Dan Carmichael McCarthan v. Director of Goodwill Industries-Suncoast, Inc.

Case: 12-14989 Date Filed: 03/14/2017 Page: 1 of 194

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 12-14989
________________________

D.C. Docket No. 5:09-cv-00110-WTH-PRL

DAN CARMICHAEL MCCARTHAN,

Petitioner - Appellant,

versus

DIRECTOR OF GOODWILL INDUSTRIES-SUNCOAST, INC.,

Respondent - Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(March 14, 2017)

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and
JILL PRYOR, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:
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This appeal requires us to decide whether a change in caselaw entitles a

federal prisoner to an additional round of collateral review of his sentence.

Congress gives a federal prisoner like Dan McCarthan one opportunity to move to

vacate his sentence unless that remedy is “inadequate or ineffective to test the

legality of his detention.” 28 U.S.C. § 2255(e). When McCarthan pleaded guilty to

being a felon in possession of a firearm, 18 U.S.C. § 922(g), he understood that the

district court would enhance his sentence under the Armed Career Criminal Act,

id. § 924(e). He did not appeal that sentence. When McCarthan later moved to

vacate his sentence, he again said nothing about the enhancement. After foregoing

those opportunities to complain about the enhancement of his sentence, McCarthan

petitioned for a writ of habeas corpus. McCarthan argues that his earlier motion to

vacate was inadequate to test his objection to his sentence enhancement because

our caselaw about the Armed Career Criminal Act has changed. But because the

motion to vacate gave McCarthan an opportunity to challenge his sentence

enhancement, his remedy was not inadequate or ineffective to test the legality of

his sentence, regardless of any later change in caselaw.

For eighteen years, our Court has maintained that a change in caselaw may

trigger an additional round of collateral review, see Wofford v. Scott, 177 F.3d

1236 (11th Cir. 1999), but our precedents have ignored the text of the statute. As

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we struggled to apply our precedents, we employed a five-factor test and granted

relief only twice. See Mackey v. Warden, FCC Coleman-Medium, 739 F.3d 657

(11th Cir. 2014); Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th

Cir. 2013). Because our precedents have failed to adhere to the text of section

2255(e), have not incurred significant reliance interests, and have proved

unworkable, today we overrule them. We join the Tenth Circuit in applying the law

as Congress wrote it, see Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011)

(Gorsuch, J.), and hold that a change in caselaw does not make a motion to vacate

a prisoner’s sentence “inadequate or ineffective to test the legality of his

detention,” 28 U.S.C. § 2255(e). We affirm the dismissal of McCarthan’s petition

for a writ of habeas corpus.

I. BACKGROUND

In 2003, Dan McCarthan pleaded guilty to being a felon in possession of a

firearm, 18 U.S.C. § 922(g), the maximum sentence for which is ten years

imprisonment, id. § 924(a)(2). The district court enhanced McCarthan’s sentence

under the Armed Career Criminal Act, id. § 924(e), on the ground that he had five

prior convictions for a “serious drug offense” or a “violent felony,” id. § 924(e)(1),

including one for escape. United States v. McCarthan, No. 8:02-cr-137 (M.D. Fla.

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June 4, 2003). McCarthan received a sentence of 211 months. Id. He did not

appeal. Id.

McCarthan later moved to vacate his sentence, 28 U.S.C. § 2255. He alleged

that he had received ineffective assistance of counsel, but he did not challenge the

enhancement of his sentence. The district court denied the motion to vacate on the

merits. McCarthan v. United States, No. 8:04-cv-1288 (M.D. Fla. Sept. 30, 2004).

Both the district court and this Court denied his request for a certificate of

appealability. See id.

In 2009, the Supreme Court ruled that some forms of the crime of escape do

not qualify as a “violent felony” under the Armed Career Criminal Act. Chambers

v. United States, 555 U.S. 122, 130 (2009). Chambers overturned our circuit

precedent, United States v. Gay, 251 F.3d 950 (11th Cir. 2001), that even

“walkaway” escape qualified as a violent felony. Id. at 954–55. Because Chambers

involved statutory interpretation, McCarthan could not bring a second motion to

vacate under section 2255(h). Instead, he filed a petition for a writ of habeas

corpus, 28 U.S.C. § 2241. Both the district court and the panel applied a test we

first enunciated in Wofford that would allow a federal prisoner to petition for a writ

of habeas corpus if a later decision of the Supreme Court abrogates circuit

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precedent that had foreclosed the prisoner’s argument when he first moved to

vacate his sentence.

The district court could have exercised jurisdiction over McCarthan’s

petition only if it fell within the saving clause of section 2255(e). McCarthan

argued that Chambers “ma[de] [him] actually innocent” of the sentencing

enhancement and made him eligible for relief under the saving clause. The district

court dismissed the petition because McCarthan’s other convictions ensured that

his sentence did not exceed the statutory maximum. McCarthan v. Warden, FCC

Coleman-Medium, 5:09-cv-110 (M.D. Fla. Jan. 11, 2012).

We affirmed the dismissal of McCarthan’s petition. McCarthan v. Warden,

FCI Estill, 811 F.3d 1237, 1242 (11th Cir. 2016), reh’g en banc granted, op.

vacated, No. 12-14989 (11th Cir. May 24, 2016). The panel opinion explained that

McCarthan’s petition did not satisfy the requirements of the Wofford test because

he had at least three other convictions that triggered his enhanced sentence. Id. at

1256–57. But the panel disagreed about how to apply the Wofford test. Compare

id. at 1246–47, with id. at 1257–59 (Proctor, J., concurring).

McCarthan filed a petition for rehearing en banc, and we granted it. We

instructed the parties to brief three issues: (1) do our precedents erroneously

interpret the saving clause, 28 U.S.C. § 2255(e); (2) what is the correct

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interpretation of the saving clause; and (3) applying the correct standard, is

McCarthan entitled to petition for a writ of habeas corpus? Because both

McCarthan and the Warden argued that the Wofford test or some version of it is

correct, we appointed Taylor Meehan as amicus curiae to argue that our precedents

erroneously interpreted the saving clause. We thank Ms. Meehan for her superb

brief and oral argument in keeping with the highest tradition of the legal

profession.

On October 17, 2016, we granted McCarthan’s unopposed motion to

substitute the Director of Goodwill Industries-Suncoast, Inc. as the Respondent-

Appellee. McCarthan was transferred from FCI Estill to the custody of the Director

of Goodwill Industries-Suncoast, Inc., a Bureau of Prisons Residential Reentry

Center (more commonly known as a halfway house). McCarthan is still “in

custody,” for purposes of our jurisdiction. 28 U.S.C. § 2255(a).

II. STANDARD OF REVIEW

Whether a prisoner may bring a petition for a writ of habeas corpus under

the saving clause of section 2255(e) is a question of law we review de novo.

