United States v. Raymond Surratt, Jr.

(“[W]here circumscribing investigation judicially its a rule .simply by reflects creat- carefully inquiring avoid into policy ed doctrine that reflects consider- token, wrongdoing. By ..., the same howev- partis ations over time certification is er, autonomy (internal and appropriate the board’s ularly compelling.” quotation respected. omitted)). exercise of discretion must be hereby marks We CERTIFY Otherwise, a shareholder could misuse following question to the Delaware Su- by submitting a requirement the demand preme Court: long complaints to the board with- list of If a shareholder demands that a board chaff, from separating out the wheat investigate underly- directors both an then, in- and after the board concludes its ing wrongdoing subsequent mis- un- vestigation, criticize board statements corporate officers about complete inquiry every dertaking a wrongdoing, what factors should a Allowing raised in the demand. matter court in deciding consider whether the post shareholders to undertake such ex grossly negligent board acted in a fash- maneuvers would be inconsistent with the by focusing investigation solely ion its on “presumption making in a business the underlying wrongdoing? corporation decision the directors of a practice, “Consistent with our usual we do basis, good acted on informed in faith scope not intend to limit the of the [Dela- the honest belief that the action Supreme analysis ware through Court’s] taken was the best interests of the the formulation of our question, and we Aronson, company.” 473 A.2d at 812. expand upon or [Court] alter invite the line is Wherever drawn between rea- this question appropri- as it should deem and unreasonable investigations, sonable (internal Nguyen, ate.” 743 F.3d at 317 Scylla it must avoid the of unfettered omitted). quotation marks In particular, hand, board discretion on the one and the in certifying legal question concerning Charybdis of shareholder-plaintiff games- which factors are relevant to determining manship on the other. whether a investigation gross- board’s was sitting But as a federal court in diversi ly 41(b)(i), negligent, see Del. R.S.Ct. we ty, position we are not to draw such a any guidance welcome the Delaware Su- Although line on behalf Delaware. we preme Court wish to offer on how normally “carefully predict strive to ... those factors should be balanced in a case highest how court of the forum state such as this one. would resolve ... uncertainty ambigui or law, ty” in state Travelers Ins. Co. v. 633 (2d Assocs.,

Third Cir.

1994), predict here we are unable to with

any confidence how the Delaware courts Espinoza’s allegations.

would evaluate

Accordingly, we turn to the Dela

ware Court to assist us resolv 41(a)(ii) ing America, this case. Del. UNITED STATES of See R.S.Ct. (“[A] Plaintiff-Appellee, Appeals Court of of the United ... may, sponte, States on motion or sua certify to this Court for a question decision questions law....”); Nguyen Raymond Roger SURRATT, Jr.,

Holder, (2d Cir.2014) Defendant-Appellant. Goldblatt, Court- Harris

Steven Counsel,

Assigned Amicus De Association Criminal

National Berman, Lawyers; Douglas A.

fense Appel

Professor, Supporting Amici

lant.

No. 14-6851. Appeals, Court States

Fourth Circuit.

Argued: Jan. 2015. July

Decided: Hester,

ARGUED: Ann Loraine Feder- Carolina, al Defenders of Western North Inc., Charlotte, Carolina, Appel- North for Amy Ray, lant. Elizabeth Office Asheville, Attorney, United States North Carolina, Appellee. Maley, for Erika L. LLP, Sidley Washington, D.C., Austin for Goldblatt, Amici Curiae. Steven Harris Center, Georgetown University Law D.C., Washington, Court-Assigned Ami- BRIEF: Hall cus Counsel. ON Ross Richardson, Director, Executive Joshua B. Federal Defenders of Western Carpenter, Carolina, Inc., Asheville, North North Car- olina, Appellant. Tompkins, for Anne M. Attorney, Congress him to be resentenced. But set Office of Unit- States Asheville, Attorney, North Car- out certain conditions that must be met ed States Berman, A. olina, Douglas Appellee. for permit- before a successive motion be Law, The Ohio State Univer- ted, Professor of and did not meet those re- Surratt Green, Ohio; Columbus, Jeffrey T. sity, See 28 U.S.C. quired conditions. LLP, Leaman, Austin Sidley Kimberly A. 2255(h). him per- therefore denied We D.C., Amici Ru- for Curiae. Washington, mission to file a successive motion. See In Deutsch, Supervising Attorney, M. thanne Surratt, re Sept. No. 12-283 Cir. Counsel, Gupta, Student William Utsav 2012), ECF No. 6. Counsel, Hornbeck, Meredith Student court, In the district Surratt had simul- Counsel,

Wood, Appellate Litiga- Student taneously petition filed a for a writ of Georgetown University Law Program, tion § 2241 corpus habeas under 28 U.S.C. D.C., Center, Washington, Court-As- seeking the same relief. Simmons-based signed Amicus Counsel. however, prisoner, As a federal challenge cannot his conviction and sen- TRAXLER, Judge, Chief Before tence 2241 unless 28 U.S.C. AGEE, Judges. GREGORY Circuit “savings called —also by published opinion. Judge Affirmed applies. The district court con- clause”— majority opinion, AGEE wrote the 2255(e) § that in fact cluded did not confer joined. Judge TRAXLER which Chief jurisdiction to claim in a consider Surratt’s dissenting a Judge GREGORY wrote petition, peti- so it denied Surratt’s opinion. tion. AGEE, Judge: Circuit judgment from appeals Surratt now unsym- court. are not of the district We pleading guilty conspir- In after to claim; dissent, cocaine, like the Raymond pathetic to his we acy to'distribute Surratt recognize gravity of a life imprisonment. sentenced to life We sentence. was However, Congress power sentence on has the to de- affirmed his conviction and appeal, scope corpus, and Surratt’s motion vacate his fine the of the writ of habeas Congress power conviction and sentence under 28 U.S.C. and has exercised § 2255 was likewise denied. Neither Sur- narrowly here to limit the circumstances in appeal ratt’s direct nor his 2255 motion §a 2241 petition brought. which be legality mandatory his questioned the petition present Surratt’s does one of life sentence. permitted According- circumstances. ly, agree we that the district court lacked later, years Several Surratt returned to jurisdiction to consider permission this Court and asked for to file § 2241 affirm petition Surratt’s and § 2255 motion. a second or successive judgment below. on United request premised Surratt’s was Simmons, States v. 649 F.3d 237 Cir. I. 2011) (en banc), which in turn overruled 2004, grand jury a indicted Surratt on United States v. prior our decision counts, (4th Cir.2005). including drug-related several con- Harp, Had Simmons, spiracy possess intent to distribute with Surratt been sentenced after he in violation of 21 cocaine and cocaine base mandatory would have faced a lower mini 841(b)(1)(A) §§ mandatory mum than life U.S.C. and 846. Gov- sentence timely actually ernment then filed a information term that he received. Surratt enhanced indicating maintained that this difference entitled it would seek questioned criminal histo- about a life sentence and based on Surratt’s penalties identi- apply information whether different sentence would ry. The Government’s convictions, previous drug-related four had it been free to consider the fied factors (1) 3553(a). a 1996 convic- each in North Carolina: listed in 18 But U.S.C. (2) cocaine; felony possession of tion for Government had declined to any move for felony possession of reduction, conviction for substantial-assistance as it re (3) cocaine; felony for a 1997 conviction garded cooperation Surratt’s as “halfheart maintaining possession of cocaine ... Consequently, ed at best.” J.A. 223. sale; storage or a 1998 place for the district court determined that it was delivery of for sale and cocaine. conviction “required” to impose the life sentence “be or more of these convictions consti- If two prior history cause of criminal [Surratt’s] offense[s],” then “felony drug tuted Sur- engagement drug and his in this traffick mandatory impris- of life ratt faced a term and, reasons, ing for inability whatever onment without release. See 21 U.S.C. to render substantial assistance.” J.A. 841(b)(1)(A). 222. We affirmed Surratt’s sentence on Surratt, appeal. United States v. 215 Fed. indictment, and Four months after his Appx. Surratt did sentence, prospect of a life despite any appeal raise claim his direct guilty conspiracy to the pleaded Surratt mandatory to his life sentence. acknowledged He his written count. district court

plea agreement then for post-conviction moved below impose could not sentence April relief under 28 U.S.C. 2255 in minimum unless motion, 2008. In that Surratt claimed that sought a reduction substantial States he had received ineffective assistance of any rights also waived assistance. He during plea counsel his initial and sen appeals, further save in a few narrow cir- tence, sought and further a sentence re stipulate, cumstances. Surratt did Sentencing duction based on an amended however, felony drug prior to convic- challenge Guideline. He did not his man tions. datory minimum sentence. The district court denied and dismissed the motion. plea,

After Surratt’s but before sen States, 3:08cv181, Surratt v. United Nos. Harp, decided United States tencing, we (W.D.N.C. 3:04cr250, (4th Cir.2005), WL which held 2011). Feb. We denied Surratt’s re drug that a North conviction Carolina quest appealability. for a of certificate if qualified “felony drug as a offense” “the Surratt, United States v. Fed.Appx. aggravated maximum sentence that [the Cir.2011). (4th 640, 640 that imposed state could for court] [have] upon crime a defendant with the worst years More than three after Surratt possible history” criminal exceeded one motion, filed his first we decided Harp, Id. at 246. year. all Sur- Under Overruling Harp, the Sim- Simmons. prior felony ratt’s convictions constituted mons en banc majority prior held that a Therefore, drug offenses. unless Surratt North Carolina conviction will constitute offered substantial assistance to the Gov felony purposes punish- of an enhanced ernment, mandatory Surratt faced a life only prior if the conviction was actu- ment sentence. ally punishable year for more than one of that imprisonment The district court sentenced Surratt to as to defendant. and the imprisonment life in October 2005. Initial- F.3d at 241. Surratt Government con- ly, expressed misgivings agree prior that one of Surratt’s the court some “felony drug appealed, arguing as a Surratt the dis- qualify victions would under Simmons. offense” him permitted trict court should have to proceed under 2241. The Government Simmons, advantage take of Seeking to agreed not to and also elected enforce the in relief both this Court sought Surratt appeal plea agreement. waiver Surratt’s August 2012. He court and the district permit Therefore, to him to file light this Court of the Government’s first asked Be 2225 motion. a second or successive position, appointed we amicus curiae to fell outside the stat motion cause Surratt’s judgment. defend the district court’s exceptions permitting utorily enumerated motion, see 28 type U.S.C. II. 2255(h), him to permission denied we Surratt, re No. 12-283 file. See In In the Antiterrorism and Effective 13, 2012), No. 6. On the Sept. Cir. ECF (“AEDPA”), Penalty Death Act of 1996 day request, that he filed that Sur- same Congress ability fed circumscribed ratt also moved in the district court to prisoners request post-conviction eral §§ 2241 and

