the “miscarriage” standard addresses a different question in still another way. In particular, the Court adopted the “fundamental defect” and “miscarriage” standard as a way of identifying those cases where a petitioner’s failure to bring his claim in his initial direct appeal could be excused. See Reed v. Farley,
As an appellate court, we are not in the business of amending statutes. See Dodd v. United States,
We hold that § 2255(e)’s text does not permit Surratt to raise his claim under § 2241. And although the dissent insists that we act “without any textual basis,” dissenting op. at 271, we observe at least four separate textual factors — in addition to the relevant provisions’ context and purpose — that establish that Surratt’s claim is foreclosed.
A.
The savings clause first tells us that “the remedy by [a § 2255] motion [must be] inadequate or ineffective to test the legality of [Surratt’s] detention” before he can proceed under § 2241. 28 U.S.C. § 2255(e) (emphasis added). We find Congress’s deliberate use of the word “test,” rather than a more expansive term like “guarantee” or “ensure,” very meaningful. To “test” means to “put to the proof.” Oxford English Dictionary (2d ed.1989). In other words, the statutory text anticipates the opportunity to raise a challenge or argument. See, e.g., Wag More Dogs, Ltd. Liab. Corp. v. Cozart,
Surratt clearly could have “test[ed]” the legality of his detention in his initial § 2255 motion. Surratt also chose to fore-go any challenge to his mandatory sentence on direct appeal. At both steps, then, he had the opportunity to claim that a lower mandatory sentence should have applied because he did not qualify as a two-time drug felon. His choice to focus his § 2255 motion on claims of ineffective assistance of counsel proves most important here, as he cannot complain of his inability to “test” his detention in a post-conviction proceeding when § 2255 offered him that chance and he declined to take it. “A prisoner cannot be permitted to lever his way into section 2241 by making his section 2255 remedy inadequate[J” Morales v. Bezy,
But Surratt protests that “the basis for [his] claim was foreclosed by circuit precedent at the time[J” Opening Br. 20. That argument fails for at least two reasons.
As a factual matter, we cannot know whether Surratt’s claim might have led to relief because he never made it. We do know that “many defendants ... filed suits prior to Simmons asserting the exact same substantive claim that [Surratt] now raises, including, of course, Simmons himself.” Whiteside v. United States,
As a legal matter, courts do not permit petitioners special favors because the petitioners misjudged their claims as futile and chose not to present them in the first instance. In fact, the Supreme Court has held a “dismissive” attitude toward “the contention that an argument’s legal futility is the same as. a court’s inability to entertain the argument[J” Brown v. Caraway,
Section 2255(e) means to preserve a prisoner’s “remedy,” not his “relief.” See, e.g., Tolliver v. Dobre,
These reasons aside, we note that substantial practical difficulties could follow if we held that a prisoner could not “test” his detention because adverse circuit precedent once “foreclosed” his claim. Neither Surratt nor the Government informs us, for instance, how clear circuit precedent must be before it “forecloses” the prisoner’s claim. Perhaps, under the parties’ approach, analogous precedent might do; perhaps not. Nor do they tell us why our precedent alone “forecloses” an argument even though Supreme Court review remains available. And they do not explain when the foreclosure must arise. We find it better to avoid these questions by adhering to a more direct understanding of “test.”
As Jones reflects, our interpretation of “test” yields in cases involving actual innocence of the crime of conviction. “[A] thorny constitutional issue” could result if “no other avenue of judicial review [were] available for a party who claims that s/he is factually or legally innocent as a result of a previously unavailable statutory interpretation^]” In re Dorsainvil,
In much the same way as “test,” the statute’s references to inadequacy and ineffectiveness tell us that § 2255(e) preserves only the chance to request relief, not the ultimate and absolute right to obtain it.
We see this notion in cases evaluating whether other “substitute” habeas remedies are adequate and effective. In Swain v. Pressley,
When discussing “effectiveness” and “adequacy” in other areas of the law, we likewise focus on processes, not outcomes. We do not declare that counsel rendered “ineffective” assistance any time his particular argument fails and the client loses. Similarly, a state’s appellate procedures satisfy the Fourteenth Amendment’s guarantee to an “adequate and effective” appeal so long as those procedures provide certain minimum safeguards. See Smith v. Robbins,
Surratt never suggests that the § 2255 mechanism denied him a chance to make his present argument. At best, he says only that our pre-Simmons reading of § 841(b)(1)(A) did. See Prost,
C.