Williams v. Warden, Federal Bureau of Prisons, 713 F.3d 1332, 1337 (11th Cir.

2013). The petitioner bears the burden of establishing that the remedy by motion

was “inadequate or ineffective to test the legality of his detention.” Turner v.

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Warden Coleman FCI (Medium), 709 F.3d 1328, 1333 (11th Cir. 2013) (quoting

28 U.S.C. § 2255(e)), abrogated on other grounds by Johnson v. United States,

135 S. Ct. 2551 (2015).

III. DISCUSSION

Since 1948, Congress has required that a federal prisoner file a motion to

vacate, 28 U.S.C. § 2255, instead of a petition for a writ of habeas corpus, id.

§ 2241, to collaterally attack the legality of his sentence. See Pub. L. No. 80-773,

62 Stat. 869, 967–68. A motion to vacate allows a prisoner to contest his sentence

“upon the ground that the sentence was imposed in violation of the Constitution or

laws of the United States, or that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the maximum authorized by law, or

is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Section 2255(e)

makes clear that a motion to vacate is the exclusive mechanism for a federal

prisoner to seek collateral relief unless he can satisfy the “saving clause” at the end

of that subsection:

An application for a writ of habeas corpus in behalf of a prisoner who
is authorized to apply for relief by motion pursuant to this section,
shall not be entertained if it appears that the applicant has failed to
apply for relief, by motion, to the court which sentenced him, or that
such court has denied him relief, unless it also appears that the
remedy by motion is inadequate or ineffective to test the legality of his
detention.

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Id. § 2255(e) (emphasis added). “[S]aving[, not savings,] is the precise word” for

“a statutory provision exempting from coverage something that would otherwise

be included,” Bryan A. Garner, Garner’s Dictionary of Legal Usage 797 (3d ed.

2011); it has nothing to do with saving a statute from unconstitutionality, see, e.g.,

28 U.S.C. § 1333(1) (“saving to suitors in all cases all other remedies to which

they are otherwise entitled”).

To determine whether a change in caselaw can satisfy the saving clause of

section 2255(e), we consider three matters. First, we explain how we (and other

circuits) have interpreted the saving clause. Second, we explain why our

precedents fail to adhere to the text of the saving clause. Third, in the light of the

incongruity of the text and our precedents, we explain our decision to overrule our

precedents.

A. Our Precedents About the Saving Clause

Congress enacted section 2255 to address the “serious administrative

problems” caused by the requirement that habeas petitions be brought in the

district of incarceration, often far from where relevant records and witnesses were

located. United States v. Hayman, 342 U.S. 205, 210–19 (1952). The motion to

vacate “afford[ed] the same rights in another and more convenient forum,” namely

the district where the prisoner was sentenced. Id. at 219. In 1996, Congress

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reformed the system of collateral review when it passed the Antiterrorism and

Effective Death Penalty Act. See Pub. L. No. 104-132, 110 Stat. 1214. The Act

made several changes to section 2255, including the addition of a bar on second or

successive motions, 28 U.S.C. § 2255(h), and a statute of limitations, id. § 2255(f).

See 110 Stat. at 1220. But the Act did not alter the saving clause. See id.

This Circuit first considered the meaning of the saving clause eighteen years

ago in Wofford. Charlie Wofford, a federal prisoner, pleaded guilty to being a felon

in possession of a firearm and conspiracy to possess with intent to distribute

cocaine. Wofford, 177 F.3d at 1237. The district court and this Court denied his

first motion to vacate. Id. After several failed attempts to file successive motions to

vacate, Wofford petitioned for a writ of habeas corpus under section 2241 and

argued that his illegal sentence created manifest injustice. Id. at 1238. Wofford

argued that because the bar on second and successive motions prevented the court

from reaching the merits of his new claims, he satisfied the saving clause. Id.

We denied Wofford relief, but our analysis paid scant attention to the text of

the saving clause. We began with the opinion of the Supreme Court in Hayman,

but concluded that it was “not very helpful” with respect to the “saving[] clause

language.” Id. at 1239. We then discussed the legislative history. Id. at 1239–41.

Early versions of the saving clause focused on practicable problems, but we “found

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nothing in the legislative history explaining why the relevant language was

changed or what the new language means.” Id. at 1241. Unsurprisingly, snippets

from the legislative history cut both ways—that the new language did not make

any substantive changes and that the new language was broader than the old

language—but we decided “the better view is that the saving[] clause is concerned

with more than the practical difficulties.” Id. We then canvassed the decisions of

our sister circuits. Id. at 1242–45. After we concluded that the approach of the

Seventh Circuit was “better reasoned than those of the other circuits, and its rule

has the advantage of being specific,” we applied a test that turned on an

intervening change in circuit precedent. Id. at 1244. We stated that “the only

sentencing claims that may conceivably be covered by the saving[] clause are those

based upon a retroactively applicable Supreme Court decision overturning circuit

precedent.” Id. at 1245. But because Wofford’s petition did not rest upon a change

in caselaw, we denied him relief. Id.

In Gilbert, sitting en banc, we clarified that, under the Wofford test, the

saving clause does not apply to errors that do not cause a sentence to exceed the

statutory maximum. Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011)

(en banc). Ezell Gilbert pleaded guilty to possession with intent to distribute of

more than 50 grams of crack cocaine and more than 100 grams of marijuana. Id. at

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1298. Under the then-mandatory sentencing guidelines, the district court applied

the career offender enhancement and sentenced Gilbert to 292 months

imprisonment. Id. at 1300. The statutory maximum was life imprisonment. Id. at

1299. Years after we denied relief in his direct appeal and denied him a certificate

of appealability about the denial of his first motion to vacate, Gilbert invoked the

saving clause and petitioned for a writ of habeas corpus. He argued that the district

court should not have applied the career offender guideline. Id. at 1301–02. On

rehearing en banc, we explained that the Wofford test was “only dicta” but, in any

event, could not help Gilbert. Id. at 1319–20. Because Gilbert challenged only the

use of the guidelines in determining his sentence and a prisoner cannot be actually

innocent of a sentence within the statutory range, Wofford did not apply. Id. at

1320 (“Gilbert’s position turns on treating sentences as convictions, and an

argument that depends on calling a duck a donkey is not much of an argument.”).

Because Gilbert’s sentence did not exceed the statutory maximum, we denied

relief. Id. at 1322–24.

