Published on: Thursday, June 22, 2023

This morning, a 6 to 3 divided Supreme Court issued a significant decision in Jones v. Hendrix, No. 21-857 (June 22, 2023), limiting the availability of habeas relief under 28 U.S.C. § 2241 for federal prisoners.  Justice Thomas wrote the majority opinion, joined by Chief Justice Roberts, and Justices Alito, Gorsuch, Kavanaugh, and Barrett.  Justices Sotomayor and Kagan filed a short dissenting opinion, and Justice Jackson filed a lengthy dissenting opinion. The Court's ruling limits habeas relief available to federal prisoners under the savings clause if: (1) the case is final on direct review; (2) the claim is based on an intervening and retroactive Supreme Court decision interpreting and narrowing the reach of a federal statute, see, e.g., Dubin v. United States, No. 11-10 (June 8, 2023) (holding, under 18 U.S.C. § 1028A(a)(1)’s crime of “aggravated identity theft,” a defendant “uses” another person’s means of identification “in relation to” a predicate offense when the use is at the crux of what makes the conduct criminal); and, (3) the prisoner previously litiated a motion to vacate under 25 U.S.C. § 2255.  It does not impact prisoners whose cases are still pending on direct review, prisoners who have not previously litigated § 2255 motions, or prisoners who otherwise meet the gatekeeping criteria for filing second or successive § 2255 motions under 28 U.S.C. §§ 2244(h)(1)-(2).

Justice Thomas' majority opinion starts this way:

This case concerns the interplay between two statutes: 28 U.S.C. § 2241, the general habeas corpus statute, and § 2255, which provides an alternative postconviction remedy for federal prisoners. Since 1948, Congress has provided that a federal prisoner who collaterally attacks his sentence ordinarily must proceed by a motion in the sentencing court under § 2255, rather than by a petition for a writ of habeas corpus under § 2241. To that end, § 2255(e) bars a federal prisoner from proceeding under § 2241 “unless . . . the [§ 2255] remedy by motion is inadequate or ineffective to test the legality of his detention.”

Separately, since the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), second or successive § 2255 motions are barred unless they rely on either “newly discovered evidence,” § 2255(h)(1), or “a new rule of constitutional law,” § 2255(h)(2). A federal prisoner may not, therefore, file a second or successive § 2255 motion based solely on a more favorable interpretation of statutory law adopted after his conviction became final and his initial § 2255 motion was resolved.

The question presented is whether that limitation on second or successive motions makes § 2255 “inadequate or ineffective” such that the prisoner may proceed with his statutory claim under § 2241. We hold that it does not.

Justice Jackson's dissent begins like this: 

Today, the Court holds that an incarcerated individual who has already filed one postconviction petition cannot file another one to assert a previously unavailable claim of statutory innocence.  The majority says that result follows from a “straightforward” reading of 28 U.S.C. § 2255.  Ante, at 10, 12.  But the majority reaches this preclusion decision by “negative inference.” Ante, at 10.  And it is far from obvious that § 2255(h)’s bar on filing second or successive postconviction petitions (with certain notable exceptions) prevents a prisoner who has previously sought postconviction relief from bringing a newly available legal innocence claim in court.  See Part II, infra.

In any event, putting aside its questionable interpretation of § 2255(h), the majority is also wrong to interpret § 2255(e) — known as the saving clause — as if Congress designed that provision to filter potential habeas claims through the narrowest of apertures, saving essentially only those that a court literally would be unable to consider due to something akin to a natural calamity.  See Part I, infra.  This stingy characterization does not reflect a primary aim of § 2255(e), which was to “save” any claim that was available prior to § 2255(h)’s enactment where Congress has not expressed a clear intent to foreclose it.  Jones’s legal innocence claim fits that mold.

I am also deeply troubled by the constitutional implications of the nothing-to-see-here approach that the majority takes with respect to the incarceration of potential legal innocents.  See Part III, infra.  Apparently, legally innocent or not, Jones must just carry on in prison regardless, since (as the majority reads § 2255) no path exists for him to ask a federal judge to consider his innocence assertion.  But forever slamming the courtroom doors to a possibly innocent person who has never had a meaningful opportunity to get a new and retroactively applicable claim for release reviewed on the merits raises serious constitutional concerns.

Thus, in my view, all roads lead to an interpretation of § 2255 that is diametrically opposed to the one that the majority announces.  Whether one gets there by virtue of a proper reading of § 2255(e) or an informed understanding of § 2255(h), or by affording due respect to the core constitutional interests at stake, Jones’s successive petition alleging legal innocence should have been considered on the merits.  Therefore, I respectfully dissent.

The opinion in Hendrix is available here.  Briefing on the mertis is available on the Supreme Court's docket here