AuthorBeck, Ethan D.
PositionJudicial Code


Lawstudents, criminal justice majors, and casual viewers of crime dramas understand the basic structure of the federal criminal system from indictment to trial to the exhaustion of direct appeals in the Supreme Court. However, this is not the end of the story. After a grand jury has decided there is sufficient evidence to indict, a petit jury has decided there is enough evidence to support a conviction, a trial judge has imposed a sentence, an appellate court has affirmed the conviction, and the Supreme Court has either denied review or affirmed the circuit court decision, a federal prisoner has other mechanisms available to argue for relief. This Note focuses on the interactionbetween two of these postconviction or collateral appeal mechanisms: [section] 2255 (1) and [section] 2241. (2) More specifically, this Note addresses when--or if--changes in law that happen after conviction and the usual appeals allow a federal prisoner to return to court for another look at whether the conviction is undermined by the intervening change in law.

ThisNote begins in Part I by providing a general introduction to modern postconviction relief, with special attention to the interaction between habeas corpus petitions and the [section] 2255 motion that performs much of the work traditionally assigned to the habeas writ. Section I.A begins to describe the debate in the federal circuit courts over the proper scope of the clause of [section] 2255 with which this Note is primarily concerned, the so-called "savings clause"of [section] 2255(e). Section I.B relates the importance of correctly construing the savings clause, as well as the dangers of a split in circuit interpretation for a uniform criminal system. Part II and Part III describe the majority and minority approaches to interpreting [section] 2255(e). Part II does so primarily by describing two Fourth Circuit cases, In re Jones (3) and United States v. Wheeler, (4) as they are an instructive introduction to the majority position. Part IV evaluates themajority and minority positions and argues that the minority's narrow interpretation of the clause is superior to that of the expansive approach of the majority. Finally, Part V provides a diagnosis of the division between the circuits on the savings clause, as well as a brief conclusion on the relative merits of the two positions.


    The federal criminal system allows an individual convicted of a federal crimeto directly appeal that conviction first from the district court of conviction to a circuit court of appeals, and then to the Supreme Court. (5) After the direct appeal process is exhausted, there remains the option to collaterally attack either the imposition of the sentence or the legality of the conviction itself. At this point, the petitioner is federally incarcerated and is entitled to file one motion for postconviction relief under 28 U.S.C. [section] 2255. (6) Once the first postconviction appeal is exhausted, a second or successive motion to challenge the imposition of conviction or sentence must be approved, or "certified," by an appellate court. (7) Certification is only available in an extremely limited set of circumstances, and it requires new evidence strongly indicative of innocence or a new rule of constitutional law made expressly retroactive. (8)

    In the alternative, the prisoner could file a traditional habeas corpus petition through 28 U.S.C. [section] 2241. (9) However, this route is rarely available. When Congress restructured collateral relief in 1948, it designed [section] 2255 to supersede [section] 2241, taking over the work previously performed by the old habeas petition. (10) Thus, Congress narrowly confined the circumstances under which a prisoner may use a habeas petition to challenge the validity of conviction. (11) The only situation in which a prisoner may bypass [section] 2255 and file a traditional habeas petition is when it is expressly allowed. Section 2255(e)--commonly referred to as "the savings clause"--permits a habeas petition only when a motion under [section] 2255 is "inadequate or ineffective." (12) Otherwise, courts are barred from hearing habeas petitions. (13)

    Therefore, given the certification limits on second or successive motions under [section] 2255(h) and the barriers to pursuing a habeas petition in [section] 2255(e), a federal prisoner usually gets one and only one collateral or postconviction shot at obtaining a meaningful review of his or her conviction and sentence. (14) In theory, this restriction should cause only small problems for most prisoners; they simply must bring all of their arguments in a single [section] 2255 motion. Fair enough. But what happens when a change in law happens after the first motion and the prisoner is not eligible to file another motion under the gatekeeping requirements of [section] 2255(h)? Ostensibly, the prisoner is out of luck.