The savings clause also focuses on the “legality” of the relevant detention. Especially in the post-conviction context, courts have recognized “unlawful” or “illegal” sentences in a narrow subset of cases. Actual innocence of the crime of conviction may present that sort of a case, as courts have long understood that “[a]n imprisonment under a judgment” becomes “unlawful” if “that judgment be an absolute nullity.” Ex parte Watkins,
As we explained in another context, though, “not every [proceeding] alleging a legal error in sentencing challenges that sentence as ‘illegal.’ ” United States v. Thornsbury,
In accordance with this view, courts largely have not recognized an “illegal” detention — one that would trigger the savings clause — where the defendant challenges a sentence within the correct statutory maximum. See, e.g., United States v. Powell,
This widely held view of “legality” should foreclose Surratt’s claim. He never suggests that he received a sentence above the applicable statutory maximum. He cannot. All parties agree that Surratt has at least one prior felony drug conviction,, regardless of Simmons. A defendant like Surratt who violates 21 U.S.C. §§ 841 and 846 after a single “prior conviction for a felony drug offense has become final ... shall be sentenced to a term of imprisonment which may not be less than 20 years and no more than life imprisonment[.]” 21 U.S.C. § 841(b)(1)(A).
Surratt often emphasizes that his sentence is “without parole,” but that does not create any special issue., In the present federal system, life imprisonment is equivalent to life without parole in every case. See Richmond v. Polk,
Tacitly recognizing the weakness of his position under the majority view, Surratt urges us to adopt a distinct minority view that he considers “persuasive.” Opening Br. 22 (citing Brown,
But even under this outlier decision, Surratt cannot prevail. In Brown, the Seventh Circuit permitted a prisoner to challenge the length of his sentence through a § 2241 petition even though that sentence fell below the statutory maximum. Id. at 588. But Brown concerned a pr e-Booker sentence imposed under the formerly mandatory Guidelines regime. See id. (stressing that the defendant was sentenced in “the pr e-Booker era”) (citing United States v. Booker,
Here, the district court sentenced Sur-ratt under the post-Booker, advisory Guidelines scheme. As a result, his life sentence does not exceed the statutory maximum sentence, and even Brown would afford him no relief. Thus, we cannot deem his detention “illegal.”
D.
Pointing to the savings clause’s reference to “detention,” Surratt suggests Congress meant to permit claims like his. But Congress used the term “sentence” in some portions of § 2255, see 28 U.S.C. § 2255(a)-(b), and “conviction” or “offense” in other parts, id. §§ 2255(f)(1), (h)(1). It chose not to use those terms in the savings clause, id. § 2255(e), and we “are obligated to give effect to Congress’s decision to use different language in proximate subsections of the same statute.” United States v. Brandon,
“Detention” concerns the act of physically confining or restraining an individual. See, e.g., Oxford English Dictionary (2d ed.1989) (“Keeping in custody or confinement.”); Black’s Law Dictionary (10th ed. 2014) (“The act or an instance of holding a person in custody; confinement or compulsory delay.”). Physical confinement stands separate and apart from the sentence, and some detentions that may give rise to a habeas, petition do not follow criminal sentences at all. Pre-trial detentions provide one common example, see 18 U.S.C. § 3142(e), but other instances come to mind, including detentions in instances of civil contempt, detentions in connection with immigration proceedings, detentions of material witnesses, or civil detention of sexually dangerous persons, see Neuhauser,
In contrast to the rendering of a criminal sentence by the judiciary, the physical holding of a federal prisoner represents an executive function, a “keeping back or withholding” by the executive branch. See Samak v. Warden, FCC Coleman-Medium,
Even the venue provisions of §§ 2241 and 2255 reflect an executive versus non-executive dichotomy. A petitioner must bring his § 2241 petition in the district of confinement, where the court can summon the warden to defend his actions. In contrast, a petitioner must move for § 2255 relief before the district court that sentenced him, where the sentencing court and the original prosecuting United States Attorney may bring their expertise to bear.
A challenge to “detention” through § 2255(e) should therefore focus on acts of the executive branch, rather than the judicial branch. See Munaf v. Geren,
Focusing on the executive’s power of restraint draws a clear line — a line consistent with long-accepted petitions under § 2241. For example, we have previously noted that § 2241 petitioners can challenge the Bureau of Prison’s calculation of good time credits. See Yi,
Contrast these commonly accepted claims with Surratt’s present one, which has little to do with any executive-branch action. By all accounts, the warden is holding. Surratt under a validly entered sentencing order. Surratt does not sug
E.
