United States v. Raymond Surratt, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6851
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAYMOND ROGER SURRATT, JR.,
Defendant – Appellant.
--------------------------
STEVEN HARRIS GOLDBLATT,
Court-Assigned Amicus Counsel,
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; DOUGLAS A.
BERMAN, Professor,
Amici Supporting Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:04−cr−00250−RJC−19; 3:12−cv−00513−RJC)
Argued: January 27, 2015 Decided: July 31, 2015
Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit
Judges.
Affirmed by published opinion. Judge Agee wrote the majority
opinion, in which Chief Judge Traxler joined. Judge Gregory
wrote a dissenting opinion.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. Erika L. Maley, SIDLEY AUSTIN
LLP, Washington, D.C., for Amici Curiae. Steven Harris
Goldblatt, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C.,
as Court-Assigned Amicus Counsel. ON BRIEF: Ross Hall
Richardson, Executive Director, Joshua B. Carpenter, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee. Douglas A. Berman, Professor of Law,
THE OHIO STATE UNIVERSITY, Columbus, Ohio; Jeffrey T. Green,
Kimberly A. Leaman, SIDLEY AUSTIN LLP, Washington, D.C., for
Amici Curiae. Ruthanne M. Deutsch, Supervising Attorney, Utsav
Gupta, Student Counsel, William Hornbeck, Student Counsel,
Meredith Wood, Student Counsel, Appellate Litigation Program,
GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Court-
Assigned Amicus Counsel.
2
AGEE, Circuit Judge:
In 2005, after pleading guilty to conspiracy to distribute
cocaine, Raymond Surratt was sentenced to life imprisonment. We
affirmed his conviction and sentence on appeal, and Surratt’s
motion to vacate his conviction and sentence under 28 U.S.C.
§ 2255 was likewise denied. Neither Surratt’s direct appeal nor
his § 2255 motion questioned the legality of his mandatory life
sentence.
Several years later, Surratt returned to this Court and
asked for permission to file a second or successive § 2255
motion. Surratt’s request was premised on United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), which in turn
overruled our prior decision in United States v. Harp, 406 F.3d
242 (4th Cir. 2005). Had Surratt been sentenced after Simmons,
he would have faced a lower mandatory minimum sentence than the
mandatory life term that he actually received. Surratt
maintained that this difference entitled him to be resentenced.
But Congress set out certain conditions that must be met before
a successive motion may be permitted, and Surratt did not meet
those required conditions. See 28 U.S.C. § 2255(h). We
therefore denied him permission to file a successive motion.
See In re Surratt, No. 12-283 (4th Cir. Sept. 13, 2012), ECF No.
6.
3
In the district court, Surratt had simultaneously filed a
petition for a writ of habeas corpus under 28 U.S.C. § 2241
seeking the same Simmons-based relief. As a federal prisoner,
however, Surratt cannot challenge his conviction and sentence
under § 2241 unless 28 U.S.C. § 2255(e) -- also called the
“savings clause” -- applies. The district court concluded that
§ 2255(e) did not in fact confer jurisdiction to consider
Surratt’s claim in a § 2241 petition, so it denied Surratt’s
petition.
Surratt now appeals from the judgment of the district
court. We are not unsympathetic to his claim; like the dissent,
we recognize the gravity of a life sentence. However, Congress
has the power to define the scope of the writ of habeas corpus,
and Congress has exercised that power here to narrowly limit the
circumstances in which a § 2241 petition may be brought.
Surratt’s petition does not present one of the permitted
circumstances. Accordingly, we agree that the district court
lacked jurisdiction under § 2255(e) to consider Surratt’s § 2241
petition and affirm the judgment below.
I.
In 2004, a grand jury indicted Surratt on several drug-
related counts, including conspiracy to possess with intent to
distribute cocaine and cocaine base in violation of 21 U.S.C.
4
§§ 841(b)(1)(A) and 846. The Government then filed a timely
information indicating that it would seek enhanced penalties
based on Surratt’s criminal history. The Government’s
information identified four previous drug-related convictions,
each in North Carolina: (1) a 1996 conviction for felony
possession of cocaine; (2) a 1997 conviction for felony
possession of cocaine; (3) a 1997 conviction for felony
possession of cocaine and maintaining a place for storage or
sale; and (4) a 1998 conviction for sale and delivery of
cocaine. If two or more of these convictions constituted
“felony drug offense[s],” then Surratt faced a mandatory term of
life imprisonment without release. See 21 U.S.C.
§ 841(b)(1)(A).
Four months after his indictment, and despite the prospect
of a life sentence, Surratt pleaded guilty to the conspiracy
count. He acknowledged in his written plea agreement that the
district court could not impose a sentence below any statutory
minimum unless the United States sought a reduction for
substantial assistance. He also waived any rights to further
appeals, save in a few narrow circumstances. Surratt did not
stipulate, however, to any prior felony drug convictions.
After Surratt’s plea, but before his sentencing, we decided
United States v. Harp, 406 F.3d 242 (4th Cir. 2005), which held
that a North Carolina drug conviction qualified as a “felony
5
drug offense” if “the maximum aggravated sentence that [the
state court] could [have] imposed for that crime upon a
defendant with the worst possible criminal history” exceeded one
year. Id. at 246. Under Harp, all Surratt’s prior convictions
constituted felony drug offenses. Therefore, unless Surratt
offered substantial assistance to the Government, Surratt faced
a mandatory life sentence.
The district court sentenced Surratt to life imprisonment
in October 2005. Initially, the court expressed some misgivings
about a life sentence and questioned whether a different
sentence would apply had it been free to consider the factors
listed in 18 U.S.C. § 3553(a). But the Government had declined
to move for any substantial-assistance reduction, as it regarded
Surratt’s cooperation as “halfhearted . . . at best.” J.A. 223.
Consequently, the district court determined that it was
“required” to impose the life sentence “because of [Surratt’s]
prior criminal history and his engagement in this drug
trafficking and, for whatever reasons, his inability to render
substantial assistance.” J.A. 222. We affirmed Surratt’s
sentence on appeal. United States v. Surratt, 215 F. App’x 222,
224 (4th Cir. 2007). Surratt did not raise any claim in his
direct appeal as to his mandatory life sentence.
Surratt then moved for post-conviction relief under 28
U.S.C. § 2255 in April 2008. In that motion, Surratt claimed
6
that he had received ineffective assistance of counsel during
his initial plea and sentence, and further sought a sentence
reduction based on an amended Sentencing Guideline. He did not
challenge his mandatory minimum sentence. The district court
denied and dismissed the motion. Surratt v. United States, Nos.
3:08cv181, 3:04cr250, 2011 WL 815714 (W.D.N.C. Feb. 25, 2011).
We denied Surratt’s request for a certificate of appealability.
United States v. Surratt, 445 F. App’x 640, 640 (4th Cir. 2011).
More than three years after Surratt filed his first § 2255
motion, we decided Simmons. Overruling Harp, the Simmons en
banc majority held that a prior North Carolina conviction will
constitute a felony for purposes of an enhanced punishment only
if the prior conviction was actually punishable for more than
one year of imprisonment as to that defendant. 649 F.3d at 241.
Surratt and the Government agree that only one of Surratt’s
prior convictions would qualify as a “felony drug offense” under
Simmons.
Seeking to take advantage of Simmons, Surratt sought relief
in both this Court and the district court in August 2012. He
first asked this Court to permit him to file a second or
successive § 2225 motion. Because Surratt’s motion fell outside
the statutorily enumerated exceptions permitting that type of
motion, see 28 U.S.C. § 2255(h), we denied him permission to
file. See In re Surratt, No. 12-283 (4th Cir. Sept. 13, 2012),
7
ECF No. 6. On the same day that he filed that request, Surratt
also moved in the district court to vacate his sentence under
§§ 2241 and 2255, or for writ of coram nobis. Surratt
maintained that, in light of Simmons, he was “innocent” of the
career offender enhancement and was a victim of fundamental
error. In particular, Surratt argued that he should not have
been subject to a mandatory life sentence. The Government did
not oppose Surratt’s § 2241 request.
Despite the parties’ agreement, the district court denied
Surratt’s motion. Surratt v. United States, Nos. 3:04–CR–250–
19, 3:12–CV–513, 2014 WL 2013328 (W.D.N.C. May 16, 2014).
Although it again expressed misgivings about Surratt’s mandatory
life sentence, the court determined that a federal prisoner may
use § 2241 to seek relief that § 2225(h) would otherwise bar
only when a substantive change in the law coming after an
initial § 2255 petition rendered the prisoner’s original offense
conduct “non-criminal.” Id. at *1. Because Surratt challenged
only his sentence, the court concluded that he could not
establish that Simmons rendered any of his conduct “non-
criminal.” Therefore, he could not obtain relief under § 2241.
Surratt appealed, arguing that the district court should
have permitted him to proceed under § 2241. The Government
agreed and also elected not to enforce the appeal waiver in
Surratt’s plea agreement. Therefore, in light of the
8
Government’s position, we appointed amicus curiae to defend the
district court’s judgment.
II.
In the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Congress circumscribed the ability of federal
prisoners to request post-conviction relief. See Rhines v.
Weber, 544 U.S. 269, 274 (2005). Section 2555 provides the
ordinary means for a federal prisoner to challenge his
conviction or sentence. But in AEDPA, Congress limited the
jurisdiction of federal courts to hear second or successive
requests under § 2255. See, e.g., In re Weathersby, 717 F.3d
1108, 1110 (10th Cir. 2013) (“Congress placed strict limitations
on second or successive motions under § 2255[.]”). ∗
Specifically, courts may hear second or successive
petitions only if they pertain to (1) “newly discovered evidence
. . . [clearly and convincingly establishing] that no reasonable
factfinder would have found the movant guilty of the offense” or
(2) “a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h). We have already held that
∗ Throughout our opinion, we have omitted any internal
marks, citations, emphasis, or footnotes from quotations unless
otherwise noted.
9
Surratt’s claim does not fall into either of these categories,
so § 2255(h) does not permit him to file a second or successive
motion under § 2255.
If a federal prisoner cannot meet § 2255(h)’s requirements,
then he may seek to file a traditional petition for writ of
habeas corpus under 28 U.S.C. § 2241. But that right carries
significant limits as well. Specifically, a prisoner “may file
a habeas petition under § 2241 only if the collateral relief
typically available under § 2255 ‘is inadequate or ineffective
to test the legality of his detention.’” Prousalis v. Moore,
751 F.3d 272, 275 (4th Cir. 2014) (quoting 28 U.S.C. § 2255(e)).
If a federal prisoner brings a § 2241 petition that does not
fall within the scope of this “savings clause,” then the
district court must dismiss the “unauthorized habeas motion . .
. for lack of jurisdiction,” Rice v. Rivera, 617 F.3d 802, 807
(4th Cir. 2010), even if the Government supports the prisoner’s
position.
Surratt is a federal prisoner who means to file a § 2241
petition for post-conviction relief. Therefore, we must assess
whether § 2255 is “inadequate or ineffective to test the
legality of his detention.” 28 U.S.C. § 2255(e). We consider
that question de novo. See Yi v. Fed. Bureau of Prisons, 412
F.3d 526, 530 (4th Cir. 2005). We have jurisdiction over this
appeal under 28 U.S.C. § 1291.
10
III.
A.
We have determined that § 2255 was inadequate or
ineffective in only one prior instance. In that case,
petitioner Byron Jones argued that Bailey v. United States, 516
U.S. 137 (1995), rendered his convictions for “use” of a firearm
during a drug offense invalid. In re Jones, 226 F.3d 328, 329
(4th Cir. 2000). Bailey had overruled this circuit’s
understanding of what it meant to “use” a firearm, id. at 330
(citing Bailey, 516 U.S. at 143), and Jones contended that his
conduct therefore did not amount to “use” under Bailey’s reading
of the term, id. at 334. Jones, however, had already filed a
§ 2255 motion before Bailey, and § 2255(h) barred him from
filing another one. Id. at 330. We decided to award relief,
deeming § 2255 “inadequate or ineffective to test the legality
of a conviction” when:
(1) at the time of conviction, settled law of this
circuit or the Supreme Court established the legality
of the conviction; (2) subsequent to the prisoner’s
direct appeal and first § 2255 motion, the substantive
law changed such that the conduct of which the
prisoner was convicted is deemed not to be criminal;
and (3) the prisoner cannot satisfy the gatekeeping
provisions of § 2255 because the new rule is not one
of constitutional law.
Jones, 226 F.3d at 333-34.
In short, Jones opened a narrow gateway to § 2241 relief
for certain prisoners found actually innocent of their offenses
11
of conviction, allowing relief only where the acts for which the
defendant was convicted are not a crime. Since then, we have
focused on this aspect of Jones -- actual innocence of a
criminal act -- when characterizing the decision. See, e.g.,
Farrow v. Revell, 541 F. App’x 327, 328-29 (4th Cir. 2013);
Darden v. Stephens, 426 F. App’x 173, 174 (4th Cir. 2011); Rice,
617 F.3d at 807; United States v. Poole, 531 F.3d 263, 267 n.7
(4th Cir. 2008). Other circuits also give substantial attention
to the actual innocence aspect of Jones when discussing it.