vacate his sentence under Weber, relief. See Rhines v. 2255, or for writ of coram nobis. Surratt 274, 125 S.Ct. that, Simmons, he light maintained ordinary provides Section 2555 was “innocent” of career offender en challenge means for a federal and was a victim of fundamen hancement his conviction or sentence. But in AED- particular, argued tal error. PA, Congress jurisdiction limited the subject he should not have been to a federal courts to hear second or successive mandatory life sentence. The Government See, requests e.g., In re § 2241 oppose request. Surratt’s did Weathersby, 717 F.3d Cir. parties’ agreement, the dis Despite 2013) (“Congress placed strict limitations trict court denied motion. Sur Surratt’s on second or successive motions under ratt v. United Nos. 3:04-CR-250- 2255[.]”).* 19, 3:12-CV-513, 2014 WL (W.D.N.C. 2014). May Although it Specifically, courts hear second or again expressed misgivings about Surratt’s petitions only they pertain if successive sentence, mandatory life the court deter (1) “newly [clearly ... discovered evidence prisoner may that a mined federal use convincingly establishing] and that no rea- 2225(h) § § 2241 to seek relief that would sonable factfinder would have found the only otherwise bar when a substantive (2) guilty movant of the or “a offense” new change coming the law after an initial law, rule of constitutional made retroactive § petition prisoner’s rendered the to cases on collateral review the Su- original offense conduct “non-criminal.” Court, preme previously that was unavail- challenged only *1. Id. at Because Surratt 2255(h). § able.” 28 U.S.C. We have al- sentence, the court concluded that he ready claim not held Surratt’s does could not establish Simmons ren categories, fall into either of these so any dered of his conduct “noncriminal.” 2255(h) § him to Therefore, permit does file he could not obtain relief under § § 2241. second or successive motion under 2255. *Throughout opinion, quotations we from unless otherwise noted. (11th (1995), man-Medium, 1253, 472 rendered his convictions for 738 F.3d 1280 Wandes, Cir.2013); Abernathy during drug “use” of a firearm a offense v. 713 F.3d Jones, (10th 328, 538, Cir.2013); Stephens invalid. In re 226 n. 7 v. F.3d 329 546 (4th Cir.2000). Herrera, (9th 895, Cir.2006); Bailey had overruled this 464 F.3d 898 Hedrick, 957, understanding circuit’s it meant v. 392 F.3d 962 what to Abdullah (8th Nash, firearm, Cir.2004); (citing Bailey, Cephas “use” a id. at 330 328 F.3d (2d 143, 501), 98, Cir.2003); Reyes-Requena at U.S. 116 S.Ct. and Jones n. 6 (5th States, argues predi He nevertheless -that 243 F.3d v. United Cir.2001). cate convictions constitute of a elements separate, aggravated offense for recidi mistakenly The tries to read dissent true, proved might say vists. If that we requirement actual out of Jones. innocence guilty prior Surratt was the clear limitation ignores That course “element,” conviction and therefore inno that, the case can be used to Jones before cent of the recidivist offense. Yet we do 2255(e), the law must have invoke a prior not treat conviction “as element changed that the conduct of which “such offense.” Almendarez-Torres v. [the] convicted is deemed not prisoner was States, United 118 S.Ct. criminal.” 226 F.3d at 334. The to be (1998); see also accidental, but drew from caveat wasn’t — States, -, Alleyne v. United that actual in recognition the fundamental 1,n. 2160 & 186 L.Ed.2d from nocence of crime is different other (2013). Indeed, [Supreme] “the Court Indeed, “agree[d] circumstances. Jones consistently has held that recidivism is not of other courts that with rationale” triggering Ap an element of the crime[.]” principle explicit. made this even more Id. Warden, pleby Reg’l N. Jail & Corr. see, 333; e.g., at Triestman v. United (4th Cir.2010). Facility, 595 F.3d (2d Cir.1997) 124 F.3d 378-79 Many good justify principle: reasons this (permitting, Bailey brought claim to be directly recidivism does not relate to the in part via because of the constitu conduct, underlying charged courts tional issues that would arise from refus convictions, judicially prior notice claim); convic ing hear an actual-innocence see Jones, (“[T]hese prejudice could if also n. tions the defendant jury, on the put courts have focused more funda Government them before the by a presented mental defect situation courts have treated recidivism as a sen which an individual is incarcerated for con tencing years. for factor over 200 See criminalf.]”). duct that is not Were the Cheek, United States v. 415 F.3d 353- approach right, dissent’s per Jones would (4th Cir.2005); see also Jones v. United anymit bring any federal non- States, 227, 248-49, any constitutional claim via 2241 in in 1215, 143 L.Ed.2d 311 stance where the law relevant to that claim Surratt insists his sentence en changed petitioner’s favor at They hancements are different. are not. hardly time. That describes “a limited have treated the predicate We convictions number circumstances” which §in sentencing described 841 as enhance Jones, apply. would 226 F.3d at ments, separate not elements of a crime.

See, Smith, e.g., United States v. 451 F.3d Cir.2006); Jeanty accord B. Warden, FCI-Miami, Ramirez, Cir.2014); States v. here, simply apply Jones does not anything. innocent of All charge predicate Government did not parties agree that Simmons did not de And, convictions here in the indictment. any part underly criminalize of Surratt’s trial, it would not gone had the case ing conduct. Surratt admits that he con jury proven spired drugs, put to distribute have them before offense which he was convicted. beyond them reasonable doubt.

249 statute”); Alleyne that al- sentence-enhancement In re also do not believe We cf. (5th Cir.2011) treating predi- Bradford, 660 F.3d 230 longstanding rule tered (“[A] enhancements, not ele- claim of actual innocence of a career as cate convictions jury a must offender enhancement is not a claim of Alleyne held ments. mandato- actual innocence of the crime of conviction facts that increase a find certain and, thus, type not the of claim that 2155. war- ry minimum sentence. at. 2241.”). apply here remains rants review under Alleyne How would parties do something mystery, of a of actual innocence The traditional view authority indicating that identify any not focuses on the elements the crime of retroactively apply case could on col- conviction, Mikalaju v. see United States Quite contrary: review. courts lateral nas, Cir.1999), 186 F.3d 494 apply does not ret- Alleyne have held that nothing in deviates from that settled Jones Olvera, v. roactively. See United States Sawyer Whitley, v. approach. Cf. (5th Cir.2015) (“We reit- 775 F.3d S.Ct. L.Ed.2d Alleyne apply erate that does not retroac- that, (remarking the context of “[i]n tively. This decision accords with that of case, noncapital concept a of ‘actual issue, every circuit to have examined the it easy grasp,” innocence’ is as means Alleyne is none of which has decided that charged the defendant did not commit the retroactive.”). crime). Jones, all, after concerned “con criminal,” ... Alleyne held that facts other duct deemed not to be Regardless, subject a conduct that remains criminal but prior than a conviction increase Jones, to a mandatory penalty. minimum amount to “elements” lesser F.3d Jones, 334; see of the crime. 133 S.Ct. at 2160-63. also United States (4th Cir.2014) (“Innocence 579, 586 specifically has refused to F.3d Supreme Court notion that a reasoning prior implicates per this convictions. conviction apply So, n. son has been incarcerated for a crime he Id. at 2160 & 1. “Almendarez-Tor law,” commit, sentencing er good Alleyne. remains even after did not whereas res McDowell, guilt.”). The implicate ror does not at all United States v. 745 F.3d Court, too, has not said that con merely is rendered “lawful” because duct ‘actually say petitioner “that a can be To for it is reduced. Schriro v. penalty enhancement,” sentencing innocent’ of a Summerlin, 348, 354, 124 S.Ct. crime, rather than an element of the actual (2004), example, 159 L.Ed.2d require great “would deal of both verbal Arizona, Ring found logical gymnastics.” Turner v. War (2002), 2428, 153 did L.Ed.2d 556 (Medium), den Coleman FCI formerly con some unlawful ] “render! also, Cir.2013); n. see versa,” though vice even duct lawful or Ives, 1190, 1193 e.g., Marrero v. length of sentences for Ring affected the (9th Cir.2012) (“[For purposes of the sav too here: Surratt re prisoners. some So clause,] ings petitioner generally cannot today as he was guilty mains as cognizable claim of actual inno assert sentencing enhance noncapital cence of a C. ment.”); Davenport, In re (7th Cir.1998) applied have recognize “it that we (explaining that We of actual innocence concepts Anti- broader arbitrary would make an hole States Petti accept Act” if court other contexts. terrorism were (4th Cir.2010), drawing ford, “a 612 F.3d 270 argument an actual-innocence about 2255, eases, applies equally that a defendant under this standard on earlier we said innocence” suffi might brought establish “actual to actual innocence claims 2241.”). if procedural default So, cient to excuse his applies “actual innocence clearly that he had “the defendant showed provisions the context of habitual offender committed the crime on which the not only challenge eligibility where the calculation of his sentence was [recidivist] predi- stems from factual innocence of the 283-84; Mikalaju Id. at see also based.” crimes, legal not cate from the classifi- nas, 494-95; 186 F.3d at United States v. predicate Pettiford, cation of the crimes.” (4th Cir.1994). Maybeck, 23 F.3d 284; 612 F.3d at accord Damon v. United words, predeces and its In other Pettiford (1st States, Cir.2013); 732 F.3d 5-6 that, procedural suggested sors as to de States, McKay v. United 657 F.3d fault, might “actually be inno a defendant not Surratt does only if of a cent” even he is innocent suggest that he did not commit the crimes conviction, predicate just not the offense of original listed in the Government’s infor- explained But we have also conviction. only says changed mation. He Simmons of actual innocence Pettiford’s view the relevance of those crimes in determin- original should be confined to its context. ing argument his later sentence. Surratt’s developed judge-made Pettiford argument constitutes sort about “le- default, procedural realm of where we en gal classification” that we have deemed joy shape our more latitude own rules insufficient. however, here, deal doctrines. We congressionally imposed statutory awith IV. that is not so amenable to ad constraint Jones, hoc, judge-made exceptions. See Although present por Jones does not (holding that movant could 758 F.3d through tal which Surratt pass to 2255(f)(4) statute of limita evade the relief, post-conviction obtain Jones is by claiming tions “actual innocence of his 2255(e) the exclusive route to relief in all sentence”). especially We are reluctant to observes, situations. As the Government pathways to blaze broad relief we “had no occasion” Jones “to consider given provision that the constitutes sentencing whether like errors” the one exception.” Maye, “narrow Cleaver claimed here “are redressable under the Cir.2014); accord 23; savings clause.” Br. Gov’t see also 1283; Bryant, Werling F.3d at Hill v. Lidster, 419, 424, Illinois v. er, Cir.2012); 695 F.3d 647-48 885, 157 (explain L.Ed.2d 843 States, Trenkler v. United 536 F.3d ing “general language judicial opin (1st Cir.2008). referring ions” must be read “as in context Even if apply we broader Pettiford’s to circumstances similar to those then be view, however, we still cannot call Surratt Court”). fore the We must examine the innocence,” “actually “[A]ctual innocent.” text of the clause to decide wheth us, Court has told “means er the statute can afford Surratt relief. innocence, legal factual not mere insuffi Neuhauser, See United States v. ciency.” Bousley v. United (4th Cir.2014) (starting with the 140 L.Ed.2d question in a interpreta text (1998); Tyler, see also United States v. tion). (3d Cir.2013) (“While Bousley parties principally addressed the standard that a discuss whether petitioner brought must meet for presents claims Surratt’s case “fundamental justice” exception § and then assume to the miscarriage savings of clause re- fails[.]”). trigger could the quirement that this characterization Certainly, deciding savings clause. court, an appellate As we are not in the provide relief in an initial whether amending business of statutes. See Dodd motion, § we have considered wheth v. United error er a non-constitutional “involves (2005) (indicat S.Ct. 162 L.Ed.2d 343 inherently fundamental defect which re ing that the court was “not free to rewrite complete miscarriage justice.” in a of sults the statute that Congress has enacted” 495; also, Mikalajunas, 186 F.3d see § though even the restrictions on pe Martinez, e.g., 139 F.3d United States potential titions created “the for harsh re * 412, 417 n. But we have cases”). sults some And holding that the “miscarriage” never tied this standard to “miscarriage justice” of opens standard the entirely separate question of relief via 2255(e) § portal just ignore would not savings clause. text of that section—it would also erase an approach Such would confuse the on initial motions and limitations “sec (that is, question cognizability of what mo ond or successive” motions found in § brought generally) tions be via 2255(f) (h). §§ and separate question with the that we address 2255(e)’s § We hold that text does not (that is, § what 2241 claims are here permit Surratt to raise his claim 2255(e)). under §by barred And the “miscar § 2241. although And the dissent insists riage” standard addresses a different basis,” that we act “without textual question way. particu in still another In lar, dissenting op. at we observe at least adopted the Court the “fundamental “miscarriage” separate defect” and standard as a four textual factors—in addition way identifying provisions’ of those cases where a to the relevant pur- context and petitioner’s bring failure to his claim his pose establish that claim Surratt’s —that appeal initial direct could be excused. See foreclosed. 339, 354, 114 Farley, Reed v. A. 2255(e) contrast, § applies prisoners clause first tells us bring

who failed to their claims twice be remedy by § that “the motion [a 2255] appeal fore: on direct their initial inadequate or ineffective to test [must be] Thus, § interpretation 2255 motion. of legality of [Surratt’s] detention” before 2255(e) focusing “miscarriage on a of proceed he can 2241. 28 U.S.C. justice” argument interpret “is less an 2255(e) added). (emphasis find Con We ing amending 2255 than it is one for “test,” gress’s deliberate use of the word Anderson, § 2255.” Prost v. 636 F.3d expansive like rather than a more term Cir.2011); accord Williams “ensure,” “guarantee” very meaningful. or Warden, Prisons, Fed. Bureau (11th Cir.2013) “put proof.” To “test” means to to the (calling (2d ed.1989). English Dictionary justice “miscarriage “plainly standard” Oxford words, In other text antici inapplicable” question to the of whether pates opportunity challenge to raise a § 2241 particular forecloses a See, argument. e.g., Wag Dogs, More petition); Stephens, Perez v. 593 Fed. Cozart, (5th Cir.2015) (“Perez’s Corp. ar Ltd. Liab. Appx. (4th Cir.2012) (equating gov n. 3