The broader context of § 2255 further convinces us that Surratt cannot invoke § 2241. “[Statutory construction is a holistic endeavor, and we therefore must evaluate the statutory language itself, the specific context in which such statutory language is used, and the broader context of the statute as a whole.” R.H. Donnelley Corp. v. United States,
If Surratt were permitted to raise his sentencing challenge in a § 2241 petition, we would thwart almost every one of the careful limits that Congress placed on post-conviction challenges to a federal prisoner’s sentence. And we would do so in a broad class of cases. Quite simply, “Congress would have accomplished nothing at all in its attempts — through statutes like AEDPA — to place limits on federal collateral review.” Triestman,
If we embraced Surratt’s position, then the limits found in § 2255(h) would first fall. That section provides that a prisoner may bring a second or successive § 2255 motion only if the prisoner (1) produces newly discovered evidence of actual innocence; or (2) relies upon “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h). The prisoner cannot bring his second or successive motion until we grant him a certificate of authorization indicating that the motion satisfies one of these two conditions. Id. “When Congress adopted § 2255(h), it was undoubtedly aware that prisoners might wish to press other sorts of arguments,” that is, arguments other than actual innocence or constitutional error, “in second or successive motions.” Prost,
Moreover, Surratt premises his claim on a circuit-level decision, even though § 2255(h) specifically states that only a retroactive Supreme Court decision should open the door to successive relief. No
Holding otherwise would elevate circuit court precedent to the level of retroactive Supreme Court precedent without any congressional authority to do so. The Government once recognized this point, too. See Brief for the Respondent in Opposition at 14, Williams v. Hastings, — U.S. -,
Surratt’s concept of retroactivity produces other anomalous results. Under his approach, a petitioner invoking a new statutory interpretation from the Fourth Circuit could file immediately for § 2241 relief, with no need to wait for a declaration of retroactivity. Meanwhile, a petitioner invoking a new constitutional rule promulgated by the Supreme Court would have to wait for an explicit statement from that court rendering the rule retroactive. See Tyler v. Cain,
Movants under § 2255 must also comply with a one-year statute of limitations, 28 U.S.C. § 2255(f), and this provision would also fall victim to Surratt’s view. A prisoner hamstrung by § 2255(f) could file a § 2241 petition, as § 2241 contains no statute of limitations. We only recently held, en banc, that the supposed futility of raising a Simmons — like claim before we decided Simmons would not permit an untimely § 2255 motion raising that sort of claim. See Whiteside,
Were we to adopt Surratt’s view, the differing venue provisions in § 2241 and § 2255 would also invite mischief in circumstances like these. A prisoner sentenced in this circuit would file his initial § 2255 motion here. If that motion failed,
Surratt’s interpretation of the savings clause would also have strange implications for appeal rights. “Congress has the power to preclude any appeal from an order dismissing a writ of habeas corpus, since a party to a suit has no vested right to an appeal.” United States v. Brooks,
We should not allow the savings clause to “create a detour” around § 2255’s restrictions, as those restrictions would then be “rendered a nullity.” Reyes-Requena,
F.
Lastly, we must take account of Congress’ general purpose in enacting the various provisions at issue. See Broughman v. Carver,
Further, even before AEDPA, “the concern with finality served by the limitation on collateral attack ha[d] special force with respect to convictions,” like Sur-ratt’s, “based on guilty pleas.” United States v. Timmreck,
Undeniably, “the Federal Government, no less than the States, has an interest in the finality of its criminal judgments.” United States v. Frady,
Although one might find it tempting to put finality concerns aside for the sake of self-designed notions of fairness, we have recognized that “there are dangers” in “subordinating] [finality] to the equities of the individual case,” “especially if so vague a term as ‘fairness’ is to be the touchstone.” In re Under Seal,
Finality offers tangible benefits for the judicial system. At the very least, it ensures that court resources focus on the initial trial and appeal stage. In contrast, “[i]f every favorable precedential decision could become ... a ticket to being resen-tenced, the criminal justice system would need to continually marshal resources in order to keep in prison defendants whose trials and appeals and sentences conformed to then-existing constitutional and statutory standards.” Whiteside,
We decline to dispense with these many benefits — deriving from AEDPA’s central objective of finality — by accepting Sur-ratt’s view of § 2255(e).
