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| Daniel Medwed |
This procedure, which we inherited from England, empowers litigants to force government officials to justify why they "have the body" in custody, and can be deployed in federal court to challenge both federal and state convictions.
It even has a constitutional dimension: The writ of habeas corpus may not be suspended unless in times of rebellion or invasion.[2]
In recent decades, Congress and the U.S. Supreme Court have steadily chipped away at the power of habeas to correct wrongs by installing procedural obstacles that make it perilous to navigate the process.
In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act to raise the bar for prisoners pursuing habeas relief in federal court.[3]
AEDPA imposed a rigid statute of limitations for filing claims; made it hard to submit second or successive habeas claims; and required federal courts to defer to rulings by previous judges in the case, absent unusual circumstances.
Supreme Court case law has largely reinforced these barriers over the past 30 years — for instance, by issuing decisions that limit the ability of prisoners to submit freestanding actual innocence claims[4] through habeas or make novel arguments about ineffective assistance of counsel.[5]
A recent Supreme Court opinion, Jones v. Hendrix,[6] can be seen as part of this trend toward sapping habeas of its strength. The case appears rather technical on the surface, but upon closer inspection, it has broader practical and theoretical implications.
Here's what happened: In 2000, Marcus DeAngelo Jones was convicted of several federal crimes, including the felon-in-possession provision under Title 18 of the U.S. Code, Section 922(g),[7] which makes it a crime for a person with a felony record to possess a firearm.
Jones later filed a habeas petition under Title 28 of the U.S. Code, Section 2255. Section 2255 governs the process for federal prisoners seeking habeas relief, and directs federal prisoners to file a motion in the court that sentenced them, rather than a petition for a writ of habeas corpus in the jurisdiction in which they remain in custody,[8] which is the norm under the general habeas remedy contained in Section 2241.[9]
Jones received partial relief: The U.S. Court of Appeals for the Eighth Circuit vacated one felon-in-possession conviction on the grounds that Jones' attorney had rendered ineffective assistance of counsel by neglecting to dispute the presence of multiple Section 922(g) counts as duplicative.
That appeared to be the end of the habeas road for Jones until a 2019 Supreme Court case, Rehaif v. U.S.,[10] ushered in a sea change in the statutory interpretation of Section 922(g) crimes.
In Rehaif, the court held that the prosecution must prove knowledge of the defendant — that the defendant knew he possessed the gun and "knew he had the relevant status when he possessed it."
Jones wanted to overturn his Section 922(g) conviction on the basis that the prosecution had failed to prove knowledge.
But Jones had already filed his Section 2255 habeas claim, and AEDPA made it nearly impossible to file a second or successive habeas claim except under two narrow situations contained in Section 2255(h): (1) when the petitioner could benefit from the finding of newly discovered evidence, or (2) the creation of a new rule of constitutional law made retroactive by the Supreme Court.
Neither of these applied to Jones; he had not discovered new evidence, and Rehaif was a change in statutory, not constitutional, principles.
Yet Section 2255(e) contains something known as the "saving clause," which allows for applicants to file habeas actions under the general Section 2241 procedure when it "appears that remedy by [Section 2255] motion is inadequate or ineffective to test the legality of [the] detention."
So, Jones argued under the saving clause that he should be allowed to file a new habeas petition because he was now legally innocent under Rehaif.
The precise question raised by Jones was whether the saving clause permits a federal prisoner to file a petition under the general habeas remedy after a change in statutory law that the court has made retroactive.
The lower courts were split on this question, making it ripe for Supreme Court review.
In a 6-3 decision, the Supreme Court rejected Jones' arguments, holding that the saving clause is neither designed nor suitable for this type of usage.
Justice Clarence Thomas, the author of the majority opinion, advanced several main justifications for this result.
Perhaps most notably, he relied on the purported history of Section 2255, a procedure created in 1948 principally, in his view, to grapple with the unique administrative challenges posed by habeas actions filed by federal prisoners. That is, habeas actions have been traditionally filed in the district in which the applicant remains in custody.
This meant that "a federal prisoner's district of confinement was often far removed from the records of the sentencing court and other sources of needed evidence."
Also, "the concentration of federal prisoners in a handful of judicial districts," in turn, "forced those District Courts to process 'an inordinate number of habeas corpus actions.'"
Having cast Section 2255 as a procedural shift aimed at addressing an administrative difficulty, Justice Thomas viewed the saving clause in a similar light: "Traditionally, courts have treated the saving clause as covering unusual circumstances in which it is impossible or impracticable for a prisoner to seek relief from the sentencing court."
In 1996, AEDPA added another layer to the analysis — a second or successive habeas action could not be launched absent the discovery of new evidence or a Supreme Court change in constitutional law.
The majority reasoned that the use of the saving clause to file a successive habeas action on the basis of a change in statutory law would comprise an unwelcome "end-run around AEDPA."
