Published on: Friday, May 20, 2022

On Monday, the Supreme Court granted review in Jones v. Hendrix, No. 21-857 (May 16, 2022) (cert. granted), to decide whether federal inmates who did not — because established circuit precedent stood firmly against them — challenge their convictions on the ground that the statute of conviction did not criminalize their activity may apply for habeas relief under 28 U.S.C § 2241 after the Supreme Court later makes clear in a retroactively applicable decision that the circuit precedent was wrong and that they are legally innocent of the crime of conviction.

Under 28 U.S.C. § 2255, federal inmates can collaterally challenge their convictions on any ground cognizable on collateral review, with successive attacks limited to certain claims that indicate factual innocence or that rely on constitutional-law decisions made retroactive by the Supreme Court. See 28 U.S.C. § 2255(h). However, 28 U.S.C. § 2255(e) — the so called “safety valve” — also allows inmates to collaterally challenge their convictions outside this process through a traditional habeas action under 28 U.S.C. § 2241 whenever it “appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [their] detention.” 

There is a deep and mature split on the scope of the safety valve, which the government admitted itself when it petitioned for Supreme Court review on the same issue a couple of years ago in the much-relisted case United States v. Wheeler, 18-420 (Mar. 18, 2018) (cert. denied).  Jones v. Hendrix addresses the situation in which the Supreme Court, after prisoners can no longer seek relief directly under § 2255, overrules the prior circuit precedent under which they were convicted. Three circuits (8th, 10th, and 11th) refuse to allow federal prisoners convicted in these circumstances to petition for habeas relief under § 2255(e)’s safety valve even though, under this court’s retroactively effective ruling, they are legally innocent.  Eight Circuits (1st, 2nd, 3rd, 4th, 5th, 6th, 7th, and 9th), by contrast, allow an inmate to petition for habeas relief in such circumstances.  

The certiorari stage briefing in Jones v. Hendrix is avalable on the Supreme Court's docket here. The case will likely be argued next fall.