Today in Gilbert v. United States the Eleventh Circuit in a divided en banc decision held that a federal prisoner who had previously filed an application for relief under Section 2255 could not use the “savings clause” to raise in a later habeas petition under Section 2241 his claim that he was erroneously sentenced as a career offender. The majority opinion by Judge Carnes reasoned that the petitioner was not claiming that he had been convicted for conduct that did not constitute a crime, as in other savings clause cases. The majority also noted that the case did not involve a sentence beyond the statutory maximum for the offense. Relying on Felker v. Turpin, the court also disagreed with the dissenting judges’ argument that interpreting the statute to prohibit habeas review in this situation violates the Suspension Clause. Rejecting the argument of the dissenters that Boumediene suggests otherwise, the majority reasoned:
“. . . Boumediene was an executive detention case. The Supreme Court emphasized the difference, explaining that where the petitioner is seeking relief from the judgment of a state court in federal court, ‘it can be assumed that, in the usual course, a court of record provides defendants with a fair, adversary proceeding,’ and with federal court judgments ‘the prisoner already has had a chance to seek review of his conviction in a federal forum through a direct appeal.’ . . . The question was not whether the detainees in Boumediene were entitled to multiple rounds of habeas review of their detention but whether they were entitled to any habeas review at all. It was in that context the Court made the statement that [the dissenting judges] rely on, about each detainee having been denied ‘a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law.’ . . . .”
Judge Pryor concurred, presenting his view that the Suspension Clause does not limit Congressional restrictions on habeas review of criminal judgments. ”The Supreme Court has never held that the Suspension Clause protects anything more than the writ as understood in 1789,” he stated, collecting authority for this reading of the Clause. ”Because the Suspension Clause does not provide any rights to prisoners convicted and sentenced by courts of competent jurisdiction, any relief that Congress chooses to provide to federal prisoners is, to borrow language from a dissent, a “gift that may be bestowed or withheld.”
Judges Barkett, Martin, and Hill each wrote separate strongly worded dissenting opinions, arguing that the savings clause permits Gilbert to raise his claim under Section 2241, and contesting the narrower views of the Suspension Clause advanced by the majority and concurring opinions. The dissenting judges explained that habeas review must be available to provide redress for a person incarcerated under an erroneous sentence, even if the error was in applying the Guidelines, and that a statute that bars such review violates the Suspension Clause.
The resolution of this debate about the scope of the Suspension Clause is fundamental to the future of habeas review in criminal cases, and will undoubtedly reach the Supreme Court if Congress decides to limit that review further. In addition to the clash of judicial views about the Suspension Clause, the decision is notable for its discussion of which types of federal sentencing error may be raised in collateral proceedings under 2255 and 2241.