As Justice Thomas put it, "Congress has chosen finality over error correction." And, in rejecting the arguments raised by Jones, Justice Thomas expressed misgivings about efforts to transform the saving clause "into a license for unbounded error correction."
Justices Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor dissented.
On the one hand, Justices Kagan and Sotomayor wrote a brief opinion in which they explained that the saving clause was intended to correct situations where there is a mismatch between the remedies afforded by Sections 2255 and 2241.
The Jones case, they claimed, represents precisely this type of mismatch — where Section 2255 would bar a successive motion to address a Rehaif claim, but such an argument could be pursued via the general habeas procedure, where the court has
long held that federal prisoners can collaterally attack their convictions in successive petitions if they can make a colorable showing that they are innocent under an intervening decision of statutory construction.
On the other hand, Justice Jackson wrote an exhaustive and full-throated dissent that criticized the majority for
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.
She engaged in an exhaustive analysis of the text, history and policies surrounding the saving clause, and proclaimed that
[w]hether 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.
The implications of Jones are significant, despite the thread of procedural technicality that runs throughout the various opinions.
First, as a practical matter, Jones will bar federal prisoners from submitting successive habeas petitions based on a changing interpretation of a criminal statute, making many new claims of legal innocence — in which the prisoner maintains that the government did not prove the elements of the crime beyond a reasonable doubt — not cognizable in a federal habeas action.
In other words, the capacity of someone incarcerated in a federal prison to raise a legal innocence claim of this nature will hinge on the vagaries of timing — and those vagaries are beyond the person's control.
If the Supreme Court decision that alters the underlying criminal offense of a federal prisoner occurs before the filing of their first habeas motion, then they might be able to raise the issue. If the decision comes down after that moment, however, the prisoner is out of luck, even if the statutory change is otherwise retroactive, and many similarly situated people would be deemed legally innocent.
Second, as a theoretical matter, Jones underscores the stark ideological fissure within the court. The more conservative justices embraced the concept of finality and a strict construction of habeas law; the more liberal justices sided with a federal prisoner, advanced a broader interpretation of the saving clause, and promoted the goal of letting federal judges entertain previously unheard claims of legal innocence.
We saw this pattern play out last term in another notable 6-3 habeas opinion written by Justice Thomas, Shinn v. Ramirez,[11] which restricted the ability of prisoners to develop ineffective assistance of counsel claims.
To be fair, not every recent habeas decision has broken down along these lines — earlier this year, Justices Brett Kavanaugh and John Roberts joined Justices Jackson, Kagan and Sotomayor to find for a prisoner in another habeas case, Cruz v. Arizona.[12]
But there is reason to think that the judicial pendulum is swinging toward limiting, rather than expanding, federal habeas remedies.
As a result, congressional amendments to the underlying law may represent the most viable path forward for those who seek a more robust and open habeas process.
Section 2255(h), as noted above, offers only two avenues for prisoners hoping to file a successive or second habeas action: when they have discovered new evidence, or when the Supreme Court has recognized a new constitutional principle that it has made retroactive.
Perhaps Congress could add a third route, and even tailor it narrowly to gain bipartisan support. Specifically, Congress could change the law to permit a successive or second habeas filing when the Supreme Court has recognized a new statutory principle that is made retroactive and that could be relied on by those in custody to claim legal innocence.
This would address Justice Jackson's core concern about "slamming the courtroom doors to a possibly innocent person," while simultaneously avoiding any reference to the saving clause, let alone making that provision the "license for unbounded error correction" that Justice Thomas feared.
Whether Congress considers such an amendment of course remains to be seen.
Daniel Medwed is a distinguished professor of law and criminal justice at Northeastern University School of Law. He is the author of "Barred: Why the Innocent Can't Get Out of Prison."
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://press-pubs.uchicago.edu/founders/documents/a1_9_2s4.html.
[2] https://constitution.congress.gov/browse/article-1/section-9/clause-2/#:~:text=Clause%202%20Habeas%20Corpus,public%20Safety%20may%20require%20it..
[3] https://www.congress.gov/104/plaws/publ132/PLAW-104publ132.pdf.
[4] https://www.oyez.org/cases/1992/91-7328.
[5] https://www.supremecourt.gov/opinions/21pdf/20-1009_19m2.pdf.
[6] https://www.supremecourt.gov/opinions/22pdf/21-857_4357.pdf.
[7] https://www.law.cornell.edu/uscode/text/18/922.
[8] https://www.law.cornell.edu/uscode/text/28/2255.
[9] https://www.law.cornell.edu/uscode/text/28/2241#:~:text=Writs
%20of%20habeas%20corpus%20may,judge%20within%20their%20respective%20jurisdictions.
[10] https://www.supremecourt.gov/opinions/18pdf/17-9560_e2p3.pdf.
[11] https://www.supremecourt.gov/opinions/21pdf/20-1009_19m2.pdf.
[12] https://caselaw.findlaw.com/court/us-supreme-court/21-846.html.