WILLIAM ANDREW WRIGHT, Petitioner-Appellant, v. STEPHEN SPAULDING, Warden, Respondent-Appellee.
No. 17-4257
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: September 19, 2019
19a0245p.06
Before: SILER and THAPAR, Circuit Judges; HOOD, District Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0245p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WILLIAM ANDREW WRIGHT,
Petitioner-Appellant,
v.
STEPHEN SPAULDING, Warden,
Respondent-Appellee.
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No. 17-4257
Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
No. 4:17-cv-02097—Christopher A. Boyko, District Judge.
Argued: April 15, 2019
Decided and Filed: September 19, 2019
Before: SILER and THAPAR, Circuit Judges; HOOD, District Judge.*
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COUNSEL
ARGUED: Angela M. Schaefer, BRADLEY ARANT BOULT CUMMINGS LLP,
Huntsville, Alabama, for Appellant. Segev Phillips, UNITED STATES ATTORNEY’S
OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Angela M. Schaefer, Scott Burnett
Smith, BRADLEY ARANT BOULT CUMMINGS LLP, Huntsville, Alabama, Edmund Scott
Sauer, BRADLEY ARANT BOULT CUMMINGS LLP, Nashville, Tennessee, for Appellant.
Segev Phillips, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, Joshua K.
Handell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Clark D. Cunningham, GEORGIA STATE UNIVERSITY COLLEGE OF LAW, Atlanta,
Georgia, for Amici Curiae. William A. Wright, Lisbon, Michigan, pro se.
THAPAR, J., delivered the opinion of the court in which SILER, J., and HOOD, D.J.,
joined. THAPAR, J. (pp. 16–21), also delivered a separate concurring opinion.
*The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
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OPINION
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by Congress.
complicated answer follows.
I.
First, a quick procedural history. As a felon in possession of a firearm, William Wright
would normally receive up to ten years in prison. But Wright had three prior convictions for
“serious drug offenses,” so he qualified as an armed career criminal. That meant at least
15 years’ imprisonment (and a maximum of life). A Maryland district judge accepted his plea
and gave him the minimum sentence. At the time, Wright did not dispute his status as an armed
career criminal, nor did he file an appeal.
Instead, Wright challenged his sentence years later, after the Supreme Court handed
down Johnson v. United States, 135 S. Ct. 2551 (2015). That decision held the “residual clause”
of the Armed Career Criminal Act to be unconstitutionally vague. Id. at 2563; see
the residual clause (which related to violent felonies, not drug offenses). So the Maryland
district court denied his
Yet Wright was not done trying to challenge his sentence. He took another shot after the
Supreme Court handed down Mathis v. United States, 136 S. Ct. 2243 (2016). But this time he
faced a different problem: he couldn’t file a new motion in the sentencing court because the
habeas statutes limit “second or successive” motions. See
filed a habeas corpus petition in the district court where he now happened to be imprisoned: the
Northern District of Ohio. The district court dismissed his petition. Wright appealed.
II.
This case is about two things: habeas and holdings. Under the system Congress enacted,
Wright’s habeas petition would be dead on arrival. Congress prescribed one venue to challenge
your sentence after appeal: the sentencing court. And it imposed limits on the number and
timing of challenges. But that system left some prisoners without a shot at relief. So courts, this
one included, used something known as the “saving clause” to create an escape hatch.
Soon courts found themselves construing not just the law as written but also the law as
applied (and misapplied) by courts. Yet interpreting precedents is not always an easy business.
Especially when they add to, rather than implement, what Congress has done. To understand
what binds us, then, we must first know some basics. About the habeas system: what the
statutes say, where they came from, and what about them sent courts looking for a workaround.
And about how courts operate: by resolving concrete disputes and announcing the legal rules
essential to doing so. Those necessary decisions are the holdings that bind future courts. Not
dispensable dicta that sweep more broadly than the issue at hand. To ignore these principles is to
risk drifting far from any law enacted by Congress or decided by a court.
Armed with these basics, we discover the law that governs Wright’s case. And that law
makes clear that Wright’s petition must be dismissed.
III.
The general habeas statute empowers federal courts to grant the writ.
statute. But that created a
had to petition in the district in which they were housed. And that meant certain districts bore
the brunt of federal habeas litigation. To solve this problem, Congress enacted
statute directed federal prisoners to challenge their sentences in the district where they were
sentenced, not the district of detention. See
205, 212–19 (1952) (discussing the history); Prost v. Anderson, 636 F.3d 578, 587–88 (10th Cir.
