Jones v. Hendrix: An Attempt to Save 28 U.S.C. § 2255’s “Saving Clause”

What happens when the Supreme Court changes the interpretation of the law under which a federal inmate was convicted, such that the person would be innocent under that new interpretation? On November 1, the Supreme Court is set to hear argument in Jones v. Hendrix, 21-857, which asks the Court to resolve a circuit split regarding the scope of 28 U.S.C. § 2255(e). Section 2255(e), the so-called “saving clause,” allows federal inmates to collaterally challenge their convictions through traditional habeas actions under 28 U.S.C. § 2241 where “it appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [their] detention.” While most courts of appeals allow federal inmates to use the saving clause to bring habeas actions when the law under which they were convicted changes and those changes are retroactive, the Eighth, Tenth, and Eleventh Circuits do not. The particular circumstances of the Jones case may impact the Court’s treatment of the issue. 

In 1948, Congress largely replaced traditional habeas actions for federal inmates with 28 U.S.C. § 2255, which allows federal inmates to challenge their convictions “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, . . . or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” Id. § 2255(a). However, in a provision now located at § 2255(e), this so-called “motion to vacate” preserved federal inmates’ access to traditional habeas actions where a § 2255 motion “is inadequate or ineffective to test the legality of detention.” 

Case Background

In 2000, Petitioner Marcus DeAngelo Jones was convicted on one count of making false statements to acquire a firearm and two counts of possessing a firearm as a felon. See 18 U.S.C. §§ 922(a)(6), (g)(1). Jones later filed a motion to vacate his sentence under 28 U.S.C. § 2255. Although the district court initially dismissed his § 2255 motion, the Eighth Circuit reversed and remanded, finding that Jones’s trial counsel was ineffective for failing to object to multiple felon-in-possession counts as duplicative. United States v. Jones, 403 F.3d 604, 605 (8th Cir. 2005). On remand, the district court vacated one count of Jones’s felon-in-possession convictions and re-sentenced him but denied his requests for a new sentencing hearing, which the Eighth Circuit affirmed. See United States v. Jones, 185 Fed. App’x 541, 542 (8th Cir. 2006) (per curiam). 

Almost 20 years after Jones’ initial convictions, the Supreme Court held in Rehaif v. United States, 139 S. Ct. 2191 (2019) that for a conviction under § 922(g), the government must prove that “the defendant knew he possessed a firearm” and “that he knew he had the relevant status when he possessed it.” Id. at 2194. However, Jones could not use § 2255 to challenge his § 922(g) conviction based on Rehaif. Under § 2255(h), which was added through the passage of the Antiterrorism and Effective Death Penalty Act of 1996, a federal inmate must show either (1) “newly discovered evidence” or (2) “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” to file a second or successive § 2255 motion. 28 U.S.C. § 2255(h)(1)–(2). Here, Jones had already filed a § 2255 motion and did not fit into either exception under § 2255(h) because he could not point to new evidence and Rehaif was a statutory, not constitutional, decision.
  
Instead, Jones invoked § 2255(e) to bring a habeas action on the grounds that he was legally innocent under Rehaif because he did not know that he had the relevant status at the time that he possessed the firearm. Finding that the saving clause did not allow Jones to bring a habeas claim for a retroactive change in statutory interpretation, the district court dismissed Jones’s petition. Jones v. Hendrix, No. 2:19-cv-96-JTR, 2020 WL 10669427 (E.D. Ark. Jan. 24, 2020). 

The Eighth Circuit affirmed, joining only the Tenth and Eleventh Circuits in finding that the saving clause may not be used to seek habeas relief based on an intervening change in statutory interpretation. Jones v. Hendrix, 8 F.4th 683 (8th Cir. 2021). The Eighth Circuit reasoned that a § 2255 motion is not inadequate or ineffective to test the legality of Jones’ detention because he “could have raised his Rehaif-type argument either on direct appeal or in his initial § 2255 motion. Although our precedent was at that time against him, he nonetheless could have succeeded before the en banc court or before the Supreme Court. And, regardless, the question is whether Jones could have raised the argument, not whether he would have succeeded.” Id. at 687. In other words, because Jones could have brought a futile challenge to the conviction when Circuit law foreclosed relief on the merits, he could not now reap the benefits of a favorable decision overruling that Circuit law. While acknowledging that this situation leaves Jones in a “Catch-22,” the Eighth Circuit nonetheless explained that the saving clause guarantees a federal inmate’s opportunity to test the legality of their detention but does not guarantee a favorable outcome of such challenge. See id