gument that the actual innocence and mis 365 carriage justice provide ability plausibility standards an ernment’s “to test the §his 2255 motion on claims of ineffective ability its to raise the the claim” with evi particular proves impor of counsel most argument relevant offer assistance Advertising dence); Inter-City here, complain NLRB v. as he cannot of his tant Cir.1946) Co., (say in a inability post- to “test” his detention way employer had no “to test” ing that an proceeding when 2255 offered conviction where it an administrative determination to take it. him that chance and he declined Therefore, object). legal had no avenue to permitted to lever prisoner “A cannot be process— with “the clause is concerned way by making into section 2241 his his petitioner opportunity an ensuring the remedy inadequate[J” section 2255 Mor argument with substance— bring (7th 668, Bezy, —not ales v. 499 F.3d Cir. op nothing about what guaranteeing 2007). ultimately yield in promised will portunity for protests But Surratt that “the basis Prost, 584; at terms of relief.” 636 F.3d prece- claim circuit was foreclosed [his] Taylor Gilkey, 314 F.3d see also Opening dent at the Br. 20. That time[J” Cir.2002) that (agreeing argument for at least reasons. fails two 2255(e)’s “implies use of the term “test” than out procedures a focus on rather matter, As a factual we cannot know comes”). “op too have focused on the We might whether Surratt’s claim have led to procedural portunity” or “unobstructed relief because he never made it. We do by § not on the ulti shot” afforded “many know that defendants ... filed suits section, under that mate result of motion prior asserting to Simmons the exact clause. defining scope same substantive claim that now [Surratt] Rice, 617 F.3d at 807. We have stressed course, raises, including, of Simmons him an permit that will not individu self.” Whiteside v. United “merely § 2241 petition [the] al’s because (4th Cir.2014) (en banc) (col individual has been unable to obtain relief cases). indeed, lecting And nature “[t]he or because individual is [§ 2255] statutory interpretation requires that §a procedurally filing barred from present argument someone before Vial, motion.” In re 115 F.3d or, courts can define the law” as in Sim §In Congress n. 5 mons, Florendo, change Bryan it. Prost v. heard, provide meant to a chance to be Enigmatic Savings Anderson and right any particular argu on prevail Remedy A By Clause 2555: When Is See, Cleaver, e.g., ment. 773 F.3d at 233 Inejfective”?, or “Inadequate Motion (offering an example permissible sav Denv. Rev. U.L. ings original clause relief which “the sentencing court has been abolished matter, legal permit As courts do petitioner dissolved and the has nowhere petitioners special peti- favors because petition”). to file a 2255 claims futile misjudged tioners their present not to them in the first chose clearly could have “test[ed]” fact, instance. In Court has legality of his detention his initial held a toward “the “dismissive” attitude § 2255 motion. Surratt also chose to fore- argument’s legal futility contention that an go any challenge mandatory to his sen- inability is the same a court’s to enter- appeal. steps, tence on direct At both as. then, argument[J” Caraway, tain the Brown v. he opportunity had the claim (7th Cir.2013) (Easter- mandatory 719 F.3d lower sentence should have brook, J., concerning the circu- applied qualify because he did not as a statement 40(e)). drug two-time felon. His choice to focus lation under Circuit Rule context, instance, aside, These reasons for we note that sub- default procedural practical cause if it means stantial difficulties could follow if “futility cannot constitute unacceptable to we held that a could not “test” his that a claim was simply particular prece- at detention because adverse circuit court particular at dent once “foreclosed” his claim. Neither Bousley, 523 U.S. time.” us, nor the Futility provides.no also basis to Surratt Government informs instance, precedent statute of limitations. See how clear circuit toll 2255’s 185; Whiteside, prison- Minter v. must be before it “forecloses” the Cir.2000) Beck, Perhaps, parties’ er’s claim. under the 666-67. (same). do; applies approach, analogous might here: principle precedent The same fully perhaps they not. Nor do why 2255 remedial vehicle was tell us our “[t]he amply precedent argument sufficient to test the alone “forecloses” an available though Supreme or not even re- argument, [Surratt] whether Court review Prost, they it.” 636 F.3d at mains available. And do not thought explain to raise Simmons, Admittedly, through “a when the foreclosure must arise. find 589. We given questions by in law ... has increased it better to avoid these adher- shift the point ing understanding to a made at the trial but to a more direct of relevance Large, on v. “test.” pursued appeal.” Sunal 174, 182, 332 67 S.Ct. 91 L.Ed. U.S. reflects, interpreta As Jones our (1947). permit But to this shift to 1982 yields involving tion of “test” cases actu open gate to habeas relief would ren al innocence of the crime of conviction. ... “litigation der these criminal cases thorny constitutional issue” could re “[A] Id.; Whiteside, interminable.” cf. judicial if sult “no other avenue of review (noting “myriad F.3d at 186 party available for a who claims [were] changes past point in law substantive factually legally is innocent as s/he finality” cause “a tectonic shift of would statuto previously a result of unavailable if them resources” courts treated as Dorsainvil, ry interpretation^]” In re bars). enough procedural to evade (3d Cir.1997); F.3d accord Triest 2255(e) man, 378-79; 124 F.3d at Davis v. preserve Section means to cf. See, 333, 346-47, prisoner’s “remedy,” not his “relief.” 417 U.S. (1974). Dobre, v. “For e.g., Tolliver 878 S.Ct. (5th Cir.2000) (“We system only our it is Con join our sister circuits under federal courts, gress, and not the which can make prior that have held that unsuccessful at Bousley, criminal.” 523 U.S. § 2255 motion ... not make 2255 conduct do[es] ineffective.”). 620-21, Generally, “courts inadequate or This distinc S.Ct. to avoid portions [a] [constitu tion is reflected in other of the will construe statute statutes, unless such construction “remedy” similarly problems habeas where tional] relief, contrary to the intent of Con plainly means an avenue or mechanism for 2254(b)(1)(A) Hamilton, gress.” not the relief United States itself. See Cir.2012). Therefore, (referring to exhaustion of state “reme F.3d Vial, this dies”); outgrowth as an see also 115 F.3d at 1194 n. 5 we read Jones But “remedy” avoidance doctrine. be (referring sepa 2255’s as constitutional “relief’). claim of presents genuine That no rate from its distinction cause conviction, actual innocence of the crime of implies likewise that what matters is the “thorny issues” arise ability request, ability to make the not the no constitutional it. here. to win argument

B. ular fails and the client loses. Similarly, appellate procedures state’s “test,” way In much the same satisfy the Fourteenth guar- Amendment’s in- inadequacy statute’s references to and “adequate antee to an and effective” ap- pre- tell us that effectiveness peal long procedures provide so as those relief, request serves chance to minimum safeguards. certain See Smith right not the ultimate and absolute to ob- Robbins, 259, 276-84, it. tain (2000). 746, 145 L.Ed.2d 756 decid- When evaluating see this notion cases We criminal ing enjoin we can a state whether whether other “substitute” habeas reme prosecution, pass we also must on whether are In adequate dies effective. Swain party seeking relief adequate “has an Pressley, Hernandez, remedy at law.” Trainor v. (1977), L.Ed.2d 411 Court provision examined a District so, In doing L.Ed.2d 486 we con- Columbia Code channeled collateral “opportu- sider whether the movant has an Superior review of convictions Court nity to timely raise and have decided ... of the District of Columbia back into that the federal issues involved.” Id. (rather through court than federal courts examples S.Ct. 1911. These and other review). finding via habeas provi suggest that we should assess 2255’s effective, adequate sion the Court fo by weighing effectiveness the historic out- cused on the that the opportunity statute against come under that motion the out- afforded, including the relief that the pris today come we would reach in an initial request oner could and the manner in appeal from trial. should We instead ask which the court would consider his re §in procedures whether quest. 381-84, Id. at 97 S.Ct. 1224. Simi provided genuine opportunity for the Bush, larly, in Boumediene v. 553 U.S. petitioner present to raise his claim. 723, 2229, (2008), S.Ct. L.Ed.2d analyzed the Court whether combatant suggests Surratt never that the status review tribunals afforded an ade mechanism denied him a chance to make quate and effective substitute to habeas best, present argument. says his At he corpus enemy combatants held at only that our pre-Simmons reading of Bay, again Guantanamo Cuba. The Court 841(b)(1)(A) Prost, did. See 636 F.3d at on “opportunity” concentrated that the (“[Wjhenever legal error occurs it outcome, substitute offered—not on the id. very inadequate well mean circuit law is or 779, 2229, at asking 128 S.Ct. whether the deficient. But that not does mean the “sum total procedural protections” suf inadequate 2255 remedial vehicle is or ficed, 783, id. 128 S.Ct. 2229. These testing ineffective to the task of the argu cases both make the same fundamental ment.”). understand We Surratt’s reluc point: the chance to argue a claim is the head-on, tance to attack as courts adequacy relevant criterion for and effec upheld have an adequate statute as tiveness, any particular disposition challenge and effective means to the deten that claim. tion of a federal for some 60

When discussing years. “effectiveness” and v. Hayman, United States law, “adequacy” in other areas we U.S. 96 L.Ed. 232 (1952). processes, likewise focus on point not outcomes. But the remains: no defi ciency We do not declare that in precluded counsel rendered 2255 itself “ineffective” assistance partic- lodging sentencing challenge, time his from so “inadequate” tionally race, § 2255 or “in- impermissible we cannot call factor such as or claiming post-plea effective” here. violation of the manner,

right to counsel.” Id. In like C. explained Court that a sentence where, illegal” was “not among other clause also focuses on the things, punishment meted out “[t]he was “legality” Espe of the relevant detention. prescribed by excess of that context, cially post-conviction in the courts relevant statutes multiple [and] terms “illegal” “unlawful” recognized have imposed were not for the same offense.” in a sentences narrow subset cases. States, 424, 430, Hill v. United 368 U.S. Actual innocence of the crime of conviction (1962); 7 L.Ed.2d 417 accord case, may present that sort of a as courts Pavlico, United States v. long imprison have that “[a]n understood judgment” ment “unlaw becomes judgment ful” if “that nulli be absolute view, accordance with this courts (3 Watkins, Pet.) ty.” parte Ex largely recognized have not an “illegal” 193, 203, 7 And a L.Ed. 650 sen detention —one that trigger would the sav imposed proper statutory tence above the ings clause—where the defendant chal might present maximum another instance lenges a sentence within the correct statu sentence, ... power of an unlawful as “the See, tory e.g., maximum. United States v. im prescribe punishments to be Powell, Cir.2012) posed upon guilty those found of [federal J., (King, dissenting part concurring wholly Congress.” resides with the crimes] part) (indicating that a sentence would Whalen v. United if be “lawful” it “falls within the unen- (1980); 689, 100 S.Ct. maximum”). hanced The Sixth Addonizio, see also United States v. rule, general Circuit noted this for exam 60 L.Ed.2d ple, holding that the defendants’ sen (1979); accord Sun Bear v. United tence-focused claims did not “fall within (8th Cir.2011) States, 700, 644 F.3d 705 any arguable savings construction” of the (“An illegal unlawful or sentence is one Peterman, clause. United States v. 249 without, of, imposed statutory excess Cir.2001). (6th 458, 462 F.3d Elev authority.”); United States v. Gonzalez- that a enth Circuit likewise held federal Huerta, n. 10 403 F.3d 739 bring could not a claim that prisoner Cir.2005) (“[T]he ‘illegal term sentence’ is 2255(h)” §by “would otherwise be barred reserved for those instances where the petition in a 2241 where the asserted statutory term of incarceration exceeds the longer error “resulted a sentence not maximum[.]”). exceeding statutory maximum.” Gil context, explained As we in another bert v. 640 F.3d United (11th Cir.2011) (en banc); every “not though, [proceeding] alleging Bryant, a see also legal sentencing challenges (“[A]ny challenge error in that at 1288 738 F.3d ” ‘illegal.’ already sentence as a sentence that below the United States statutory maximum could not Thornsbury, 670 F.3d Cir. authorized 2012). “illegal” open portal.”); We have said that sen accord Trenkler, (labeling petition tences much more fundamental 536 F.3d at 99 “involve[] claiming “incompatible engagement claim with challenges issues—such as a dis er’s authority, claiming trict court exceeded its clause” where he did “not charge that a sentence that life sentence be- [his] [wa]s was based on constitu- maximum yond statutory possibility parole.”. the- United States v. conviction”). time, Gonzalez, (2d For a crimes Cir. 1991). least, Thus, agreed that a even Government Surratt’s life sentence does attack a prisoner federal could not sub- not exceed the maximum that the district peti §a through maximum sentence imposed court could have had Simmons Wilson, tion. No. 1:11cv645 See Wilson sentencing. been issued before Surratt’s (TSE/TCB), at *3 n. words, WL In other Surratt’s sentence does (E.D.Va. 2012) Apr. (quoting “posi punishment, not offend the limits of such “savings tion of the United States” question that we could his detention’s “le foreclosed for an erroneous clause relief is gality.” maximum”). statutory sentence within Tacitly recognizing the weakness of his comports That view also with 2255’s view, majority position under the Surratt scope, provides sentencing which relief urges adopt minority us to a distinct view only involving cases “violations-of stat “persuasive.” Opening he considers establishing maximum utes sentences.” 583). Brown, (citing Br. 22 Pregent, States v. decision, But even under this outlier Brown, prevail. Surratt cannot widely This “legality” held view of permitted Seventh Circuit should foreclose Surratt’s claim. He never challenge length of his sentence suggests that he received a sentence above through §a 2241 petition though even applicable statutory maximum. He sentence fell below the maxi parties agree cannot. All that Surratt has mum. Id. at 588. But Brown concerned conviction,, prior felony at least one drug pr imposed e-Booker sentence under the regardless Simmons. A defendant like formerly mandatory regime. Guidelines §§ who violates U.S.C. 841 and (stressing See id. that the defendant was single “prior 846 after a conviction for era”) sentenced in pr (citing “the e-Booker felony drug offense final ... has become Booker, United States v. shall be imprison sentenced to a term of (2005)). For