2011) (same). In other words, prisoners would file a motion under
court, not a traditional habeas petition in the court of their prison district.
As the Supreme Court later explained, the “sole purpose” of
venue for challenges to a sentence. Hayman, 342 U.S. at 219. Congress’s decision to redirect
sentencing back to the sentencing court made perfect sense. If the sentencing judge erred in
sentencing the defendant, then he or she should fix it. The best judge to fix a sentence is a judge
intimately familiar with the defendant, the case, and the local practices. Not a judge who has
never touched the case before.
But
qualified by a saving clause—in non-legalese, an “unless.” A habeas petition by a federal
prisoner is barred “unless . . . the [
the legality of his detention.”
viable.
The statute does not say when the motion remedy is “inadequate or ineffective[.]” But it
is easy to think of examples. By its terms,
ground that the sentence was imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is otherwise subject to collateral attack”).
And an invalid sentence is hardly the only thing a federal prisoner might challenge. Imagine a
warden held a prisoner in a manner contrary to or not authorized by the sentence. In that case,
would be the correct cause of action.
Medium, 766 F.3d 1271, 1284–86 (11th Cir. 2014) (Pryor, J., concurring). Another example
would be if the sentencing court no longer exists. See Prost, 636 F.3d at 588; Witham v. United
States, 355 F.3d 501, 504–05 (6th Cir. 2004).
That’s how courts read the saving clause for most of its history. The rule was simple:
U.S. Bd. of Parole, 557 F.2d 74, 77 (6th Cir. 1977). Then two events led to a judicial expansion
of the saving clause.
First, a case. The Supreme Court held that using a firearm required more than mere
possession, it required “active employment.” Bailey v. United States, 516 U.S. 137, 144 (1995).
This holding undid years of more expansive circuit precedent. See id. at 142–43.
Second, a statute. Congress passed the Antiterrorism and Effective Death Penalty Act in
1996. AEDPA tried to curb what courts used to call “abuse of the writ”—the nonstop filing of
meritless habeas petitions. See Felker v. Turpin, 518 U.S. 651, 664 (1996).
“second or successive” motions by federal prisoners have had to rely on either (1) new and
convincing evidence that the prisoner is innocent or (2) a new and previously unavailable rule of
constitutional law that the Supreme Court has made retroactive.
The one-two punch of Bailey and AEDPA raised a problem: what to do about prisoners
who (1) were convicted and sentenced under the expansive pre-Bailey definition of using a
firearm, (2) filed a
of then-binding circuit precedent. Bailey was not new evidence. Nor was it a new rule of
constitutional law. It was just a run-of-the-mill case of statutory interpretation. So Bailey did
those prisoners no good—they could not satisfy either of the
successive motion.
This bothered courts. It seemed unfair to apply
prisoners whose Bailey arguments might be winners. And so, one by one, circuits started to
devise a workaround: the saving clause. The Third Circuit led the way, holding that
not bar a
opportunity” to bring a Bailey argument. In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997).
The Second Circuit followed suit. Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997).
And the third court to speak, the Seventh Circuit, held that a prisoner had “no reasonable
opportunity” to challenge his sentence if binding precedent foreclosed such a challenge. In re
Davenport, 147 F.3d 605, 610 (7th Cir. 1998). Since the prisoner had “no reasonable
opportunity,”
clause.
By making
expanded the saving clause beyond its original function. Still, the expansion was not unbounded.
It was a fix for prisoners facing a specific problem: a new case proved their innocence but,
practically speaking, they could not obtain relief thanks to binding precedent in the past and
procedural barriers going forward. Was that what Congress meant by “inadequate or ineffective”
when it wrote the saving clause? Doubtful. But at least the doctrine that crystallized in these
earlier cases had a logic—and a limiting principle—of its own. And this logic soon spread to
most of the remaining circuits. See, e.g., Abdullah v. Hedrick, 392 F.3d 957, 960–63 (8th Cir.
2004); Ivy v. Pontesso, 328 F.3d 1057, 1059–60 (9th Cir. 2003); Reyes-Requena v. United States,
243 F.3d 893, 904 (5th Cir. 2001); In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000); Wofford v.
Scott, 177 F.3d 1236, 1244 (11th Cir. 1999), overruled by McCarthan v. Dir. of Goodwill Indus.-
Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017) (en banc).
