On the narrow road to challenge a federal conviction, when is a vehicle “inadequate”?
on Oct 28, 2022 at 8:05 pm
On Tuesday, the justices will hear argument in Jones v. Hendrix, the latest in a string of cases that raise profound questions about the rights of prisoners who claim to be innocent to challenge their convictions. Last year, the court restricted the ability of state prisoners to develop new evidence to support claims that their attorneys failed to investigate leads that could have shown they were factually innocent. Jones involves a federal prisoner who is legally innocent – the conduct a jury found he committed isn’t a crime. But should that fact relieve him from his 27-year prison sentence?
In the Supreme Court’s habeas corpus jurisprudence, the answer is never simple. Indeed, the case comes before the court as a three-way split: The petitioner, Marcus DeAngelo Jones, challenged his conviction in a federal habeas petition under 28 U.S.C. § 2241, arguing that the “motion to vacate” his conviction provided by 28 U.S.C. § 2255 is inadequate to afford him relief. The U.S. Court of Appeals for the 8th Circuit ruled he cannot pursue a petition because he already filed a motion under Section 2255, which bars him from filing a successive petition, and he should have raised his claim earlier. The federal government – which prosecuted Jones – says the 8th Circuit got the reasoning wrong but the outcome right: It urges the Supreme Court to correct the lower court’s error but deny Jones relief.
Here is the background: 18 U.S.C. § 922(g) prohibits people with felony convictions from possessing a firearm. In 2019, the court ruled in Rehaif v. United States that to be convicted under the felon-in-possession statute, the government has to prove not only that the defendant knowingly possessed a gun, but that he knew he was prohibited from doing so. More than two decades earlier, Jones was charged with violating the statute and, at his trial, testified that while he knew he had previously been convicted of a felony, he believed his record had been expunged. Following the law at the time – again, two decades before Rehaif – the trial court instructed the jury to consider only whether Jones had been convicted of a felony and knowingly possessed a gun. He was convicted, and following its own binding precedent, the 8th Circuit affirmed.
Jones then challenged his conviction under Section 2255. That provision was part of a statute that largely replaced the common-law petition for habeas corpus with a “motion to vacate” a conviction or sentence. Subsection 2255(e) provides that habeas corpus is still available under Section 2241 if “the remedy by motion is inadequate or ineffective to test the legality of [the petitioner’s] detention” – a provision known as the savings clause. In 1996, however, Congress passed the Anti-Terrorism and Effective Death Penalty Act, which amended the habeas statute and bars prisoners from filing a second or successive motion to vacate, except under narrow circumstances where there is newly discovered evidence of factual innocence or a new rule of constitutional law that applies retroactively. By its terms, it doesn’t apply to new rules of statutory interpretation. Jones’s Section 2255 motion failed to overturn his conviction and sentence, and he then filed multiple successive motions, all of which the courts rejected under AEDPA’s bar.
After the Supreme Court decided Rehaif, Jones filed a petition for a writ of habeas corpus under Section 2241. He argued that his petition fell within the savings clause and should not be barred as a successive 2255 motion because Section 2255 had been “inadequate or ineffective to test the legality of his detention” under the 8th Circuit precedent that Rehaif overruled. The circuit court rejected his claim. It held that Jones could have raised his claim in his first motion to vacate. That he would have assuredly lost did not show there was anything “inadequate or ineffective” about the remedy of Section 2255; it was the governing law that was inadequate when Jones filed his first motion. To explain what it acknowledged was a “Catch-22,” the 8th Circuit provided a neat analogy:
Suppose John wants to attend a party sixty miles away that begins in one hour. His car can travel at sixty miles per hour. But the road on which he must travel has a speed limit of fifty miles per hour. Is John’s car adequate and effective to get John to the party on time? Yes. Presuming John in a law-abiding citizen, will John nonetheless be late? Probably. But the problem is the law, not the car.
Clever as this analogy may be, the 8th Circuit’s decision put it in the minority of a 7-2 circuit split, and the Supreme Court granted cert to resolve the conflict.