A few years later, Williams revisited the Wofford test to address an alleged

error that caused the sentence to exceed the statutory maximum. Williams, 713

F.3d at 1334. Albert Williams was tried and convicted of being a felon in

possession of a firearm and was sentenced as a career offender under the Armed

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Career Criminal Act. Id. at 1335. Williams did not object to the enhancement

during sentencing or on direct appeal, and we affirmed his conviction. Id. After

Williams filed several meritless collateral attacks, the Supreme Court decided

Begay v. United States, 553 U.S. 137 (2008), which narrowed the definition of

“violent felony” in the Armed Career Criminal Act. Id. at 148. Williams argued

that under section 2255(e) the district court could hear his petition for a writ of

habeas corpus and decide his claim that his sentence now exceeded the statutory

maximum because some of his underlying convictions no longer qualified as

violent felonies. Williams, 713 F.3d at 1336. We reiterated that “the statute says

precious little about what it means for the original motion to have been

‘inadequate’ or ineffective.’” Id. at 1341. Applying the Wofford test, we

determined that circuit precedent would not have “squarely resolved” Williams’s

claim unless there was “adverse precedent . . . that would have made us unwilling

to listen.” Id. at 1343, 1347. But there was “no Circuit precedent on the books

during Williams’s collateral attack” that foreclosed his claim, so we denied him

relief. Id. at 1345, 1349.

In Bryant, we again applied the Wofford test and granted a prisoner relief

under the saving clause for the first time. Bryant, 738 F.3d at 1274. We distilled a

five-part test from our precedents. That is, a federal prisoner may file a petition for

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a writ of habeas corpus if (1) binding precedent foreclosed a claim at the time of

his first motion to vacate; (2) the Supreme Court overturned our binding precedent

that foreclosed the claim; (3) the new decision of the Supreme Court applies

retroactively on collateral review; (4) as a result of this retroactive decision, the

prisoner’s sentence is now contrary to the law; and (5) this kind of claim can be

brought under the saving clause. Id. Bryant pleaded guilty to being a felon in

possession of a firearm. Id. at 1258. He had three prior felony convictions,

including one for carrying a concealed firearm, and the district court imposed a

sentencing enhancement under the Armed Career Criminal Act. Id. at 1258–60.

Bryant’s first motion to vacate did not challenge his conviction for carrying a

concealed firearm. Id. at 1260. After Begay, the district court denied leave to file a

successive motion, and Bryant instead petitioned for a writ of habeas corpus. Id.

Bryant satisfied each part of the Wofford test. Our precedent in United States

v. Hall, 77 F.3d 398 (11th Cir. 1996), held that a concealed-firearm offense was a

violent felony, id. at 401–02, which foreclosed Bryant’s argument when he filed

his first motion to vacate. Bryant, 738 F.3d at 1274. The later decision of the

Supreme Court in Begay “busted” that precedent. Id. at 1275. And we held that

Begay announced a substantive new rule that applied retroactively. Id. at 1276–77.

Bryant’s sentence was 235 months imprisonment, which exceeded the ten year

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statutory maximum for his crime without the enhancement. Id. at 1279. And we

held that the saving clause reaches more than claims of actual innocence; it extends

also to errors that cause a sentence to exceed the statutory maximum. Id. at 1281–

84.

In a similar appeal, we also granted Brian Mackey relief. Mackey, 739 F.3d

at 663. He argued that as a result of Begay, his convictions for carrying a concealed

firearm no longer supported his sentence as an armed career criminal. Id. at 660.

Under the Wofford test as explicated in Bryant, we again granted relief. Id. at 658,

663.

Since then, additional wrinkles have arisen. In Samak, a federal inmate

imprisoned in our Circuit, but sentenced in another, the Fifth, petitioned for a writ

of habeas corpus. Samak v. Warden, FCC Coleman-Medium, 766 F.3d 1271, 1275

n.3 (11th Cir. 2014). The Wofford test required us to review Fifth Circuit precedent

and determine whether the law of that other circuit foreclosed Jamal Samak’s

petition. Id. at 1275. We denied relief because the relevant Fifth Circuit precedent

actually supported Samak’s claim at the time of his first motion to vacate. Id. But a

separate concurring opinion called for a reconsideration of our precedent in Bryant

and the adoption of an interpretation rooted in the plain text of the saving clause.

Id. at 1275–76 (W. Pryor, J., concurring). And in Cortes-Morales, a federal

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prisoner argued that the saving clause should extend beyond changes in caselaw to

retroactive legislation that amended the New York sentencing statutes. Cortes-

Morales v. Hastings, 827 F.3d 1009, 1015 (11th Cir. 2016). We held that Jorge

Cortes-Morales was not eligible for resentencing under the revised New York laws

and avoided the question whether or not the saving clause could be extended to

retroactive amendments to state legislation. Id. at 1016. But a separate concurring

opinion reiterated that because Bryant is a “monster of our creation, untethered to

the text” there is “no principled basis for determining its ultimate reach.” Id. (W.

Pryor, J., concurring).

Several other circuits have divined similarly atextual tests for satisfying the

saving clause. In Davenport, which we cited in Wofford, the Seventh Circuit

engaged in a pragmatic analysis that adequate “should mean” that “a prisoner [has]

a reasonable opportunity to obtain a reliable judicial determination of the

fundamental legality of his conviction and sentence.” In re Davenport, 147 F.3d

605, 609 (7th Cir. 1998). And the Fourth, Fifth, and Sixth Circuits have required

proof of actual innocence of a charged offense, in addition to other factors, to

obtain relief under the saving clause. See, e.g., Wooten v. Cauley, 677 F.3d 303,

307–08 (6th Cir. 2012); Reyes–Requena v. United States, 243 F.3d 893, 904 (5th

Cir. 2001); In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000). The Second Circuit

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holds that “inadequate or ineffective” means “the set of cases in which the

petitioner cannot, for whatever reason, utilize § 2255, and in which the failure to

allow for collateral review would raise serious constitutional questions.” Triestman

v. United States, 124 F.3d 361, 377 (2d Cir. 1997). The Third Circuit focuses on

when the second or successive limitations would cause a “complete miscarriage of

justice.” In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). And in the Eighth and

Ninth Circuits, a prisoner must not have had an unobstructed procedural shot at

presenting that claim, defined to include changes in law. See Harrison v. Ollison,

519 F.3d 952, 959–60 (9th Cir. 2008); Abdullah v. Hedrick, 392 F.3d 957, 963 (8th

Cir. 2004). Judge Martin’s dissent places great weight on the majority of circuits

having arrived at the same result, regardless of their reasoning, Martin Dissent at

88, 98 n.7, but our inquiry must begin with the text.

Only the Tenth Circuit has adhered to—or even seriously considered—the

text of the saving clause. In Prost, the Tenth Circuit held that “the plain language

of § 2255 means what it says and says what it means: a prisoner can proceed to

§ 2241 only if his initial § 2255 motion was itself inadequate or ineffective to the

task of providing the petitioner with a chance to test his sentence or conviction.”

