On a recent Friday evening, when all good decisions are made, the Department of Justice filed a brief in which it announced that it had changed its views on the scope of the so-called “savings clause.” The savings clause is an important but little-known statutory provision that allows federal prisoners to file “[a]n application for a writ of habeas corpus” if “the remedy” provided in section 2255 “is inadequate or ineffective to test the legality of [prisoners’] detention.” See 28 U.S.C. 2255(e) (“An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.”).

Section 2255 is the statutorily prescribed process through which a federal prisoner can argue, after her appeal has finished, that her “sentence was imposed in violation of the Constitution or laws of the United States” or that her “sentence was in excess of the maximum authorized by law.” Section 2255 ordinarily substitutes for writs of habeas corpus, and it limits prisoners’ ability to challenge their convictions and sentences in several respects. It imposes a strict statute of limitations. It also limits a prisoner’s ability to file multiple motions that challenge their convictions and sentences even as laws change and new information emerges about what happened in her case. Section 2255 authorizes successive motions only for some “newly discovered evidence” and only for some “new rule[s] of constitutional law,” both of which are restrictively defined by a Supreme Court that has, over the last several decades, dramatically limited prisoners’ avenues for relief.

The provision authorizing successive section 2255 motions, section 2255(h), does not authorize successive section 2255 motions based on intervening statutory decisions, rather than constitutional ones. Thus, it would seem that a federal prisoner who has been convicted based on a mistaken understanding of a statute, or sentenced to additional time based on a mistaken understanding of a statute, isn’t authorized to file a successive 2255 motion.

That doesn’t sit right for obvious reasons, so in cases like these, the savings clause is supposed to function as a backstop. The savings clause contemplates that some federal prisoners can file habeas petitions even though their motions for relief under section 2255 have been denied.

The government once argued in favor of such an interpretation. It supported the idea that section 2255(e) allows a prisoner to file a habeas petition where a subsequent decision of statutory interpretation eliminated a basis for the prisoner’s conviction or sentence--at least where a court of appeals had previously foreclosed relief for the prisoner under the statute due to its interpretation of the law under which the prisoner was convicted or sentenced. That all changed when the government filed its Friday night brief in Wheeler v. United States. For example, let's say a prisoner is sentenced to five additional years thanks to a judge's mistaken interpretation of a federal law, and the judge's interpretation is later determined to be mistaken. In that case, the government had argued that the prisoner can file a successive 2255 motion for her release.

That is no longer the case. In its brief in Wheeler v. United States, DOJ announced that it had “reconsidered its position regarding the availability of habeas relief” and “now believes … habeas relief is not available to a defendant who, after having been denied 2255 relief, seeks to assert a statutory challenge to his conviction or sentence.”

The government’s position is mistaken, as one of us (Leah) has noted in several writings. Fortunately, the Supreme Court has the opportunity to correct that interpretation because a now-pending petition for certiorari asks the Court to review one of the two court of appeals decisions that adopted what is now the government’s interpretation of section 2255. (The two courts of appeals opinions were written by now Justice Gorsuch and Judge Pryor, who was reportedly another finalist for the Supreme Court seat now occupied by Justice Gorsuch.) The Court should consider granting certiorari in that case, McCarthan v. Collins, not despite the government’s change in position but at least in part because of it.

There were already pretty good reasons for the Court to grant certiorari in McCarthan: The courts of appeals disagree about the meaning and scope of section 2255(e); there has been disagreement among the courts of appeals for some time; and questions about the scope of section 2255(e) are both recurring and important. The issue has come up in multiple recent cases out of the U.S. Court of Appeals for the Eleventh Circuit, and when it does, the question affects whether a prisoner serves more time in prison than the statute under which the prisoner was sentenced, as written, allows. In other words, the question determines whether prisoners serve extra time, possibly years, in prison absent authorization from any existing criminal statute.

The Significance Of the Government’s Change In Position

The government’s recent change in position provides even more reason for the Court to hear McCarthan. In previous cases, the government had argued that the Court need not review the scope of the savings clause because prisoners who are sentenced to more than the statutory maximum have a remedy under the savings clause. For example, in a 2014 DOJ brief in opposition to certiorari to a case coming out of the Eleventh Circuit, the government explained that “[t]he courts of appeals” “generally agree[] that “section 2241 relief may be available” “based on intervening statutory decisions,” including where a “decision of th[e] [Supreme] Court … establishes that the prisoner stands convicted of conduct that is not criminal,” or where a prisoner’s “sentence[] … erroneously exceed[s] the statutory maximum.” And, it noted, “[t]he Eleventh Circuit has granted relief in those circumstances for an erroneous sentence above the statutory maximum penalty.”