See, e.g., Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253,
1280 (11th Cir. 2013); Abernathy v. Wandes, 713 F.3d 538, 546
n.7 (10th Cir. 2013); Stephens v. Herrera, 464 F.3d 895, 898
(9th Cir. 2006); Abdullah v. Hedrick, 392 F.3d 957, 962 (8th
Cir. 2004); Cephas v. Nash, 328 F.3d 98, 104 n.6 (2d Cir. 2003);
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.
2001).
The dissent mistakenly tries to read the actual innocence
requirement out of Jones. That course ignores the clear
limitation in Jones that, before the case can be used to invoke
§ 2255(e), the law must have changed “such that the conduct of
which the prisoner was convicted is deemed not to be criminal.”
226 F.3d at 334. The caveat wasn’t accidental, but drew from
the fundamental recognition that actual innocence of a crime is
different from other circumstances. Indeed, Jones “agree[d]
12
with the rationale” of other courts that made this principle
even more explicit. Id. at 333; see, e.g., Triestman v. United
States, 124 F.3d 361, 378-79 (2d Cir. 1997) (permitting a Bailey
claim to be brought via § 2241 in part because of the
constitutional issues that would arise from refusing to hear an
actual-innocence claim); see also Jones, 226 F.3d at 333 n.3
(“[T]hese courts have focused on the more fundamental defect
presented by a situation in which an individual is incarcerated
for conduct that is not criminal[.]”). Were the dissent’s
approach right, Jones would permit any federal prisoner to bring
any non-constitutional claim via § 2241 in any instance where
the law relevant to that claim changed in the petitioner’s favor
at any time. That hardly describes “a limited number of
circumstances” in which § 2255(e) would apply. Jones, 226 F.3d
at 333.
B.
Jones simply does not apply here, as Surratt is not
innocent of anything. All parties agree that Simmons did not
decriminalize any part of Surratt’s underlying conduct. Surratt
admits that he conspired to distribute drugs, the offense for
which he was convicted.
He nevertheless argues that his predicate convictions
constitute elements of a separate, aggravated offense for
recidivists. If that proved true, we might say that Surratt was
13
not guilty of the prior conviction “element,” and therefore
innocent of the recidivist offense. Yet we do not treat a prior
conviction “as an element of [the] offense.” Almendarez-Torres
v. United States, 523 U.S. 224, 247 (1998); see also Alleyne v.
United States, 133 S. Ct. 2151, 2160 & n.1 (2013). Indeed, “the
[Supreme] Court has consistently held that recidivism is not an
element of the triggering crime[.]” Appleby v. Warden, N. Reg’l
Jail & Corr. Facility, 595 F.3d 532, 539 (4th Cir. 2010). Many
good reasons justify this principle: recidivism does not
directly relate to the underlying charged conduct, courts may
judicially notice convictions, prior convictions could prejudice
the defendant if the Government put them before the jury, and
courts have treated recidivism as a sentencing factor for over
200 years. See United States v. Cheek, 415 F.3d 349, 353-54
(4th Cir. 2005); see also Jones v. United States, 526 U.S. 227,
248-49 (1999).
Surratt insists that his sentence enhancements are
different. They are not. We have treated the predicate
convictions described in § 841 as sentencing enhancements, not
elements of a separate crime. See, e.g., United States v.
Smith, 451 F.3d 209, 224 (4th Cir. 2006); accord Jeanty v.
Warden, FCI-Miami, 757 F.3d 1283, 1286 (11th Cir. 2014); United
States v. Ramirez, 714 F.3d 1134, 1141 (9th Cir. 2013). The
Government did not charge the predicate convictions here in the
14
indictment. And, had the case gone to trial, it would not have
put them before a jury and proven them beyond a reasonable
doubt.
We also do not believe that Alleyne altered the
longstanding rule treating predicate convictions as
enhancements, not elements. Alleyne held only that a jury must
find certain facts that increase a mandatory minimum sentence.
133 S. Ct. at 2155. How Alleyne would apply here remains
something of a mystery, as the parties do not identify any
authority indicating that the case could apply retroactively on
collateral review. Quite the contrary: courts have held that
Alleyne does not apply retroactively. See United States v.
Olvera, 775 F.3d 726, 730 (5th Cir. 2015) (“We reiterate that
Alleyne does not apply retroactively. This decision accords
with that of every circuit to have examined the issue, none of
which has decided that Alleyne is retroactive.”).
Regardless, Alleyne held that facts other than a prior
conviction that increase a mandatory minimum amount to
“elements” of the crime. 133 S. Ct. at 2160-63. The Supreme
Court has specifically refused to apply this reasoning to prior
convictions. Id. at 2160 & n.1. So, “Almendarez-Torres remains
good law,” even after Alleyne. United States v. McDowell, 745
F.3d 115, 124 (4th Cir. 2014).
15
To say “that a petitioner can be ‘actually innocent’ of a
sentencing enhancement,” rather than an element of the actual
crime, “would require a great deal of both verbal and logical
gymnastics.” Turner v. Warden Coleman FCI (Medium), 709 F.3d
1328, 1334 n.3 (11th Cir. 2013); see also, e.g., Marrero v.
Ives, 682 F.3d 1190, 1193 (9th Cir. 2012) (“[For purposes of the
savings clause,] a petitioner generally cannot assert a
cognizable claim of actual innocence of a noncapital sentencing
enhancement.”); In re Davenport, 147 F.3d 605, 609 (7th Cir.
1998) (explaining that “it would make an arbitrary hole in the
Antiterrorism Act” if the court were to accept an actual-
innocence argument about “a sentence-enhancement statute”); cf.
In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011) (“[A] claim of
actual innocence of a career offender enhancement is not a claim
of actual innocence of the crime of conviction and, thus, not
the type of claim that warrants review under § 2241.”).
The traditional view of actual innocence focuses on the
elements of the crime of conviction, see United States v.
Mikalajunas, 186 F.3d 490, 494 (4th Cir. 1999), and nothing in
Jones deviates from that settled approach. Cf. Sawyer v.
Whitley, 505 U.S. 333, 341 (1992) (remarking that, “[i]n the
context of a noncapital case, the concept of ‘actual innocence’
is easy to grasp,” as it means the defendant did not commit the
charged crime). Jones, after all, concerned “conduct . . .
16
deemed not to be criminal,” not conduct that remains criminal
but subject to a lesser penalty. Jones, 226 F.3d at 334; see
also United States v. Jones, 758 F.3d 579, 586 (4th Cir. 2014)
(“Innocence of conviction implicates the notion that a person
has been incarcerated for a crime he did not commit, whereas a
sentencing error does not at all implicate guilt.”). The
Supreme Court, too, has not said that conduct is rendered
“lawful” merely because the penalty for it is reduced. Schriro
v. Summerlin, 542 U.S. 348, 354 (2004), for example, found that
Ring v. Arizona, 536 U.S. 584 (2002), did not “render[] some
formerly unlawful conduct lawful or vice versa,” even though
Ring affected the length of sentences for some prisoners. So
too here: Surratt remains as guilty today as he was in 2005.
C.
We recognize that we have applied broader concepts of
actual innocence in other contexts. In United States v.
Pettiford, 612 F.3d 270 (4th Cir. 2010), drawing on earlier
cases, we said that a defendant might establish “actual
innocence” sufficient to excuse his procedural default if “the
defendant clearly showed that he had not committed the crime on
which the calculation of his [recidivist] sentence was based.”
Id. at 283-84; see also Mikalajunas, 186 F.3d at 494-95; United
States v. Maybeck, 23 F.3d 888, 892 (4th Cir. 1994). In other
words, Pettiford and its predecessors suggested that, as to
17
procedural default, a defendant might be “actually innocent”
even if he is only innocent of a predicate conviction, not just
the offense of conviction. But we have also explained that
Pettiford’s view of actual innocence should be confined to its
original context. Pettiford developed in the judge-made realm
of procedural default, where we enjoy more latitude to shape our
own rules and doctrines. We deal here, however, with a
congressionally imposed statutory constraint that is not so
amenable to ad hoc, judge-made exceptions. See Jones, 758 F.3d
at 586 (holding that movant could not evade the § 2255(f)(4)
statute of limitations by claiming “actual innocence of his
sentence”). We are especially reluctant to blaze broad pathways
to § 2255(e) relief given that the provision constitutes only a
“narrow exception.” Cleaver v. Maye, 773 F.3d 230, 232 (10th
Cir. 2014); accord Bryant, 738 F.3d at 1283; Hill v. Werlinger,
695 F.3d 644, 647-48 (7th Cir. 2012); Trenkler v. United States,
536 F.3d 85, 98 (1st Cir. 2008).
Even if we apply Pettiford’s broader view, however, we
still cannot call Surratt “actually innocent.” “[A]ctual
innocence,” the Supreme Court has told us, “means factual
innocence, not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623 (1998); see also United States v.
Tyler, 732 F.3d 241, 246 (3d Cir. 2013) (“While Bousley
addressed the standard that a petitioner must meet for claims
18
brought under § 2255, this standard applies equally to actual
innocence claims brought under § 2241.”). So, “actual innocence
applies in the context of habitual offender provisions only
where the challenge to eligibility stems from factual innocence
of the predicate crimes, and not from the legal classification
of the predicate crimes.” Pettiford, 612 F.3d at 284; accord
Damon v. United States, 732 F.3d 1, 5-6 (1st Cir. 2013); McKay
v. United States, 657 F.3d 1190, 1199 (11th Cir. 2011). Surratt
does not suggest that he did not commit the crimes listed in the
Government’s original information. He only says Simmons changed
the relevance of those crimes in determining his later sentence.
Surratt’s argument constitutes the sort of argument about “legal
classification” that we have deemed insufficient.
IV.
Although Jones does not present a portal through which
Surratt may pass to obtain post-conviction relief, Jones is not
the exclusive route to § 2255(e) relief in all situations. As
the Government observes, we “had no occasion” in Jones “to
consider whether sentencing errors” like the one claimed here
“are redressable under the savings clause.” Gov’t Br. 23; see
also Illinois v. Lidster, 540 U.S. 419, 424 (2004) (explaining
that “general language in judicial opinions” must be read “as
referring in context to circumstances similar to those then
19
before the Court”). We must examine the text of the savings
clause to decide whether the statute can afford Surratt any
relief. See United States v. Neuhauser, 745 F.3d 125, 128 (4th
Cir. 2014) (starting with the text in a question of statutory
interpretation).
The parties principally discuss whether Surratt’s case
presents a “fundamental miscarriage of justice” and then assume
that this characterization could trigger the savings clause.
Certainly, in deciding whether to provide relief in an initial
§ 2255 motion, we have considered whether a non-constitutional
error “involves a fundamental defect which inherently results in
a complete miscarriage of justice.” Mikalajunas, 186 F.3d at
495; see also, e.g., United States v. Martinez, 139 F.3d 412,
417 n.* (4th Cir. 1998). But we have never tied this
“miscarriage” standard to the entirely separate question of
relief via the savings clause.
Such an approach would confuse the question of
cognizability (that is, what motions may be brought via § 2241
generally) with the separate question that we address here (that
is, what § 2241 claims are barred by § 2255(e)). And the
“miscarriage” standard addresses a different question in still
another way. In particular, the Court adopted the “fundamental
defect” and “miscarriage” standard as a way of identifying those
cases where a petitioner’s failure to bring his claim in his
20
initial direct appeal could be excused. See Reed v. Farley, 512
U.S. 339, 354 (1994). In contrast, § 2255(e) applies to
prisoners who failed to bring their claims twice before: on
direct appeal and in their initial § 2255 motion. Thus, an
interpretation of § 2255(e) focusing on a “miscarriage of
justice” “is less an argument for interpreting § 2255 than it is
one for amending § 2255.” Prost v. Anderson, 636 F.3d 578, 597
(10th Cir. 2011); accord Williams v. Warden, Fed. Bureau of
Prisons, 713 F.3d 1332, 1346 (11th Cir. 2013) (calling the
“miscarriage of justice standard” “plainly inapplicable” to the
question of whether § 2255(e) forecloses a particular § 2241
petition); Perez v. Stephens, 593 F. App’x 402, 403 (5th Cir.
2015) (“Perez’s argument that the actual innocence and
miscarriage of justice standards provide an exception to the
§ 2255 savings clause requirement fails[.]”).
As an appellate court, we are not in the business of
amending statutes. See Dodd v. United States, 545 U.S. 353, 359
(2005) (indicating that the court was “not free to rewrite the
statute that Congress has enacted” even though the restrictions
on § 2255 petitions created “the potential for harsh results in
some cases”). And holding that the “miscarriage of justice”
standard opens the § 2255(e) portal would not just ignore the
text of that section -- it would also erase the limitations on
21
initial motions and “second or successive” motions found in
§§ 2255(f) and (h).
We hold that § 2255(e)’s text does not permit Surratt to
raise his claim under § 2241. And although the dissent insists
that we act “without any textual basis,” dissenting op. at 73,
we observe at least four separate textual factors -- in addition
to the relevant provisions’ context and purpose -- that
establish that Surratt’s claim is foreclosed.
A.
The savings clause first tells us that “the remedy by [a
§ 2255] motion [must be] inadequate or ineffective to test the
legality of [Surratt’s] detention” before he can proceed under
§ 2241. 28 U.S.C. § 2255(e) (emphasis added). We find
Congress’s deliberate use of the word “test,” rather than a more
expansive term like “guarantee” or “ensure,” very meaningful.