ment years which not be less than 20 Circuit, the Seventh this historical fact and no more than imprisonment[.]” life difference, made all the it believed 841(b)(1)(A). U.S.C. that —at least when courts treated the emphasizes Surratt often that his sen- mandatory Guidelines as lawful — “the parole,” tence is “without but that does not sentence was a [G]uidelines sentence.” Id. issue., any special create present Regardless In the of whether the Seventh Circuit system, federal imprisonment equiv- correctly life characterized the former Guide (and parole every alent to life without in regime case. lines say we need not here Polk, did, Gilbert, See Richmond v. 375 F.3d 316 whether it see 640 F.3d at (4th Cir.2004) (“[T]he 1306-07), Sentencing Reform savings-clause its view on the Act of parole 1984 abolished for federal in harmony approach issue exists with the offenses committed after by Quite simply, November taken all other courts. 1984[.]”); 3624(b) § see also 18 U.S.C. the Seventh Circuit believed that it could (stating prisoners serving because, § permit petition life -sen- at least tences e-Booker, are not entitled to a pr unjustified deduction for an above-Guide credits). good time Congress equated When abol- lines sentence to a sentence above parole essentially ished in it statutory top “trans- maximum. The every late[d] life sentence into range provided life without Guidelines the relevant 2014) (“The sentence, and Brown’s sentence ed. act or an instance of hold maximum in ing person custody; maximum Guide confinement or pre-Booker exceeded contrast, compulsory delay.”). Physical in cases in confine lines sentence. advisory separate apart ment stands from the volving gost-Booker Guide sentence, lines, recognizes and some detentions that the Seventh Circuit even habeas, give petition rise to a do not sentencing cannot correct er follow that courts criminal sentences at all. proceedings, Pre-trial deten post-conviction rors otherwise, provide tions example, § if the sentence “is one common see 18 2241 or 3142(e), statutory maximum.” U.S.C. but other instances below the Hawkins mind, including come to detentions in in 706 F.3d .2013). civil contempt, stances of detentions Cir immigration proceedings, connection with Here, court sentenced Sur- the district witnesses, detentions of material or civil post-Booker, advisory ratt under sexually dangerous persons, detention of result, As a his life Guidelines scheme. Neuhauser, see F.3d at 125-31. statutory sentence does exceed being Rather than tied in all cases to a sentence, Brown would maximum and even then, punishment, sentence as criminal Thus, cannot afford him no relief. we 2255(e)’s reference to “detention” “illegal.” deem his detention speaks physical person’s restraint of a liberty. D. refer Pointing savings to the clause’s rendering In contrast to the of a crimi “detention,” suggests

ence to Con judiciary, physical nal sentence But gress permit meant to claims like his. holding of a federal represents Congress used the term “sentence” in function, “keeping executive back or §of see 28 portions some U.S.C. withholding” by the executive branch. See 2255(a)-(b), and “conviction” or “offense” Warden, FCC Coleman-Medi Samak (h)(1). 2255(f)(1), §§ It parts, in other id. (11th Cir.2014) um, 766 F.3d chose not to use those terms in the J., (Pryor, concurring). Attorney clause, 2255(e), obligated and we “are id. General, acting through the Bureau of give Congress’s effect to decision to use Prisons, “detainer,” as the and the acts language proximate subsec different sentencing court does not involve itself tions of the same statute.” United States prisoner restrained. See 18 keeping the Brandon, Cir. 3621(a) Bu (explaining that the U.S.C. 2001). think the term “de We responsibility reau of Prisons has the yet tention” is another textual indication person “who has been sentenced detain it petition; bars Surratt’s imprisonment to a term of ... until the draws a line not between conviction and expiration imposed, of the term or until challenges, sentencing per but between behavior”); satisfactory earlier released for challenges missible to executive acts and Gates, also, e.g., see Janko v. challenges to the of oth impermissible acts (D.C.Cir.2014) (agreeing party’s with a government. er branches of ordinarily de concession that “courts don’t in concept ac physi- people”).

“Detention” concerns the act of tain We see this Congress in instances where cally confining restraining or an individu- tion those See, sentencing court from in e.g., English Dictionary precluded al. the Oxford ed.1989) (2d ongoing too much in the as (“Keeping custody volving in or con- itself (10th finement.”); States v. Dictionary pects of a detention. See United Black’s Law 258

Wilson, 329, 334, 1351, duty authority Judiciary 112 and to call 503 U.S. S.Ct. account.”). (1992) jailer that a the to (holding 117 L.Ed.2d 593 sentencing may court not calculate credit Focusing power on the of executive’s in already spent custody, as that for time a restraint draws clear line—a line consis General); Attorney to the see belongs task long-accepted petitions tent with also, Ceballos, 671 e.g., United States § example, previously 2241. For we have Cir.2011) (“[T]he [sen F.3d 855 petitioners challenge noted that 2241 can jurisdiction no to select tencing] court has good the Bureau of Prison’s calculation of place where the sentence will be the Yi, 412 time credits. See F.3d at 530. Authority place to determine of served. if prisoner That makes sense: deserves confinement resides the executive good-time credits but the Bureau of Pris government[.]”). branch of them, ons denies then an error executive cause the warden to hold provisions §§ the venue 2241 Even of is, prisoner authority without be —that and 2255 reflect an executive versus non- yond prescribed by Congress time dichotomy. petitioner A must executive sentencing court. See Preiser v. Rod §his in the bring petition district 475, 487, riguez, 411 U.S. confinement, can where court summon (1973) (finding prisoners’ L.Ed.2d 439 the warden defend his actions. con- petition concerning good-time credits “fell trast, petitioner for must move squarely scope within traditional th[e] relief before the district court that sen- corpus” “[t]hey habeas because alleged him, sentencing tenced where the court deprivation that the good-conduct- of their original and the prosecuting United States causing time credits was or would cause Attorney may bring expertise their illegal physical them to be in confinement” bear. added)). (emphasis Similarly, when feder sentencing parole, al allowed for challenge A to “detention” through provided challenge a vehicle to parole rev 2255(e) should therefore focus on acts of Vial, ocation. See F.3d at 1194 n. 5. A branch, judi the executive rather than the pre-trial might detainee also invoke Geren, cial branch. See Munaf v. tried; if timely arraigned he is not or 128 S.Ct. situation, the warden’s acts of continu (2008) (“Habeas remedy is at its core a ing to detain the could render the detention.”); unlawful executive INS v. St. detention improper under the Fifth and Cyr, Amendments. See States v. .Sixth (2001) (same); Samak, L.Ed.2d 347 accord Tootle, Cir.1995). J., at (Pryor, concurring); principle may explain And the same our Trenkler, Hence, § at if change decision Jones: law ren attack on “detention” lodged through “non-criminal,” prisoner’s ders the conduct (1) challenge should entail a authority then the warden would have no right authority of the executive to to hold the now-innocent defendant. keep in custody; the individual manner in which the executive commonly accepted executes Contrast these one, the^ detention. That reading present serves the claims with Surratt’s which purposes historic the writ as well. has little to do with executive-branch Boumediene, accounts, By action. all the warden is (“The [Suspension] protects holding. validly Clause Surratt under a entered rights by affirming sentencing sug- the detained order. Surratt does not violating is his statu- gest struing] parts that the warden all to meaning.” have tory rights. Briley, or constitutional And war- United States v. (4th Cir.2014). detaining pursuant

den is Surratt to Congress empowered sentence that If we embraced Surratt’s position, then is, impose district court to a sen- —that 2255(h) § the limits found in would first statutory tence within the limits. Sur- provides fall. That section that a prisoner petition not attack ratt’s does therefore may bring § a second or successive by act of detention the executive (1) only motion if prisoner produces Thus, Congress branch. would have newly discovered evidence of actual inno- expected prisoners bring federal to this cence; upon relies “a new rule of type petition § of a claim in a 2241 via law, constitutional made retroactive to savings clause. cases on collateral review Supreme Court, previously that was unavailable.”

E. 2255(h). § 28 U.S.C. cannot § The broader context of 2255 fur bring his second or successive motion until ther convinces us that cannot in grant Surratt we him a certificate of authorization § “[Statutory voke 2241. construction indicating is that the motion satisfies one of endeavor, a holistic and we therefore must these two conditions. Id. Congress “When statutory itself, 2255(h), evaluate the language adopted § it was undoubtedly specific context in which such that prisoners might aware wish to press used, language is, and the broader context arguments,” other sorts of that argu- of the statute as a whole.” R.H. Donnel ments other than actual innocence or con- ley Corp. error, v. United 76 stitutional “in second or successive Prost, Particularly post-convic motions.” 636 F.3d at 585. Never- one, theless, tion proceedings like this context of Congress decided to bar those See, proves ten e.g., Taylor, Surratt, decisive. arguments outright. “other” how- ever, at (relying part F.3d on the “histo bring very means to one of the claims 2255(e) ry” reject putative foreclosed, Congress albeit under a petition). caption. different That course would pro- absurd, if illogical, duce an result: permitted If Surratt were to raise his 2255(h)’s restrictions would continue to sentencing challenge petition, in a apply prisoners bringing Congressional- every we would thwart almost one of the claims, ly preferred while no restrictions Congress placed careful limits that on apply prisoners bringing would claims post-conviction challenges pris- to a federal Congress contemplate did not at all. oner’s sentence. And we would do so in a version of Surratt’s would then Quite simply, broad class of cases. “Con- us, return in part, pre- at least to the gress accomplished would have nothing at world, AEDPA “prisoners where [could] all in its attempts through statutes like — many they file as collateral attacks as place AEDPA —to limits on federal collat- please[d], provided they abuse [did]n’t Triestman, eral review.” F.3d at 376. Taylor, the writ.” comprehensive This conflict between Sur- many Moreover, ratt’s view and parts premises so different his claim on decision, though statute convinces us that we are not circuit-level even 2255(h) “piek[ing] choos[ing]” parts specifically some states that others, the statute over as the dissent retroactive Court decision should Instead, alleges. simply open we are “con- the door to successive relief. No concept retroactivity pro a petitioner bring a to Surratt’s permitted court has only- savings premised clause claim via the duces other anomalous results. Under his In change authority. in circuit-level on a invoking a a new stat approach, petitioner stead,- authority all requires the available utory interpretation from the Fourth Cir precedent. Tyler, Court See Supreme immediately § 2241 re cuit could file (listing “intervening at 246 an Su F.3d lief, to for a declaration with no need wait as one of several preme Court decision” Meanwhile, retroactivity. petitioner a bring to a claim via the required facts invoking promul a new constitutional rule clause); Roy, Kenemore v. savings gated by Supreme Court would have to (5th Cir.2012) (stating that F.3d explicit for an statement from that wait brought savings clause must claim via rendering court the rule retroactive. See retroactively applicable “based on a Su be Cain, 656, 663, Tyler decision”); Davenport, 147 preme Court new (2001).(“The 150 L.Ed.2d 632 “qualifica (noting F.3d at 611 “obvious” retroactive, by rule becomes the deci “change that a of law” could tion[ ]” by court or the com sions lower § 2241 qualify prisoner to seek relief Supreme bined action of the Court and the change unless “the of law :.. made [w]as courts, by but action of simply lower Court”); by Supreme retroactive Wof Goúrt.”). Supreme We “resist attrib Scott, ford Congress uting to an intention to render a Cir.1999) (“[T]he only sentencing claims internally statute so inconsistent.” Green conceivably by be covered law v. United upon a savings clause are those based retroactively applicable Supreme de Court overturning precedent.”). circuit cision § comply Movants under 2255 must also limitations, one-year with a statute of circuit Holding otherwise would elevate 2255(f), provision § precedent court to the level retroactive U.S.C. and this would Supreme without precedent Court fall A pris- also victim to Surratt’s view. congressional authority 2255(f) to do so. The by § hamstrung oner could file a recognized point, Government once this petition, as contains no stat- Respondent Op too. See Brief for the held, only recently ute of limitations. We — position Hastings, at Williams v. banc, supposed futility en that the of rais- -, 190 L.Ed.2d 29 ing a Simmons —like claim before we de- (2014) (No. 13-1221), 2014 WL 3749512 an un- permit cided Simmons would not (arguing that the clause applies timely raising 2255 motion that sort of petitions raising sentencing certain errors Whiteside, claim. 775 F.3d at See 184-87. “when the error is revealed a retroac correct, proved But if then that tively applicable Supreme] decision of [the nothing. mean next to A decision would Court”). pressing contrary position, time- caption different on his otherwise the best case the dissent can summon is petition permit barred would the federal permit one which another circuit court prisoner go forward. petition brought ted a based be view, adopt Were we to Surratt’s assumedly Supreme on an retroactive §in differing provisions venue Light Caraway, Court See decision. in cir- 2255 would also invite mischief Given A prisoner cumstances like these. sen- Surratt’s case involves no Court all, circuit would file his initial tenced this decision case strikes us as failed, irrelevant. 2255 motion here. If that motion happened appealability] to be held [certificate will not issue (as happens so often in the different circuit allegations error, of non-constitutional system), then the prison federal he would not be able to appellate obtain § 2241 in could seek relief via that circuit. any review of purely statutory errors at things hap of two unusual would then One his sentencing[.]”); accord Young v. Unit § apply 2241 court either pen: would States, (7th 717, Cir.2008); ed 523 F.3d 718 a different circuit to the law of assess Christensen, United States v. 456 F.3d stands, see, prisoner’s petition where the (10th 1205, Cir.2006); 1206 Mateo v. Unit Samak, 3, e.g., 766 F.3d at 1275 n. or it (1st 39, ed 310 41-42 F.3d Cir. see, law, apply e.g., would its own United 2002); Brooks, United States v. 230 F.3d 519, 672 Wyatt, States v. F.3d 523 (3d 643, Cir.2000). § 646 But 2241 con Cir.2012). way, in Either number of Therefore, tains no such limits on appeal. consistent results could flow from this dis applying reading Surratt’s of the savings contrast, jointed approach. By if chal clause, petitioner a could Congress’s evade are lenges like Surratt’s confined to the conscious constraint appellate on review motions, § only sentencing then just by filing petition, a losing, and them, will and the court consider motion exercising then his automatic entitlement only implicate our will circuit’s law. appellate to review. interpretation savings of the Surratt’s strange implica clause would also have We should not savings allow the clause appeal rights. “Congress tions for has the “create a detour” around 2255’s re- power preclude any appeal from an strictions, as those restrictions would then dismissing corpus, order a writ of habeas nullity.” be “rendered a Reyes-Requena, party right since a to a suit has no vested 19; Trenkler, 243 F.3d at 901 n. cf Brooks, appeal.” to an v. United States (“The at 97 of F.3d strictures section 2255 Cir.2001). (3d And Con cannot be sidestepped by simple expe- gress power: exercised that a 2255 mov- resorting dient of to some more exotic appeal ant cannot the district court’s deci writ.”). Accordingly, we decline to dis- on his motion sion unless the district or protections Congress mantle the cre- grants circuit court first a certificate of §in adopting ated Surratt’s ex- appealability. See U.S.C. pansive reading savings of the clause. 2253(c)(1)(B). That certificate is sues when the movant has “made a sub showing

