on Nov 2, 2022
at 8:48 pm
On Tuesday, the court heard argument in Jones v. Hendrix, a case that exemplifies the Gordian knot that is the federal habeas corpus statute.
As I discussed in my case preview, the underlying problem the case presents is weighty: The petitioner, Marcus DeAngelo Jones, was convicted at trial of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and sentenced to more than 27 years’ incarceration. Two decades into his prison term, the Supreme Court decided in Rehaif v. United States that Section 922(g) requires the government to prove that the defendant knew he was prohibited from possessing a firearm. The government presented no such evidence at Jones’s trial – under the law at the time, it didn’t have to in order to sustain a conviction – and although he had 11 prior felony convictions, Jones testified that he believed his record had been expunged. Thus, Jones argues, he is serving a prison term for conduct that is not a crime.
Given that Jones long ago exhausted his appeals, the question before the justices is what procedural vehicle, if any, allows him to challenge his detention. And here is where things get complicated. The traditional route for such a challenge was a writ of habeas corpus. In 1948, Congress passed 28 U.S.C. § 2255, which funneled challenges to federal convictions and sentences into a “motion to vacate” before the sentencing court. Section 2255(e) – the statute’s “savings clause” – allowed prisoners to pursue a traditional habeas corpus petition in the judicial district of their imprisonment if the motion to vacate was “inadequate or ineffective to test the legality” of their detention.
In 1996, however, Congress passed the Anti-Terrorism and Effective Death Penalty Act, known as AEDPA, which amended the federal habeas statute, including Section 2255, to put strict limits on second or successive petitions – an attempt to bolster efficiency and finality by giving prisoners one shot to collaterally attack their conviction or sentence. Under Section 2255(h), a prisoner can bring a second or successive petition based only on facts that clearly demonstrate actual innocence or a new rule of constitutional law that the Supreme Court has made retroactive. There is no provision for new rules of statutory interpretation. The U.S. Court of Appeals for the 8th Circuit ruled that Jones couldn’t overcome the bar on successive petitions because Section 2255 was not inadequate or ineffective to test the legality of his detention, even though at the time he brought his first motion to vacate, a Rehaif-type claim was foreclosed by the law of that (and every other) circuit.
Arguing for Jones, Professor Daniel Ortiz of the University of Virginia School of Law led off by cataloging the various ways the 8th Circuit went wrong, including contravening the plain language of the savings clause by holding that having a “purely formal opportunity” to challenge one’s detention is sufficient to test its legality “whether the law applied is correct or wrong.” Chief Justice John Roberts began the questioning by acknowledging that both sides had a “conundrum” – the problem with Jones’s argument was that it was attempting to revise “the sort of claims that AEDPA wanted to preclude,” while the alternate view meant the statute has a savings clause that “doesn’t save anything.” Justice Sonia Sotomayor interjected to question why “the chief makes it an either/or.” She agreed that the savings clause “cannot be invoked every time [Section 2255(h)] applies without blowing it up,” but suggested that the courts of appeals had all embraced the “limiting principle” advanced by the government, which is that the savings clause is triggered when necessary to avoid a miscarriage of justice.
Justice Neil Gorusch – after a lengthy back-and-forth about a challenge to a court martial, which dissolves after it reaches a decision – noted that in the context of ineffective-assistance-of-counsel claims, courts frequently say “counsel was effective even if he lost.” “So why,” he asked, “should a victory be equivalent to effectiveness?” Ortiz responded that an effective and adequate remedy need not guarantee victory, but must guarantee “that the correct law be applied.”
Justice Ketanji Brown Jackson’s questioning proposed a way of reading the statute that relies on its overall structure, directing a court to go down a list of provisions like a roadmap of decision. “If we think about it in that way,” she noted, “then it’s sort of like [section] (e) is not really interacting with (h) and … saying anything about whether habeas rights would still exist for the purpose of this case.” Ortiz endorsed Jackson’s approach to reading the statute in this holistic, structural way.