The Parties’ Positions 

Petitioner. Jones argues that the Eighth Circuit misinterpreted the saving clause because, although he had a procedural opportunity to challenge his detention through a § 2255 motion, such challenge is “inadequate or ineffective” if the law of the Circuit forecloses consideration of the merits of a claim of legal innocence. See Jones v. Hendrix, No. 21-857, Pet. Br. at 16. Jones also argues that the Eighth Circuit’s reading of the saving clause renders the clause superfluous, contrary to a bedrock principle of statutory construction, because it would allow federal inmates to invoke the clause only in narrow circumstances where habeas relief would have been available anyway. Id. at 30. Further, Jones invokes the principle of constitutional avoidance, contending that if § 2241 is unavailable to raise a challenge to a conviction based on the retroactive application of a statutory ruling establishing an inmate’s innocence, then § 2255 is an unconstitutional suspension of the writ of habeas corpus. Id. at 34. 

Government. In response, the government defends the judgment of the Eighth Circuit but not its reasoning. While the government disagrees with the Eighth Circuit’s categorical bar, it contends that Jones’s position lacks “an apparent limiting principle” on the circumstances in which federal inmates could invoke the saving clause. Jones v. Hendrix, No. 21-857, Resp’t Br. at 10. Instead, the government argues that a federal inmate should be able to bring a traditional habeas action only where “he (1) contends that a new statutory interpretation decision of this Court establishes that his conduct was not criminal, and (2) establishes that he is actually innocent in light of the narrowed definition of the offense—that is, that no reasonable juror would vote to find him guilty in light of all available evidence.” Id. at 12. Accordingly, although the government agrees with Jones that Rehaif’s change in the statutory interpretation of § 922(g) could be used to invoke the saving clause, the government posits that few federal inmates will be able to demonstrate their actual innocence under that changed interpretation—i.e., that they “actually lacked knowledge of [their] prohibited status.” Id. at 33. Further, apparently concerned that the adoption of Jones’s position would overwhelm the courts with challenges from individuals convicted under § 922(g), a concern identified by several justices in Rehaif, the government adds that the record from Jones’s criminal proceeding shows that Jones himself cannot come close to meeting that standard, and thus should not be able to invoke the saving clause.
 
Appointed Amicus. After the Solicitor General notified the Court that the government would not defend the Eighth Circuit’s rationale, the Court appointed an as amicus curiae to brief the issue in support of the decision below. The Court-appointed amicus, Morgan L. Ratner, argues that allowing the saving clause to be used in these circumstances would constitute an end-run around § 2255(h)’s bar on successive motions. Ratner urges that allowing inmates to seek habeas relief under § 2255(e) where a retroactive ruling on statutory interpretation renders them legally innocent would contravene congressional intent by creating an implied third exception to the prohibition against successive § 2255 motions. Consistent with the lower court’s ruling, Ratner contends that a § 2255 motion is inadequate or ineffective to test the legality of an inmate’s detention only where “the sentencing court is not practically accessible or is not legally authorized to decide such a claim,” not where “the sentencing court incorrectly resolves a claim on the merits, or when the court dismisses a claim that fails to comply with Section 2255’s internal gatekeeping limits.” Jones v. Hendrix, No. 21-857, Amicus Br. at 10.

Conclusion

The Court’s decision could have significant implications for federal inmates nationwide. Adopting either Jones’s position or that of the Court-appointed amicus would help clarify what happens when an intervening decision of the Supreme Court regarding statutory interpretation is made retroactively applicable to federal inmates who have already challenged their convictions under § 2255. On the other hand, if the Court adopts the government’s view, it might conclude that Jones’s case does not really present the question identified in his petition and could leave its resolution to another day.

Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.

Author(s)
Alyssa Howard

Alyssa Howard Card
Associate
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Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.