Y.
Invoking the canon of constitutional avoidance, Surratt suggests that we must permit his petition because a failure to do so would present substantial constitutional concerns. Specifically, he argues that denying him relief under § 2255(e) would raise questions related to due process, equal protection, separation-of-powers principles, and the Suspension Clause. We disagree.
The canon of constitutional avoidance is an ill fit to this case. “The canon is a tool for choosing between competing plausible interpretations of a provision.” Warger v. Shauers, - U.S. -,
A.
We first conclude that our interpretation of § 2255(e) presents no color-able issue under the Suspension Clause. That provision of the Constitution states 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. The Suspension Clause “ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the delicate balance of governance that is itself the surest safeguard of liberty.” Boumediene,
As the Government observes, the Suspension Clause may not apply here at all. Neither the Supreme Court nor this Court has decided whether the Suspension Clause protects the writ as it existed in 1789 or the writ as it exists today. See Boumediene,
In the end, we need not settle the particular question of whether the Suspension Clause protects the writ in its 18th or 21st Century form. Our reading of § 2255(e) sufficiently respects the writ in either event. “[T]he substitution of a collateral remedy which is neither inadequate nor ineffective to test, the legality of a person’s detention does not constitute a suspension of the writ of habeas corpus.” Swain,
Perhaps Surratt means to attack our reading of § 2255(e) together with other limits found in § 2255, such as § 2255(h)’s limits on second or successive petitions. But that sort of attack would fare no better. Stressing that “judgments about the proper scope of the writ are normally for Congress to make,” the Supreme Court has held that § 2254’s analogous restrictions “do not amount to a ‘suspension’ of the writ.” Felker v. Turpin,
Nor does a Suspension Clause problem develop whenever a prisoner is unable to take advantage of a later, favorable case. “Congress can, without offending the Suspension Clause, ... narrow the source of law cognizable on habeas review.” Green v. French,
B.
The approach yfe take to the savings clause also does not give rise to the sort of due process concerns identified in Hicks v. Oklahoma,
Several factors indicate that the due process concerns addressed in Hicks do not arise here.
First, Hicks involved sentencing by a jury; this case does not. Courts aggres
Hicks also involved two distinguishable types of constitutional error. The Supreme Court intervened where a lower court identified constitutional error at the time of sentencing but refused to do anything about it. Thus, Hicks presented problems at both sentencing and on appeal. The separate, unrectified error at sentencing might have been what compelled the Court to act. See Johnson v. Rosemeyer,
But perhaps as importantly, Hicks concerned an error identified on direct review. It is one thing to say that an appellate court violates due process when it refuses to correct an error in a non-final sentence. In that sort of case, the appellate court’s unwillingness to act renders appellate review a meaningless exercise. But it is quite another to say that due process requires us to reach back and “correct” a sentence that is in every sense final and was proper at the time imposed because we now believe that the district court misconceived the extent of its discretion. Cf. District Attorney’s Office for Third Judicial Dist. v. Osborne,
Hieks, then, gives us no reason for pause, and we find Surratt’s due process argument to be without merit.
C.
Our reading of the savings clause also does not give rise to separation-of-powers concerns. Surratt contends that we tread upon Congress’ right to define the relevant criminal punishment by denying him habeas relief; the dissent agrees. Yet neither Surratt nor the dissent provides us with a case in which a court has identified a separation-of-powers problem in connection with a sentence levied within the applicable statutory range, as was Sur-ratt’s sentence. “[A] person who has been so convicted is eligible for, and the court may impose, whatever punishment is authorized by statute for his offense.” Chapman v. United States,
If we were to embrace Surratt’s contrary position, we would transform every alleged error related to statutory interpretation into a separation-of-powers issue of constitutional dimension. The writ would become a catchall for perceived errors big and small. Such an outcome would be plainly inconsistent with the remedy’s traditional scope. “While the [habeas] remedy is in this comprehensive, it does not encompass all claimed errors in conviction and sentencing.” Addonizio,
We must also remain aware of competing separation-of-powers concerns: fundamental principles of separation of powers preclude us from ignoring the plain terms of the savings clause. In every case, “[t]he function of the judiciary is to apply the law, not to rewrite it to conform with the policy positions of litigants.” Mort Ranta v. Gorman,
D.