Prost, 636 F.3d at 587. The intervening change in caselaw does not mean that the

“process was ineffective or inadequate to test his argument.” Id. at 580. And then-

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Chief Judge Frank Easterbrook reached the same conclusion contrary to the circuit

precedent that binds his court: “A motion under § 2255 could reasonably be

thought ‘inadequate or ineffective to test the legality of [the prisoner’s] detention’

if a class of argument were categorically excluded, but when an argument is

permissible but fails on the merits there is no problem with the adequacy of

§ 2255.” Brown v. Caraway, 719 F.3d 583, 597 (7th Cir. 2013) (Easterbrook, C.J.,

concerning the circulation under Circuit Rule 40(e)).

In Bryant, we briefly considered this textual interpretation of the saving

clause and dismissed it as “in tension with this Court’s precedent.” 738 F.3d at

1287. But as the Tenth Circuit correctly explained, our precedent in Wofford did

not address the “textual and structural clues” that support the contrary reasoning in

Prost. 636 F.3d at 593. With the benefit of our experience, we now take this

opportunity to reconsider our interpretation of the saving clause.

B. The Text of the Saving Clause

The saving clause provides a federal prisoner relief only when his “remedy

by motion is inadequate or ineffective to test the legality of his detention.” 28

U.S.C. § 2255(e). When we read this text, several terms offer important clues about

its meaning: “remedy,” “to test,” “inadequate or ineffective,” and “detention.”

Careful review of these terms and the whole text makes clear that a change in

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caselaw does not trigger relief under the saving clause. Whether circuit precedent

“was once adverse to a prisoner has nothing to do with whether his motion to

vacate his sentence is ‘inadequate or ineffective to test the legality of his

detention.’” Samak, 766 F.3d at 1276 (W. Pryor, J., concurring).

McCarthan’s claim that his sentence exceeds the statutory maximum is

exactly the kind of claim that a motion to vacate is designed to “remedy,”

notwithstanding adverse precedent. “Remedy” as used in the saving clause does

not promise “relief.” A “remedy” is “[t]he means by which a right is enforced or

the violation of a right is prevented, redressed, or compensated.” Remedy, Black’s

Law Dictionary 1526 (3d ed. 1933). “Relief” is “the assistance, redress, or benefit

which a complainant seeks at the hands of the court.” Relief, Black’s Law

Dictionary 1523 (3d ed. 1933). The “means” are not inadequate when circuit

precedent forecloses relief on a claim. The remedy of a motion to vacate permitted

McCarthan to bring his claim and seek en banc or Supreme Court review to change

the substantive rule of law. That a court might reject a prisoner’s argument does

not render his “remedy by motion” an inadequate “means by which” to challenge

the legality of his sentence. A procedural rule that might prevent success on a

particular motion does not render the remedy an inadequate “means” so long as it

is capable of “enforc[ing]” or “redress[ing]” the right. The motion to vacate is an

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adequate remedy for McCarthan because if he succeeds, the court must “vacate and

set the judgment aside” and either release or retry him. 28 U.S.C. § 2255(b).

The distinction between remedy and relief is reflected throughout our system

of habeas corpus. For example, a procedural bar might prevent relief, but that bar

does not render the motion itself an ineffective or inadequate remedy. See, e.g.,

Jiminian v. Nash, 245 F.3d 144, 147–48 (2d Cir. 2001) (Sotomayor, J.). The

prisoner may still bring the claim. Likewise, a state prisoner must “exhaust[] the

remedies available in the courts of the State” before petitioning for a federal writ of

habeas corpus. 28 U.S.C. § 2254(b)(1)(A) (emphasis added). In this context,

remedy must refer to the available process—not substantive relief—because a

prisoner who received relief in state court would have no reason to file a habeas

petition. That McCarthan’s argument was foreclosed by precedent (as opposed to

being wrong, untimely, procedurally barred, or unexhausted) is irrelevant. The

motion to vacate provided an adequate remedy to challenge the legality of his

sentence.

McCarthan also could have “tested” the legality of his detention in his first

motion to vacate. That is, he could have made the argument that his prior

convictions did not qualify him for an enhanced sentence under the statute. “To

test” the legality of his detention and satisfy the saving clause, a prisoner is not

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required “to win” his release. “To test” means “to try.” Test, 11 Oxford English

Dictionary 220 (1st ed. 1933). To try a claim, a “petitioner [must have] an

opportunity to bring his argument,” Prost, 636 F.3d at 584. The opportunity to test

or try a claim, however, neither guarantees any relief nor requires any particular

probability of success; it guarantees access to a procedure. Id.; see also Taylor v.

Gilkey, 314 F.3d 832, 835–36 (7th Cir. 2002) (“[To test] implies a focus on

procedures rather than outcomes. Judges sometimes err, but this does not show that

the procedures are inadequate; it shows only that people are fallible.”). To

determine whether a prisoner satisfies the saving clause, we ask only whether the

motion to vacate is an adequate procedure to test the prisoner’s claim. And to

answer this question, we ask whether the prisoner would have been permitted to

bring that claim in a motion to vacate. In other words, a prisoner has a meaningful

opportunity to test his claim whenever section 2255 can provide him a remedy.

Despite circuit precedent, McCarthan could have tested the legality of his

detention by requesting that we reconsider our precedent en banc or by petitioning

the Supreme Court for a writ of certiorari. The panel opinion stated that the

purpose of the Wofford test is “to prevent us from entertaining § 2241 petitions by

federal prisoners who could have at least theoretically successfully challenged an

ACCA enhancement in an earlier proceeding,” McCarthan, 811 F.3d at 1245, and

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Judge Rosenbaum’s dissent argues that “a prisoner must have a ‘meaningful

opportunity’ to present his claim,” Rosenbaum Dissent at 139–40. But if

McCarthan had raised his claim earlier, perhaps he could have been the successful

litigant that Deondery Chambers or Larry Begay later came to be. For example,

Chambers raised the same claim McCarthan does, namely that his conviction for

escape was not a violent felony under the Armed Career Criminal Act. Chambers,

555 U.S. at 123. And he too faced binding circuit precedent that foreclosed this

claim. See United States v. Chambers, 473 F.3d 724, 725–26 (7th Cir. 2007), rev’d,

555 U.S. 122 (2009). But he nevertheless presented his claim and won relief in the

Supreme Court. Chambers, 555 U.S. at 126–27. Similarly, in the context of

procedural default, we do not excuse a defendant’s failure to raise a claim even if

the claim was “unacceptable to that particular court at that particular time.” Engle

v. Isaac, 456 U.S. 107, 132 n.35 (1982) (citation omitted); Moore v. Zant, 885 F.2d

1497, 1507–08 (11th Cir. 1989) (“Engle . . . indicated that petitioners might have a

duty to anticipate changes in the law at the threat of having later claims based on

those changes barred by principles of procedural default.”). It is unclear why the

chance to have precedent overruled en banc or by the Supreme Court would not

qualify as a theoretically successful challenge or meaningful opportunity.