In his brief to the court, Jones argues that the 8th Circuit’s decision contains numerous flaws of statutory interpretation and raises constitutional concerns. Among its textual errors, he points out that a motion can hardly “test the legality of [one’s] detention” if the court deciding the motion applies the wrong substantive law. To “test” something is not simply to give it a “try.” It means, according to the full definition in the Oxford English Dictionary: “to try, to put to the proof, to ascertain the existence, genuineness, or quality of.” Simply having an opportunity to raise a claim challenging one’s detention doesn’t “put [the claim] to the proof.” In explaining this point, Jones deploys his own analogy: “A Covid ‘test’ that applied a pregnancy, not Covid, reagent might ‘test’ the subject for something but not for Covid.” Jones also argues that, if the 8th Circuit’s reading were adopted, it would effectuate a congressional suspension of habeas corpus, which the Constitution forbids “unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Representing Warden DeWayne Hendrix, the Solicitor General’s Office agrees with Jones that the 8th Circuit got its statutory interpretation wrong. It notes – as did Jones – that the savings clause’s text is in the present tense, the question being whether Section 2255 “is inadequate or ineffective to test the legality of [a prisoner’s] detention,” not whether it was adequate at the time the prisoner made his first motion. But the government nonetheless reads the statute more narrowly than Jones, arguing that his interpretation of “test” to require the correct substantive law would create an “expansive loophole” which would make the savings clause’s exception the default rule. In any event, the government argues that Jones is not entitled to relief because he is not factually innocent, and AEDPA was passed against a backdrop of “habeas principles” that required a petitioner to show actual innocence in order to raise a statutory claim in a second or successive filing. It points out that Jones had in fact been convicted of 11 felonies and had served a sentence of more than a year on five of them. Thus, the government argues, Jones’s Rehaif argument is bound to fail, because no reasonable jury would have found he did not know he was prohibited from possessing a firearm (though the actual jury never was asked that question).
The justices appointed Morgan Ratner of Sullivan & Cromwell, an alumna of the SG’s Office and former clerk to Chief Justice John Roberts and Justice Brett Kavanaugh, as amicus curiae in support of the 8th Circuit’s decision. She argues that the circuit court properly limited the scope of the savings clause because Congress passed it to allow a prisoner to petition a court in the district where he is incarcerated if the sentencing court is not available as a forum. Any broader reading, Ratner contends, would eviscerate the statute’s “internal gatekeeping” and nullify its limitation on the circumstances in which a prisoner can file a second or successive motion – a limitation that supports the interest of finality (though one can imagine the contrary rule would prompt prisoners to put every conceivable argument in their first 2255 motion, even those that are clearly precluded by current law). More broadly, Ratner urges that the court should “abandon the 25-year project to ‘fix’ AEDPA’s amendments” to the habeas statute “and mitigate any harsh results that they may generate.” And both the government and Ratner dismiss Jones’s constitutional concerns as insubstantial.
How is the court likely to rule? Dissenting in Rehaif, Justice Samuel Alito warned that “the decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms for § 922(g) convictions,” whose applications for relief will “swamp the lower courts.” Although he wrote for only himself and Justice Clarence Thomas, one suspects that the conservatives who joined the Rehaif majority – Roberts, Kavanaugh, and Justice Neil Gorsuch (Justice Amy Coney Barrett was not yet on the court) – may nonetheless be open to concluding that prisoners like Jones cannot reap the benefit of their ruling. With rare exceptions, the court’s conservative majority has exalted finality over the fairness of individual proceedings – and did so long before the current 6-3 supermajority (as Justice Harry Blackmun noted in a dissent more than 30 years ago, “one searches the majority’s opinion in vain … for any mention of petitioner’s right to a criminal proceeding free from constitutional defect”). And though it will mean that defendants like Jones continue to serve time in prison for conduct that the court has said is not criminal, AEDPA’s bar on second or successive petitions provides a vehicle for that result. This car is good for just one ride.