Finally, no equal-protection problems result from our decision. “The [Fourteenth Amendment’s] Equal Protection Clause protects an individual from being treated differently, not simply
Surratt evidently thinks that an equal-protection problem arises because some district courts in different Simmoris-related cases have granted § 2255 relief to ' some petitioners. But the difference alone does not give rise to an equal-protection issue. The Supreme Court has said “time and again that the [Fifth and] Fourteenth Amendment[s] do[ ] not assure uniformity of judicial decisions or immunity from judicial error.” Beck v. Washington,
Surratt also observes that defendants have obtained relief in cases in which “they had not previously filed a § 2255 motion.” Opening Br. 34. The difference in outcomes between these two groups of defendants 'does not stem from our present decision. In fact, this Court’s precedents suggest that the “other” defendants should not obtain relief from their untimely motions. See Whiteside,
VI.
For the reasons described above, we conclude that the district court lacked jurisdiction under § 2255(e) to consider Sur-ratt’s § 2241 petition.
Congress holds the power to define the scope of the writ of habeas corpus. It also holds an attendant power to define exceptions to the normal rule of finality of convictions and sentences that were lawfully imposed at the time that they were entered. We are firmly convinced that Congress did not contemplate any exception for a case like this one. Certainly, Sur-ratt’s mandatory minimum sentence was higher than the one he would have faced after Simmons. But Surratt had the opportunity to test the legality of that sentence in his direct appeal and initial § 2255 motion, and he chose not to take it. He
We cannot alter Congress’ decision to deny jurisdiction. Nor can we rewrite ha-beas law for the sake of a sympathetic case. “[T]he guidance of the Supreme Court and Congress is clear and, in this situation, ties our hands.” United States v. Foote,
Still, the hands of Congress and the executive branch are not constrained in the same way as those of the judiciary. Congress may amend § 2255 and permit us to hear cases like this one, if it so chooses. And the Government, which initiated this criminal prosecution and filed the information that led to Surratt’s enhanced sentence, can assist Surratt in seeking a commutation from the President. See U.S. Const. art. II, § 2, cl.l. Indeed, the President has shown a recent willingness to giant frequent commutations in other drugs cases. See, e.g., Sari Horwitz and Juliet Eilperin, Obama Cuts Sentences of 4-6 Inmates, Wash. Post., July 14, 2015, at A03; Juliet Eilperin, Obama Commutes Sentences of 22 Drug Offenders, Wash. Post, Mar. 31, 2015, at A01; Katie Zezima, Obama Commutes Prison Sentence of Eight Federal Drug Offenders, Wash. Post, Dec. 18, 2014, at A09; David Naka-mura, Obama Commutes 8 ‘Unduly Harsh’ Terms, Wash. Post, Dec. 20, 2013, at A02.
We also stress that our decision today is limited to the particular facts of this case. We do not decide whether, for instance, a federal prisoner might bring a § 2241 petition claiming that the district court unlawfully sentenced him to a term of imprisonment exceeding the statutory maximum. Nor do we mean to say anything about the types of claims that prisoners might bring in an initial § 2255 motion. And we do not determine whether a change in law stemming from a retroactively applicable Supreme Court decision might offer relief beyond the circumstances already identified in Jones. Needless to say, we therefore disagree with the dissent’s suggestion that our limited determination renders the savings clause a “complete nullity.” See Dissenting Op. at 270.
Given our disposition, we also need not decide whether an appeal waiver like the one found in Surratt’s plea agreement could foreclose relief via the savings clause, as the court-appointed amicus alternatively argued. We leave those issues for another day.
The district court’s judgment is therefore
AFFIRMED.
Notes
Throughout our opinion, we have omitted any internal marks, citations, emphasis, or footnotes from quotations unless otherwise noted.
Dissenting Opinion
dissenting:
Raymond Surratt will die in prison because of a sentence that the government and the district court agree is undeserved and unjust. The district court sentenced Surratt to life in prison only because it thought it was required to do so pursuant to a statutory mandatory minimum. As it turns out, the correct statutory range for Surratt’s crime was a minimum of twenty years, and a maximum of life.