IV.
Of course, what binds us here is not the precedent of other circuits but the precedent of
this one. And when this circuit joined the bandwagon, it followed the approach then in vogue,
letting prisoners use the saving clause to present (1) claims of actual innocence (2) that they
could not reasonably present sooner.
But this case is about whether recent decisions have departed from the path laid out by
other circuits and our earlier caselaw. See, e.g., Hill v. Masters, 836 F.3d 591 (6th Cir. 2016).
And to make that determination, we first must understand what in our prior decisions is binding.
Unfortunately, the teachings of precedent are not always as clear as we might wish. Especially
jurisprudence” that has built up around the saving clause. Prost, 636 F.3d at 596. So before we
take a stroll down precedent lane, we must consider some first principles: What do we look for
when we study precedents? What in them are we bound by? And how do we know?
A.
Like most circuits, this circuit follows the rule that the holding of a published panel
opinion binds all later panels unless overruled or abrogated en banc or by the Supreme Court.
But only holdings are binding, not dicta. Scarber v. Palmer, 808 F.3d 1093, 1096 (6th Cir.
2015); see also Cohens v. Virginia, 19 U.S. 264, 399 (1821). So to know what binds us, we must
be able to separate holdings from dicta.
The rule is grounded foremost in constitutional principle. Federal courts are limited to
deciding “Cases” and “Controversies.”
Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982)
(reminding courts that judicial power exists only “to adjudge the legal rights of litigants in actual
controversies” (cleaned up)). The federal courts have no power but judicial power. And by its
nature, the judicial power does not act on issues in the abstract. See, e.g., Muskrat v. United
States, 219 U.S. 346, 361–62 (1911). Rather, it “is capable of acting only when the [issue] is
submitted to it by a party who asserts his rights[.]” Osborn v. Bank of the U.S., 22 U.S. 738, 819
(1824). Only then does the issue “become[] a case” and “assume such a form that the judicial
power is capable of acting on it.” id.; see also, e.g., Pacificus No. 1 (Alexander Hamilton), in
Letters of Pacificus and Helvidius 8 (Washington, Gideon 1845) (“The province of [the judicial]
department is to decide litigations in particular cases. It is indeed charged with the interpretation
of treaties, but it exercises this function only where contending parties bring before it a specific
controversy.”); 1 Baron de Montesquieu, The Spirit of Laws, in The Complete Works 198
(London 1777) (defining “the judiciary power” as that which “punishes criminals, or determines
the disputes that arise between individuals”).
The idea of a case or controversy implies a few things.1 One thing it implies is “the
existence of present or possible adverse parties, whose contentions are submitted to the court for
adjudication.” Muskrat, 219 U.S. at 357 (cleaned up). Another is that the court can do
something about the dispute. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); see also
Muskrat, 219 U.S. at 362 (explaining that, “[i]n a legal sense, the judgment” of an advisory
opinion “could not be executed”). So if the court’s answer to a legal question can make no
difference to the parties before it, that question is not part
analysis of an issue can be many things—deliberate or hasty, compelling or unpersuasive,
thorough or thinly reasoned—but one thing it cannot be is an exercise of judicial power. Even
when it comes packaged in a judicial opinion.
If constitutional principle were not enough, there are also good practical reasons to cabin
a precedent’s binding force to its holding. As Chief Justice Marshall explained in Cohens, “[t]he
question actually before the Court is investigated with care, and considered in its full extent.”
19 U.S. at 399. Collateral issues rarely receive the same treatment. See id. at 399–400. Thus,
dictum is less likely to reflect a court’s deliberate judgment. See United States v. Burris,
912 F.3d 386, 410 (6th Cir. 2019) (en banc) (Kethledge, J., concurring in the judgment)
(“[D]ictum is usually a bad idea, because judges think differently—more carefully, more
focused, more likely to think things through—when our words bring real consequences to the
parties before us.”). And they may be liable to misinterpretation with snowballing consequences.
See Cohens, 19 U.S. at 399–400; United States v. Rabinowitz, 339 U.S. 56, 75 (1950)
(Frankfurter, J., dissenting) (describing the “progressive distortion” by which “a hint becomes a
suggestion, is loosely turned into dictum and finally elevated to a decision”).