    1. Introduction: A Simple Example

      An example may help to clarify the background laid above. Imagine an individual steals a washing machine and is convicted in federal court under a law making it a felony to steal a dry-cleaning machine. A federal circuit court affirms the conviction and the Supreme Court denies review. Next, she again challenges her conviction, but this time collaterally through a motion under [section] 2255. Again, the reviewing court affirms the conviction. At this point, the individual has used up all her direct appeals and her first [section] 2255 motion--the onlyone that each prisoner is guaranteed. Barring extremely rare circumstances, the conviction is final.

      What happens to that prisoner if the law under which the jury convicted her is judicially reinterpreted after all the above has happened? Say that the Supreme Court, or a federal appellate court, holds that merely stealing a washing machine is not within the scope of a statute making the theft of dry-cleaning machines a felony. This subsequent change in law means that if our prisoner's case was argued anew, she would likely be found not guilty; she did not steal a dry-cleaning machine, but a washing machine. Thanks to the appellate court's reinterpretation of the statute, we now know that the two machines are not the same. Does our prisoner get to argue that this reinter-pretation of the statute applies retroactively to her case?

      As discussed above, the gatekeeping requirements of [section] 2255(h) will bar her from getting a second [section] 2255 motion because the change in law is not a change in constitutional law, even if announced by the Supreme Court. Thus, the usual rule that a prisoner only gets one [section] 2255 motion will apply.

      Ourprisoner's only chance of getting a court to apply the new interpretation to her old case is the savings clause. When the savings clause applies, it operates as an escape hatch, letting a prisoner bypass the limits of [section] 2255 and instead use a traditional habeas petition under [section] 2241. For the savings clause towork, the prisoner's inability to get back into court--because of the limitations on additional motions from subsection (h)--would have to make [section] 2255 inadequate or ineffective, triggering the savings clause and allowing the prisoner to file a [section] 2241 habeas petition to have her case reconsidered.

      Therefore,whether the prisoner gets back into court turns on the meaning of the triggering words of the savings clause: inadequate or ineffective. The remainder of this Note discusses how two circuit courts have interpreted those words.

    2. Introduction: The General Contours of the Savings Clause Debate

      ThisNote focuses on one of the pathways through which a federal prisoner can get another bite at the apple; specifically, [section] 2255(e), the savings clause. (15) As mentioned above, 28 U.S.C. [section] 2255's savings clause allows a federal prisoner to file a traditional habeas corpus petition through 28 U.S.C. [section] 2241 if a motion under [section] 2255 would be "inadequate or ineffective to test the legality of his detention." (16)

      This Note describes the debate surrounding when [section] 2255 is "inadequate or ineffective" for a second or successive motion. "It is beyond question that [section] 2255 is not inadequate or ineffective merely because an individual is unable to obtain relief under that provision." (17) That is so because [section] 2255(h), in its so-called "gatekeeping" provision, bars second or successive motions unless specific criteria are satisfied. Thus, there is something of a turf war between [section] 2255(h), which limits second or successive motions, and [section] 2255(e), which ostensibly allows a federal prisoner to escape the requirements of [section] 2255 and file a [section] 2241 habeas petition in lieu of certifying a second or successive motion. (18)

      It is well worth noting at the outset that the [section] 2255(h) was not in the statute at enactment. The weight of authority suggests that, as originally enacted,[section] 2255 was meant to provide equivalent relief as was previously available under [section] 2241's habeas corpus petition, (19) which has been described as a broad and adaptable remedy. (20) However, Congress added the gatekeeping requirementsof subsection (h) on second or successive collateral review several years later as part of the Antiterrorism and Effective Death Penalty Act (AEDPA), (21) an effort to restrict and qualify the availability of postconviction appeals. (22) A crucial part of the debate over the savings clause is the extent to which the tenor of [section] 2255 changes through the addition of subsection (h), and whether it affects the overall availability of second or successive collateral relief through subsection (e). (23)

      A majority of federal circuit courts hold that [section] 2255 is ineffective--and accordingly the savings clause permits a [section] 2241 petition--if a petitioner "had no earlier opportunity"...

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