McCarthan, like Chambers, had a meaningful opportunity to present his claim and

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test the legality of his sentence before the court of appeals and before the Supreme

Court. A test often failed can nevertheless be an adequate test.

Adverse circuit precedent also did not make McCarthan’s first motion to

vacate his sentence “inadequate or ineffective” to challenge his sentence.

“Inadequate or ineffective” instead connotes that the saving clause permits a

prisoner to bring a claim in a petition for habeas corpus that could not have been

raised in his initial motion to vacate. The term “inadequate,” as defined in the

phrase “inadequate remedy at law,” means “unfitted or not adapted to the end in

view.” Inadequate Remedy at Law, Black’s Law Dictionary 940 (3d ed. 1933); see

also Jordan Concurring at 67 (providing a definition of “inadequate” as “lacking in

effectiveness”). And “ineffective” means “[o]f such a nature as not to produce . . .

the intended [] effect.” Ineffective, 5 Oxford English Dictionary 239 (1st ed. 1933).

That a particular argument is doomed under circuit precedent says nothing about

the nature of the motion to vacate. The motion to vacate is still “adapted to the

end” of testing the claim regardless of the claim’s success on the merits.

The word “or” in “inadequate or ineffective” does not overpower the

ordinary meaning of the words, which have similar definitions. We are hard

pressed to imagine a remedy that is “lacking in effectiveness” but not “ineffective,”

or “of such a nature as not to produce the intended effect” but not “inadequate.”

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Although the disjunctive “or” may suggest separate meanings for the two terms,

Jordan Concurring at 66–67; Rosenbaum Dissent at 127–28, it does not require

mutual exclusivity. The word “or” commonly introduces a synonym or

“definitional equivalent.” See Antonin Scalia & Bryan A. Garner, Reading Law:

An Interpretation of Legal Texts 122 (2012). That construction may be an example

of the “ill-conceived but lamentably common belt-and-suspenders approach” to

legal writing, id. at 176–77, but it is the better reading of the text when the terms

share the same ordinary meaning. Judge Rosenbaum’s dissent disagrees because

the phrase “or ineffective” is not set off by commas, Rosenbaum Dissent at 128,

but commas are not necessary. See, e.g., Scalia & Garner, supra, at 122 (“The

award of exemplary or punitive damages is the exception, not the rule.”); Fed. R.

Evid. 407 (“When measures are taken that would have made an earlier injury or

harm less likely to occur . . .”). That the definitions overlap does not require that

we ignore the ordinary meaning of the text, and it does not support the dissent’s

conclusion that “ineffective” must mean “constitutionally deficient.” Rosenbaum

Dissent at 131.

A motion to vacate is not often an inadequate or ineffective remedy. But a

motion to vacate could be “inadequate or ineffective to test” a prisoner’s claim

about the execution of his sentence because that claim is not cognizable under

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section 2255(a). See, e.g., Hajduk v. United States, 764 F.2d 795, 796 (11th Cir.

1985). The motion to vacate is “of such a nature” that it will “not . . . produce . . .

the intended [] effect,” Ineffective, 5 Oxford English Dictionary 239 (1st ed. 1933),

because the prisoner does not challenge his sentence and the appropriate remedy is

not vacatur. Or, if the sentencing court no longer exists, the remedy by motion

could be “inadequate or ineffective to test” the prisoner’s claim because the motion

may be brought only in that venue. But when a prisoner’s argument about the

legality of his sentence conflicts with circuit precedent, a motion to vacate is

neither inadequate nor ineffective to test his argument.

The word “ineffective” also carries this meaning elsewhere in the statute: a

state prisoner may avoid the exhaustion requirements if “circumstances exist that

render such process ineffective to protect the rights of the applicant.” 28 U.S.C.

§ 2254(b)(1)(B)(ii). The Supreme Court stated that this exception applies only if

“there is no opportunity to obtain redress in state court or if the corrective process

is so clearly deficient as to render futile any effort to obtain relief.” Duckworth v.

Serrano, 454 U.S. 1, 3 (1981) (emphasis added). Because there was no claim that

the “postconviction procedures [were] inadequate to adjudicate” the claim, the

prisoner did not qualify for the exception. Id. at 4. So too here. The remedy by

motion is not ineffective unless the procedure it provides is incapable of

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adjudicating the claim. We cannot “engraft[] an exception onto the habeas statute

not envisioned by Congress [and] inconsistent with the clear mandate of the Act.”

Id. at 5.

In other areas of the law, adequacy and effectiveness focus on process and

do not require any likelihood of success on the merits. For example, a litigant with

an “adequate” remedy at law cannot seek equitable relief, even if his legal claim

has little chance of success. Samak, 766 F.3d at 1285 (W. Pryor, J., concurring).

Similarly, in the context of the Sixth Amendment, defense counsel is not

“ineffective” even if his arguments are “doomed.” Brown, 719 F.3d at 597

(Easterbrook, C.J., concerning the circulation under Circuit Rule 40(e)). Judge

Rosenbaum’s dissent takes this analogy too far when it asserts that because the

ineffective assistance of counsel creates a constitutional deficiency under the Sixth

Amendment, the term “ineffective” means “constitutionally deficient.” Rosenbaum

Dissent at 132–33.

When circuit precedent forecloses a prisoner’s claim, “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.”

Prost, 636 F.3d at 590. A prisoner has an adequate procedure to raise any claim

attacking his sentence, even if that claim is foreclosed by circuit precedent. Our

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precedent may later prove to be “right or wrong as a matter of substantive law, but

the saving[] clause is satisfied so long as the petitioner had an opportunity to bring

and test his claim.” Id. at 585. When a prisoner’s motion attacks his sentence based

on a cognizable claim that can be brought in the correct venue, the remedy by

motion is adequate and effective to test his claim.

The term “detention” in the saving clause carries a broader meaning than

the term “sentence” that appears elsewhere in the statute. Section 2255(a) allows a

prisoner to challenge only his “sentence.” 28 U.S.C. § 2255(a). But the saving

clause preserves challenges to a prisoner’s “detention” that would otherwise go

unremedied. Id. § 2255(e). When Congress uses “different language in similar

sections,” we should give those words different meanings. See Iraola & CIA, S.A.

v. Kimberly–Clark Corp., 232 F.3d 854, 859 (11th Cir. 2000); see also Scalia &

Garner, supra, at 170. When Congress enacted section 2255, the word “detention”

meant “[k]eeping in custody or confinement,” Detention, 3 Oxford English

Dictionary 266 (1st ed.1933), or “[t]he act of keeping back or withholding, either

accidentally or by design, a person or thing,” Detention, Black’s Law Dictionary

569 (3d ed. 1933). Because someone can be “[kept] in custody” without a criminal

sentence, or “with[eld]” contrary to the terms of the sentence, it is clear that the

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meaning of “detention” covers circumstances of confinement other than those

attributable to the sentence.