That’s no longer the case after the Eleventh Circuit’s decision in McCarthan. Under McCarthan, a prisoner who was sentenced under a mistaken interpretation of a statute and received an unlawful sentence will sit in prison until her unlawful sentence is complete, with no relief available to her.

The government's recent shift is opportunistic and conflicts with the government’s previous attempts to use the government’s views on the savings clause to fend off concerns about hardline, sentence-preserving interpretations of other statutory provisions that govern resentencing. For example, the government has leveraged its prior position on the scope of the savings clause as a reason for the Court to deny certiorari in other cases. In at least two briefs in opposition (Prost v. Anderson and Williams v. Hastings), the government represented that it agreed that a prisoner sentenced above the statutory maximum would have a remedy under the savings clause, but maintained that the prisoners in those cases were not sentenced above the statutory maximum (because the intervening Supreme Court decision did not actually affect the prisoner’s conviction or sentence). The government, in other words, has traded on its having a reasonable view about the scope of the savings clause to urge the Court not to review particular cases involving the savings clause.

The government has also leveraged its prior position on the scope of the savings clause to argue for particular interpretations of other provisions governing the scope of post-conviction review—interpretations that the Court ultimately adopted. For example, in its brief in Tyler v. Cain, a case addressing the scope of the limitations on successive petitions, the government represented that “[b]ecause of the availability of the ‘savings clause,’ there is no concern that federal prisoners who have a claim based on a new decision of this Court cutting back on the sweep of a criminal statute will lack a remedy.” The government’s change in position thus destabilizes the government’s prior representations about the availability of habeas relief for prisoners sentenced above the statutory maximum for their offense.

The Government And The Eleventh Circuit Are Wrong

The government and the Eleventh Circuit (which adopted the government’s view before the government did) are also wrong about the proper interpretation of the savings clause. (We won’t say all that we could on this topic, but if you’re interested, check out Rakesh Kilaru’s amicus brief for The Constitution Project, Leah’s Michigan Law Review online piece, her forthcoming Virginia Law Review piece, or any of the many other things she has to say about the savings clause….)

Section 2255 was enacted to streamline federal post-conviction, not narrow it. And the savings clause, which preserves the availability of habeas where section 2255 does not provide a remedy, was enacted at a time when prisoners could file successive motions so long as they did not “deliberately withhold[]” a claim “in the hope of being granted two hearings.” The savings clause and section 2255 preserved that state of affairs, which allowed federal prisoners to file successive motions where they were convicted or sentenced based on a misunderstanding of the relevant criminal statutes.

It would make little sense to interpret the Anti-Terrorism and Effective Death Penalty Act as supporting the government’s new position on the savings clause. AEDPA, which imposed restrictions on successive motions under section 2255 several decades after the enactment of the savings clause, did not purport to eliminate the savings clause’s stopgap. AEDPA did not repeal any part of the savings clause, including the part authorizing some petitioners to file habeas petitions that would be denied under section 2255. Implied repeals of statutes are typically disfavored, and they are further disfavored when they amount to implied repeals of jurisdictional statutes that also happen to concern writs of habeas corpus. Implied repeals are even more disfavored when they would raise serious constitutional concerns, as would a statute purported to forbid a federal prisoner from raising certain fundamental errors, such as the prisoner was convicted for conduct that isn’t criminal, or was sentenced, mistakenly, to more time in prison than a statute allows. (For some of the constitutional concerns with McCarthan’s interpretation of the savings clause, see Steve Vladeck and Carlos Vasquez’s recent Virginia Law Review article,The Constitutional Right to Collateral Post-Conviction Review.)

Section 2255(e), of course, does not permit a prisoner to file a habeas petition any time a prisoner could not file a successive motion under section 2255. But it also doesn’t, as the government now insists, mean that a prisoner can never file a habeas petition when the prisoner’s successive motion under section 2255 would be denied or has been denied. The government and the courts of appeals for the Tenth and Eleventh Circuit argue that section 2255(e) allows a prisoner to file a habeas petition if the court in which a prisoner is authorized to file a section 2255 motion (the court that sentenced the prisoner) no longer exists, or the prisoner is challenging the execution of his sentence. But that makes little sense of section 2255(e), which applies to “a prisoner who is authorized to apply for relief by motion pursuant to this section,” i.e., section 2255. Section 2255 authorizes prisoners to challenge sentences on the ground that they were “imposed in violation of the Constitution or laws of the United States” or “in excess of the maximum authorized by law,” not challenge the manner in which the sentence is executed. Section 2255(e) also authorizes petitioners to file habeas petitions where the “court which sentenced him … denied him relief,” a phrase which evinces Congress’s understanding that the court which sentenced the prisoner still exists.