stantial of the denial of a constitu F. 2253(c)(2); right.” tional See id. see Lastly, we must take account of Con — U.S. -, Jennings Stephens, also gress’ general purpose enacting the var 793, 807, 135 S.Ct. 190 L.Ed.2d 662 provisions Broughman ious at issue. See (“One (Thomas, J., dissenting) key of the Carver, Cir.2010); ways finality in which AEDPA encourages ACLU, McCreary Cnty. accord scope appellate is to narrow the review 844, 861, 125 S.Ct. by requiring petitioners habeas to obtain (2005) (“Examination purpose staple is a So, appealability].”). [certificates statutory interpretation up that makes § 2255 movant who raises a Simmons daily every fare of court in appellate might claim appeal be unable to because country.”). Congressional purpose claim present does not constitutional Hadden, apply issues. confirms that does not See United States v. (4th Cir.2007) (“[BJecause F.3d cases like this one. reading

Our narrower important one of the most L.Ed.2d 437 This rule even preserves clause holds sought changes to serve: the law in the petition- that AEDPA when later purposes favor, possibility AEDPA serves multi er’s as “the of a favorable finality. Although “comity, finality, change in the ple objectives, including occurring plea law after federalism,” Taylor, accompan[y] Williams v. 529 one of the normal risks that Archie, guilty plea.” 146 L.Ed.2d United States v. (2000), goal AEDPA foremost the. —the Congress’ concern”—is in act’s “central Government, Undeniably, “the Federal merits of concluded criminal tent that “the States, no less than has an in interest in not be revisited the absence proceedings finality judgments.” of its criminal innocence,” strong showing of actual of 152, 166, Frady, United States v. 456 U.S. 538, 558, Thompson, Calderon v. 523 U.S. (1982). 1584, 102 71 S.Ct. L.Ed.2d 816 (1998). 1489, 118 140 L.Ed.2d 728 S.Ct. finality, For the criminal law is “[w]thout and the dissent to un Surratt both seek deprived of much of its deterrent effect.” any from actual tether innocence Lane, 288, 309, Teague v. 489 U.S. Instead, they requirement. would have us (1989). S.Ct. 103 L.Ed.2d 334 “A rule contradicting Congress’ create new system procedural permits which an end enacting AEDPA —one that goal chief inquiry repetition less of into facts and law any imaginable apply would to most sen ... implies a lack of confidence about the tencing enhancement we later believe justice possibilities of that cannot but war erroneously peti could have increased a underlying with the effectiveness of sub limiting tioner’s sentence. We see few Zant, McCleskey stantive commands.” v. rule, principles in that kind of and take 467, 492, 499 U.S. little comfort in Surratt’s assurances (1991); L.Ed.2d 517 accord v. Custis Unit (so apply it would long few cases 485, 497, ed here). as he receives relief (“[I]nroads 128 L.Ed.2d 517 Further, AEDPA, concept finality even before on the of tend to under finality by “the concern integrity with served the mine confidence of our [.]”); special procedures limitation on collateral attack Henry ha[d] see also J. convictions,” respect Friendly, force with to like Is Innocence Sur- Irrelevant? Col ratt’s, guilty pleas.” “based on Judgments, lateral Attack on Criminal Timmreck, (1970) (“The 780, 784, States v. pro U.S. U. Chi. L.Rev. (1979); surely S.Ct. 60 L.Ed.2d 634 see also verbial man from Mars would think Fugit, system United States v. 252- we must consider our of criminal (4th Cir.2012) (discussing justice terribly willing the historical if we are bad importance finality, especially undoing judgments of as to tolerate such efforts at conviction.”). guilty pleas). agreements “only waning Plea work of A of confidence dispositions if by guilty are if plea accorded would follow we revisited convictions great finality.” measure Blackledge repeatedly, especially of when the defendant Allison, 63, 71, guilt. 52 conceded his It seems even odder to S.Ct. (1977). Thus, where, here, L.Ed.2d voluntary peti “a revisit convictions intelligent plea guilty accepted appeal made an tioner waiver person, accused by plea agreement. though who has been advised Even the Govern competent counsel, [usually] may not be ment has not to chosen enforce waiv-' Johnson, er, collaterally Mabry presence expect- attacked.” its means that Surratt they of know that cannot arguments have no later chance for kind raise ed to once, agreed plea guilty. they he first more than then review when will exercise greater diligence and invoke whatever might tempting find it Although one rights they may early have on. See Wain aside for the sake of put finality concerns wright Sykes, fairness, we have self-designed notions dangers” are in “su- recognized that “there [finality] to bordinating] equities dispense many We decline to with these case,” vague if “especially the individual so deriving from central AEDPA’s benefits — touch- a term as ‘fairness’ is to be the objective finality by accepting Sur- — Seal, stone.” In re Under 2255(e). ratt’s view of Cir.2014). Courts also have “nev- scope ... of the writ [of er defined Y. by reference to a corpus] simply habeas Invoking canon of constitutional that an perceived need to assure individual avoidance, suggests that we must of crime is afforded a trial free of accused permit petition because a failure to do constitutional,” statutory, let alone “error.” so would present substantial constitutional at 1060. Teague, 489 U.S. S.Ct. Specifically, argues concerns. he that de- doubt, put finality if we aside when it No 2255(e) nying him relief under would us, invite a disquieting suited we would questions raise process, related to due judicial system. indeterminacy into our protection, equal separation-of-powers And it’s hard to see where this “fairness” principles, and the Suspension Clause. So, do not exception “[w]e would end. disagree. We pause to consider whether a statute differ- ently yield conceived and framed would The canon of constitutional avoid results more consonant with fairness and ance is an ill fit to this case. “The canon is reason. take the statute as we find it.” We choosing competing a tool for between Wilson, 20, 27, Anderson 289 U.S. 53 plausible interpretations provision.” of a (1933). 417, 77 L.Ed. 1004 - Shauers, -, Warger v. U.S. (2014). 521, 529, “It

Finality tangible offers benefits for the S.Ct. 190 L.Ed.2d least, in judicial system. very application At the it en- has no the absence of ambi- guity.” already explained, that court on the Id. As we have sures resources focus 2255(e) contrast, §in appeal stage. though, ambiguity initial trial and In we see no every precedential favorable decision when it comes to Surratt’s sentence. Fur- “[i]f ther, being could become ... a ticket to attacks read like backdoor resen- Surratt’s tenced, justice system challenges the criminal would constitutional 2255 itself. continually again, in But here canon of constitu- “[t]he need to marshal resources adjudi- not a method of keep prison order to defendants whose tional avoidance is cating questions by trials and con- constitutional other appeals sentences — then-existing Apel, formed to constitutional means.” United States Whiteside, -, 1144, 1153, standards.” 775 F.3d Finality provides grant per- does avoidance also closure to Nor “ ‘interpret’ ger- statutes slip victims and the defendant: it assures the mission exceptions punished, rymandering that his assailant them with list of victim will be case,” party’s happen while it directs the defendant to move on that to describe id., just the sort of finality provides impor- with his life. And which strikes us as thing tant If means us to do. litigants. incentives defendants ales, 670; Ultimately, though, Murphy, “if the 499 F.3d at Lindh v. statute (7th Cir.1996) (en concerns, banc), then 96 F.3d does not raise constitutional grounds, the canon rev’d on other 521 U.S. employing there is no basis for 2059, 138 (1997); Rodriguez v. S.Ct. L.Ed.2d 481 of constitutional avoidance.” (3d Anselmi, Robbins, 715 F.3d Cir. States v. 207 F.2d Cir.1953). Dwinells, 2013); original States v. 1789 form of the accord United (1st Cir.2007); post-conviction 508 F.3d 70-71 United writ did not afford relief of type sought Tech. Long States ex rel. v. SCS Bus. & here. See Ex Parte Yer (D.C.Cir. (8 Wall.) Instit., Inc., 85, 101, ger, 19 L.Ed. 332 1999). Allen, avoidance, (1868); no need for we can accord Brown v. With 2255(e) given rest assured that we have 97 L.Ed. 469 (Jackson, J., result); reading. concurring the correct La Reno,

Guerre v. Cir.1998).