When a prisoner attacks aspects of his detention in ways that do not

challenge the validity of his sentence, then the saving clause may provide him

access to a different remedy. For example, a prisoner may concede the validity of

his sentence but raise claims about the execution of his sentence—that is, “about

his good-time credits or the revocation of his parole, which involve the ‘act of

keeping back or withholding’ the prisoner.” Samak, 766 F.3d at 1280 (W. Pryor, J.,

concurring).

This reading of the text comports with the traditional distinction between a

motion to vacate and a petition for a writ of habeas corpus. A motion to vacate

covers only challenges to the validity of a sentence, but the saving clause and a

petition for a writ of habeas corpus cover challenges to the execution of a sentence.

Cf. Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1351 n.1 (11th Cir. 2008)

(“It is well-settled that a § 2255 motion to vacate is a separate and distinct remedy

from habeas corpus proper. . . . A prisoner in custody pursuant to a federal court

judgment may proceed under § 2241 only when he raises claims outside the scope

of § 2255(a), that is, claims concerning execution of his sentence.”) (internal

citations omitted); United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980)

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(“[The prisoner’s] appropriate remedy is under § 2255, not 28 U.S.C. § 2241, since

the alleged errors occurred at or prior to sentencing.”). Because Congress used

“sentence” in one part of the statute and “detention” in another, we should interpret

the statute to preserve the traditional distinction between those terms and the

procedures by which they are challenged.

McCarthan’s petition does not fall within the text of the saving clause.

Nothing in the text suggests that Congress gave special status to claims foreclosed

by binding circuit precedent, as opposed to claims that are procedurally defaulted

or substantively wrong. See Samak, 766 F.3d at 1295 (W. Pryor, J., concurring)

(“Bryant does not even attempt to offer a plausible interpretation of the text of the

saving[] clause.”). Neither McCarthan’s failure to bring this claim earlier nor his

odds of success on the merits are relevant to the saving clause inquiry. Because

McCarthan filed a traditional claim attacking his sentence that he could have

brought in a motion to vacate, the remedy by motion is adequate and effective to

test the legality of his detention.

The whole text of section 2255 confirms our reading of the saving clause.

“[T]here can be no justification for needlessly rendering provisions in conflict if

they can be interpreted harmoniously.” Scalia & Garner, supra, at 180. Allowing a

prisoner with a claim that is cognizable in a motion to vacate to access the saving

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clause nullifies the procedural hurdles of section 2255 and undermines the venue

provisions.

If the saving clause “guarantee[d] multiple opportunities to test a conviction

or sentence,” then the bar against second and successive motions under section

2255(h) would become a nullity. Prost, 636 F.3d at 585. Only prisoners who

satisfy the exceptions of section 2255(h) may collaterally attack their sentences

more than once. Section 2255(h) “speaks directly” to the question of “[h]ow often

to rerun a search for error.” Taylor, 314 F.3d at 835. Judge Martin’s dissent argues

that our interpretation “has made a rule” that “insulate[s] [our] mistakes from . . .

review,” Martin Dissent at 101, but, as always, every error we make in affirming

the denial of a motion to vacate is subject to review on petition for certiorari. And

we did not make the rule that bars consideration of second or successive motions.

Congress did. The legislative branch defined both the appropriate sentence for

McCarthan’s crime and the rules for challenging the legality of that sentence.

Congress recognized that courts would make mistakes, but provided for successive

motions only in specific circumstances. The statute limits each prisoner to a “single

collateral attack, unless the conditions of [2255(h)] have been met.” Taylor, 314

F.3d at 835. McCarthan neither alleges that “newly discovered evidence”

establishes his innocence nor that “a new rule of constitutional law, made

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retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable” warrants relief. 28 U.S.C. § 2255(h). He cannot bring a second

collateral attack.

The saving clause does not create a third exception. “Where Congress

explicitly enumerates certain exceptions to a general prohibition, additional

exceptions are not to be implied.” TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001)

(quoting Andrus v. Glover Constr. Co., 446 U.S. 608, 616–17 (1980)). The specific

language of section 2255(h), enacted nearly 50 years after the saving clause, limits

the reach of the saving clause. See Gilbert, 640 F.3d at 1308 (“An ambiguous or

general statutory provision enacted at an earlier time must yield to a specific and

clear provision enacted at a later time.”). If Congress wanted an exception for all

intervening changes in law, it could have said so. Elsewhere in the statute,

Congress refers to any “right” that is new and retroactively applicable. 28 U.S.C.

§ 2255(f)(3). But section 2255(h) speaks only to “a new rule of constitutional law.”

Id. § 2255(h)(2). This material variation in terms suggests a variation in meaning.

See Scalia & Garner, supra, at 170. Judge Martin’s dissent argues that Congress’s

failure to repeal the saving clause permits courts to create a third exception for new

rules of statutory interpretation that arise after a prisoner has used his first motion

to vacate. Martin Dissent at 96. But to read the bar on successive motions (or other

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procedural bars to relief) to trigger the saving clause makes the statute self-

defeating. See, e.g., Brown, 719 F.3d at 599 (Easterbrook, C.J., concerning the

circulation under Circuit Rule 40(e)). And we are not persuaded that relying on

equity to limit the third exception to claims of actual innocence, Jordan Concurring

at 69–74, does any less violence to the statutory text that creates only two

exceptions. Congress did not create any exception to section 2255(h) for non-

constitutional changes in law, so we may not craft one.

Section 2255 includes other procedural hurdles that the Wofford test fails to

respect. For example, the Wofford test runs roughshod over the statute of

limitations, 28 U.S.C. § 2255(f). A federal prisoner has one year to move to vacate

his sentence under section 2255. But when a prisoner uses the saving clause to

bring a claim that is cognizable in a motion to vacate, he bypasses his statute of

limitations and gains limitless time to press claims that prisoners who meet the

requirements of section 2255 do not receive.

The motion to vacate was intended to be a substitute remedy for the writ of

habeas corpus, see Hill v. United States, 368 U.S. 424, 427 (1962); Hayman, 342

U.S. at 219, but permitting federal prisoners to file habeas petitions based on an

intervening change in statutory interpretation provides those prisoners with a

superior remedy. Allowing a prisoner to use the saving clause to bring a statutory

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claim in a habeas petition circumvents the bar on successive petitions. 28 U.S.C.

