Last Monday, the Supreme Court denied certiorari in McCarthan v. Collins, No. 17-85, which asked the question: “Whether a person in federal custody is entitled to file an application for habeas corpus under Section 2241 because a Section 2255 motion is ‘inadequate or ineffective’ to permit him to raise a claim that his conviction or sentence is invalid under an intervening and retroactively applicable statutory-interpretation.” (cert. petition here). Said another way, as the government framed the issue, the questions was “whether a prisoner whose Section 2255 motion was denied at a time when a particular statutory claim would have failed under circuit precedent is entitled to seek habeas relief by asserting that the circuit precedent has been abrogated by a statutory-interpretation decision of [the Supreme] Court.” In declining to answer this question, the Court let stand a 9 to 2 circuit split on this recurring and fundamental issue of fundamental fairness: whether federal prisoners may bring habeas petitions under § 2241 to challenge a conviction or sentence where all agree those convictions or sentences are no longer valid.
Over the last decade, the Supreme Court has issued numerous decisions rejecting a court of appeals’ expansive interpretation of a federal criminal statute. See, e.g., Mathis v. United States, 136 S. Ct. 2243 (2016); Rosemond v. United States, 134 S. Ct. 1240 (2014); Descamps v. United States, 133 S. Ct. 2276 (2013); Shilling v. United States, 561 U.S. 358 (2010); Carr v. United States, 560 U.S. 438 (2010); Chambers v. United States, 555 U.S. 122 (2009); United States v. Santos, 553 U.S. 507 (2008); Begay v. United States, 553 U.S. 137 (2008); Watson v. United States, 552 U.S. 74 (2007). When the Supreme Court narrows the scope of a federal statute—rendering persons in custody who stand convicted of conduct that is no longer criminal or who remain in custody beyond the maximum term authorized by law, as it did in Chambers, 555 U.S. at 130 (holding some forms of escape do not qualify as a “violent felony” under the Armed Career Criminal Act)—some defendants will be able challenge their unlawful confinement on direct review or in a first § 2255 motion to vacate. But for many defendants, like McCarthan, who exhausted his direct appeal and initial § 2255 motion before the change in law, there is no further review under § 2255. Federal law does not allow a second motion to vacate based on statutory interpretation. See 28 U.S.C. § 2255(h)(1)-(2) (limiting second and successive § 2255 motions to certain claims of factual innocence and claims relying on retroactive decisions from the Supreme Court on matters of “constitutional” law).
Thus, McCarthan filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 claiming that his 211-month ACCA sentence was illegal after Chambers busted circuit precedent that categorized him as an Armed Career Criminal at the time of his direct appeal and first § 2255 motion. McCarthan argued that § 2241 habeas relief was available because his first § 2255 motion was “inadequate and ineffective to test the legality of his detention” under the savings clause in § 2255(e). In the court below, the government agreed with McCarthan’s interpretation that the savings clause was available, but changed its position in the Supreme Court, concluding that the Eleventh Circuit’s en banc decision was correct. Sitting en banc, a sharply divided Eleventh Circuit joined the Tenth Circuit in holding “that a change in caselaw does not make a motion to vacate a prisoner’s sentence ‘inadequate or ineffective’” under the savings clause. McCarthan v. Director of Goodwil Industries-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017) (en banc) (citing Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) (Gorsuch, J.)).
Inapposite to the Tenth and Eleventh Circuits, nine circuit court of appeals recognize the ability of persons in federal custody to invoke the savings clause in § 2255(e) to seek relief under § 2241 where an intervening and retroactively applicable Supreme Court statutory-interpretation decision renders the prisoner’s continued custody illegal. See United States v. Barrett, 178 F.3d 34, 52 (1st Cir. 1999); Triestman v. United States, 124 F.3d 361, 363 (2d Cir. 1997); In re Dorsainvil, 119 F.3d 245, 248, 251 (3d Cir. 1997); In re Jones, 226 F.3d 328, 334 (4th Cir. 2000); Reyes-Requena v. United States, 243 F.3d 893,904 (5th Cir. 2001); Martin v. Perez, 319 F.3d 799, 805 (6th Cir. 2003); In re Davenport, 147 F.3d 605,611 (7th Cir. 1998); Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011); In re Smith, 285 F.3d 6, 8 (D.C. Cir. 2002).
So long as the circuit split exists, a federal prisoner’s ability to seek habeas relief will depend on the happenstance of where the Bureau of Prisons chooses to hold them in custody. Although § 2255 motions are filed in the sentencing court, § 2241 petitions must be filed in the district of confinement.
To view materials gathered by the Sentencing Resource Counsel Project, access the Sentencing Resource Counsel Project's Johnson v. United States web pages.