We can now start to distill some working principles. For a court’s conclusion about an
issue to be part of its holding:
- The decision of the issue must contribute to the judgment: whether and
why the court affirms, reverses, vacates, or remands. A legal conclusion that is
necessary to the judgment qualifies. So might one sufficient to support the
judgment but not strictly necessary in light of an independent and equally
sufficient conclusion—that is, when there are two independent reasons for the
ruling. See Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997, 2044
(1994); Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L.
Rev. 953, 1027–29 (2005).2 But a conclusion that does nothing to determine the
outcome is dictum and has no binding force.
- As a corollary, it must be clear that the court intended to rest the judgment
- Finally, it must be clear that the court considered the issue and consciously
(if necessary) on its conclusion about the issue. Put another way, the court must
have actively applied the conclusion to the case in front of it. This rule helps
distinguish a case of true independent holdings (e.g., “two genuine issues of
material fact independently blocked summary judgment”) from one in which a
court decides one issue and merely opines about another (e.g., “because the
drivers disagreed about the color of the light, summary judgment was improper;
reached a conclusion about it. Carroll v. Carroll’s Lessee, 57 U.S. 275, 287
(1853). This rule honors “the long-held standard that ‘questions which merely
lurk in the record, neither brought to the attention of the court nor ruled upon, are
not to be considered as having been so decided as to constitute precedents.’”
Rinard v. Luoma, 440 F.3d 361, 363 (6th Cir. 2006) (alteration adopted) (quoting Nemir v. Mitsubishi Motors Corp., 381 F.3d 540, 559 (6th Cir. 2004)).
Like many legal standards, these principles will sometimes be easier to describe in theory
than to apply in practice. But without them, we are sure to fail in either or both of our
complementary duties: adhering to precedent when an issue has already been decided and
considering an issue with an open mind when it has not.
B.
Now for a look at our own precedents on the saving clause. We joined the bandwagon
with Martin v. Perez, 319 F.3d 799 (6th Cir. 2003).3 Like Wright, Martin was a federal prisoner
convicted and sentenced by an out-of-circuit district court (the Southern District of Indiana), had
filed his initial
his district of confinement (the Eastern District of Kentucky). See id. at 801–02. Like the
prisoners in the post-Bailey cases, he claimed that a new Supreme Court decision proved his
innocence by clarifying the elements of his crime of conviction. See id. at 804 (citing Jones v.
United States, 529 U.S. 848 (2000)). And like the prisoners in the post-Bailey cases, he would
have run into then-binding Seventh Circuit precedent had he raised his innocence argument in an
initial
(describing the circuit precedent Jones overruled).
This court agreed that Martin could use the saving clause to pursue his innocence claim.
In doing so, it applied the Seventh Circuit’s reasoning in Prevatte. Martin, 319 F.3d at 804–05
(citing Prevatte, 300 F.3d at 800). And Prevatte, in turn, applied Davenport’s no-reasonable-
opportunity test to suggest that saving-clause relief might be available for prisoners in Martin’s
situation. See Prevatte, 300 F.3d at 798–800. In the same vein, the Martin panel pointed out
that “Jones was decided after [Martin] filed his first Section 2255 motion[.]” Martin, 319 F.3d at
805 (citing Prevatte, 300 F.3d at 800). Why? Because the panel thought it mattered that
Martin’s argument had been blocked by binding precedent until a new Supreme Court case
cleared the path.4
another one cannot access
sentence may be defective. Rather, the prisoner must also show that binding adverse precedent
(or some greater obstacle) left him with “no reasonable opportunity” to make his argument any
earlier, “either when he was convicted and appealed or later when he filed a motion for
postconviction relief under section 2255[.]” Davenport, 147 F.3d at 610. Otherwise,
simply not inadequate or ineffective to test his claim. And nothing in this court’s later
precedents gainsays this principle.5
That includes Hill v. Masters, the case Wright and the government emphasize here. In
Hill, the panel let a federal prisoner use the saving clause to challenge his pre-Booker sentence
under the career-offender sentencing guideline. 836 F.3d at 600; see United States v. Booker,
543 U.S. 220 (2005). And in doing so, it assumed that Hill did not have a previous opportunity
to present his claim. Thus, Hill held nothing inconsistent with the reasonable-opportunity
standard.
The parties do not focus on the reasonable-opportunity standard when they discuss Hill.
