In habeas case, the liberal justices try to untangle a complex statute

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 Joness trial under the law at the time, it didnt 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 statutes 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 couldnt 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 ones 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 Joness 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 doesnt 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 Jacksons 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 its 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 Jacksons approach to reading the statute in this holistic, structural way.

The governments position supporting affirmance of the 8th Circuits 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 governments position before 1998 appeared to be that of the petitioners, then, from 1998 to 2017, … the government took the opposite view, and now, for the first time, the governments coming up with a completely new theory that no circuit courts adopted and neither side in this litigation pursues. Feigin responded, I think your chronology, in candor, weve shifted around a little bit more, prompting Gorsuch to quip, Ive been generous. Feigin explained that the governments current reading comports best with the statute and with the Supreme Courts precedents. Justices Samuel Alito, Amy Coney Barrett, and Jackson all peppered him with questions about how the governments 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 Feigins 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 hadnt 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 governments 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 thats the kind of critical issue.

Morgan Ratner, who was appointed by the court to defend the 8th Circuits decision, picked up on this theme of the statutes 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 wouldnt Congress have just said, And these statutory claims are precluded? Ratner replied, I think they would think its pretty obvious. When I tell my kids they can have a second snack but only if its fruits or vegetables, I dont 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 Ratners reading of the statutes negative implication, saying Im 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 thats 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 lions share of the questions and appeared to be doing the most work to untangle the Gordian knot. The courts conservative majority was, by comparison, relatively muted (Alito and Barretts 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 AEDPAs 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.