To “test” means to “put to the proof.” Oxford English
Dictionary (2d ed. 1989). In other words, the statutory text
anticipates the opportunity to raise a challenge or argument.
See, e.g., Wag More Dogs, Ltd. Liab. Corp. v. Cozart, 680 F.3d
359, 365 n.3 (4th Cir. 2012) (equating the government’s ability
“to test the plausibility of the claim” with its ability to
raise the relevant argument and offer particular evidence); NLRB
v. Inter-City Advertising Co., 154 F.2d 244, 246 (4th Cir. 1946)
(saying that an employer had no way “to test” an administrative
22
determination where it had no legal avenue to object).
Therefore, “the clause is concerned with process -- ensuring the
petitioner an opportunity to bring his argument -- not with
substance -- guaranteeing nothing about what the opportunity
promised will ultimately yield in terms of relief.” Prost, 636
F.3d at 584; see also Taylor v. Gilkey, 314 F.3d 832, 835 (7th
Cir. 2002) (agreeing that § 2255(e)’s use of the term “test”
“implies a focus on procedures rather than outcomes”). We too
have focused on the “opportunity” or “unobstructed procedural
shot” afforded by § 2255, not on the ultimate result of a motion
under that section, in defining the scope of the savings clause.
Rice, 617 F.3d at 807. We have stressed that § 2255(e) will not
permit an individual’s § 2241 petition “merely because [the]
individual has been unable to obtain relief under [§ 2255] or
because an individual is procedurally barred from filing a
§ 2255 motion.” In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir.
1997). In § 2255, Congress meant to provide a chance to be
heard, not a right to prevail on any particular argument. See,
e.g., Cleaver, 773 F.3d at 233 (offering an example of
permissible savings clause relief in which “the original
sentencing court has been abolished or dissolved and the
petitioner has nowhere to file a § 2255 petition”).
Surratt clearly could have “test[ed]” the legality of his
detention in his initial § 2255 motion. Surratt also chose to
23
forego any challenge to his mandatory sentence on direct appeal.
At both steps, then, he had the opportunity to claim that a
lower mandatory sentence should have applied because he did not
qualify as a two-time drug felon. His choice to focus his
§ 2255 motion on claims of ineffective assistance of counsel
proves most important here, as he cannot complain of his
inability to “test” his detention in a post-conviction
proceeding when § 2255 offered him that chance and he declined
to take it. “A prisoner cannot be permitted to lever his way
into section 2241 by making his section 2255 remedy
inadequate[.]” Morales v. Bezy, 499 F.3d 668, 672 (7th Cir.
2007).
But Surratt protests that “the basis for [his] claim was
foreclosed by circuit precedent at the time[.]” Opening Br. 20.
That argument fails for at least two reasons.
As a factual matter, we cannot know whether Surratt’s claim
might have led to relief because he never made it. We do know
that “many defendants . . . filed suits prior to Simmons
asserting the exact same substantive claim that [Surratt] now
raises, including, of course, Simmons himself.” Whiteside v.
United States, 775 F.3d 180, 186 (4th Cir. 2014) (en banc)
(collecting cases). And indeed, “[t]he nature of statutory
interpretation requires that someone present the argument before
the courts can define the law” or, as in Simmons, change it.
24
Bryan Florendo, Prost v. Anderson and the Enigmatic Savings
Clause of § 2555: When Is A Remedy By Motion “Inadequate or
Ineffective”?, 89 Denv. U.L. Rev. 435, 454 (2012).
As a legal matter, courts do not permit petitioners special
favors because the petitioners misjudged their claims as futile
and chose not to present them in the first instance. In fact,
the Supreme Court has held a “dismissive” attitude toward “the
contention that an argument’s legal futility is the same as a
court’s inability to entertain the argument[.]” Brown v.
Caraway, 719 F.3d 583, 598 (7th Cir. 2013) (Easterbrook, J.,
statement concerning the circulation under Circuit Rule 40(e)).
In the procedural default context, for instance, “futility
cannot constitute cause if it means simply that a claim was
unacceptable to that particular court at that particular time.”
Bousley, 523 U.S. at 623. Futility also provides no basis to
toll § 2255’s statute of limitations. See Whiteside, 775 F.3d
at 185; Minter v. Beck, 230 F.3d 663, 666-67 (4th Cir. 2000)
(same). The same principle applies here: “[t]he § 2255 remedial
vehicle was fully available and amply sufficient to test the
argument, whether or not [Surratt] thought to raise it.” Prost,
636 F.3d at 589. Admittedly, through Simmons, “a shift in the
law . . . has given increased relevance to a point made at the
trial but not pursued on appeal.” Sunal v. Large, 332 U.S. 174,
182 (1947). But to permit this shift to open the gate to habeas
25
relief would render “litigation in these criminal cases . . .
interminable.” Id.; cf. Whiteside, 775 F.3d at 186 (noting that
the “myriad of substantive changes in law past the point of
finality” would cause “a tectonic shift of resources” if courts
treated them as enough to evade procedural bars).
Section 2255(e) means to preserve a prisoner’s “remedy,”
not his “relief.” See, e.g., Tolliver v. Dobre, 211 F.3d 876,
878 (5th Cir. 2000) (“We join our sister circuits that have held
that a prior unsuccessful § 2255 motion . . . do[es] not make
§ 2255 inadequate or ineffective.”). This distinction is
reflected in other portions of the habeas statutes, where
“remedy” similarly means an avenue or mechanism for relief, not
the relief itself. See § 2254(b)(1)(A) (referring to exhaustion
of state “remedies”); see also Vial, 115 F.3d at 1194 n.5
(referring to § 2255’s “remedy” as separate from its “relief”).
That distinction likewise implies that what matters is the
ability to make the request, not the ability to win it.
These reasons aside, we note that substantial practical
difficulties could follow if we held that a prisoner could not
“test” his detention because adverse circuit precedent once
“foreclosed” his claim. Neither Surratt nor the Government
informs us, for instance, how clear circuit precedent must be
before it “forecloses” the prisoner’s claim. Perhaps, under the
parties’ approach, analogous precedent might do; perhaps not.
26
Nor do they tell us why our precedent alone “forecloses” an
argument even though Supreme Court review remains available.
And they do not explain when the foreclosure must arise. We
find it better to avoid these questions by adhering to a more
direct understanding of “test.”
As Jones reflects, our interpretation of “test” yields in
cases involving actual innocence of the crime of conviction.
“[A] thorny constitutional issue” could result if “no other
avenue of judicial review [were] available for a party who
claims that s/he is factually or legally innocent as a result of
a previously unavailable statutory interpretation[.]” In re
Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997); accord Triestman,
124 F.3d at 378-79; cf. Davis v. United States, 417 U.S. 333,
346-47 (1974). “For under our federal system it is only
Congress, and not the courts, which can make conduct criminal.”
Bousley, 523 U.S. at 620-21. Generally, “courts will construe
[a] statute to avoid [constitutional] problems unless such
construction is plainly contrary to the intent of Congress.”
United States v. Hamilton, 699 F.3d 356, 367 (4th Cir. 2012).
Therefore, we read Jones as an outgrowth of this constitutional
avoidance doctrine. But because Surratt presents no genuine
claim of actual innocence of the crime of conviction, no “thorny
constitutional issues” arise here.
27
B.
In much the same way as “test,” the statute’s references to
inadequacy and ineffectiveness tell us that § 2255(e) preserves
only the chance to request relief, not the ultimate and absolute
right to obtain it.
We see this notion in cases evaluating whether other
“substitute” habeas remedies are adequate and effective. In
Swain v. Pressley, 430 U.S. 372 (1977), the Supreme Court
examined a provision of the District of Columbia Code that
channeled collateral review of convictions in the Superior Court
of the District of Columbia back into that court (rather than
through federal courts via habeas review). In finding the
provision adequate and effective, the Court focused on the
opportunity that the statute afforded, including the relief that
the prisoner could request and the manner in which the court
would consider his request. Id. at 381-84. Similarly, in
Boumediene v. Bush, 553 U.S. 723 (2008), the Court analyzed
whether combatant status review tribunals afforded an adequate
and effective substitute to habeas corpus for enemy combatants
held at Guantanamo Bay, Cuba. The Court again concentrated on
the “opportunity” that the substitute offered -- not on the
outcome, id. at 779, asking whether the “sum total of procedural
protections” sufficed, id. at 783. These cases both make the
same fundamental point: the chance to argue a claim is the
28
relevant criterion for adequacy and effectiveness, not any
particular disposition of that claim.
When discussing “effectiveness” and “adequacy” in other
areas of the law, we likewise focus on processes, not outcomes.
We do not declare that counsel rendered “ineffective” assistance
any time his particular argument fails and the client loses.
Similarly, a state’s appellate procedures satisfy the Fourteenth
Amendment’s guarantee to an “adequate and effective” appeal so
long as those procedures provide certain minimum safeguards.
See Smith v. Robbins, 528 U.S. 259, 276-84 (2000). When
deciding whether we can enjoin a state criminal prosecution, we
also must pass on whether the party seeking relief “has an
adequate remedy at law.” Trainor v. Hernandez, 431 U.S. 434,
440 (1977). In doing so, we consider whether the movant has an
“opportunity to raise and have timely decided . . . the federal
issues involved.” Id. at 441. These and other examples suggest
that we should not assess § 2255’s effectiveness by weighing the
historic outcome under that motion against the outcome we would
reach today in an initial appeal from trial. We should instead
ask only whether the procedures in § 2255 provided a genuine
opportunity for the petitioner to raise his present claim.
Surratt never suggests that the § 2255 mechanism denied him
a chance to make his present argument. At best, he says only
that our pre-Simmons reading of § 841(b)(1)(A) did. See Prost,
29
636 F.3d at 590 (“[W]henever legal error occurs it may very well
mean circuit law is inadequate or deficient. But that does not
mean the § 2255 remedial vehicle is inadequate or ineffective to
the task of testing the argument.”). We understand Surratt’s
reluctance to attack § 2255 head-on, as courts have upheld the
statute as an adequate and effective means to challenge the
detention of a federal prisoner for some 60 years. United
States v. Hayman, 342 U.S. 205, 219 (1952). But the point
remains: no deficiency in § 2255 itself precluded Surratt from
lodging his sentencing challenge, so we cannot call § 2255
“inadequate” or “ineffective” here.
C.
The savings clause also focuses on the “legality” of the
relevant detention. Especially in the post-conviction context,
courts have recognized “unlawful” or “illegal” sentences in a
narrow subset of cases. Actual innocence of the crime of
conviction may present that sort of a case, as courts have long
understood that “[a]n imprisonment under a judgment” becomes
“unlawful” if “that judgment be an absolute nullity.” Ex parte
Watkins, 28 U.S. (3 Pet.) 193, 203 (1830). And a sentence
imposed above the proper statutory maximum might present another
instance of an unlawful sentence, as “the power . . . to
prescribe the punishments to be imposed upon those found guilty
of [federal crimes] resides wholly with the Congress.” Whalen
30
v. United States, 445 U.S. 684, 689 (1980); see also United
States v. Addonizio, 442 U.S. 178, 186 (1979); accord Sun Bear
v. United States, 644 F.3d 700, 705 (8th Cir. 2011) (“An
unlawful or illegal sentence is one imposed without, or in
excess of, statutory authority.”); United States v. Gonzalez-
Huerta, 403 F.3d 727, 739 n.10 (10th Cir. 2005) (“[T]he term
‘illegal sentence’ is reserved for those instances where the
term of incarceration exceeds the statutory maximum[.]”).
As we explained in another context, though, “not every
[proceeding] alleging a legal error in sentencing challenges
that sentence as ‘illegal.’” United States v. Thornsbury, 670
F.3d 532, 539 (4th Cir. 2012). We have said that “illegal”
sentences “involve[] much more fundamental issues -- such as
challenges claiming a district court exceeded its authority,
claiming that a sentence was based on a constitutionally
impermissible factor such as race, or claiming a post-plea
violation of the right to counsel.” Id. In like manner, the
Supreme Court explained that a sentence was “not illegal” where,
among other things, “[t]he punishment meted out was not in
excess of that prescribed by the relevant statutes [and]
multiple terms were not imposed for the same offense.” Hill v.
United States, 368 U.S. 424, 430 (1962); accord United States v.
Pavlico, 961 F.2d 440, 443 (4th Cir. 1992).
31
In accordance with this view, courts largely have not
recognized an “illegal” detention -- one that would trigger the
savings clause -- where the defendant challenges a sentence
within the correct statutory maximum. See, e.g., United States
v. Powell, 691 F.3d 554, 563 (4th Cir. 2012) (King, J.,
dissenting in part and concurring in part) (indicating that a
sentence would be “lawful” if it “falls within the unenhanced
statutory maximum”). The Sixth Circuit noted this general rule,
for example, in holding that the defendants’ sentence-focused
claims did not “fall within any arguable construction” of the
savings clause. United States v. Peterman, 249 F.3d 458, 462
(6th Cir. 2001). The Eleventh Circuit likewise held that a
federal prisoner could not bring a claim that “would otherwise
be barred by § 2255(h)” in a § 2241 petition where the asserted
error “resulted in a longer sentence not exceeding the statutory
maximum.” Gilbert v. United States, 640 F.3d 1293, 1323 (11th
Cir. 2011) (en banc); see also Bryant, 738 F.3d at 1288 (“[A]ny
§ 2241 challenge to a sentence that is already below the
authorized statutory maximum could not open the § 2255(e)
portal.”); accord Trenkler, 536 F.3d at 99 (labeling
petitioner’s claim “incompatible with engagement of the savings
clause” where he did “not charge that [his] life sentence [wa]s
beyond the statutory maximum for the crimes of conviction”).