Instead, they debate which of two similar, but differently worded, three-part tests in the opinion
represents the holding of the case. Compare 836 F.3d at 599–600, with id. at 595. But framing
the question that way puts the cart before the horse. Hill’s real holding is narrower than either
party contends.
The first three-part test, which Wright argues is the holding, comes from the beginning of
the opinion’s saving-clause discussion:
When seeking to petition under
§ 2241 based on a misapplied sentence, thepetitioner must show (1) a case of statutory interpretation, (2) that is retroactive
and could not have been invoked in the initial
§ 2255 motion, and (3) that themisapplied sentence presents an error sufficiently grave to be deemed a
miscarriage of justice or a fundamental defect.
Id. at 595. Under this test, a prisoner must cite a new, retroactive decision and show that it
“could not have been invoked in the initial
paraphrase of the no-reasonable-opportunity test that this court inherited from other circuits.
Tracing the Hill test to its roots confirms our suspicion. See id. (citing Brown v. Caraway,
719 F.3d 583, 586 (7th Cir. 2013); Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332,
1343 (11th Cir. 2013)); Brown, 719 F.3d at 586 (basing the test on Davenport, 147 F.3d at 611);
id. at 587 (holding that “Brown could not have raised his current
1343 (basing the test on Davenport, 147 F.3d at 611, and its Eleventh Circuit offspring Wofford,
177 F.3d at 1244); id. (“[T]he only sentencing claims that may conceivably be covered by the
saving[] clause are those based upon a retroactively applicable Supreme Court decision
overturning circuit precedent.” (quoting Wofford, 177 F.3d at 1245)); id. (explaining that a
“necessary” and “essential” condition of the saving clause “is that the Supreme Court decision
must have overturned a circuit precedent that squarely resolved the claim so that the petitioner
had no genuine opportunity to raise it at trial, on appeal, or in his first
The Hill panel did not select this test on its own. Rather, the parties “agreed upon” the
test that the two other circuits had “set out[.]” 836 F.3d at 595. In other words, all Hill did was
apply the law the parties provided.
That was not all the parties agreed on. They also “agree[d]” that Hill “established the
first and second conditions[.]” Id. at 595. Unsurprisingly, the panel did not analyze those issues.
It just noted, where relevant, that the government “concede[d]” them. Id. at 595–96, 599.
The only point of controversy in Hill was the third element in the parties’ test: whether
the error in Hill’s sentence was a “fundamental defect.” Id. at 595. After considering that issue
and the parties’ arguments on both sides, the panel said it was. See id. at 596–99. So Hill’s
At no point did the Hill panel consider and consciously decide whether Hill’s claim had
previously been unavailable. Again, the government conceded that issue and the opinion did not
discuss it except to note the concession. Id. at 595. There was no “application of the judicial
mind” to that question, so there was no “decision” about it. Carroll, 57 U.S. at 287.
Our hands are not tied in a later case just because, in an earlier one, a party conceded an
issue and the panel took that concession at face value. A court’s primary duty is to resolve the
dispute in front of it. And in our adversarial system, courts chiefly rely on the parties to give
them not just the facts but the law and the issues as well. See Carducci v. Regan, 714 F.2d 171,
177 (D.C. Cir. 1983) (Scalia, J.) (“[A]ppellate courts do not sit as self-directed boards of legal
inquiry and research, but essentially as arbiters of legal questions presented and argued by the
parties before them.”). It would be at least imprudent, and maybe improper, to make binding
precedent out of a court’s simple acquiescence in the parties’ concessions and assumptions.
See Cohens, 19 U.S. at 399–400; cf. Massachusetts v. United States, 333 U.S. 611, 639–40
(1948) (Jackson, J., dissenting) (“I see no reason why I should be consciously wrong today
because I was unconsciously wrong yesterday.”).
The law of issue preclusion provides a helpful analogy. Under that doctrine, only issues
“actually litigated” in a prior case are considered closed in a later one. Restatement (Second) of
Judgments § 27 (Am. Law Inst. 1982). And that does not include issues the parties conceded or
stipulated to. id. § 27 cmt. (e); accord United States v. Kasler Elec. Co., 123 F.3d 341, 349 n.13
(6th Cir. 1997). It would be absurd if the rule for stare decisis, which binds our whole circuit,
were more sweeping than the rule for issue preclusion, which binds only the parties.6
the government’s argument that Hill conflicts with yet earlier precedent. Here, it is enough to
say that Hill changed absolutely nothing about the reasonable-opportunity requirement that
Martin inherited from other circuits. We therefore hold that a federal prisoner cannot bring a
claim of actual innocence in a
had no prior reasonable opportunity to bring his argument for relief.