The majority thinks its hands are tied because Surratt received “only” a life sen
It is not just a sentence above the statutory maximum that presents a fundamental defect. Life is not always so neat. When a punishment involves a complete deprivation of liberty, then even a sentence exactly at, but not exceeding, the statutory maximum can constitute an extraordinary miscarriage of justice of constitutional magnitude. In such cases, we must allow a prisoner to invoke the savings clause if the Great Writ, which has always been “a bulwark against convictions that violate ‘fundamental fairness,’ ” Engle v. Isaac,
I.
Surratt was 31 years old when he pleaded guilty to conspiracy to distribute cocaine. The Guidelines recommended a maximum penalty of 19.6 years, yet the court imposed a life sentence. It did so while stating that it believed a life sentence-to be undeserved and unjust. J.A. 276. As the district court also remarked, it thought it had no other option pursuant to the statutory, mandatory-minimum lifetime term prescribed by the Controlled Substances Act (CSA) for anyone with two or more predicate felony drug offenses. See J.A. 276; 21 U.S.C. § 841(b)(1)(A).
A few years after Surratt’s first § 2255 motion, in a case remanded to us from the Supreme Court, we corrected our mistaken understanding of just what constitutes a qualifying felony for federal sentencing purposes in United States v. Simmons,
Given the difference between twenty years and life, Surratt asks to be resen-tenced. Remarkably, the government agrees with Surratt. Both parties agree that Surratt is legally ineligible to spend the rest of his life in prison. Given this mistake that the parties agree is of constitutional magnitude, the parties further agree that Surratt is entitled to relief from the very sentence that the district court unambiguously stated it would not have imposed absent the erroneous statutory mandatory minimum. They agree the mechanism to do so is by § 2241 motion via the savings clause of § 2255(e).
II.
“The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom.” Boumediene v. Bush,
The privilege of the writ of habeas corpus has remained central to our justice system even as the statutory scheme codifying the writ has undergone several transformations over the years. Bourne-
The Supreme Court has been explicit that § 2255 was never meant to supplant § 2241, but was simply crafted to address the practical concerns of habeas administration. “Nowhere in the history of Section 2255,” determined the Court, “do we find any purpose to impinge upon prisoners’ rights of collateral attack upon their convictions.” See Hayman,
History therefore confirms that Congress meant for the writ of habeas corpus to remain unabridged even in the face of some limits on collateral review found in § 2255, and that the savings clause plays a distinct and crucial role within the statute. And of course we cannot forget that, ultimately, the writ of habeas corpus is an equitable remedy. See Gomez v. U.S. District Court,
III.
The majority’s interpretation of the savings clause amounts to a suspension of the writ. The majority denies Surratt any chance to challenge an erroneous life sentence — a fundamental defect of constitutional proportions — for ' two reasons. First, because he is challenging his sentence rather than the underlying conviction, and second, because his sentence is at, but does not exceed, the statutory maximum. The result is that without any textual basis, the majority is punishing Surratt for not having received the death penalty. What a perverse result, to have suffered a fundamental sentencing defect,
The savings clause extends to more than just attacks on the underlying conviction. See Maj. Op. at 248 (relying on the fact that “Surratt is not innocent of anything”). In fact, there is no textual indication that § 2255(e) precludes a challenge to an erroneous life sentence. When evaluating the plain language of the statute, “Congress’s use of the term ‘detention’ is highly significant to the scope of the savings clause.” Bryant v. Warden, FCC Coleman-Medium,
This reading is consistent with our own case law. We have already determined that nothing in § 2255 was “intended to limit the rights of federal prisoners to collaterally attack their convictions and sentences.” In re Jones,
The majority nevertheless does, not think Surratt raises a sentencing challenge that should be cognizable under the savings clause. See Maj. Op. at 256 (“[Sur-ratt] never suggests that he received a sentence above the applicable statutory maximum.”). This is a breathtaking position considering the extraordinary deprivation of liberty at stake. Surratt raises no “ordinary” sentencing error. He seeks to advance a claim that he does not possess the requisite number of qualifying felony offenses on which his current life sentence is predicated. A life sentence, for which there is no longer any possibility of parole, is the “penultimate” sentence unlike any other except for death. Solem v. Helm,
Continuing to punish Surratt with life imprisonment given that the district court was completely deprived of any statutory discretion whatsoever at sentencing also raises a separate, separation of powers concern. Pursuant to the very design of our government, “defining crimes and fixing penalties are legislative, not judicial, functions.” United States v. Evans,
Rather than avoiding a statutory construction that “raises a multitude of constitutional problems,” Clark v. Martinez,
IV.