For a time, at least, even the Government agreed that a federal
32
prisoner could not attack a sub-maximum sentence through a
§ 2241 petition. See Wilson v. Wilson, No. 1:11cv645 (TSE/TCB),
2012 WL 1245671, at *3 n.2 (E.D. Va. Apr. 12, 2012) (quoting the
“position of the United States” that “savings clause relief is
foreclosed for an erroneous sentence within the statutory
maximum”). That view also comports with § 2255’s scope, which
provides sentencing relief only in cases involving “violations
of statutes establishing maximum sentences.” United States v.
Pregent, 190 F.3d 279, 284 (4th Cir. 1999).
This widely held view of “legality” should foreclose
Surratt’s claim. He never suggests that he received a sentence
above the applicable statutory maximum. He cannot. All parties
agree that Surratt has at least one prior felony drug
conviction, regardless of Simmons. A defendant like Surratt who
violates 21 U.S.C. §§ 841 and 846 after a single “prior
conviction for a felony drug offense has become final . . .
shall be sentenced to a term of imprisonment which may not be
less than 20 years and no more than life imprisonment[.]” 21
U.S.C. § 841(b)(1)(A).
Surratt often emphasizes that his sentence is “without
parole,” but that does not create any special issue. In the
present federal system, life imprisonment is equivalent to life
without parole in every case. See Richmond v. Polk, 375 F.3d
309, 316 (4th Cir. 2004) (“[T]he Sentencing Reform Act of 1984
33
abolished parole for federal offenses committed after November
1, 1984[.]”); see also 18 U.S.C. § 3624(b) (stating that
prisoners serving life sentences are not entitled to a deduction
for good time credits). When Congress abolished parole in 1984,
it essentially “translate[d] every life sentence into life
without possibility of parole.” United States v. Gonzalez, 922
F.2d 1044, 1051 (2d Cir. 1991). Thus, Surratt’s life sentence
does not exceed the maximum that the district court could have
imposed had Simmons been issued before Surratt’s sentencing. In
other words, Surratt’s sentence does not offend the limits of
punishment, such that we could question his detention’s
“legality.”
Tacitly recognizing the weakness of his position under the
majority view, Surratt urges us to adopt a distinct minority
view that he considers “persuasive.” Opening Br. 22 (citing
Brown, 719 F.3d 583).
But even under this outlier decision, Surratt cannot
prevail. In Brown, the Seventh Circuit permitted a prisoner to
challenge the length of his sentence through a § 2241 petition
even though that sentence fell below the statutory maximum. Id.
at 588. But Brown concerned a pre-Booker sentence imposed under
the formerly mandatory Guidelines regime. See id. (stressing
that the defendant was sentenced in “the pre-Booker era” (citing
United States v. Booker, 543 U.S. 220 (2005)). For the Seventh
34
Circuit, this historical fact made all the difference, as it
believed that -- at least when courts treated the Guidelines as
mandatory -- “the only lawful sentence was a [G]uidelines
sentence.” Id. Regardless of whether the Seventh Circuit
correctly characterized the former Guidelines regime (and we
need not say here whether it did, see Gilbert, 640 F.3d at 1306-
07), its view on the savings-clause issue exists in harmony with
the approach taken by all other courts. Quite simply, the
Seventh Circuit believed that it could permit a § 2241 petition
because, at least pre-Booker, an unjustified above-Guidelines
sentence equated to a sentence above the statutory maximum. The
top of the Guidelines range provided the relevant maximum
sentence, and Brown’s sentence exceeded the pre-Booker maximum
Guidelines sentence. In contrast, in cases involving the post-
Booker advisory Guidelines, even the Seventh Circuit recognizes
that courts cannot correct sentencing errors in post-conviction
proceedings, under § 2241 or otherwise, if the sentence “is
below the statutory maximum.” Hawkins v. United States, 706
F.3d 820, 823 (7th Cir. 2013).
Here, the district court sentenced Surratt under the post-
Booker, advisory Guidelines scheme. As a result, his life
sentence does not exceed the statutory maximum sentence, and
even Brown would afford him no relief. Thus, we cannot deem his
detention “illegal.”
35
D.
Pointing to the savings clause’s reference to “detention,”
Surratt suggests Congress meant to permit claims like his. But
Congress used the term “sentence” in some portions of § 2255,
see 28 U.S.C. § 2255(a)-(b), and “conviction” or “offense” in
other parts, id. §§ 2255(f)(1), (h)(1). It chose not to use
those terms in the savings clause, id. § 2255(e), and we “are
obligated to give effect to Congress’s decision to use different
language in proximate subsections of the same statute.” United
States v. Brandon, 247 F.3d 186, 190 (4th Cir. 2001). We think
the statutory term “detention” is yet another textual indication
that § 2255(e) bars Surratt’s petition; it draws a line not
between conviction and sentencing challenges, but between
permissible challenges to executive acts and impermissible
challenges to the acts of other branches of government.
“Detention” concerns the act of physically confining or
restraining an individual. See, e.g., Oxford English Dictionary
(2d ed. 1989) (“Keeping in custody or confinement.”); Black’s
Law Dictionary (10th ed. 2014) (“The act or an instance of
holding a person in custody; confinement or compulsory delay.”).
Physical confinement stands separate and apart from the
sentence, and some detentions that may give rise to a habeas
petition do not follow criminal sentences at all. Pre-trial
detentions provide one common example, see 18 U.S.C. § 3142(e),
36
but other instances come to mind, including detentions in
instances of civil contempt, detentions in connection with
immigration proceedings, detentions of material witnesses, or
civil detention of sexually dangerous persons, see Neuhauser,
745 F.3d at 125-31. Rather than being tied in all cases to a
sentence as criminal punishment, then, § 2255(e)’s reference to
“detention” speaks to physical restraint of a person’s liberty.
In contrast to the rendering of a criminal sentence by the
judiciary, the physical holding of a federal prisoner represents
an executive function, a “keeping back or withholding” by the
executive branch. See Samak v. Warden, FCC Coleman-Medium, 766
F.3d 1271, 1280 (11th Cir. 2014) (Pryor, J., concurring). The
Attorney General, acting through the Bureau of Prisons, acts as
the “detainer,” and the sentencing court does not involve itself
in keeping the prisoner restrained. See 18 U.S.C. § 3621(a)
(explaining that the Bureau of Prisons has the responsibility to
detain a person “who has been sentenced to a term of
imprisonment . . . until the expiration of the term imposed, or
until earlier released for satisfactory behavior”); see also,
e.g., Janko v. Gates, 741 F.3d 136, 141 (D.C. Cir. 2014)
(agreeing with a party’s concession that “courts ordinarily
don’t detain people”). We see this concept in action in those
instances where Congress precluded the sentencing court from
involving itself too much in the ongoing aspects of a detention.
37
See United States v. Wilson, 503 U.S. 329, 334 (1992) (holding
that a sentencing court may not calculate credit for time
already spent in custody, as that task belongs to the Attorney
General); see also, e.g., United States v. Ceballos, 671 F.3d
852, 855 (9th Cir. 2011) (“[T]he [sentencing] court has no
jurisdiction to select the place where the sentence will be
served. Authority to determine place of confinement resides in
the executive branch of government[.]”).
Even the venue provisions of §§ 2241 and 2255 reflect an
executive versus non-executive dichotomy. A petitioner must
bring his § 2241 petition in the district of confinement, where
the court can summon the warden to defend his actions. In
contrast, a petitioner must move for § 2255 relief before the
district court that sentenced him, where the sentencing court
and the original prosecuting United States Attorney may bring
their expertise to bear.
A challenge to “detention” through § 2255(e) should
therefore focus on acts of the executive branch, rather than the
judicial branch. See Munaf v. Geren, 553 U.S. 674, 693 (2008)
(“Habeas is at its core a remedy for unlawful executive
detention.”); INS v. St. Cyr, 533 U.S. 289, 301 (2001) (same);
accord Samak, 766 F.3d at 1291 (Pryor, J., concurring);
Trenkler, 536 F.3d at 96. Hence, a § 2241 attack on “detention”
lodged through § 2255(e) should entail a challenge to (1) the
38
right and authority of the executive to keep the individual in
custody; or (2) the manner in which the executive executes the
detention. That reading serves the historic purposes of the
writ as well. Boumediene, 553 U.S. at 745 (“The [Suspension]
Clause protects the rights of the detained by affirming the duty
and authority of the Judiciary to call the jailer to account.”).
Focusing on the executive’s power of restraint draws a
clear line -- a line consistent with long-accepted petitions
under § 2241. For example, we have previously noted that § 2241
petitioners can challenge the Bureau of Prison’s calculation of
good time credits. See Yi, 412 F.3d at 530. That makes sense:
if a prisoner deserves good-time credits but the Bureau of
Prisons denies them, then an error by the executive may cause
the warden to hold the prisoner without authority -- that is,
beyond the time prescribed by Congress and the sentencing court.
See Preiser v. Rodriguez, 411 U.S. 475, 487 (1973) (finding that
prisoners’ petition concerning good-time credits “fell squarely
within th[e] traditional scope of habeas corpus” because “[t]hey
alleged that the deprivation of their good-conduct-time credits
was causing or would cause them to be in illegal physical
confinement” (emphasis added)). Similarly, when federal
sentencing allowed for parole, § 2241 provided a vehicle to
challenge parole revocation. See Vial, 115 F.3d at 1194 n.5. A
pre-trial detainee might also invoke § 2241 if he is not timely
39
arraigned or tried; in that situation, the warden’s acts of
continuing to detain the prisoner could render the detention
improper under the Fifth and Sixth Amendments. See United
States v. Tootle, 65 F.3d 381, 383 (4th Cir. 1995). And the
same principle may explain our decision in Jones: if a change in
law renders the prisoner’s conduct “non-criminal,” then the
warden would have no authority to hold the now-innocent
defendant.
Contrast these commonly accepted claims with Surratt’s
present one, which has little to do with any executive-branch
action. By all accounts, the warden is holding Surratt under a
validly entered sentencing order. Surratt does not suggest that
the warden is violating his statutory or constitutional rights.
And the warden is detaining Surratt pursuant to a sentence that
Congress empowered the district court to impose -- that is, a
sentence within the statutory limits. Surratt’s petition does
not therefore attack any act of detention by the executive
branch. Thus, Congress would not have expected federal
prisoners to bring this type of a claim in a § 2241 petition via
the savings clause.
E.
The broader context of § 2255 further convinces us that
Surratt cannot invoke § 2241. “[S]tatutory construction is a
holistic endeavor, and we therefore must evaluate the statutory
40
language itself, the specific context in which such statutory
language is used, and the broader context of the statute as a
whole.” R.H. Donnelley Corp. v. United States, 641 F.3d 70, 76
(4th Cir. 2011). Particularly in post-conviction proceedings
like this one, context often proves decisive. See, e.g.,
Taylor, 314 F.3d at 836 (relying in part on the “history” of
§ 2255(e) to reject a putative § 2241 petition).
If Surratt were permitted to raise his sentencing challenge
in a § 2241 petition, we would thwart almost every one of the
careful limits that Congress placed on post-conviction
challenges to a federal prisoner’s sentence. And we would do so
in a broad class of cases. Quite simply, “Congress would have
accomplished nothing at all in its attempts -- through statutes
like AEDPA -- to place limits on federal collateral review.”
Triestman, 124 F.3d at 376. This comprehensive conflict between
Surratt’s view and so many different parts of the statute
convinces us that we are not “pick[ing] and choos[ing]” some
parts of the statute over others, as the dissent alleges.
Instead, we are simply “constru[ing] all parts to have meaning.”
United States v. Briley, 770 F.3d 267, 273 (4th Cir. 2014).
If we embraced Surratt’s position, then the limits found in
§ 2255(h) would first fall. That section provides that a
prisoner may bring a second or successive § 2255 motion only if
the prisoner (1) produces newly discovered evidence of actual
41
innocence; or (2) relies upon “a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” 28 U.S.C. § 2255(h).
The prisoner cannot bring his second or successive motion until
we grant him a certificate of authorization indicating that the
motion satisfies one of these two conditions. Id. “When
Congress adopted § 2255(h), it was undoubtedly aware that
prisoners might wish to press other sorts of arguments,” that
is, arguments other than actual innocence or constitutional
error, “in second or successive motions.” Prost, 636 F.3d at
585. Nevertheless, Congress decided to bar those “other”
arguments outright. Surratt, however, means to bring one of the
very claims that Congress foreclosed, albeit under a different
caption. That course would produce an illogical, if not absurd,
result: § 2255(h)’s restrictions would continue to apply to
prisoners bringing Congressionally preferred claims, while no
restrictions would apply to prisoners bringing claims that
Congress did not contemplate at all. Surratt’s version of
§ 2255(e) would then return us, at least in part, to the pre-
AEDPA world, where “prisoners [could] file as many collateral
attacks as they please[d], provided that they [did]n’t abuse the
writ.” Taylor, 314 F.3d at 836.