A. We first conclude that our inter end, we need not settle the 2255(e) pretation presents no color- particular question Suspen of whether the Suspension able issue under the Clause. protects sion Clause the writ its 18th or provision That of the Constitution states Century reading 21st form. Our Privilege of Habeas “[t]he Writ sufficiently respects the writ in Corpus suspended, shall not be unless either event. substitution of a col “[T]he when Cases of Rebellion or Invasion the remedy inadequate lateral which is neither public Safety may require it.” U.S. Const. test, nor legality ineffective to the of a I, 9,§ Suspension art. cl.2. The Clause person’s detention does constitute a that, except during periods “ensures of suspension of the writ of corpus.” habeas suspension, Judiciary formal will have Swain, 381, at 97 S.Ct. 1224. writ, device, a time-tested to maintain Here, § 2255 itself serves the relevant governance the delicate balance of that is by holding § “substitute.” And 2255 itself the safeguard liberty.” surest of presents adequate and effective substi Boumediene, 745, at 128 S.Ct. detention, tute means to test Surratt’s we Suspension have likewise ensured that no observes, As the Government Hayman, Sus- Clause issue exists. See pension apply Clause here at all. at (refusing U.S. S.Ct. 263 to con Supreme any § Neither the Court nor this Court sider constitutional attack on Suspension has decided whether presence savings because the of the clause issues); protects Clause the writ as it Medberry existed avoids those see also (11th Cir.2003) today. 1049, 1057 1789 or the writ as it exists Crosby, See Boumediene, (“[Section 2255(e) 553 U.S. at any 128 S.Ct. avoided serious ] issue); 2229 (reserving Cyr, question St. replacement about whether the (same). 300-01, U.S. at corpus S.Ct. Sit- the writ of habeas for a federal banp, ting en prisoner § we hinted that the Clause with the new 2255 caused an might very writ.”); protect only suspension well the former unconstitutional of the Vial, and not Reyes-Requena, the latter. See 115 F.3d at 243 F.3d at 901 n. 19 2255(e) § 1197 n. 11. If that proves (noting to be the case that. ameliorates (that is, issues). if Suspension protects preced our Suspension Clause Clause As version), the 1789 then Surratt’s made ing plain, Sus- discussion should have pension argument opportunity Clause fails. Mor- a full See Surratt had § 2255 to make the claim that he makes And the narrowing here flows from an oft- here, simply but chose not to do so. made distinction in the law “between ac previously tions taken yet and those to

Perhaps Surratt means to attack our come.” City Armour v. Indianapolis, reading together with other —Ind., U.S. -, 2073, 2082, 132 S.Ct. 2255(h)’s limits found such as (2012); 182 L.Ed.2d 998 Solem v. limits on or petitions. second successive cf. Stumes, U.S. 104 S.Ct. But that sort of attack would fare no bet (1984) (“[Retroactive 79 L.Ed.2d 579 ap Stressing “judgments ter. about the plication is not compelled, constitutionally proper scope of normally the writ are otherwise.”); Stone, Wainwright make,” Congress to Court 21, 23-24, U.S. 38 L.Ed.2d has held that analogous 2254’s restric (holding that state was ‘suspension’ tions “do not amount to a not constitutionally entitled to the benefit the writ.” Felker v. Turpin, 518 U.S. of a new interpretation of a state criminal statute). Therefore, (1996). Suspension on peti “[Restrictions successive Clause is not offended in this case. tions judicata constitute a modified res rule, a restraint on what is called habeas ” B. corpus practice ‘abuse of the writ.’ Id. In yfe short, approach take to the multiple restrictions on motions for clause give also does not post-conviction rise to relief to an the sort of ] en “amount[ process due concerns tirely proper identified in Congress’ exercise of Hicks v. judg Oklahoma, 343, 100 ment regarding proper scope of the Vial, Hicks, L.Ed.2d 175 writ.” a state 1197. And “the jury court erroneously was reasoning required [Supreme] Court with impose a forty years sentence of respect they once limitations on second and suc found guilty. 344-45, the defendant petitions cessive habeas Id. at pursuant 100 S.Ct. 2227. appeal, On direct applies equal with the state force to the appellate court mandatory deemed the language 1198; identical in 2255.” Id. at prison-term Gilbert, unconstitutional 1317; accord but declined 640 F.3d at 345, to vacate Barrett, (1st the sentence. Id. at 34, States v. 100 178 F.3d 53 S.Ct. 2227. Cir.1999); Supreme The Marceau, Court deter see also Justin F. mined that decision to be a Challenging process due the Habeas Process Rather violation, Result, as the state court’s unwillingness Than the 69 Wash. & Lee L.Rev. 85, (2012) to correct the (“[T]he deprived error Hicks of 144 n. 207 a Suspension state-provided liberty jury interest in a Clause is much directly implicated by less 346, determination. Id. at 100 S.Ct. 2227. multiple efforts to file petitions[.]”). habeas Given the somewhat unusual circum Nor does a Suspension Clause case, stances of the courts it have read to problem develop whenever a is provide “a rather narrow Simpson rule.” later, unable to advantage take of a favor Norris, 1029, v. 1034 Cir. can, able “Congress case. without offend 2007). Clause, ing Suspension the ... narrow the Several factors indicate that the due cognizable source of law on habeas re process concerns in addressed Hicks do French, 865, view.” Green v. 876 not arise here. (4th Cir.1998), abrogated on grounds, other 362, Taylor, 376-77, First, Williams v. 529 U.S. sentencing by Hicks involved a 1495, 120 S.Ct. 146 L.Ed.2d jury; 389 aggres- this case does not. Courts 266 (3d 104, 112 Cir. Rosemeyer, 117 F.3d “historic role” jury’s the as

sively protect Hicks, 350-51, 1997); 447 at also U.S. see the State and intermediary between “an J., dissenting) (Rehnquist, Alleyne, 133 S.Ct. 100 S.Ct. criminal defendants.” Washington, 2161; Blakely v. that Court should have (concluding also the at see 2531, 296, 306, 124 S.Ct. defendant had not the 542 U.S. intervened because (“Just (2004) suffrage en as error at constitutional actually L.Ed.2d established in control the here, ultimate people’s trial). suggests the that sures no one Yet branches, jury tri unconstitutional, executive legislative sentence was. Surratt’s their control the to ensure al is meant “separate” is no er now or then. There Jones, 244-48, 119 judiciary.”); U.S. fact, suggests no one ror. develop the historic (describing at the time that the was sentence unlawful overly jury a check on as ment any way. it in imposed court district sentences). too, Framers, severe importantly, Hicks perhaps But emphasize importance the the chose to identified on direct re concerned error its role in enshrining jury by separately thing say appel to that an It is one view. words, In other we Amendment. the Sixth it process due when late court violates towards special a solicitousness show an error a non-final refuses to correct upon has tread that a mistake claims case, appel In that sort of sentence. role. Hicks reflects that jury’s crucial unwillingness to act late court’s renders apply therefore It would not concept. meaningless exercise. review appellate one, implicate cases, that do not like this say that due quite But it is another Indeed, right. jury requires us to reach back process narrowly read Hicks hold Court has every sense “correct” sentence law creates for that where state “only imposed at the time proper final and was liberty having interest in defendant that the district we now because believe findings, particular make Due jury extent of its discre court misconceived find implies appellate Process Clause Attorney’s District tion. that entitle protect not suffice to ings do Office for Cf. Osborne, 376, Bullock, Dist. v. Third Judicial ment.” Cabana 174 L.Ed.2d 38 129 S.Ct. n. (“A added), (2009) abrogated proved on oth defendant (emphasis criminal Illinois, not have the grounds Pope er after a fair trial does guilty man.”). n. L.Ed.2d as a free liberty interests same Gonzales, (1987); People accord implies right to collateral That result Cal.Rptr.3d P.3d Cal.4th not believe that we do review and relief (2013) (“Hicks is limited MacCollom, States v. exists. See United eontext[.]”). jury trial 2086, 317, 323, 96 S.Ct. U.S. (1976) (plurality opinion) L.Ed.2d distinguishable two Hicks also involved (“The of the Fifth Due Process Clause error. The Su- types of constitutional certainly ... does estab Amendment intervened where lower preme Court collaterally attack a final any right lish error at constitutional court identified conviction.”); v. Herrera judgment of Col any- refused to do sentencing but time of 399, 853, lins, 390, 506 U.S. Thus, presented it. Hicks thing about (1993); Pennsylvania v. L.Ed.2d 203 sentencing ap- and on problems at both cf. 1990, 551, 557, 107 S.Ct. Finley, 481 U.S. error separate, unrectified at peal. (1987). And, prior L.Ed.2d 539 com- 95 been what sentencing might have cases, not assumed due courts have to act. See Johnson v. pelled the Court process post-conviction mandates relief constitutional dimension. The writ would sentencing whenever the judge have might become perceived a catchall for big errors to recognize scope failed the full of his Such small. an outcome would be Fox, discretion. See United States 889 plainly inconsistent with remedy’s tra (1st Cir.1989) (“[T]here F.2d is no ditional scope. “While the reme [habeas] process right due to individualized sen dy is in comprehensive, this it does not tencing.”). The body enormous of cases encompass all claimed errors conviction refusing to post-conviction award relief Addonizio, and sentencing.” 442 U.S. at premised on Booker—which held that dis All S.Ct. 2235. the more so when trict courts have discretion to sentence the district court endeavored to comply Guidelines, outside the Sentencing see 543 Congress’ with by wishes applying then- 738—provides per S.Ct. correct understanding of Congressionally haps the most compelling to that testimony imposed mandatory mínimums. See Unit Morris, fact. See United States v. Jackson, 429 ed States (4th Cir.2005) (holding that (explaining Congress appropriately Booker “is not post-conviction available for power exercises its penalties to fix when it relief for prisoners federal ... mínimums). whose con imposes mandatory victions became final before ... Booker We must also remain aware of decided”). was competing separation-of-powers concerns: Hieks, then, gives us no for reason fundamental principles separation pause, and we find Surratt’s process due powers preclude us from ignoring the plain argument to be without merit. terms savings of the every clause. case, function “[t]he of the judiciary is to C. law, apply the not to it to rewrite conform reading of the clause Our with policy positions litigants.” give also does not rise separation-of- Gorman, Mort Ranta v. powers concerns. Surratt contends that (4th Cir.2013). And we must act with a upon we tread Congress’ right define special sensitivity to that grap role while the relevant punishment by criminal deny pling statutes, post-conviction with they ing relief; him habeas agrees. dissent (some “reflect balancing objectives Yet neither Surratt nor the pro dissent controversial), times normally which is vides us with a case which a court has Thomas, Congress to make[.]” Lonchar identified a separation-of-powers problem in connection with a sentence within levied (1996). L.Ed.2d 440 no We find benefit to applicable statutory range, as was Sur- Congress’ power on trampling to define ratt’s sentence. person who “[A] has been scope unjusti writ of an because so for, convicted is eligible and the court fied violating fear of separation-of-powers may impose, whatever punishment is au principles. thorized statute for his Chap offense.” man v. D. 1919, L.Ed.2d 524 received sentence. Finally, equal-protection no prob If we were to embrace Surratt’s con- lems from our result decision. “The trary position, we would every transform Equal [Fourteenth Protec Amendment’s] alleged error related to interpre- tion protects Clause an individual from tation into a separation-of-powers of being differently, issue simply treated fact, prece- this Court’s ent decision. Sansotta v. government.”