§ 2255(h). It does away with the one-year statute of limitations. Id. § 2255(f). It

renders the process for obtaining permission to file a second or successive motion,

id. § 2253(b), and that for obtaining a certificate of appealability, id. § 2253(c)(1),

a nullity. A prisoner who brings a constitutional claim under section 2255(h), in

contrast, must overcome these procedural hurdles. The Wofford test unravels this

carefully tailored scheme. It makes no sense to allow a federal prisoner to evade

the statutory framework by filing a petition for a writ of habeas corpus.

Several of the separate opinions raise a version of the argument that a

previously adequate remedy may later become inadequate, but these temporal

arguments fail in the light of the whole text. Judge Rosenbaum’s dissent states that

“as a practical matter” a “right . . . cannot be vindicated until after the Supreme

Court announces the new rule.” Rosenbaum Dissent at 184. But this argument

ignores that litigants often make novel arguments in the hope that a court will

adopt them as a matter of first impression or in a rejection of past precedent. Judge

Martin’s dissent and Judge Jordan’s concurring opinion argue that the “present

tense” of the saving clause requires that we ask whether section 2255 “is adequate

or ineffective to test” “at the time the petition is filed in federal court.” Martin

Dissent at 91; Jordan Concurring at 64 (We “assess inadequacy and ineffectiveness

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as of the time [a petitioner] files his § 2241 habeas corpus petition, and not as of

the time when he submitted his initial § 2255 motion.”). But whether the remedy

“is” inadequate or ineffective must refer to the nature of the remedy, not to one

specific motion, or else the motion becomes inadequate every time a procedural

rule like the statute of limitations or procedural default prevents success. The

procedural bars mean nothing if they can be avoided through the saving clause.

The saving clause does not allow access to section 2241 whenever a claim is

untimely or procedurally defaulted otherwise the statute would render itself

inadequate or ineffective. The same must be true for the bar on second or

successive motions. Contrary to Judge Martin’s dissent, Martin Dissent at 97–100,

the means also do not somehow become inadequate or ineffective when circuit

precedent is abrogated after a prisoner has filed his first motion to vacate. When

Congress limits a prisoner to a single motion to vacate, it does not render the

“remedy by motion inadequate or ineffective to test the legality of his detention,”

28 U.S.C. § 2255(e); it instead limits each prisoner to one test.

Allowing a federal prisoner to bring a successive claim in a petition for a

writ of habeas corpus also defies the logic of the venue provisions. A federal

prisoner must file a motion to vacate in the court that tried and sentenced him,

where he can challenge issues about his trial and sentencing. See id. § 2255(a). In

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contrast, he must bring a petition for a writ of habeas corpus in the district in which

he is imprisoned, where he can challenge his detention. See id. § 2241(d). The

United States Attorney who participated in sentencing defends challenges to the

prisoner’s trial and sentencing. Id. § 2255(a). But the warden of the prison defends

challenges to the prisoner’s detention. Id. § 2241(d).

Allowing a prisoner to bring an ordinary attack on his sentence in the district

where he is detained eviscerates this structure. It resurrects the problems that

section 2255 was enacted to solve, such as heavy burdens on courts located in

districts with federal prisons, inconvenience for witnesses who must travel far from

where the prisoner was tried to the place where he is detained, the requirement

that wardens defend resentencing. See Hayman, 342 U.S. at 219, 213. It also

creates new procedural and jurisdictional wrinkles for district courts tasked with

implementing relief that the statute does not contemplate. See Hill v. Sepanek,

Civil No. 14-85-ART, 2017 WL 73338, at *5–9 (E.D. Ky. Jan. 6, 2017) (Thapar,

J.) (“[P]ractical problems . . . arise under any construction of the saving[] clause

that does not comport with its plain meaning.”); Love v. Hogsten, Civil Action No.

1:09–cv–2134–JEC, 2012 WL 3822194, at *4 (N.D. Ga. Sept. 4, 2012) (J. Carnes,

J.) (“Insisting that what is essentially a § 2255 claim . . . be instead deemed a

§ 2241 claim [shifts] the venue . . . from the district of sentencing to the district in

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which the petitioner is confined[,] . . . meaning that there is the potential for

multiple § 2241 saving[] clause claims in multiple districts, creating confusion,

duplicative effort, and potentially inconsistent results.”). Allowing access to the

saving clause to bring ordinary sentencing challenges disregards Congress’s

decision to bifurcate the system of collateral review between challenges to a

prisoner’s sentence and challenges to the execution of a prisoner’s sentence.

Limiting the saving clause to claims that are not cognizable or that cannot be

remedied under section 2255 respects the entire system of federal collateral review.

The government and some of the separate opinions argue that our

interpretation renders the saving clause meaningless, see Jordan Concurring at 81;

Martin Dissent at 100, but we disagree. The saving clause has meaning because not

all claims can be remedied by section 2255. A prisoner sentenced by a federal

court, for example, may file a petition for a writ of habeas corpus to challenge the

execution of his sentence, such as the deprivation of good-time credits or parole

determinations. See, e.g., Hajduk, 764 F.2d at 796. The saving clause also allows a

prisoner to bring a petition for a writ of habeas corpus when the sentencing court is

unavailable. Other circuits have held that a prisoner may file a petition for a writ of

habeas corpus if his sentencing court has been dissolved. See Prost, 636 F.3d at

588 (explaining that for military prisoners “the resort to § 2241 is the norm rather

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than the exception . . . due to the evanescent nature of court martial proceedings:

the sentencing court literally dissolves after sentencing and is no longer available

to test a prisoner's collateral attack”). Or, as our sister circuit has held, perhaps

practical considerations (such as multiple sentencing courts) might prevent a

petitioner from filing a motion to vacate. See Cohen v. United States, 593 F.2d 766,

771 & n.12 (6th Cir. 1979). “But only in those kinds of limited circumstances is

[the remedy by motion] ‘inadequate or ineffective to test the legality of his

detention.’” Samak, 766 F.3d at 1278 (W. Pryor, J., concurring) (quoting 28 U.S.C.

§ 2255(e)).

Judge Rosenbaum’s dissent and Judge Jordan’s concurring opinion argue

that our interpretation conflicts with the text of the statute because, in their view, a

prisoner can petition for a writ of habeas corpus to challenge the execution of his

sentence without accessing the saving clause. Rosenbaum Dissent at 114–25;

Jordan Concurring at 76–77. But they misinterpret “a prisoner who is authorized to

apply for relief by motion pursuant to this section,” id. § 2255(e), to mean only a

prisoner bringing a claim under section 2255(a). Rosenbaum Dissent at 114–25;

Jordan Concurring at 74–75. The use of the broader word “detention” suggests that

the saving clause applies to claims about the execution of a sentence because we

would expect the clause to say “sentence” if it only applied to sentencing claims.

