Barring use of 2241 for sentencing challenge not suspension, 11th Circuit holds

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.

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8 Responses to Barring use of 2241 for sentencing challenge not suspension, 11th Circuit holds

  1. Hash says:

    Professor King,

    Given your expertise on habeas history, I’m curious as to your thoughts on the following comment that I posted at the Volokh Conspiracy on this case:

    I’m not sure if any of the majority judges made this point, but the dissent has no answer to the fact that 2254 (for state prisoners), unlike 2255 (for federal prisoners), lacks a “safety valve” exception that allows resort to 2241 (the general habeas provision) where 2254 is “inadequate or ineffective.” So, if the dissent were correct that 2255’s safety valve is necessary to avoid violating the Suspension Clause, then 2254 would be unconstitutional. Moreover, that fact raises the obvious question why Congress omitted a safety valve in 2254, while including one in 2255.

    The answer to the 2254/2255 distinction is obvious if one looks to habeas history, and it explains why the majority is correct for a far more fundamental reason than it realizes.

    Historically, habeas petitions were filed in the court where the custodian was located (i.e., the jurisdiction where the prison was). But this imposed a crushing burden on the fed cts in the few jurisdictions where federal prisons are located. The 2255 motion was created to ease that burden, by requiring federal prisoners to seek relief in the district where the sentence was imposed. This, however, created a different practical problem — the petr could be incarcerated in a federal prison in NY, but would have to file a motion in federal district court in CA. If that geographic divergence caused the 2255 motion to be “inadequate or ineffective,” then 2241 relief could be sought instead. (This was more likely to be a problem back in the 40s/50s, when 2255 was first enacted.)

    Of course, that geographic dynamic does not exist for state prisoners seeking 2254 relief, since the fed dct always sits in the state of incarceration. Thus, there’s no need for a safety-valve there.

    In short, 2255’s safety-valve should never be construed to allow allow prisoners to make an end run around substantive restrictions in the habeas statutes, since that gives federal prisoners a bizarre advantage over state prisoners. Rather, 2255’s safety-valve should be limited to any practical problems that arise when federal prisoners incarcerated in one state must file a motion in federal district court in another state.

    • Nancy King says:

      NK replies:
      Certainly the background of 2255 includes special concern about shifting litigation away from the district in which the prisoner was incarcerated. We discuss this history in Chapter 6 of the book. But to the extent you suggest that it would be bizarre for 2255 review to be more expansive than 2254 review (through a savings clause or otherwise), I disagree. For reasons we explain in Chapter 6, it makes sense for 2255 review to be more robust than 2254 review, at least today. Federal and state prisoners seeking federal collateral relief are not similarly situated. Half a century ago, it made some sense to provide the same remedy to both state and federal prisoners: federal constitutional rights were being extended for both groups, and the states, ordered to enforce federal constitutional rules in their criminal cases for the first time, lacked effective post-conviction remedies to enforce such rights. So for both state and federal prisoners, collateral review in federal court was the first and only opportunity to enforce some of these new constitutional rights. But that situation changed once states developed state post-conviction remedies. For federal prisoners, 2255 is the first bite at the apple, but for state prisoners, 2254 is the second.

      • Hash says:

        Thanks for the prompt response. In general, I don’t disagree that, as a normative matter, there’s an argument for having a first 2255 motion be more generous than a first 2254 petition. That said, it’s hard to see how that structural point justifies–either normatively or descriptively–allowing a second 2255 motion where a second 2254 petition would be barred. And that’s what’s at issue in the safety-valve situation: 2255 motions that are successive (or time-barred). Plus, as you note, the structural disparity between federal and state prisoners didn’t exist at the time 2255 and the safety-valve were first enacted, so it’s hard to justify interpreting the safety-valve to allow only federal prisoners to end-run restrictions on relief. Thus, it still seems to me that the obvious intent of the safety-valve was not to relax Congressionally imposed constraints on habeas relief, but instead to address any problems created by geographic disparity.

        • Nancy King says:

          There is one claim that federal prisoners have that state prisoners do not. Before AEDPA, if the Supreme Court decided that a federal statute does not cover the conduct underlying a prisoner’s conviction, that prisoner could seek relief under 2255 even if he’d already filed a previous 2255 application. But after AEDPA, he cannot. He has no new evidence, only a new interpretation of substantive federal criminal law. I agree with every circuit that has addressed this issue that a prisoner imprisoned for something that was never a crime should be able to obtain judicial review – and since 2255 is not available, 2241 must fill in. And this position does appear to differ from your interpretation of the savings clause — I gather you would leave such prisoners in prison with no remedy because their claim is unrelated to the distance between the BOP facility in which they are incarcerated and the court of conviction. In the book, however, we do argue that 2241 must never become the means for reviewing routine recurring claims after an adequate substitute is developed or the crisis that prompted the detention at issue is resolved. The Supreme Court fairly regularly interprets federal criminal law more narrowly than the lower courts, regularly enough that we argue the substitute for habeas for federal prisoners — Section 2255 – should be amended to take this into account. That way 2241 need no longer be used for these specific claims and can be reseved for when it is needed to respond to the next new detention challenge.

          • Hash says:

            I can understand why you think it normatively desirable to allow federal prisoners to seek relief in such circumstances. But why not state prisoners in the analogous circumstance? Ultimately, it still seems like the safety-valve is being misused to address a circumstance that instead warrants amending AEDPA for both federal and state prisoners.

          • Nancy King says:

            There is no analogous circumstance for state prisoners under 2254. If the prisoner is convicted in state court for violating a state criminal statute, later state courts might find the statute reaches less than previously presumed. But the claim that a prisoner would raise if that happened is that he is imprisoned in violation of STATE law, not federal law, and thus would not be cognizable under 2254 or 2241. The prisoner’s remedy would be in state post-conviction proceedings. The problem is that for too long now 2254 and 2255 have been treated alike. They are not. State post-conviction review, not 2254 review, performs for state prisoners the function that 2255 review provides federal prisoners – the first and sometimes only chance for a prisoner to assert claims like the one we are talking about.

  2. Hash says:

    That’s not correct. A state prisoner who was convicted under an overbroad interpretation of a state statute has a fed DP claim under Jackson v. Virginia, at least so long as the narrower interpretation was actually the correct state-law interpretation even back at the time of the conviction (as opposed to a permissible non-retroactive change in interpretation by the state courts). See Fiore v. White, 531 U.S. 225 (2001). Thus, relying on the safety-valve for federal prisoners convicted under an overbroad interpretation of a federal statute does indeed leave similarly situated state prisoners with a federal constitutional claim without a federal habeas remedy. And Fiore itself demonstrates that state collateral review will sometimes fail to vindicate that federal claim. This vividly illustrates why any concern about such scenarios should be handled by amending AEDPA, rather than trying to squeeze them into 2255′s safety-valve.

    • Nancy King says:

      Sure, if indeed the state does decide that its law change is retroactive (a state law claim), then a state prisoner would have a DP claim to raise in state PCR. If the claim were denied there, and raised in a successive 2254 petition, 2244 would bar relief (unless the term “factual predicate” is interpreted to include retroactive interpretations of state criminal law). Yet the state prisoner has at least a shot at a judicial remedy for his constitutional claim (in state PCR with cert review by the Supreme Court), unlike the federal prisoner. So I may not agree with you about how similarly situated state and federal prisoners are, but I do agree that the use of the savings clause for these claims should stop and 2255 should be fixed instead. Let’s hope that happens. Thanks for the lively discussion.