wrongly, by Head, that the “other” defendants suggest 543 n. dents 724 F.3d Nags Town of Cir.2013). untime- from their Although particu- that should not obtain relief Whiteside, apply directly ly motions. See does not lar clause to Fifth has waived the oth- “approach 187. The Government government, federal has equal protection claims statute-of-limitations applicable Amendment erwise cases, do, equal the same as to it can and this those as always precisely been some of dispa- produced Fourteenth^]” claims under has protection intermittent waiver Wiesenfeld, 420 U.S. Weinberger v. cases. rate outcomes in somewhat similar L.Ed.2d 514 n. in treatment stems But the difference (1975). actions, not branch’s from the executive judicial do not those of the branch. We evidently thinks that Surratt ac- imply that the Government’s mean arises because problem equal-protection prob- any equal protections tions create Simmoris- district courts different some likelihood, they their own—in all lems of § 2255 relief to granted have related cases ' Venable, do not. See United States alone But the difference petitioners. some (4th Cir.2012) (explaining equal-protection rise to an give does “ordinarily has wide government that the “time Supreme has said issue. The Court prosecute” deciding latitude in whether that the Fourteenth again [Fifth and] the decision long “bas[e] as it does not uniformity not assure Amendment[s] do[ ] race, unjustifiable standard such as on an judi immunity or from judicial decisions classification”). arbitrary or other religion, Washington, 369 U.S. cial error.” Beck v. confidently conclude our But we can 554-55, 2255(e) nothing to do reading of has disagreement between [the “A equal protection. with interpretation on the statute courts] Court a matter which either the VI. resolve; it does not Congress should above, reasons described we For the equal protection rights violate ju- that the court lacked conclude district person subjected to the more burdensome to consider Sur- risdiction Agric. Mktg. interpretation.” Hawkins Cir.1993). petition. ratt’s Serv., 1125, 1131-32 that, the Fifth and the “[b]oth Besides power to define Congress holds legisla address Fourteenth Amendments corpus. It also scope of the writ of habeas not discrimination tive discrimination and power excep- to define holds an attendant particular opinions issued on the basis finality normal rule of of con- tions to the judiciary.” by the federal United States lawfully and sentences that were victions (N.D.W.Va. Brown, F.Supp.2d they at the time that were en- imposed 1998). So, given us no reason Surratt has firmly tered. are convinced Con- We equal protection concepts to believe contemplate any exception gress did not apply here. even Certainly, like this one. Sur- case mandatory minimum sentence was that defendants ratt’s Surratt also observes have faced higher than the one he would obtained relief in cases which have op- But had the § 2255 after Simmons. “they previously had not filed a legality of that sen- portunity to test Opening motion.” Br. 34. The difference and initial appeal tence in his direct groups in outcomes these two between motion, not to take it. He and he chose pres- not stem from our defendants 'does Terms, actually Post, innocent of his offense also is not Harsh’ Wash. Dec. conviction, of- at predicate or even the A02. that dictated his enhanced sentence. fenses We also stress that our today decision And his sentence does not exceed the stat- particular limited to the facts of this case. utory Congress for maximum set whether, instance, We do not decide for of conviction. offense federal might bring §a 2241 peti- tion claiming that the district court unlaw- Congress’ We cannot alter decision to fully sentenced him to a imprison- term of jurisdiction. deny Nor can we rewrite ha- ment exceeding maximum. a sympathetic beas law for the sake of say Nor do we mean to anything about the guidance case. of the Supreme “[T]he types of claims that prisoners might bring and, Congress Court and is clear in this an initial 2255 motion. And we do not situation, ties our hands.” United States determine change whether a in law stem- Foote, ming from a retroactively applicable Su- token, And the same the Government’s preme might Court decision offer relief support petitioner also cannot beyond the already circumstances identi- Young v. 258- fied in say, Jones. Needless to we there- (1942) (“[A] 86 L.Ed. 832 fore disagree with the suggestion dissent’s confession error from the [of Government] that our limited determination renders the perform does not relieve this Court of the “complete nullity.” clause a See judicial ju ance of the function.... [0]ur Dissenting atOp. obligations compel dicial us to examine disposition, Given our we also need not confessed.”). independently the errors appeal decide whether an waiver like the Still, Congress the hands of and the one found in plea agreement Surratt’s executive branch are not constrained in could foreclose relief via the savings way judiciary. the same as those of the clause, as the court-appointed amicus al- Congress may amend permit 2255 and ternatively argued. We leave those issues one, us to hear cases like this if it so day. for another Government, chooses. And the which ini judgment The district court’s is there- tiated this criminal prosecution and filed fore the information that led to en Surratt’s AFFIRMED. sentence, hanced can assist Surratt seeking a commutation from the President. GREGORY, Judge, dissenting: Circuit II, Indeed, See U.S. Const. art. cl.l. Raymond in prison Surratt will die be- the President has willing shown recent cause of a government sentence giant frequent ness to commutations agree and the district court is undeserved See, drugs e.g., other cases. Sari Horwitz unjust. The district court sentenced Eilperin, and Juliet Obama Cuts Sentences prison only to life in it because Inmates, Post., July Wash. 4-6 thought it required pursuant was to do so A03; Eilperin, at Juliet Obama Commutes statutory mandatory to a minimum. As it Drug Offenders, Sentences Wash. out, statutory range turns the correct Post, 31, 2015, A01; Zezima, Mar. at Katie twenty Surratt’s crime was a minimum of Obama Commutes Prison Sentence of years, and a maximum of life. Eight Drug Offenders, Federal Wash. Post, 18, 2014, A09; Dec. majority David Naka- thinks its hands are tied mura, ‘Unduly “only” Obama Commutes 8 because Surratt received a life sen- understanding just what constitutes statutory- than the en

tence, not more sentencing qualifying felony for federal option beyond a a But the maximum. Simmons, 649 in United States v. By foreclosing purposes life sentence is death. Cir.2011) (en banc). Both relief, the ma- F.3d 237 post-conviction avenue for retroactively- that under our parties agree not Surratt for essentially punishes jority decision, see Miller applicable It Simmons penalty. received the death having 141, 147 Cir. of his life the rest spend him to leaves 2013), only one CSA possesses Surratt of a different sentence a death prison; statutory mandato felony. The so, majority predicate renders the doing kind. qualify with one nullity ry minimum for someone complete a savings clause the actually statutory ing offense is not is Suspension Clause. violation 841(b)(1)(A). maximum. Id. just a above the statu It is not sentence a fundamen presents maximum that tory twenty the difference between Given always so neat. defect. Life is tal life, asks to be resen- years and Surratt complete involves a punishment aWhen Remarkably, government tenced. liberty, a sentence then even deprivation agree agrees parties with Surratt. Both at, statutory exactly exceeding, but legally ineligible spend to that Surratt extraordinary maximum can constitute prison. this the rest of his life Given justice miscarriage of of constitutional parties agree that the is of consti- mistake cases, must allow In such we magnitude. further magnitude, parties tutional if to invoke the clause that is entitled to relief from agree Surratt Writ, always “a which has been the Great very the district court sentence against convictions violate bulwark it would not have unambiguously stated ” Isaac, fairness,’ Engle ‘fundamental statutory the erroneous imposed absent 107, 126, 1558, 71 They mandatory agree minimum. (1982), anything at is to mean L.Ed.2d § 2241 so is motion mechanism do I dissent. all. 2255(e). savings clause of via the I. II. years plead- when he was 31 old Framers viewed freedom from un “The guilty conspiracy to distribute co- ed precept lawful restraint as a fundamental recommended a caine. The Guidelines the writ of liberty, they understood years, yet of 19.6 penalty maximum instrument corpus as vital habeas It did so imposed court life sentence. secure that freedom.” Boumediene it a life sen- stating while believed Bush, unjust. undeserved and J.A. tence-to be (2008). Accordingly, 171 L.Ed.2d remarked, district court also 276. As the suspension of the writ is prohibition on thought option pursuant it it had no other na very blueprint in the of our contained mandatory-minimum statutory, to the life- Const, tion, the itself. U.S. Constitution prescribed by time term the Controlled I, 9,§ art. cl.2. (CSA) anyone two Act with Substances felony drug offenses. predicate or more of habeas cor- privilege of the writ 841(b)(1)(A). 276; See J.A. U.S.C. justice central to our pus has remained codi- system even as the scheme years A few after Surratt’s first undergone several motion, fying from the the writ has a case remanded to us years. Bourne- Court, over we corrected our mistak- transformations Supreme diene, 553 U.S. at As the Court recognizes, the sav- (explaining recognized that our Framers ings clause ensures that subsequently-en- necessity to “secure the writ and ensure § acted limitations in 2255 do not run afoul system”). place legal its our Even when Suspension the Clause. See Boume- § Congress post-convic added 2255 to the diene, 776, 553 U.S. at 128 S.Ct. 2229. 1948, tion relief statutes in it did so in an History therefore confirms that Con improve effort to administration of habeas gress meant for the writ of corpus habeas corpus hearings. Hay United States v. to remain unabridged even in the face of man, 263, 342 U.S. 72 S.Ct. some limits on collateral review found in § L.Ed. 232 impetus The for 2255, § and that the savings plays clause a pris was that federal courts located near distinct and crucial role within the statute. ons had become overwhelmed petitions that, And of course we forget cannot ulti who, prisoners from until that point, were mately, the writ of corpus habeas is an by § 2241 required apply to for writs in equitable remedy. See Gomez v. U.S. Dis the district of their confinement. See Court, 653, 653-54, trict 503 U.S. 112 S.Ct. 213-15, Hayman, 342 U.S. at S.Ct. 1652, (1992); 118 L.Ed.2d 293 Duckworth § In way, “replaced this traditional 195, Eagan, 213, corpus for ... prisoners habeas federal (1989) (“[T]he Court process with a that allowed the to long has recognized that corpus habeas sentencing file a motion with the court.” has been traditionally regarded gov Boumediene, 553 U.S. at (internal by equitable erned principles[.]” 2229. It was also these 1948 amendments omitted)). quotation marks These are the that gave birth to the so-called “savings principles, 2255(e). including “principles the fun § clause” found in See Wofford damental Scott, writ,” fairness underlying] the Cir. 1999). guide that should our The resolution of this savings preserves clause re § Sawyer Whitley, sort to case. “inadequate when 2255 is legality or ineffective to test [a L.Ed.2d.269 prisoner’s] (Blackmun, J., detention.” concurring). 28 U.S.C. 2255(e). The explicit Court has been III. supplant was never meant to majority’s The interpretation of the sav- simply but was crafted to address ings suspension clause amounts to a of the practical concerns of habeas adminis- majority any writ. The denies Surratt history

tration. “Nowhere in the of Sec- challenge chance to an erroneous life sen- 2255,” Court, tion determined the “do we tence—a fundamental defect of constitu- any purpose find impinge upon prison- ' tional proportions two reasons. rights ers’ of collateral upon attack their —for First, he challenging because is his sen- Hayman, convictions.” See 342 U.S. at underlying tence rather than the convic- 72 S.Ct. 263. This remains true even tion, second, because his sentence is following Congress’s 1996 amendments to at, exceed, statute, statutory but does not which created limitations on 2255(h). maximum. second or The result is that without petitions successive clause, basis, The textual savings Congress majority punishing which is chose to retain creating having even while so- Surratt for not received the death these result, called “gatekeeping provisions,” penalty. perverse continues What to have defect, play a crucial role within sentencing this scheme. suffered a fundamental testing legality scope limit its having re- punished then to be conviction”). underlying criminal penalty. death ceived the majority to more than nevertheless clause extends The does, underlying challenge conviction. sentencing raises a just attacks on think Surratt fact (relying on the at 248 under the sav Maj. Op. cognizable that should be See (“[Sur- anything”). not innocent of Maj. at 256 Op. that “Surratt clause. See ings indication that fact, is no textual there that he received suggests never ratt] challenge to an erro precludes applicable above sentence evaluating When neous life sentence. maximum.”). breathtaking posi This is statute, “Congress’s language of the plain extraordinary depriva considering tion highly signifi term ‘detention’ is use of the liberty at raises no tion of stake. Surratt savings clause.” scope cant to the He seeks to “ordinary” sentencing error. Warden, FCC Coleman-Medi Bryant v. possess not a claim that he does advance Cir.2013). 1253, um, 738 F.3d felony qualifying number of requisite terms, use the “of to Congress declined his current life sentence offenses on which “conviction,” it both of which fense” sentence, A life for which predicated. is subsequent provisions of into wrote longer any possibility parole, no of there is 2255(f)(1); id. 28 U.S.C. 2255. See unlike “penultimate” sentence is 2255(h)(1). Instead, its choice of words Helm, v. except other for death. Solem broadly preserve to suggests it meant 277, 303, 3001, 77 463 U.S. 103 S.Ct. challenges available under types (1983), overruled on other L.Ed.2d 637 If, 2255(e), with 2241. consistent Michigan, v. grounds by Harmelin obligated ’are to majority says, “we 957, 2680, 115 L.Ed.2d 836 U.S. to use Congress’s to decision give effect (1991). although only second to And language proximate in subsection different death, characteristics the two “share some statute,” obligation then this the same sen by ... that are shared no other Maj. atOp. See actually favors Surratt. Florida, 48, 560 U.S. tences.” Graham Brandon, (quoting States (2010). 2011, L.Ed.2d 825 130 S.Ct. (4th Cir.2001)). 186, 190 247 F.3d the convict of the “deprives A life sentence giving hope of most basic liberties without our own reading This is consistent with restoration, except perhaps by executive already determined case law. We have of which clemency possibility remote “intended to nothing that in 2255 was —the the harshness of the mitigate does not to rights prisoners limit the of federal 69-70, sentence.” Id. at 130 S.Ct. collaterally attack their convictions hope; denial of it means It also “means Jones, In re 226 F.3d sentences.” improve good and character that behavior added). (4th Cir.2000) (emphasis Other immaterial; it means that what ment are the term agree circuits use of “[t]he in for the might future hold store ever the suggests clause ‘detention’ convict], he will spirit of [the mind for at least some Congress intended days.” prison for the rest of remain (other than sentencing claims species (alteration Id. at 130 S.Ct. claims) justify savings- actual-innocence being errone That Surratt is original). 1282; Bryant, relief.” clause liberty for the rest of ously deprived of his Caraway, also Brown v. see a fundamental sentenc (7th Cir.2013) his life is therefore that “the (explaining ing ... not defect. [savings] text of the clause does process government, There are also fundamental due our “defining fix crimes and where, here, a concerns raised like dis ing penalties legislative, are judicial, imposes trict court a life sentence at stat Evans, functions.” United States v. utory gunpoint. An mandato erroneous 483, 486, 68 S.Ct. 92 L.Ed. 823 ry-minimum life sentence is itself a (1948). “Congress power has the to define fundamental defect. See Almendarez- criminal punishments without giving the States, Torres v. United any sentencing discretion,” courts or to provide individualized sentencing. mandatory (recognizing mínimums Chapman v. United can lead to “a minimum sentence of im 114 L.Ed.2d 524 prisonment more than twice as severe as Surratt, For someone like with judge the maximum the trial oth would only offense, one qualifying felony drug imposed.”). operating erwise have When Congress permit intended to a district a wrongful mandatory assign court sentence somewhere minimum, completely a district court range twenty years It life. did imposing foreclosed from a more lenient mandate a life sentence. Newbold, sentence. See United States avoiding Rather than a statutory con 10-6929, 460 n. No. struction that “raises a multitude of consti WL at *7 n. 6 Cir. June Martinez, problems,” tutional Clark v. 2015) (finding- an “erroneously-imposed 371, 380-81, sentencing problematic floor ... on its (2005), L.Ed.2d majority the reads own” because “it the mistaken create[s] § 2255 to foreclose avenue for relief impression that the district court no ha[s] from a sentencing fundamental defect. vary discretion to downward from the low ' precisely This is “the failure to allow of range”). end A defen [the Guidelines] dant, however, collateral review” that always “raise[s] has a “substantial serious constitutional legitimate expectation” questions.” the Triestman v. (2d Fourteenth Amendment deprived “be F.3d Cir. 1997). liberty only of his to the extent deter by