The government’s position – supporting affirmance of the 8th Circuit’s decision but disagreeing with its reasoning – was presented by Deputy Solicitor General Eric Feigin. He argued that the savings clause does allow successive petitions where there has been a change in statutory law, but only where the defendant can demonstrate actual innocence based on all the facts in the record – not merely those presented at a trial where the prosecutor had no idea how the law might change 20 years later. Gorsuch questioned him about why the government had shifted its position about how best to read the statute, noting “the government’s position before 1998 appeared to be that of the petitioner’s,” “then, from 1998 to 2017, … the government took the opposite view,” and “now, for the first time, the government’s coming up with a completely new theory that no circuit court’s adopted and neither side in this litigation pursues.” Feigin responded, “I think your chronology, in candor, we’ve shifted around a little bit more,” prompting Gorsuch to quip, “I’ve been generous.” Feigin explained that the government’s current reading comports best with the statute and with the Supreme Court’s precedents. Justices Samuel Alito, Amy Coney Barrett, and Jackson all peppered him with questions about how the government’s reading would work in practice and how a district court would apply it to a variety of scenarios beyond a Rehaif claim.
The end of Feigin’s argument focused on what Congress intended when it created the exceptions to 2255(h)’s bar on successive petitions and did not include statutory claims, in response to questions from Sotomayor and Justice Elena Kagan. Feigin argued that Congress simply hadn’t made a judgment about such claims and the savings clause is there specifically to preserve “whatever the federal habeas remedy would allow,” including statutory claims. Kagan pointed out the anomaly that, by not being specifically covered by 2255(h), statutory claims would “face fewer procedural obstacles than … constitutional and factual claims.” Feigin responded that the government’s argument simply derives from the text of the statute, to which Kagan replied, “the question in the text I think is what the negative implication of 2255 is, and that’s the kind of critical issue.”
Morgan Ratner, who was appointed by the court to defend the 8th Circuit’s decision, picked up on this theme of the statute’s negative implication in her argument. She argued Congress was clear about what kinds of claims it wanted to allow in successive petitions: “Congress thought about when to allow new claims after intervening decisions of this court. It chose constitutional decisions and not statutory ones.” Both Jackson and Kagan pushed back on the notion that Congress was thinking about statutory claims at all. Kagan asked, “Why wouldn’t Congress have just said, ‘And these statutory claims are precluded’?” Ratner replied, “I think they would think it’s pretty obvious. When I tell my kids they can have a second snack but only if it’s fruits or vegetables, I don’t usually feel the need to say, but definitely not ice cream.” Sotomayor jumped in, “Yeah, a different situation,” and Jackson asked, “What if they had ice cream before?”
Sotomayor countered Ratner’s reading of the statute’s negative implication, saying “I’m reading the positive implications,” and arguing that the statute does not preclude traditional habeas relief which was always historically available to correct miscarriages of justice. Sotomayor later noted that that’s essentially what the savings clause says Congress was trying to do. Ratner responded that the procedural restrictions that AEDPA put in place – such as a one-year statute of limitations on filing a 2255 motion – would not make sense if a prisoner could get around them simply by petitioning for habeas relief once 2255 had become inadequate or ineffective because more than a year had passed. She acknowledged the justices’ concern about the harshness of AEDPA, but cited its prior precedents holding its provisions “are harsh, but they are not absurd” and so must be applied as written. She added that executive clemency serves as a “backstop” to that harshness.
Notably, throughout the argument, the liberal justices – Sotomayor, Kagan, and Jackson – asked the lion’s share of the questions and appeared to be doing the most work to untangle the Gordian knot. The court’s conservative majority was, by comparison, relatively muted (Alito and Barrett’s questions were narrowly focused, Justice Clarence Thomas asked just one brief question, and Justice Brett Kavanaugh asked none). Their lack of struggle may suggest that these justices are perfectly comfortable with a rigid application of AEDPA’s bar on successive petitions, even if that means prisoners like Jones have no meaningful vehicle to challenge their detention, and, as Roberts put it, the savings clause has “nothing to save.”