V.
Finally, we can turn to this case. Wright bases his habeas petition on Mathis, the 2016
case in which the Supreme Court clarified how to identify ACCA predicate offenses.
(The technical name for the method is the “categorical approach.” See Mathis, 136 S. Ct. at
2248.) But as the government points out, Wright’s claim never needed Mathis. To be sure,
Wright could not cite Mathis, specifically, before it existed. But a claim for habeas relief is more
than the talismanic force of a new case name. A new case matters only, if at all, because of the
new legal arguments it makes available.7
Labels aside, here is the substance of Wright’s claim: properly analyzed under the
categorical approach, the Maryland crime he was convicted of in 1989 was not an
ACCA-predicate “serious drug offense” because the maximum penalty for that crime was less
than ten years in prison. See
that it clarifies the categorical approach. But Mathis did not invent the categorical approach.
. . . are ‘the elements of the statute of conviction’” (quoting 495 U.S. 575, 601 (1990))); id. at
2257 (“For more than 25 years, we have repeatedly made clear that application of ACCA
involves, and involves only, comparing elements.”). In fact, it did not even break new ground.
See id. at 2257 (“Our precedents make this a straightforward case.”); In re Conzelmann, 872 F.3d
375, 376 (6th Cir. 2017) (“The Court’s holding in Mathis was dictated by prior precedent (indeed
two decades worth).”).
Nor did Wright need Mathis to clear a path through erroneous Fourth Circuit precedent.
Wright has identified only one binding Fourth Circuit case (pre- or post-Mathis) that held that his
statute of conviction was a serious drug offense. See United States v. Washington, 629 F.3d 403
(4th Cir. 2011). Washington came before Wright’s
his opportunity to appeal, and his chance to file a
his conviction.8 See
Wright also points to United States v. Mason, 954 F.2d 219 (4th Cir. 1992). But there,
the Fourth Circuit only decided that ACCA does not require a defendant to be convicted of one
predicate crime before he commits the next one. id. at 221. The court did not consider whether
the Maryland drug statute was an ACCA predicate in the first place; evidently, that was taken for
granted. Thus, under the principles we have already explained, Mason held nothing about that
issue. (And, in fact, no court has ever cited Mason as if it did.) In short, Wright has not shown
that anything prevented or foreclosed him from making his argument at his sentencing, on direct
appeal (had he appealed), or in an initial
Thus, Wright had several opportunities to raise his so-called “Mathis claim,” free of any
procedural impediments or hostile precedents. That he failed to seize them does not mean that
those chances, he cannot now use the saving clause to get another bite at the apple.
We affirm.
CONCURRENCE
THAPAR, Circuit Judge, concurring. Whom should we trust to fix a law that may be
broken? The people’s representatives? Or unelected judges? To the framers and ratifiers of the
Constitution, this was an easy question. Our Founders, who knew that “public Virtue is the only
Foundation of Republics,” believed in the greatness of the American people. Letter from John
Adams to Mercy Warren (Apr. 16, 1775), in 1 The Founders’ Constitution 670, 670
Kurland & Ralph Lerner eds., 1987). They trusted the people’s representatives to weigh
competing interests and make difficult policy choices. That’s why they tasked Congress with
making the laws and gave life-tenured judges the more modest job of applying them.
But sometimes we exceed that modest role. Take the saving clause. Section 2255 is not
“inadequate or ineffective to test the legality of [a prisoner’s] detention” just because binding
circuit precedent is against him at the time of his conviction or his first motion.
Congress weighed error correction against finality and made some difficult policy judgments.
See Prost v. Anderson, 636 F.3d 578, 582–83 (10th Cir. 2011) (noting the real-world benefits of
finality “to victims, their families, to future potential victims, to the government, and to the
courts”). And for us to second-guess those judgments is to usurp Congress’s role.
Not all usurpation is willful. Sometimes it happens almost by accident. For instance, this
court followed other circuits without once stopping to think whether it was taking a wrong turn.
We started by assuming that the out-of-circuit cases might be right. See United States v.
Peterman, 249 F.3d 458, 462 (6th Cir. 2001); Charles v. Chandler, 180 F.3d 753, 757 (6th Cir.