Moreover, Surratt premises his claim on a circuit-level
decision, even though § 2255(h) specifically states that only a
42
retroactive Supreme Court decision should open the door to
successive relief. No court has permitted a petitioner to bring
a claim via the savings clause premised only on a change in
circuit-level authority. Instead, the available authority all
requires Supreme Court precedent. See Tyler, 732 F.3d at 246
(listing an “intervening Supreme Court decision” as one of
several facts required to bring a claim via the savings clause);
Kenemore v. Roy, 690 F.3d 639, 641 (5th Cir. 2012) (stating that
a claim brought via the savings clause must be “based on a
retroactively applicable Supreme Court decision”); Davenport,
147 F.3d at 611 (noting an “obvious” “qualification[]” that a
“change of law” could not qualify a prisoner to seek § 2241
relief unless “the change of law [w]as . . . made retroactive by
the Supreme Court”); Wofford v. Scott, 177 F.3d 1236, 1245 (11th
Cir. 1999) (“[T]he only sentencing claims that may conceivably
be covered by the savings clause are those based upon a
retroactively applicable Supreme Court decision overturning
circuit precedent.”).
Holding otherwise would elevate circuit court precedent to
the level of retroactive Supreme Court precedent without any
congressional authority to do so. The Government once
recognized this point, too. See Brief for the Respondent in
Opposition at 14, Williams v. Hastings, 135 S. Ct. 52 (2014)
(No. 13-1221), 2014 WL 3749512 (arguing that the savings clause
43
applies to petitions raising certain sentencing errors “when the
error is revealed by a retroactively applicable decision of [the
Supreme] Court”). In pressing a contrary position, the best
case the dissent can summon is one in which another circuit
court permitted a § 2241 petition to be brought based on an
assumedly retroactive Supreme Court decision. See Light v.
Caraway, 761 F.3d 809, 814 (7th Cir. 2014). Given that
Surratt’s case involves no Supreme Court decision at all, that
case strikes us as irrelevant.
Surratt’s concept of retroactivity produces other anomalous
results. Under his approach, a petitioner invoking a new
statutory interpretation from the Fourth Circuit could file
immediately for § 2241 relief, with no need to wait for a
declaration of retroactivity. Meanwhile, a petitioner invoking
a new constitutional rule promulgated by the Supreme Court would
have to wait for an explicit statement from that court rendering
the rule retroactive. See Tyler v. Cain, 533 U.S. 656, 663
(2001) (“The new rule becomes retroactive, not by the decisions
of the lower court or by the combined action of the Supreme
Court and the lower courts, but simply by the action of the
Supreme Court.”). We “resist attributing to Congress an
intention to render a statute so internally inconsistent.”
Greenlaw v. United States, 554 U.S. 237, 251 (2008).
44
Movants under § 2255 must also comply with a one-year
statute of limitations, 28 U.S.C. § 2255(f), and this provision
would also fall victim to Surratt’s view. A prisoner hamstrung
by § 2255(f) could file a § 2241 petition, as § 2241 contains no
statute of limitations. We only recently held, en banc, that
the supposed futility of raising a Simmons-like claim before we
decided Simmons would not permit an untimely § 2255 motion
raising that sort of claim. See Whiteside, 775 F.3d at 184-87.
But if Surratt proved correct, then that decision would mean
next to nothing. A different caption on his otherwise time-
barred petition would permit the federal prisoner to go forward.
Were we to adopt Surratt’s view, the differing venue
provisions in § 2241 and § 2255 would also invite mischief in
circumstances like these. A prisoner sentenced in this circuit
would file his initial § 2255 motion here. If that motion
failed, and the prisoner happened to be held in a different
circuit (as so often happens in the federal prison system), then
the prisoner could seek relief via § 2241 in that circuit. One
of two unusual things would then happen: the § 2241 court would
either apply the law of a different circuit to assess where the
prisoner’s petition stands, see, e.g., Samak, 766 F.3d at 1275
n.3, or it would apply its own law, see, e.g., United States v.
Wyatt, 672 F.3d 519, 523 (7th Cir. 2012). Either way, any
number of inconsistent results could flow from this disjointed
45
approach. By contrast, if challenges like Surratt’s are
confined to the § 2255 motions, then only the sentencing court
will consider them, and the motion will only implicate our
circuit’s law.
Surratt’s interpretation of the savings clause would also
have strange implications for appeal rights. “Congress has the
power to preclude any appeal from an order dismissing a writ of
habeas corpus, since a party to a suit has no vested right to an
appeal.” United States v. Brooks, 245 F.3d 291, 293 (3d Cir.
2001). And Congress exercised that power: a § 2255 movant
cannot appeal the district court’s decision on his motion unless
the district or circuit court first grants a certificate of
appealability. See 28 U.S.C. § 2253(c)(1)(B). That certificate
only issues when the movant has “made a substantial showing of
the denial of a constitutional right.” See id. § 2253(c)(2);
see also Jennings v. Stephens, 135 S. Ct. 793, 807 (2015)
(Thomas, J., dissenting) (“One of the key ways in which AEDPA
encourages finality is to narrow the scope of appellate review
by requiring habeas petitioners to obtain [certificates of
appealability].”). So, a § 2255 movant who raises a Simmons-
claim might be unable to appeal because his claim does not
present constitutional issues. See United States v. Hadden, 475
F.3d 652, 665 (4th Cir. 2007) (“[B]ecause a [certificate of
appealability] will not issue for allegations of non-
46
constitutional error, he would not be able to obtain appellate
review of any purely statutory errors at his sentencing[.]”);
accord Young v. United States, 523 F.3d 717, 718 (7th Cir.
2008); United States v. Christensen, 456 F.3d 1205, 1206 (10th
Cir. 2006); Mateo v. United States, 310 F.3d 39, 41-42 (1st Cir.
2002); United States v. Brooks, 230 F.3d 643, 646 (3d Cir.
2000). But § 2241 contains no such limits on appeal.
Therefore, applying Surratt’s reading of the savings clause, a
petitioner could evade Congress’s conscious constraint on
appellate review just by filing a § 2241 petition, losing, and
then exercising his automatic entitlement to appellate review.
We should not allow the savings clause to “create a detour”
around § 2255’s restrictions, as those restrictions would then
be “rendered a nullity.” Reyes-Requena, 243 F.3d at 901 n.19;
cf. Trenkler, 536 F.3d at 97 (“The strictures of section 2255
cannot be sidestepped by the simple expedient of resorting to
some more exotic writ.”). Accordingly, we decline to dismantle
the protections that Congress created in § 2255 by adopting
Surratt’s expansive reading of the savings clause.
F.
Lastly, we must take account of Congress’ general purpose
in enacting the various provisions at issue. See Broughman v.
Carver, 624 F.3d 670, 677 (4th Cir. 2010); accord McCreary Cnty.
v. ACLU, 545 U.S. 844, 861 (2005) (“Examination of purpose is a
47
staple of statutory interpretation that makes up the daily fare
of every appellate court in the country.”). Congressional
purpose confirms that § 2255(e) does not apply to cases like
this one.
Our narrower reading of the savings clause preserves one of
the most important purposes that AEDPA sought to serve:
finality. Although AEDPA serves multiple objectives, including
“comity, finality, and federalism,” Williams v. Taylor, 529 U.S.
420, 436 (2000), the foremost AEDPA goal -- the act’s “central
concern” -- is Congress’ intent that “the merits of concluded
criminal proceedings not be revisited in the absence of a strong
showing of actual innocence,” Calderon v. Thompson, 523 U.S.
538, 558 (1998). Surratt and the dissent both seek to untether
§ 2255(e) from any actual innocence requirement. Instead, they
would have us create a new rule contradicting Congress’ chief
goal in enacting AEDPA -- one that would apply to most any
imaginable sentencing enhancement that we later believe could
have erroneously increased a petitioner’s sentence. We see few
limiting principles in that kind of rule, and take little
comfort in Surratt’s assurances that it would apply in only a
few cases (so long as he receives relief here).
Further, even before AEDPA, “the concern with finality
served by the limitation on collateral attack ha[d] special
force with respect to convictions,” like Surratt’s, “based on
48
guilty pleas.” United States v. Timmreck, 441 U.S. 780, 784
(1979); see also United States v. Fugit, 703 F.3d 248, 252-53
(4th Cir. 2012) (discussing the historical importance of
finality, especially as to guilty pleas). Plea agreements work
“only if dispositions by guilty plea are accorded a great
measure of finality.” Blackledge v. Allison, 431 U.S. 63, 71
(1977). Thus, “a voluntary and intelligent plea of guilty made
by an accused person, who has been advised by competent counsel,
[usually] may not be collaterally attacked.” Mabry v. Johnson,
467 U.S. 504, 508 (1984). This rule holds even when the law
later changes in the petitioner’s favor, as “the possibility of
a favorable change in the law occurring after a plea is one of
the normal risks that accompan[y] a guilty plea.” United States
v. Archie, 771 F.3d 217, 222 (4th Cir. 2014).
Undeniably, “the Federal Government, no less than the
States, has an interest in the finality of its criminal
judgments.” United States v. Frady, 456 U.S. 152, 166 (1982).
For “[w]thout finality, the criminal law is deprived of much of
its deterrent effect.” Teague v. Lane, 489 U.S. 288, 309
(1989). “A procedural system which permits an endless
repetition of inquiry into facts and law . . . implies a lack of
confidence about the possibilities of justice that cannot but
war with the effectiveness of underlying substantive commands.”
McCleskey v. Zant, 499 U.S. 467, 492 (1991); accord Custis v.
49
United States, 511 U.S. 485, 497 (1994) (“[I]nroads on the
concept of finality tend to undermine confidence in the
integrity of our procedures [.]”); see also Henry J. Friendly,
Is Innocence Irrelevant? Collateral Attack on Criminal
Judgments, 38 U. Chi. L. Rev. 142, 145 (1970) (“The proverbial
man from Mars would surely think we must consider our system of
criminal justice terribly bad if we are willing to tolerate such
efforts at undoing judgments of conviction.”). A waning of
confidence would follow if we revisited convictions repeatedly,
especially when the defendant conceded his guilt. It seems even
odder to revisit convictions where, as here, the petitioner
accepted an appeal waiver in his plea agreement. Even though
the Government has chosen not to enforce that waiver, its
presence means that Surratt expected to have no later chance for
any kind of review when he first agreed to plea guilty.
Although one might find it tempting to put finality
concerns aside for the sake of self-designed notions of
fairness, we have recognized that “there are dangers” in
“subordinat[ing] [finality] to the equities of the individual
case,” “especially if so vague a term as ‘fairness’ is to be the
touchstone.” In re Under Seal, 749 F.3d 276, 289 (4th Cir.
2014). Courts also have “never . . . defined the scope of the
writ [of habeas corpus] simply by reference to a perceived need
to assure that an individual accused of crime is afforded a
50
trial free of constitutional,” let alone statutory, “error.”
Teague, 489 U.S. at 308. No doubt, if we put finality aside
when it suited us, we would invite a disquieting indeterminacy
into our judicial system. And it’s hard to see where this
“fairness” exception would end. So, “[w]e do not pause to
consider whether a statute differently conceived and framed
would yield results more consonant with fairness and reason. We
take the statute as we find it.” Anderson v. Wilson, 289 U.S.
20, 27 (1933).
Finality offers tangible benefits for the judicial system.
At the very least, it ensures that court resources focus on the
initial trial and appeal stage. In contrast, “[i]f every
favorable precedential decision could become . . . a ticket to
being resentenced, the criminal justice system would need to
continually marshal resources in order to keep in prison
defendants whose trials and appeals and sentences conformed to
then-existing constitutional and statutory standards.”
Whiteside, 775 F.3d at 186. Finality also provides closure to
victims and the defendant: it assures the victim that his
assailant will be punished, while it directs the defendant to
move on with his life. And finality provides important
incentives to litigants. If defendants know that they cannot
raise arguments more than once, then they will exercise greater
51
diligence and invoke whatever rights they may have early on.
See Wainright v. Sykes, 433 U.S. 72, 90 (1977).
We decline to dispense with these many benefits -- deriving
from AEDPA’s central objective of finality -- by accepting
Surratt’s view of § 2255(e).
V.
Invoking the canon of constitutional avoidance, Surratt
suggests that we must permit his petition because a failure to
do so would present substantial constitutional concerns.
Specifically, he argues that denying him relief under § 2255(e)
would raise questions related to due process, equal protection,
separation-of-powers principles, and the Suspension Clause. We
disagree.
The canon of constitutional avoidance is an ill fit to this
case. “The canon is a tool for choosing between competing
plausible interpretations of a provision.” Warger v. Shauers,
135 S. Ct. 521, 529 (2014). “It has no application in the
absence of ambiguity.” Id. As we have already explained,
though, we see no ambiguity in § 2255(e) when it comes to
Surratt’s sentence. Further, Surratt’s attacks read like back-
door constitutional challenges to § 2255 itself. But here
again, “[t]he canon of constitutional avoidance is not a method
of adjudicating constitutional questions by other means.”
52
United States v. Apel, 134 S. Ct. 1144, 1153 (2014). Nor does
avoidance grant a permission slip to “‘interpret’ statutes by
gerrymandering them with a list of exceptions that happen to
describe a party’s case,” id., which strikes us as just the sort
of thing that Surratt means us to do.