- The majority arrives at this constitutionally-suspect outcome by departing from the traditional savings clause analysis. It ignores that our precedent has already established a framework for determining whether § 2255 is “inadequate or ineffective.” 28 U.S.C. § 2255(e). As we have demonstrated in Jones, a savings clause inquiry involves a procedural and substantive component.
Proeedurally, § 2255 is “inadequate or ineffective” when the retroactively-applicable change in the law that the prisoner seeks to take advantage of occurs subsequent to his first § 2255 motion. This was exactly the case in Jones. Although involving a different fundamental defect— being actually innocent of “using” a firearm within the meaning of 18 U.S.C. § 924(c)(1) — we should follow here the same procedural inquiry. See Jones,
Surratt brings his savings clause challenge in precisely this posture. The majority protests, however, that Surratt should have brought a § 2255 motion raising his Simmons claim even before Simmons existed. To say that the savings clause preserves an “opportunity” to be heard but that Surratt somehow squandered his even before we decided Simmons is to interpret “opportunity” in a literal manner devoid of any meaning. See Boumediene,
• In addition to this procedural component, § 2255 is substantively inadequate or ineffective when the asserted error represents a fundamental defect, but “the prisoner cannot satisfy the gatekeeping provisions of § 2255 because [he relies on a] new rule [that] is not one of constitutional law.” Jones,
Surratt therefore satisfies our savings clause test because his claim raises a fundamental defect predicated on an intervening change in the law of statutory interpretation. The majority, however, disagrees with this conclusion in part because it believes I am “reading] the actual innocence requirement out of Jones.” Maj. Op. 248. To the contrary, I am applying the framework set forth in that case, which considered whether an actual innocence claim is redressable under the savings clause, to out case, which asks whether an erroneously-imposed, statutory, mandatory-minimum life sentence can be redressable under the same provision. Jones admittedly involved a different fundamental defect — a claim under Bailey. But this does not mean that its reasoning cannot extend to Surratt’s claim, which is equally a fundamental defect considering the extraordinary deprivation of liberty at stake. Interpreting Jones in this way would not lead to “permitting] any federal prisoner to bring any non-constitutional claim via § 2241 in any instance where the law” changes. Maj. Op. at 248. Far from opening the floodgates, as the majority suggests, such an approach may provide relief to those who continue to serve life sentences despite not possessing the requisite number of predicate felony offenses under Simmons, which is all of eight prisoners in the Western District of North Carolina.
The majority lastly finds it insufficient that Surratt’s fundamental sentencing defect finds its roots in Simmons, an en banc circuit court decision decided upon remand from the Supreme Court, rather than in a Supreme Court decision itself. Of course the savings clause itself does not make this distinction. Nor have we ever insisted, in a world where the Supreme Court grants certiorari in about 75-80 cases per year, that the new rule of statutory interpretation be one decreed by the Supreme Court. See Jones,
My point is that the majority’s greatest sin is really in picking and choosing whatever rules it wishes to apply to § 2255(e)
In disregarding our precedent to affirm a life sentence for Surratt, the majority simultaneously affirms a death sentence for the savings clause. But make no mistake. There already exists an analytical path obligating us to grant Surratt the resentencing that he seeks, and that justice requires.
V.
I do not doubt that the majority is sympathetic to Surratt. In the end, I suppose we just have fundamentally different views on the role of habeas corpus, as well as the role of the judiciary in granting the writ. I see it as our solemn responsibility to guard against a morbid encroachment upon that which is so precious our Framers ensured its continued vitality in our Constitution. Instead we guard the Great Writ itself, and so closely that Surratt must spend the rest of his life in prison— against the will of the government and the district court. Our abdication of this responsibility begs the question: quis custo-diet ipsos custodies? Who will guard the guards themselves?
It is within our power to do more than simply leave Surratt to the mercy of the executive branch. To hope for the right outcome in another’s hands perhaps is noble. But only when we actually do the right thing can we be just. I lament that today we are not the latter. Neither the plain language of our habeas statutes, our precedent, nor the Constitution demands that Surratt die in prison. I must dissent.
. In Begay v. United States,
. I must also note that, when it comes to the "tangible benefits” of our decision today, Maj. Op. at 263, it is estimated that Surratt's lifetime of incarceration will cost taxpayers approximately $1.2 million. See Def. Br. at 32.