1999). Soon, we assumed they were right. See Martin v. Perez, 319 F.3d 799, 803–04 (6th Cir.
2003). But at no point did we stop to study the text of the statute itself. Justice Frankfurter’s
lament comes to mind: “a hint becomes a suggestion, is loosely turned into dictum and finally
elevated to a decision.” United States v. Rabinowitz, 339 U.S. 56, 75 (1950) (Frankfurter, J.,
dissenting).
Within the last decade, one circuit unencumbered by precedent took a fresh look at the
saving clause and declined to follow the herd. See Prost, 636 F.3d 578. A second broke ranks
after years of struggling to apply its old rule coherently. See McCarthan v. Dir. of Goodwill
Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017) (en banc); see also id. at 1100–01 (Carnes,
C.J., concurring). Those opinions and a few others explain in detail why restarting the collateral-
review process every time the Supreme Court overturns circuit precedent is atextual, illogical,
and unworkable. See United States v. Surratt, 797 F.3d 240, 251–55, 257–263 (4th Cir. 2015),
vacated on grant of reh’g en banc, appeal dismissed as moot, 855 F.3d 218 (4th Cir. 2017);
Samak v. Warden, FCC Coleman-Medium, 766 F.3d 1271, 1279–93 (11th Cir. 2014) (Pryor, J.,
concurring); Brown v. Caraway, 719 F.3d 583, 597–600 (7th Cir. 2013) (Easterbrook, C.J.,
statement concerning the circulation under Circuit Rule 40(e)). There is plenty to read for those
who want the full argument. No need to rehash everything here. Instead, I will just expand on
two points. First, a word about practicality. Second, a word about precedent.
Practicality. Judicial solutions often beget judicial problems. The way courts have
kludged the saving clause is a perfect example. Using
habeas system. And that means resurrecting the very problems
rest. See John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70,
84 (2006) (“[T]extualists recognize that the relevant context for a statutory text includes the
mischiefs the authors were addressing.”). Concentrating “an inordinate number of habeas corpus
actions” in districts with large prison populations? United States v. Hayman, 342 U.S. 205, 213–
14 (1952). Check.1 Asking district courts to review each other’s proceedings—often without
access to the witnesses, the sources of evidence, or other local information that may be critical?
See id. at 213. Check again.
All this was bad enough to begin with. But it became even worse after Hill v. Masters,
which expanded the saving clause to cover not just invalid sentences but miscalculated ones too.
See 836 F.3d 591 (6th Cir. 2016). In the former case, the remedy is usually simple: an order for
the prisoner’s release. But in the latter, only a resentencing will do. Query how the Great Writ
of habeas corpus—an order served on the respondent personally to determine the validity of his
custody over the petitioner—can be transmuted into a resentencing vehicle at all. See Braden v.
30th Judicial Circuit Court of Ky., 410 U.S. 484, 494–95 (1973). But even bracketing that
conundrum, how exactly is a district judge in Kentucky supposed to know the right sentence for
a South Carolinian who conspired to traffic drugs in Charleston? District judges must weigh
several sentencing factors in the scales of justice.
factors can only be weighed meaningfully if the judge knows something about the defendant, the
case, and the local community. No wonder, then, that Congress directed sentencing challenges
to the sentencing court.
It should be no surprise when judicial creativity begets chaos. Judges are not cut out for
legislative craftsmanship. The Founders understood this. In fact, they rejected the Council of
Revision, a proposal to give the judiciary a veto over the laws, for this very reason. Simply put,
they did not trust judges to make policy. See 1 The Records of the Federal Convention of 1787
97–98 (Max Farrand ed., 1911) (Elbridge Gerry, June 4) (“It was quite foreign from the nature of
[the judicial] office to make them judges of the policy of public measures.”); 2 id. at 73
(Nathaniel Gorham, July 21) (“As Judges they are not to be presumed to possess any peculiar
knowledge of the mere policy of public measures.”); id. at 76 (Luther Martin, July 21)
(“A knowledge of Mankind, and of Legislative affairs cannot be presumed to belong in a higher
[ ] degree to the Judges than to the Legislature.”); see also John F. Manning, Textualism and the
Equity of the Statute, 101 Colum. L. Rev. 1, 61 (2001) (noting that the Founders’ “sharp
separation of legislative and judicial powers was designed, in large measure, to limit judicial
discretion”). But if courts can’t resist tinkering with the law, the least they can do is to spare a
thought for the consequences. Not just for the present case, but also for future cases and for how
later courts will have to implement the tinkering as a precedent. Which brings me to my next
point.