The better interpretation of the savings clause is that it authorizes certain prisoners sentenced above the statutory maximum for their offense to file habeas petitions, at least in some circumstances. But at a minimum, the savings clause is ambiguous, which makes the constitutional concerns all the more relevant. And DOJ’s interpretation certainly raises constitutional concerns—it would force prisoners to remain in prison beyond the term of years that Congress has imposed for their crime, or to remain in prison for conduct that Congress has not criminalized.

Some Closing Notes

This post is already long, and we’ve gotten out the most important point—that the Court should seriously consider granting certiorari in McCarthan. But the government’s change in position, and the position of the courts of appeals that had adopted what is now the government’s position, raises some bigger picture issues as well.

One issue is what it means to suggest that a judge or justice is “good” for criminal procedure. When Justice Gorsuch was nominated, his supporters eagerly depicted him as someone who would be good for criminal defendants. He will, they note, narrowly interpret criminal statutes (thus criminalizing only the conduct that Congress actually prohibited), and recognize violations of constitutional criminal procedure by following his originalist bona fides (as he seems poised to do in Dimaya v. Sessions, where it appears he is inclined to find a statute unconstitutionally void for vagueness).

But recognizing violations of constitutional criminal procedure and narrowly interpreting criminal prohibitions is the first step. Enforcing rights requires there to be some remedy. McCarthan presents the question of whether federal prisoners have a remedy where a decision narrowly interprets a criminal statute according to its terms. In Prost v. Anderson, then-Judge Gorsuch said they do not.

Textualism is a good thing, perhaps particularly so in the context of interpreting criminal statutes. But to be workable, textualism has to acknowledge when words are ambiguous or vague, and susceptible to different meanings. The savings clause and other subsequently enacted provisions in section 2255 do not unambiguously foreclose habeas petitions where prisoners were convicted or sentenced based on mistaken interpretations of criminal statutes. DOJ’s argument that they do requires divorcing the word “remedy” from one of its generally accepted meanings — “relief.” That’s a hard sell, especially in the context of AEDPA, which (as individual Justices at argument and opinions of the Court have remarked) is hastily assembled and unclear in several respects. The Court has described its language as “not self-defining” and “not a silk pure in the art of statutory drafting.” And that’s nice compared to what commentators say about AEDPA!

A second issue is DOJ’s explanation for its change in position. In its brief in Wheeler, DOJ said that “[I]n light of subsequent developments, including persuasive decisions in Prost and McCarthan, the Department has reconsidered the issue.” Prost was decided in 2011. Did it really take six years for DOJ to read and internalize Prost? We think not. There’s also plenty of contrary evidence: The Department of Justice filed a brief in opposition to the certiorari petition in that case, in which it disagreed with the Tenth Circuit’s interpretation of the savings clause in Prost, and described it as “overly restrictive” and “depart[ing] from the other circuits to have addressed the issue.” DOJ also filed numerous other briefs in which it reiterated this disagreement with Prost’s interpretation of the savings clause.

McCarthan is recent enough that the Solicitor General hasn’t yet filed a brief explicitly disagreeing with the decision. But the Department of Justice has already effectively done so. McCarthan was issued after the Eleventh Circuit decided to take the case en banc, and after it explicitly ordered the parties to brief and argue whether the Eleventh Circuit’s “decisions in Bryant v. Warden…, Williams v. Warden…, Gilbert v. United States…, and Wofford v. Scott …. erroneously interpret” the savings clause. We know DOJ’s views on that question: DOJ filed a brief in the en banc proceedings arguing that the Court had not erroneously interpreted the savings clause. In prior filings of the Solicitor General, the SG approvingly cited several of those cases (Bryant and Wofford). And the en banc Eleventh Circuit announced that it was “join[ing] the Tenth Circuit[‘s]” interpretation of the savings clause, citing the Tenth Circuit’s decision in Prost v. Anderson, whose interpretation of the savings clause previous DOJs and SGs rejected several times over.

DOJ’s reasons for the change in its position make little sense. Neither does its position. Hopefully the Supreme Court will correct it.

@LeahLitman

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