Ultimately, though, “if the statute does not raise
constitutional concerns, then there is no basis for employing
the canon of constitutional avoidance.” Rodriguez v. Robbins,
715 F.3d 1127, 1140 (9th Cir. 2013); accord United States v.
Dwinells, 508 F.3d 63, 70-71 (1st Cir. 2007); United States ex
rel. Long v. SCS Bus. & Tech. Instit., Inc., 173 F.3d 870, 886
(D.C. Cir. 1999). With no need for avoidance, we can rest
assured that we have given § 2255(e) the correct reading.
A.
We first conclude that our interpretation of § 2255(e)
presents no colorable issue under the Suspension Clause. That
provision of the Constitution states that “[t]he Privilege of
the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require
it.” U.S. Const. art. I, § 9, cl. 2. The Suspension Clause
“ensures that, except during periods of formal suspension, the
Judiciary will have a time-tested device, the writ, to maintain
the delicate balance of governance that is itself the surest
safeguard of liberty.” Boumediene, 553 U.S. at 745.
53
As the Government observes, the Suspension Clause may not
apply here at all. Neither the Supreme Court nor this Court has
decided whether the Suspension Clause protects the writ as it
existed in 1789 or the writ as it exists today. See Boumediene,
53 U.S. at 746 (reserving the issue); St. Cyr, 533 U.S. at 300-
01 (same). Sitting en banc, we hinted that the Clause might
very well protect only the former and not the latter. See Vial,
115 F.3d at 1197 n.11. If that proves to be the case (that is,
if the Suspension Clause protects only the 1789 version), then
Surratt’s Suspension Clause argument fails. See Morales, 499
F.3d at 670; Lindh v. Murphy, 96 F.3d 856, 867 (7th Cir. 1996)
(en banc), rev’d on other grounds, 521 U.S. 320 (1997); United
States v. Anselmi, 207 F.2d 312, 314 (3d Cir. 1953). The
original 1789 form of the writ did not afford post-conviction
relief of the type sought here. See Ex Parte Yerger, 75 U.S. (8
Wall.) 85, 101 (1868); accord Brown v. Allen, 344 U.S. 443, 533
(1953) (Jackson, J., concurring in result); LaGuerre v. Reno,
164 F.3d 1035, 1038 (7th Cir. 1998).
In the end, we need not settle the particular question of
whether the Suspension Clause protects the writ in its 18th or
21st Century form. Our reading of § 2255(e) sufficiently
respects the writ in either event. “[T]he substitution of a
collateral remedy which is neither inadequate nor ineffective to
test the legality of a person’s detention does not constitute a
54
suspension of the writ of habeas corpus.” Swain, 430 U.S. at
381. Here, § 2255 itself serves as the relevant “substitute.”
And by holding that § 2255 presents an adequate and effective
substitute means to test Surratt’s detention, we have likewise
ensured that no Suspension Clause issue exists. See Hayman, 342
U.S. at 223 (refusing to consider any constitutional attack on
§ 2255 because the presence of the savings clause avoids those
issues); see also Medberry v. Crosby, 351 F.3d 1049, 1057 (11th
Cir. 2003) (“[Section 2255(e)] avoided any serious question
about whether the replacement of the writ of habeas corpus for a
federal prisoner with the new § 2255 caused an unconstitutional
suspension of the writ.”); Reyes-Requena, 243 F.3d at 901 n.19
(noting that § 2255(e) ameliorates any Suspension Clause
issues). As our preceding discussion should have made plain,
Surratt had a full opportunity under § 2255 to make the claim
that he makes here, but simply chose not to do so.
Perhaps Surratt means to attack our reading of § 2255(e)
together with other limits found in § 2255, such as § 2255(h)’s
limits on second or successive petitions. But that sort of
attack would fare no better. Stressing that “judgments about
the proper scope of the writ are normally for Congress to make,”
the Supreme Court has held that § 2254’s analogous restrictions
“do not amount to a ‘suspension’ of the writ.” Felker v.
Turpin, 518 U.S. 651, 664 (1996). “[R]estrictions on successive
55
petitions constitute a modified res judicata rule, a restraint
on what is called in habeas corpus practice ‘abuse of the
writ.’” Id. In short, restrictions on multiple motions for
post-conviction relief “amount[] to an entirely proper exercise
of Congress’ judgment regarding the proper scope of the writ.”
Vial, 115 F.3d at 1197. And “the reasoning of the [Supreme]
Court with respect to limitations on second and successive
habeas petitions pursuant to § 2254 applies with equal force to
the identical language in § 2255.” Id. at 1198; accord Gilbert,
640 F.3d at 1317; United States v. Barrett, 178 F.3d 34, 53 (1st
Cir. 1999); see also Justin F. Marceau, Challenging the Habeas
Process Rather Than the Result, 69 Wash. & Lee L. Rev. 85, 144
n.207 (2012) (“[T]he Suspension Clause is much less directly
implicated by efforts to file multiple habeas petitions[.]”).
Nor does a Suspension Clause problem develop whenever a
prisoner is unable to take advantage of a later, favorable case.
“Congress can, without offending the Suspension Clause, . . .
narrow the source of law cognizable on habeas review.” Green v.
French, 143 F.3d 865, 876 (4th Cir. 1998), abrogated on other
grounds, Williams v. Taylor, 529 U.S. 362, 376-77 (2000). And
the narrowing here flows from an oft-made distinction in the law
“between actions previously taken and those yet to come.”
Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073, 2082
(2012); cf. Solem v. Stumes, 465 U.S. 638, 642 (1984)
56
(“[R]etroactive application is not compelled, constitutionally
or otherwise.”); Wainwright v. Stone, 414 U.S. 21, 23-24 (1973)
(holding that state prisoner was not constitutionally entitled
to the benefit of a new interpretation of a state criminal
statute). Therefore, the Suspension Clause is not offended in
this case.
B.
The approach we take to the savings clause also does not
give rise to the sort of due process concerns identified in
Hicks v. Oklahoma, 447 U.S. 343 (1980). In Hicks, a state court
jury was erroneously required to impose a sentence of forty
years once they found the defendant guilty. Id. at 344-45. On
direct appeal, the state appellate court deemed the mandatory
prison term unconstitutional but declined to vacate the
sentence. Id. at 345. The Supreme Court determined that
decision to be a due process violation, as the state court’s
unwillingness to correct the error deprived Hicks of a state-
provided liberty interest in a jury determination. Id. at 346.
Given the somewhat unusual circumstances of the case, courts
have read it to provide “a rather narrow rule.” Simpson v.
Norris, 490 F.3d 1029, 1034 (8th Cir. 2007).
Several factors indicate that the due process concerns
addressed in Hicks do not arise here.
57
First, Hicks involved sentencing by a jury; this case does
not. Courts aggressively protect the jury’s “historic role” as
“an intermediary between the State and criminal defendants.”
Alleyne, 133 S. Ct. at 2161; see also Blakely v. Washington, 542
U.S. 296, 306 (2004) (“Just as suffrage ensures the people’s
ultimate control in the legislative and executive branches, jury
trial is meant to ensure their control in the judiciary.”);
Jones, 526 U.S. at 244-48 (describing the historic development
of the jury as a check on overly severe sentences). The
Framers, too, chose to emphasize the importance of the jury by
separately enshrining its role in the Sixth Amendment. In other
words, we show a special solicitousness towards claims that a
mistake has tread upon the jury’s crucial role. Hicks reflects
that concept. It would not therefore apply in cases, like this
one, that do not implicate the jury right. Indeed, the Supreme
Court has narrowly read Hicks to hold “only that where state law
creates for the defendant a liberty interest in having the jury
make particular findings, the Due Process Clause implies that
appellate findings do not suffice to protect that entitlement.”
Cabana v. Bullock, 474 U.S. 376, 387 n.4 (1986) (emphasis
added), abrogated on other grounds by Pope v. Illinois, 481 U.S.
497, 503 n.7 (1987); accord People v. Gonzales, 296 P.3d 945,
967 (Cal. 2013) (“Hicks is limited to the jury trial
context[.]”).
58
Hicks also involved two distinguishable types of
constitutional error. The Supreme Court intervened where a
lower court identified constitutional error at the time of
sentencing but refused to do anything about it. Thus, Hicks
presented problems at both sentencing and on appeal. The
separate, unrectified error at sentencing might have been what
compelled the Court to act. See Johnson v. Rosemeyer, 117 F.3d
104, 112 (3d Cir. 1997); see also Hicks, 447 U.S. at 350-51
(Rehnquist, J., dissenting) (concluding that the Court should
not have intervened because the defendant had not actually
established constitutional error at trial). Yet here, no one
suggests that Surratt’s sentence was unconstitutional, now or
then. There is no “separate” error. In fact, no one suggests
that his sentence was unlawful at the time that the district
court imposed it in any way.
But perhaps as importantly, Hicks concerned an error
identified on direct review. It is one thing to say that an
appellate court violates due process when it refuses to correct
an error in a non-final sentence. In that sort of case, the
appellate court’s unwillingness to act renders appellate review
a meaningless exercise. But it is quite another to say that due
process requires us to reach back and “correct” a sentence that
is in every sense final and was proper at the time imposed
because we now believe that the district court misconceived the
59
extent of its discretion. Cf. Dist. Atty’s Office for Third
Judicial Dist. v. Osborne, 557 U.S. 52, 68 (2009) (“A criminal
defendant proved guilty after a fair trial does not have the
same liberty interests as a free man.”). That result implies a
right to collateral review and relief that we do not believe
exists. See United States v. MacCollom, 426 U.S. 317, 323
(1976) (plurality opinion) (“The Due Process Clause of the Fifth
Amendment . . . certainly does not establish any right to
collaterally attack a final judgment of conviction.”); Herrera
v. Collins, 506 U.S. 390, 399 (1993); cf. Pennsylvania v.
Finley, 481 U.S. 551, 557 (1987). And, in prior cases, courts
have not assumed that due process mandates post-conviction
relief whenever the sentencing judge might have failed to
recognize the full scope of his discretion. See United States
v. Fox, 889 F.2d 357, 360 (1st Cir. 1989) (“[T]here is no due
process right to individualized sentencing.”). The enormous
body of cases refusing to award post-conviction relief premised
on Booker -- which held that district courts have discretion to
sentence outside the Sentencing Guidelines, see 543 U.S. at 245
-- provides perhaps the most compelling testimony to that fact.
See United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005)
(holding that Booker “is not available for post-conviction
relief for federal prisoners . . . whose convictions became
final before Booker . . . was decided”).
60
Hicks, then, gives us no reason for pause, and we find
Surratt’s due process argument to be without merit.
C.
Our reading of the savings clause also does not give rise
to separation-of-powers concerns. Surratt contends that we
tread upon Congress’ right to define the relevant criminal
punishment by denying him habeas relief; the dissent agrees.
Yet neither Surratt nor the dissent provides us with a case in
which a court has identified a separation-of-powers problem in
connection with a sentence levied within the applicable
statutory range, as was Surratt’s sentence. “[A] person who has
been so convicted is eligible for, and the court may impose,
whatever punishment is authorized by statute for his offense.”
Chapman v. United States, 500 U.S. 453, 465 (1991). Surratt
received that sentence.
If we were to embrace Surratt’s contrary position, we would
transform every alleged error related to statutory
interpretation into a separation-of-powers issue of
constitutional dimension. The writ would become a catchall for
perceived errors big and small. Such an outcome would be
plainly inconsistent with the remedy’s traditional scope.
“While the [habeas] remedy is in this comprehensive, it does not
encompass all claimed errors in conviction and sentencing.”
Addonizio, 442 U.S. at 185. All the more so when the district
61
court endeavored to comply with Congress’ wishes by applying a
then-correct understanding of Congressionally imposed mandatory
minimums. See United States v. Jackson, 863 F.2d 1168, 1171
(1989) (explaining Congress appropriately exercises its power to
fix penalties when it imposes mandatory minimums).
We must also remain aware of competing separation-of-powers
concerns: fundamental principles of separation of powers
preclude us from ignoring the plain terms of the savings clause.
In every case, “[t]he function of the judiciary is to apply the
law, not to rewrite it to conform with the policy positions of
litigants.” Mort Ranta v. Gorman, 721 F.3d 241, 253 (4th Cir.
2013). And we must act with a special sensitivity to that role
while grappling with post-conviction statutes, as they “reflect
a balancing of objectives (sometimes controversial), which is
normally for Congress to make[.]” Lonchar v. Thomas, 517 U.S.
314, 322 (1996). We find no benefit to trampling on Congress’
power to define the scope of the writ because of an unjustified
fear of violating separation-of-powers principles.
D.
Finally, no equal-protection problems result from our
decision. “The [Fourteenth Amendment’s] Equal Protection Clause
protects an individual from being treated differently, not
simply wrongly, by the government.” Sansotta v. Town of Nags
Head, 724 F.3d 533, 543 n.15 (4th Cir. 2013). Although that
62
particular clause does not apply directly to the federal
government, the “approach to Fifth Amendment equal protection
claims has always been precisely the same as to equal protection
claims under the Fourteenth[.]” Weinberger v. Wiesenfeld, 420
U.S. 636, 638 n.2 (1975).
Surratt evidently thinks that an equal-protection problem
arises because some district courts in different Simmons-related
cases have granted § 2255 relief to some petitioners. But the
difference alone does not give rise to an equal-protection
issue. The Supreme Court has said “time and again that the
[Fifth and] Fourteenth Amendment[s] do[] not assure uniformity
of judicial decisions or immunity from judicial error.” Beck v.