mined the of in-the [trier fact] exercise of its discretion.” Hicks v. IV. Oklahoma, - case, In this majority arrives at this constitution- certainty we know with 100% that the ally-suspect by outcome departing from district court considered a life sentence the traditional savings analysis. clause It ceiling both the floor and the of what it ignores precedent that our already has impose. could “I was required impose established a determining framework for sentence,” court, a life stated the “[a]nd § “inadequate whether 2255 is or ineffec- I’ll forget the frustration I felt 2255(e). § tive.” 28 U.S.C. As we have I doing that because did think it was an Jones, savings demonstrated in clause unjust J.A. 276. sentence[.]” inquiry a procedural involves and substan- component. tive 226 F.3d at 333-34. Yet Continuing punish Surratt with life majority paint the seeks to imprisonment given that the district court our Jones deci- completely something generis. sion as deprived any statutory was sui Jones is “portal” discretion not an sentencing whatsoever at also alternative or “route” to separate, separation raises a powers savings Maj. Op. clause relief. See at 250. very design concern. Pursuant to the It adopted by is the test our Circuit. then-prevailing interpreta- test, challenge that the it is clear applying When 924(c)(1).” §of prong tion of the ‘use’ necessary require- satisfies Surratt Jones, 226 F.3d at 333. The Seventh and substantive. ments, procedural both agree further Eleventh Circuits “inadequate or Proeedurally, inadequate when proeedurally § 2255 is retroactively-applica- when ineffective” intervening change in the law takes in the law change ble fore- petitioner’s previously after the place advantage of occurs subse- take seeks to Brown, closed, § 2255 motion. See first This § 2255 motion. was his first quent to (“[T]he prisoner 719 F.3d at 586 must in- Although exactly case Jones. deci- show that he relies on retroactive defect— fundamental volving a different that he could not have invoked his sion a fire- actually “using” innocent of being motion.”); Davenport, In re first meaning 18 U.S.C. arm within (7th Cir.1998) (“[The F.3d 924(c)(1) should follow here the —we could not use a first motion un- prisoner] Jones, inquiry. procedural See same the section to obtain relief on a basis der prison- to the “[Subsequent at 329. law.”); Bryant, yet established motion,” appeal direct and first er’s F.3d at 1257. changef]” law such did “the substantive (cid:127) procedural compo to this addition longer claim is no fore- prisoner’s that the nent, substantively inadequate 2255 is law of this circuit or by the “settled closed repre error ineffective when asserted Id. at 333-34. Supreme Court?” defect, pris a fundamental but “the sents brings clause chal satisfy gatekeeping provi oner cannot posture. this The ma lenge precisely on [he a] sions of 2255 because relies however, that Surratt jority protests, is not one of constitutional [that] new rule §a motion rais brought have should Jones, 226 F.3d at 334. This re law.” claim even before Sim ing his Simmons necessary in consideration of quirement say savings that the existed. To mons 2255(h), § which limits second and succes to be preserves “opportunity” clause pertinent part, in to those petitions, sive squan that Surratt somehow heard but relying on a new rule of constitutional law. we decided Sim dered his even before 2255(h)(2). difficulty § in 28 U.S.C. The in a interpret “opportunity” mons is to change in intervening was that the Jones meaning. any manner devoid of See literal statutory a rule of inter the law involved Boumediene, 553 U.S. at Despite important the role pretation. (“[T]he privilege corpus of habeas 2255(h), § played by we nevertheless de prisoner meaningful op the to a entitles savings clause must in termined being to demonstrate that he is portunity opportunity this situation afford an to raise application futile, to the erroneous pursuant held previously retroactively-applicable (empha claim, “otherwise, law.” interpretation of relevant because added) (internal quotation marks omit savings meaning sis clause itself would be ted)). Jones, cir did not fault Jones for 226 F.3d at 333. Other We less.” raising Bailey agreed claim even cuits have with this substantive previously Instead, in savings inquiry clause component that case was decided. before sentencing en crucially important be the context erroneous savings clause was interpretation resulting hancements from prisoner’s “the first 2255 motion cause Act. Bailey, at of the Armed Career Criminal See prior was filed to the decision in Caraway, 761 F.3d Light futile to a time when it would have been Cir.2014) (Begay1 claim challenging ACCA majority lastly finds it insufficient — denied, enhancement), U.S. -, cert. that Surratt’s fundamental sentencing de- (2015); Simmons, fect finds its roots an en banc (same). Bryant, 738 F.3d at 1257 circuit court decision upon decided remand therefore satisfies our savings Court, Supreme rather than in from clause test because his claim raises fun- Supreme Court decision itself. Of course predicated defect damental on an interven- the savings clause itself does not make this ing change in the law statutory interpre- insisted, distinction. Nor we ever have however, majority, tation. The disagrees a world where Supreme grants Court with in part this conclusion it because be- certiorari in about per year, 75-80 cases I am “reading] lieves the actual innocence that the new rule statutory interpreta- requirement Maj. out of Jones.” Op. 248. tion be one by decreed Supreme Court. contrary, I am applying To the frame- Jones, See 226 F.3d at (requiring case, work set forth in that which consid- “subsequent prisoner’s to the direct appeal ered whether an actual innocence claim is motion, and first the substantive clause, redressable under the added)). changed” (emphasis law None- case, out which asks an errone- whether “Surratt, theless, the writes majority ously-imposed, statutory, mandatory-mini- premises his claim on a circuit-level deci- mum life sentence can be redressable un- sion, 2255(h) even though specifically provision. the same admittedly der Jones states that Supreme retroactive involved a different fundamental defect—a Court open decision should the door to Bailey. claim under But this does not successive Maj. relief.” Op. at 259. mean that its reasoning cannot extend to 2255(h) actuality, that application states claim, equally Surratt’s which is a funda- for successive relief must be based on “a mental defect considering the extraordi- law, new rule of constitutional made retro- nary deprivation liberty at stake. Inter- active to cases on preting way Jones this would not collateral review lead to any “permitting] 2255(h)(2) to bring federal Court.” 28 U.S.C. non-constitutional via added). claim (emphasis At least one circuit any instance where law” changes. court, however, appropriate has found it Maj. Op. at Far opening 248. from the grant relief based finding on its own floodgates, majority suggests, as the such Begay, a new rule interpreta- of approach may an provide relief to those tion, is retroactive. Light, See 761 F.3d at who continue to serve life sentences de- 814; States, Welch United spite possessing requisite the number predicate of felony offenses under Sim- My mons, point majority’s greatest is that the which is all of eight prisoners in the really picking District of sin is choosing Western North Carolina.2 what- See Br. at Def. 31. ever it apply rules wishes to States, Begay 1. In ally vague. Johnson v. United -, 2551, 2556-57, (2008), S.Ct. L.Ed.2d the Su preme driving Court determined that the influence of alcohol did not constitute a that, 2. I must also note when it comes to the felony” "violent as the defined residual "tangible today, Maj. benefits” our decision of clause of the ACCA. Id. Op. at it is estimated that Surratt's life- subsequently 1581. The Court has found the taxpayers ap- time of will incarceration cost statute's residual clause to proximately be unconstitution- $1.2 See Def. Br. at million. 32. just. I lament that right thing can we be jurispru- our habeas parts from other the today we are not the latter. Neither part first It insists dence. statutes, 2255(h)(2) clause, of our habeas our savings plain language to the applies demands nor Constitution says precedent, It then part. but not second prison. die in I must dissent. ap- that Surratt procedural default principle” “same 2255(f)(2), also here. just to but plies not despite This its

See Maj. Op. at 253. no to “tie[ ] that there is basis

insistence initial ‘miscarriage’ standard” from

th[e] “entirely supposedly to the 2255 motions savings question of relief via

separate majority is Maj. Op. at 251.

clause.” matching limitations on really mixing and Individually; WILLIAMS, T. Samuel relief. post-conviction Kourtney Bynum, Individually; Don precedent our to affirm disregarding Individually Reed, Sr., Be ald and on Surratt, majority a life sentence for Wrongful Death Beneficia half of the a death sentence simultaneously affirms Judy Reed, Jr.; ries of Donald make no mis- for the clause. But Individually Thompson, and on Be already analytical take. There exists Wrongful Death Beneficia half of the obligating grant us to Surratt path Reed, Jr., Donald Plaintiffs- ries of seeks, jus- that he and that resentencing Appellees, requires. tice

V. HAMPTON, Defendant- Sharon sym- majority I doubt that the is do not Appellant. end, I suppose In the pathetic Surratt. No. 12-60933. fundamentally views just

we have different corpus, of habeas as well as the on the role Appeals, United States Court judiciary granting role of the writ. Fifth Circuit. responsibility I it our solemn see July a morbid encroachment guard against precious our Fram- upon which so vitality continued in our

ers ensured its guard

Constitution. Instead we Great itself, closely that

Writ and so spend prison— the rest of his life in

must

against government the will of the and the re-

district court. Our abdication this begs question: quis custo-

sponsibility ipsos guard

diet custodies? Who will

guards themselves? power

It is within our to do more than mercy of

simply leave Surratt to the right hope

executive branch. To for the perhaps

outcome in another’s hands is no- actually

ble. But when we do the our have omitted notes marks, citations, emphasis, internal or foot- prisoner cannot meet If a federal contended that his conduct therefore did 2255(h)’s requirements, § then he not amount to “use” under Bailey’s read petition term, to file a traditional for writ of ing Jones, seek of the id. at 334. howev § corpus er, under 28 U.S.C. 2241. already § habeas had filed a 2255 motion be right significant 2255(h) But that carries limits as Bailey, § fore barred him prisoner “may file a Specifically, well. filing from another one. at Id. 330. We § only if the petition habeas relief, decided to deeming § award typically collateral relief available under “inadequate or ineffective legal to test the § inadequate 2255 ‘is or ineffective to test ity of a conviction” when: ” legality of his detention.’ Prousalis v. (1) conviction, at the time of settled law (4th Cir.2014) Moore, 751 F.3d this circuit or the Court 2255(e)). § (quoting 28 If a federal U.S.C. conviction; established legality § prisoner brings petition a 2241 that does (2) subsequent prisoner’s to the direct fall scope “savings within the of this appeal motion, § and first the sub- clause,” then the district court must dis changed stantive law such that the con- ... miss the “unauthorized habeas motion prisoner duct of which the was convicted Rivera, jurisdiction,” for lack of Rice v. criminal; is deemed not to be (4th Cir.2010), 617 F.3d even if the prisoner satisfy cannot the gatek- supports the Government the prisoner’s eeping provisions §of 2255 because the position. new rule is not one of constitutional law. is a federal who Jones, 226 333-34. petition post- means to file a Therefore, short, conviction relief. we must as opened gate Jones a narrow “inadequate sess whether 2255 is inef way prisoners 2241 relief for certain legality fective to test the of his detention.” actually found innocent their offenses of 2255(e). 28 U.S.C. We consider that conviction, only allowing relief where the question de novo. See Yi v. Fed. Bureau acts for which the defendant was convicted (4th Cir.2005). Prisons, then, are not crime. Since we have jurisdiction appeal We have over this un aspect focused on this of Jones —actual der 28 U.S.C. charac innocence of criminal act—when See, terizing e.g., Farrow v. decision. Revell, III. Fed.Appx. 328-29 Cir. 2013); Stephens, Fed.Appx. Darden v. A. Cir.2011); Rice, 617 F.3d at Poole, 807; We have determined that 2255 was United States v. inadequate or ineffective in n. also prior one Other circuits case, petitioner Byron instance. In that actual in give substantial attention to the argued Bailey aspect discussing Jones when nocence Jones Warden, See, e.g., Bryant 133 L.Ed.2d it. FCC Cole

Case Details

Case Name: United States v. Raymond Surratt, Jr.

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 31, 2015

Citation: 797 F.3d 240

Docket Number: 14-6851

Court Abbreviation: 4th Cir.