Precedent. Precedent matters. This case shows that in more ways than one. Indeed, it’s
what launched this whole saving-clause
Davenport, 147 F.3d 605 (7th Cir. 1998). The premise of that case was that court proceedings
are “inadequate or ineffective to test the legality of” a conviction or sentence if binding-but-
wrong precedent dictates the outcome—at least, at the district-court and panel levels.
opportunity to obtain a reliable judicial determination” of their case, without “any opportunity
for judicial rectification” of mistakes. 147 F.3d at 609, 611.
There’s some appeal to this reasoning. No one wants prisoners to stay in prison longer
than the law says they should. And there does seem to be something unfair about a circuit
court—the last court to which a defendant can appeal as of right—closing its ears to what should
be a winning argument in deference to a precedent that is just plain wrong.2
But here’s the problem: In our system, litigants are bound by precedent all the time.
Even precedent that we later recognize was incorrect. In this circuit, when our precedent cuts
against a party, we expect that party to (1) distinguish it, (2) persuade us to overrule it en banc, or
(3) persuade the Supreme Court to correct our error. In the meantime, we go on applying it.
And an overruling down the line does not blot out final judgments based on that precedent back
when it was binding.3 Does this mean that our entire justice system (in which, again, precedent
is ubiquitous) is “inadequate or ineffective” to test the rights of parties? Surely not. And if it
somehow did, the problem would not at all be specific to criminal law.
So whatever pull Davenport’s reasoning may have, it is not an argument for how courts
have construed
governs attacks on the sentence,
added AEDPA’s second-and-successive limitations without touching the text of
implicitly amend the saving clause to now stand for the unrelated (and radical) idea that binding
precedent alone is enough to strip a full round of judicial process—trial, appeal, and one free
collateral attack—of its basic adequacy? Of course not. See Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts § 39, at 255 (2012) (“This would be repealer by
the weakest of implications; and repeals by implication are disfavored[.]”); see also id. § 40, at
256 (discussing objective statutory
mouseholes.
Section 2255 is not that complicated. A federal prisoner can attack his sentence with a
motion to correct or vacate it under
including the restrictions on second or successive motions. Or he can challenge the manner of
his detention with a habeas petition under
But we have jerry-rigged the saving clause to let
evading Congress’s chosen limits on collateral review. This even though “judgments about the
proper scope of the writ are normally for Congress to make.” Felker v. Turpin, 518 U.S. 651,
664 (1996) (cleaned up). And we are bound by our mistakes in this area until we fix them en
banc.
Or until the Supreme Court intervenes. If this circuit and others fail to course-correct on
our own, then the Court should step in. And I would respectfully submit that sooner may be
better than later. The circuits are already split. The rift is unlikely to close on its own. What’s
more, so long as it lasts, the vagaries of the prison lottery will dictate how much postconviction
review a prisoner gets. A federal inmate in Tennessee can bring claims that would be thrown out
were he assigned to neighboring Alabama. Like cases are not treated alike.
Maybe worst of all, Congress can hardly deliberate about whether the law should change
if no one has a clear idea of what the law is now. Which is one more reason the judiciary should
stay in its lane. When we apply the law as written, we show Congress the results of its work and
allow it to decide whether they are satisfactory. By doing our job—and nothing more—we most
help the people’s representatives to do theirs. Exactly as the Framers intended.
Notes
in Washington used the “modified categorical approach,” which involves looking at certain state-court records to pin
down a conviction under a “divisible” statute—one that defines multiple crimes with distinct sets of elements. See
629 F.3d at 408, 413–14. And the Maryland “possession with intent to distribute” statute was divisible. It laid out
sentencing ranges with maximum prison terms that varied depending on the schedule of the controlled substance.
See id. at 408. Which means that the identity of the substance (or at least that it belonged to a schedule matching the
right sentencing range) was an element of the offense. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Which means, in turn, that the statute was divisible and the Fourth Circuit correctly applied the modified categorical
approach. See Mathis, 136 S. Ct. at 2248–49.
(6th Cir. 2018) (approving
case overruling adverse Eighth Circuit precedent); Paulino v. United States, 352 F.3d 1056, 1061 (6th Cir. 2003)
(dismissing
(same).