Washington, 369 U.S. 541, 554-55 (1962). “A disagreement
between [the courts] on the interpretation of a statute is a
matter which either the Supreme Court or Congress should
resolve; it does not violate the equal protection rights of the
person subjected to the more burdensome interpretation.”
Hawkins v. Agric. Mktg. Serv., 10 F.3d 1125, 1131-32 (5th Cir.
1993). Besides that, “[b]oth the Fifth and the Fourteenth
Amendments address legislative discrimination and not
discrimination on the basis of particular opinions issued by the
federal judiciary.” United States v. Brown, 74 F. Supp. 2d 648,
651 (N.D.W. Va. 1998). So, Surratt has given us no reason to
believe that equal protection concepts even apply here.
63
Surratt also observes that defendants have obtained relief
in cases in which “they had not previously filed a § 2255
motion.” Opening Br. 34. The difference in outcomes between
these two groups of defendants does not stem from our present
decision. In fact, this Court’s precedents suggest that the
“other” defendants should not obtain relief from their untimely
motions. See Whiteside, 775 F.3d at 187. The Government has
waived the otherwise applicable statute-of-limitations in some
of those cases, as it can do, and this intermittent waiver has
produced disparate outcomes in somewhat similar cases. But the
difference in treatment stems from the executive branch’s
actions, not those of the judicial branch. We do not mean to
imply that the Government’s actions create any equal protections
problems of their own -- in all likelihood, they do not. See
United States v. Venable, 666 F.3d 893, 900 (4th Cir. 2012)
(explaining that the government “ordinarily has wide latitude in
deciding whether to prosecute” as long as it does not “bas[e]
the decision on an unjustifiable standard such as race,
religion, or other arbitrary classification”). But we can
confidently conclude that our reading of § 2255(e) has nothing
to do with equal protection.
64
VI.
For the reasons described above, we conclude that the
district court lacked jurisdiction under § 2255(e) to consider
Surratt’s § 2241 petition.
Congress holds the power to define the scope of the writ of
habeas corpus. It also holds an attendant power to define
exceptions to the normal rule of finality of convictions and
sentences that were lawfully imposed at the time that they were
entered. We are firmly convinced that Congress did not
contemplate any exception for a case like this one. Certainly,
Surratt’s mandatory minimum sentence was higher than the one he
would have faced after Simmons. But Surratt had the opportunity
to test the legality of that sentence in his direct appeal and
initial § 2255 motion, and he chose not to take it. He also is
not actually innocent of his offense of conviction, or even the
predicate offenses that dictated his enhanced sentence. And his
sentence does not exceed the statutory maximum that Congress set
for his offense of conviction.
We cannot alter Congress’ decision to deny jurisdiction.
Nor can we rewrite habeas law for the sake of a sympathetic
case. “[T]he guidance of the Supreme Court and Congress is
clear and, in this situation, ties our hands.” United States v.
Foote, 784 F.3d 931, 944 (4th Cir. 2015). And by the same
token, the Government’s support of the petitioner also cannot
65
change the words of the statute. See Young v. United States,
315 U.S. 257, 258-59 (1942) (“[A] confession [of error from the
Government] does not relieve this Court of the performance of
the judicial function. . . . [O]ur judicial obligations compel
us to examine independently the errors confessed.”).
Still, the hands of Congress and the executive branch are
not constrained in the same way as those of the judiciary.
Congress may amend § 2255 and permit us to hear cases like this
one, if it so chooses. And the Government, which initiated this
criminal prosecution and filed the information that led to
Surratt’s enhanced sentence, can assist Surratt in seeking a
commutation from the President. See U.S. Const. art. II, § 2,
cl. 1. Indeed, the President has shown a recent willingness to
grant frequent commutations in other drugs cases. See, e.g.,
Sari Horwitz and Juliet Eilperin, Obama Cuts Sentences of 46
Inmates, Wash. Post., July 14, 2015, at A03; Juliet Eilperin,
Obama Commutes Sentences of 22 Drug Offenders, Wash. Post, Mar.
31, 2015, at A01; Katie Zezima, Obama Commutes Prison Sentence
of Eight Federal Drug Offenders, Wash. Post, Dec. 18, 2014, at
A09; David Nakamura, Obama Commutes 8 ‘Unduly Harsh’ Terms,
Wash. Post, Dec. 20, 2013, at A02.
We also stress that our decision today is limited to the
particular facts of this case. We do not decide whether, for
instance, a federal prisoner might bring a § 2241 petition
66
claiming that the district court unlawfully sentenced him to a
term of imprisonment exceeding the statutory maximum. Nor do we
mean to say anything about the types of claims that prisoners
might bring in an initial § 2255 motion. And we do not
determine whether a change in law stemming from a retroactively
applicable Supreme Court decision might offer relief beyond the
circumstances already identified in Jones. Needless to say, we
therefore disagree with the dissent’s suggestion that our
limited determination renders the savings clause a “complete
nullity.” See Dissenting Op. at 68.
Given our disposition, we also need not decide whether an
appeal waiver like the one found in Surratt’s plea agreement
could foreclose relief via the savings clause, as the court-
appointed amicus alternatively argued. We leave those issues
for another day.
The district court’s judgment is therefore
AFFIRMED.
67
GREGORY, Circuit Judge, dissenting:
Raymond Surratt will die in prison because of a sentence
that the government and the district court agree is undeserved
and unjust. The district court sentenced Surratt to life in
prison only because it thought it was required to do so pursuant
to a statutory mandatory minimum. As it turns out, the correct
statutory range for Surratt’s crime was a minimum of twenty
years, and a maximum of life.
The majority thinks its hands are tied because Surratt
received “only” a life sentence, and not more than the statutory
maximum. But the only option beyond a life sentence is death.
By foreclosing any avenue for post-conviction relief, the
majority essentially punishes Surratt for not having received
the death penalty. It leaves him to spend the rest of his life
in prison; a death sentence of a different kind. In doing so,
the majority renders the savings clause a complete nullity in
violation of the Suspension Clause.
It is not just a sentence above the statutory maximum that
presents a fundamental defect. Life is not always so neat.
When a punishment involves a complete deprivation of liberty,
then even a sentence exactly at, but not exceeding, the
statutory maximum can constitute an extraordinary miscarriage of
justice of constitutional magnitude. In such cases, we must
allow a prisoner to invoke the savings clause if the Great Writ,
68
which has always been “a bulwark against convictions that
violate ‘fundamental fairness,’” Engle v. Isaac, 456 U.S. 107,
126 (1982), is to mean anything at all. I dissent.
I.
Surratt was 31 years old when he pleaded guilty to
conspiracy to distribute cocaine. The Guidelines recommended a
maximum penalty of 19.6 years, yet the court imposed a life
sentence. It did so while stating that it believed a life
sentence to be undeserved and unjust. J.A. 276. As the
district court also remarked, it thought it had no other option
pursuant to the statutory, mandatory-minimum lifetime term
prescribed by the Controlled Substances Act (CSA) for anyone
with two or more predicate felony drug offenses. See J.A. 276;
21 U.S.C. § 841(b)(1)(A).
A few years after Surratt’s first § 2255 motion, in a case
remanded to us from the Supreme Court, we corrected our mistaken
understanding of just what constitutes a qualifying felony for
federal sentencing purposes in United States v. Simmons, 649
F.3d 237 (4th Cir. 2011) (en banc). Both parties agree that
under our retroactively-applicable Simmons decision, see Miller
v. United States, 735 F.3d 141, 147 (4th Cir. 2013), Surratt
possesses only one CSA predicate felony. The statutory
mandatory minimum for someone with one qualifying offense is not
69
a life term, but twenty years. 21 U.S.C. § 841(b)(1)(A). Life
is actually the statutory maximum. Id. § 841(b)(1)(A).
Given the difference between twenty years and life, Surratt
asks to be resentenced. Remarkably, the government agrees with
Surratt. Both parties agree that Surratt is legally ineligible
to spend the rest of his life in prison. Given this mistake
that the parties agree is of constitutional magnitude, the
parties further agree that Surratt is entitled to relief from
the very sentence that the district court unambiguously stated
it would not have imposed absent the erroneous statutory
mandatory minimum. They agree the mechanism to do so is by
§ 2241 motion via the savings clause of § 2255(e).
II.
“The Framers viewed freedom from unlawful restraint as a
fundamental precept of liberty, and they understood the writ of
habeas corpus as a vital instrument to secure that freedom.”
Boumediene v. Bush, 553 U.S. 723, 739 (2008). Accordingly, the
prohibition on suspension of the writ is contained in the very
blueprint of our nation, the Constitution itself. U.S. Const.
art. I, § 9, cl. 2.
The privilege of the writ of habeas corpus has remained
central to our justice system even as the statutory scheme
codifying the writ has undergone several transformations over
70
the years. Boumediene, 553 U.S. at 740 (explaining that our
Framers recognized a necessity to “secure the writ and ensure
its place in our legal system”). Even when Congress added
§ 2255 to the post-conviction relief statutes in 1948, it did so
in an effort to improve administration of habeas corpus
hearings. United States v. Hayman, 342 U.S. 205, 219 (1952).
The impetus for § 2255 was that federal courts located near
prisons had become overwhelmed by petitions from prisoners who,
until that point, were required by § 2241 to apply for writs in
the district of their confinement. See Hayman, 342 U.S. at 213-
15. In this way, § 2255 “replaced traditional habeas corpus for
federal prisoners . . . with a process that allowed the prisoner
to file a motion with the sentencing court.” Boumediene, 553
U.S. at 774. It was also these 1948 amendments that gave birth
to the so-called “savings clause” found in § 2255(e). See
Wofford v. Scott, 177 F.3d 1236, 1239, 1241 (11th Cir. 1999).
The savings clause preserves resort to § 2241 when § 2255 is
“inadequate or ineffective to test the legality of [a
prisoner’s] detention.” 28 U.S.C. § 2255(e).
The Supreme Court has been explicit that § 2255 was never
meant to supplant § 2241, but was simply crafted to address the
practical concerns of habeas administration. “Nowhere in the
history of Section 2255,” determined the Court, “do we find any
purpose to impinge upon prisoners’ rights of collateral attack
71
upon their convictions.” See Hayman, 342 U.S. at 219. This
remains true even following Congress’s 1996 amendments to the
statute, which created limitations on second or successive
petitions in § 2255(h). The savings clause, which Congress
chose to retain even while creating these so-called “gatekeeping
provisions,” continues to play a crucial role within this
scheme. As the Supreme Court recognizes, the savings clause
ensures that subsequently-enacted limitations in § 2255 do not
run afoul of the Suspension Clause. See Boumediene, 553 U.S. at
776.
History therefore confirms that Congress meant for the writ
of habeas corpus to remain unabridged even in the face of some
limits on collateral review found in § 2255, and that the
savings clause plays a distinct and crucial role within the
statute. And of course we cannot forget that, ultimately, the
writ of habeas corpus is an equitable remedy. See Gomez v. U.S.
District Court, 503 U.S. 653, 653-54 (1992); Duckworth v. Eagan,
492 U.S. 195, 213 (1989) (“[T]he Court has long recognized that
habeas corpus has been traditionally regarded as governed by
equitable principles[.]” (internal quotation marks omitted)).
These are the principles, including the “principles of
fundamental fairness underl[ying] the writ,” that should guide
our resolution of this case. Sawyer v. Whitley, 505 U.S. 333,
351 (1992) (Blackmun, J., concurring).
72
III.
The majority’s interpretation of the savings clause amounts
to a suspension of the writ. The majority denies Surratt any
chance to challenge an erroneous life sentence – a fundamental
defect of constitutional proportions – for two reasons. First,
because he is challenging his sentence rather than the
underlying conviction, and second, because his sentence is at,
but does not exceed, the statutory maximum. The result is that
without any textual basis, the majority is punishing Surratt for
not having received the death penalty. What a perverse result,
to have suffered a fundamental sentencing defect, and then to be
punished for not having received the death penalty.
The savings clause extends to more than just attacks on the
underlying conviction. See Maj. Op. at 13 (relying on the fact
that “Surratt is not innocent of anything”). In fact, there is
no textual indication that § 2255(e) precludes a challenge to an
erroneous life sentence. When evaluating the plain language of
the statute, “Congress’s use of the term ‘detention’ is highly
significant to the scope of the savings clause.” Bryant v.
Warden, FCC Coleman-Medium, 738 F.3d 1253, 1281 (11th Cir.
2013). Congress declined to use the terms, “offense” or
“conviction,” both of which it wrote into subsequent provisions
of § 2255. See 28 U.S.C. § 2255(f)(1); id. § 2255(h)(1).
Instead, its choice of words suggests it meant to broadly
73
preserve the types of challenges available under § 2255(e),
consistent with § 2241. If, as the majority says, “we are
obligated to give effect to Congress’s decision to use different
language in proximate subsection of the same statute,” then this
obligation actually favors Surratt. See Maj. Op. at 36 (quoting
United States v. Brandon, 247 F.3d 186, 190 (4th Cir. 2001)).
This reading is consistent with our own case law. We have
already determined that nothing in § 2255 was “intended to limit
the rights of federal prisoners to collaterally attack their
convictions and sentences.” In re Jones, 226 F.3d 328, 332 (4th
Cir. 2000) (emphasis added). Other circuits agree that “[t]he
use of the term ‘detention’ in the savings clause suggests that
Congress intended for at least some species of sentencing claims
(other than actual-innocence claims) to justify savings-clause
relief.” Bryant, 738 F.3d at 1282; see also Brown v. Caraway,
719 F.3d 583, 588 (7th Cir. 2013) (explaining that “the text of
the [savings] clause . . . does not limit its scope to testing
the legality of the underlying criminal conviction”).
The majority nevertheless does not think Surratt raises a
sentencing challenge that should be cognizable under the savings
clause. See Maj. Op. at 33 (“[Surratt] never suggests that he
received a sentence above the applicable statutory maximum.”).
This is a breathtaking position considering the extraordinary
deprivation of liberty at stake. Surratt raises no “ordinary”
74
sentencing error. He seeks to advance a claim that he does not
possess the requisite number of qualifying felony offenses on
which his current life sentence is predicated. A life sentence,
for which there is no longer any possibility of parole, is the
“penultimate” sentence unlike any other except for death. Solem
v. Helm, 463 U.S. 277, 303 (1983), overruled on other grounds by
Harmelin v. Michigan, 501 U.S. 957 (1991). And although second
only to death, the two “share some characteristics . . . that
are shared by no other sentences.” Graham v. Florida, 560 U.S.
48, 69 (2010). A life sentence “deprives the convict of the
most basic liberties without giving hope of restoration, except
perhaps by executive clemency - the remote possibility of which
does not mitigate the harshness of the sentence.” Id. at 69-70.
It also “means denial of hope; it means that good behavior and
character improvement are immaterial; it means that whatever the
future might hold in store for the mind and spirit of [the
convict], he will remain in prison for the rest of his days.”
Id. at 70 (alteration in original). That Surratt is being
erroneously deprived of his liberty for the rest of his life is
therefore a fundamental sentencing defect.
There are also fundamental due process concerns raised
where, like here, a district court imposes a life sentence at
statutory gunpoint. An erroneous mandatory-minimum life
sentence is by itself a fundamental defect. See Almendarez-
75
Torres v. United States, 523 U.S. 224, 245 (1998) (recognizing
that mandatory minimums can lead to “a minimum sentence of
imprisonment more than twice as severe as the maximum the trial
judge would otherwise have imposed.”). When operating under a
wrongful statutory mandatory minimum, a district court is
completely foreclosed from imposing a more lenient sentence.
See United States v. Newbold, --- F.3d ---, No. 10-6929, 2015 WL
3960906, at *7 n.6. (4th Cir. June 30, 2015) (finding an
“erroneously-imposed sentencing floor . . . problematic on its
own” because “it create[s] the mistaken impression that the
district court ha[s] no discretion to vary downward from the low
end of [the Guidelines] range”). A defendant, however, always
has a “substantial and legitimate expectation” under the
Fourteenth Amendment to “be deprived of his liberty only to the
extent determined by the [trier of fact] in the exercise of its
statutory discretion.” Hicks v. Oklahoma, 447 U.S. 343, 346
(1980). In this case, we know with 100% certainty that the
district court considered a life sentence both the floor and the
ceiling of what it could impose. “I was required to impose a
life sentence,” stated the court, “[a]nd I’ll not forget the
frustration I felt in doing that because I did think it was an
unjust sentence[.]” J.A. 276.
Continuing to punish Surratt with life imprisonment given
that the district court was completely deprived of any statutory
76
discretion whatsoever at sentencing also raises a separate,
separation of powers concern. Pursuant to the very design of
our government, “defining crimes and fixing penalties are
legislative, not judicial, functions.” United States v. Evans,
333 U.S. 483, 486 (1948). “Congress has the power to define
criminal punishments without giving the courts any sentencing
discretion,” or to provide for individualized sentencing.
Chapman v. United States, 500 U.S. 453, 467 (1991). For someone
like Surratt, with only one qualifying felony drug offense,
Congress intended to permit a district court to assign a
sentence somewhere in the range of twenty years to life. It did
not mandate only a life sentence.
Rather than avoiding a statutory construction that “raises
a multitude of constitutional problems,” Clark v. Martinez, 543
U.S. 371, 380-81 (2005), the majority reads § 2255 to foreclose
any avenue for relief from a fundamental sentencing defect.
This is precisely “the failure to allow for collateral review”
that “raise[s] serious constitutional questions.” Triestman v.
United States, 124 F.3d 361, 377 (2d Cir. 1997).
IV.
The majority arrives at this constitutionally-suspect
outcome by departing from the traditional savings clause
analysis. It ignores that our precedent has already established
77
a framework for determining whether § 2255 is “inadequate or
ineffective.” 28 U.S.C. § 2255(e). As we have demonstrated in
Jones, a savings clause inquiry involves a procedural and
substantive component. 226 F.3d at 333-34. Yet the majority
seeks to paint our Jones decision as something sui generis.
Jones is not an alternative “portal” or “route” to savings
clause relief. See Maj. Op. at 19. It is the test adopted by
our Circuit. When applying that test, it is clear that Surratt
satisfies the necessary requirements, both procedural and
substantive.
Procedurally, § 2255 is “inadequate or ineffective” when
the retroactively-applicable change in the law that the prisoner
seeks to take advantage of occurs subsequent to his first § 2255
motion. This was exactly the case in Jones. Although involving
a different fundamental defect – being actually innocent of
“using” a firearm within the meaning of 18 U.S.C. § 924(c)(1) –
we should follow here the same procedural inquiry. See Jones,
226 F.3d at 329. “[S]ubsequent to the prisoner’s direct appeal
and first § 2255 motion,” did “the substantive law change[]”
such that the prisoner’s claim is no longer foreclosed by the
“settled law of this circuit or the Supreme Court?” Id. at 333-
34.
Surratt brings his savings clause challenge in precisely
this posture. The majority protests, however, that Surratt
78
should have brought a § 2255 motion raising his Simmons claim
even before Simmons existed. To say that the savings clause
preserves an “opportunity” to be heard but that Surratt somehow
squandered his even before we decided Simmons is to interpret
“opportunity” in a literal manner devoid of any meaning. See
Boumediene, 553 U.S. at 779 (“[T]he privilege of habeas corpus
entitles the prisoner to a meaningful opportunity to demonstrate
that he is being held pursuant to the erroneous application or
interpretation of relevant law.” (emphasis added) (internal
quotation marks omitted)). We did not fault Jones for not
previously raising his Bailey claim even before that case was
decided. Instead, the savings clause was crucially important
because “the prisoner’s first § 2255 motion was filed prior to
the decision in Bailey, at a time when it would have been futile
to challenge the then-prevailing interpretation of the ‘use’
prong of § 924(c)(1).” Jones, 226 F.3d at 333. The Seventh and
Eleventh Circuits further agree that § 2255 is procedurally
inadequate when the intervening change in the law takes place
after the petitioner’s previously foreclosed, first § 2255
motion. See Brown, 719 F.3d at 586 (“[T]he prisoner must show
that he relies on a retroactive decision that he could not have
invoked in his first § 2255 motion.”); In re Davenport, 147 F.3d
605, 610 (7th Cir. 1998) (“[The prisoner] could not use a first
79
motion under the section to obtain relief on a basis not yet
established by law.”); Bryant, 738 F.3d at 1257.
In addition to this procedural component, § 2255 is
substantively inadequate or ineffective when the asserted error
represents a fundamental defect, but “the prisoner cannot
satisfy the gatekeeping provisions of § 2255 because [he relies
on a] new rule [that] is not one of constitutional law.” Jones,
226 F.3d at 334. This requirement is necessary in consideration
of § 2255(h), which limits second and successive petitions, in
pertinent part, to those relying on a new rule of constitutional
law. 28 U.S.C. § 2255(h)(2). The difficulty in Jones was that
the intervening change in the law involved a rule of statutory
interpretation. Despite the important role played by § 2255(h),
we nevertheless determined that the savings clause must in this
situation afford an opportunity to raise a previously futile,
retroactively-applicable statutory claim, because “otherwise,
the savings clause itself would be meaningless.” Jones, 226
F.3d at 333. Other circuits have agreed with this substantive
component of the savings clause inquiry in the context of
erroneous sentencing enhancements resulting from interpretation
of the Armed Career Criminal Act. See Light v. Caraway, 761
80
F.3d 809, 813 (7th Cir. 2014) (Begay 1 claim challenging ACCA
enhancement), cert denied, 2015 WL 133008 (Jan. 12, 2015);
Bryant, 738 F.3d at 1257 (same).
Surratt therefore satisfies our savings clause test because
his claim raises a fundamental defect predicated on an
intervening change in the law of statutory interpretation. The
majority, however, disagrees with this conclusion in part
because it believes I am “read[ing] the actual innocence
requirement out of Jones.” Maj. Op. 12. To the contrary, I am
applying the framework set forth in that case, which considered
whether an actual innocence claim is redressable under the
savings clause, to our case, which asks whether an erroneously-
imposed, statutory, mandatory-minimum life sentence can be
redressable under the same provision. Jones admittedly involved
a different fundamental defect - a claim under Bailey. But this
does not mean that its reasoning cannot extend to Surratt’s
claim, which is equally a fundamental defect considering the
extraordinary deprivation of liberty at stake. Interpreting
Jones in this way would not lead to “permit[ing] any federal
1
In Begay v. United States, 553 U.S. 137 (2008), the
Supreme Court determined that driving under the influence of
alcohol did not constitute a “violent felony” as defined by the
residual clause of the ACCA. Id. at 139. The Court has
subsequently found the statute’s residual clause to be
unconstitutionally vague. Johnson v. United States, 576
U.S. ---, No. 13-7120, 2015 WL 2473450, at *4 (June 26, 2015).
81
prisoner to bring any non-constitutional claim via § 2241 in any
instance where the law” changes. Maj. Op. at 13. Far from
opening the floodgates, as the majority suggests, such an
approach may provide relief to those who continue to serve life
sentences despite not possessing the requisite number of
predicate felony offenses under Simmons, which is all of eight
prisoners in the Western District of North Carolina. 2 See Def.
Br. at 31.
The majority lastly finds it insufficient that Surratt’s
fundamental sentencing defect finds its roots in Simmons, an en
banc circuit court decision decided upon remand from the Supreme
Court, rather than in a Supreme Court decision itself. Of
course the savings clause itself does not make this distinction.
Nor have we ever insisted, in a world where the Supreme Court
grants certiorari in about 75-80 cases per year, that the new
rule of statutory interpretation be one decreed by the Supreme
Court. See Jones, 226 F.3d at 334 (requiring that “subsequent
to the prisoner’s direct appeal and first § 2255 motion, the
substantive law changed” (emphasis added)). Nonetheless, the
majority writes that “Surratt premises his claim on a circuit-
level decision, even though § 2255(h) specifically states that
2 I must also note that, when it comes to the “tangible
benefits” of our decision today, Maj. Op. at 51, it is estimated
that Surratt’s lifetime of incarceration will cost taxpayers
approximately $1.2 million. See Def. Br. at 32.
82
only a retroactive Supreme Court decision should open the door
to successive relief.” Maj. Op. at 43. In actuality,
§ 2255(h) states that application for successive relief must be
based on “a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court.” 28 U.S.C.
§ 2255(h)(2) (emphasis added). At least one circuit court,
however, has found it appropriate to grant relief based on its
own finding that Begay, a new rule of statutory interpretation,
is retroactive. See Light, 761 F.3d at 814; Welch v. United
States, 604 F.3d 408, 415 (7th Cir. 2010).
My point is that the majority’s greatest sin is really in
picking and choosing whatever rules it wishes to apply to
§ 2255(e) from other parts of our habeas jurisprudence. It
insists that the first part of § 2255(h)(2) applies to the
savings clause, but not the second part. It then says the “same
principle” of procedural default applies not just to
§ 2255(f)(2), but also here. See Maj. Op. at 25. This despite
its insistence that there is no basis to “tie[] th[e]
‘miscarriage’ standard” from initial § 2255 motions to the
supposedly “entirely separate question of relief via the savings
clause.” Maj. Op. at 20. The majority is really mixing and
matching limitations on post-conviction relief.
In disregarding our precedent to affirm a life sentence for
Surratt, the majority simultaneously affirms a death sentence
83
for the savings clause. But make no mistake. There already
exists an analytical path obligating us to grant Surratt the
resentencing that he seeks, and that justice requires.
V.
I do not doubt that the majority is sympathetic to Surratt.
In the end, I suppose we just have fundamentally different views
on the role of habeas corpus, as well as the role of the
judiciary in granting the writ. I see it as our solemn
responsibility to guard against a morbid encroachment upon that
which is so precious our Framers ensured its continued vitality
in our Constitution. Instead we guard the Great Writ itself,
and so closely that Surratt must spend the rest of his life in
prison – against the will of the government and the district
court. Our abdication of this responsibility begs the question:
quis custodiet ipsos custodies? Who will guard the guards
themselves?
It is within our power to do more than simply leave Surratt
to the mercy of the executive branch. To hope for the right
outcome in another’s hands perhaps is noble. But only when we
actually do the right thing can we be just. I lament that today
we are not the latter. Neither the plain language of our habeas
statutes, our precedent, nor the Constitution demands that
Surratt die in prison. I must dissent.
84