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And the phrase “a prisoner who” highlights that the prohibition on petitioning for a

writ of habeas corpus applies to a kind of person, namely “a prisoner in custody

under sentence of a court established by Act of Congress,” id. § 2255(a), not a kind

of claim. The better interpretation of “pursuant to this section” is in opposition to

prisoners authorized pursuant to a different section, such as “a person in custody

pursuant to the judgment of a State court” in the neighboring section of the code,

id. § 2254(a).

Despite the dissent’s attempt to limit the meaning of “authorized” to portions

of section 2255 that contain affirmative grants to the prisoner, as opposed to

processing instructions to the court, Rosenbaum Dissent at 114–19, the text will

not bear this interpretation. The phrase “pursuant to this section” refers to all of

section 2255, not the first subsection alone. An ordinary speaker of English would

not understand a prisoner who lacks permission to file a second or successive

motion to be any more “authorized to apply for relief” than a prisoner with a claim

outside of section 2255(a). But if that prisoner can instead petition for a writ of

habeas corpus, then section 2255(h) becomes a nullity. Our interpretation that a

prisoner is “authorized to apply for relief by motion pursuant to this section,” id.

§ 2255(e), if he is “in custody under sentence of a court established by Act of

Congress,” id. § 2255(a), avoids this nullity. But most importantly, even if a

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prisoner with a claim based on the execution of his sentence could petition for a

writ of habeas corpus without the saving clause, the saving clause would still apply

to situations in which a federal sentencing court dissolves or access to the remedy

by motion is impractical. The interpretation presented by Judge Rosenbaum’s

dissent and Judge Jordan’s concurring opinion proves nothing about whether a

prisoner with a claim based on a change in caselaw or a prisoner with a claim

based on actual innocence satisfies the saving clause.

Judge Rosenbaum’s dissent contends that our interpretation of the saving

clause violates the Suspension Clause, U.S. Const. Art. 1, § 9, cl. 2, Rosenbaum

Dissent at 133–35, but we disagree. We have no need to use the saving clause as a

fount of constitutional avoidance in this appeal, see Rosenbaum Dissent at 110,

140, because there is no constitutional violation to avoid. The Suspension Clause

provides 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. 1, § 9, cl. 2. Our interpretation of the saving clause cannot suspend

the writ because the Original Writ in the Supreme Court remains available, habeas

corpus at common law did not apply to prisoners sentenced by a court of

competent jurisdiction, and the decision of the Supreme Court in Felker v. Turpin,

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518 518 U.S. 651 (1996), upheld a bar on successive motions against constitutional

challenge.

Nothing in the Antiterrorism and Effective Death Penalty Act “strangle[s]

the power of the Supreme Court to grant an Original Writ.” Samak, 766 F.3d at

1291 (W. Pryor, J., concurring) (citing Felker, 518 U.S. at 658). “The Act cannot

transgress the constitutional rights of prisoners who allege that they have been

erroneously sentenced or unfairly tried when the Supreme Court retains its power

to grant an Original Writ. The Supreme Court affirmed this proposition as early as

1868 . . . and as recently as 1996.” Id. at 1292 (citing Ex Parte Yerger, 75 U.S. (8

Wall.) 85, 105 (1868); Felker, 518 U.S. at 651). Judge Rosenbaum’s dissent argues

that the Original Writ is not an adequate substitute for the common law writ

because it would be impractical and the Supreme Court rarely grants the writ.

Rosenbaum Dissent at 164–66. But “judgments about the proper scope of the writ

are ‘normally for Congress to make.’” Felker, 518 U.S. at 664 (citing Lonchar v.

Thomas, 517 U.S. 314, 323 (1996)). And because the Constitution does not even

require Congress to create inferior courts, U.S. Const. Art. III, § 1, it makes no

sense to assert that a remedy within the original jurisdiction of the Supreme Court

is insufficient to satisfy the Suspension Clause.

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To argue that section 2255 suspends the writ ignores that at common law,

the writ of habeas corpus would not have been available at all to prisoners like

McCarthan. And the Supreme Court has never held that the constitutional

requirements of the Suspension Clause increase over time. See I.N.S. v. St. Cyr,

533 U.S. 289, 300–301 (2001); Felker, 518 U.S. at 663–64. Traditional habeas

corpus dealt with only “serious abuses of power by a government, say a king’s

imprisonment of an individual without referring the matter to a court.” Lonchar,

517 U.S. at 322. “As limited by the act of 1789, [the writ] did not extend to cases

of imprisonment after conviction, under sentences of competent tribunals. . . .” Ex

Parte Yerger, 75 U.S. (8 Wall.) at 101. Judge Rosenbaum’s dissent relies heavily

on Boumediene v. Bush, 553 U.S. 723 (2008), but this reliance is misplaced. In

Boumediene, the Supreme Court addressed the scope of habeas corpus for

executive detainees “where no trial has been held” and distinguished decisions

like Felker in which a prisoner sought relief from a judgment imposed in a “fair,

adversary proceeding.” Id. at 732, 774, 782. Because McCarthan would not have

had the right to habeas corpus under the common law, his inability to file a second

collateral attack after a change in caselaw cannot possibly constitute a suspension

of the writ.

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Judge Rosenbaum’s dissent argues that the Suspension Clause requires the

availability of successive petitions for new rules of statutory interpretation,

Rosenbaum Dissent at 109, but as the decision of the Supreme Court in Felker

reminds us, the writ has not been suspended whenever a prisoner cannot file a

successive collateral attack. The Antiterrorism and Effective Death Penalty Act

creates parallel procedures for federal and state prisoners: federal prisoners bring

collateral attacks under section 2255, and state prisoners bring collateral attacks

under section 2254. Both remedies include a nearly identical bar on successive

attacks, 28 U.S.C. §§ 2244(b); 2255(h), but only the federal remedy includes a

saving clause. In Felker, the Supreme Court held that the bar on second or

successive collateral attacks by state prisoners did not violate the Suspension

Clause. 518 U.S. at 664. Because the Supreme Court has approved limitations on

successive petitions without a saving clause, those same limitations with a saving

clause must be constitutional. Citing the separation of powers to limit the

application of Felker to state prisoners, Rosenbaum Dissent at 159–61, is

“interpretive jiggery-pokery,” King v. Burwell, 135 S. Ct. 2480, 2500 (2015)

(Scalia, J., dissenting), that conveniently ignores the dissent’s own insistence that

“limited government powers” also animate habeas corpus, Rosenbaum Dissent at

108.

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Contrary to Judge Rosenbaum’s dissent, retroactivity doctrine does not

undermine this conclusion; indeed, it is unclear why retroactivity is even relevant.

When the Supreme Court makes a right retroactively available on collateral

review, it does not mean that a prisoner is constitutionally entitled to have a court

review a violation of that right on the merits. See, e.g., Bousley v. United States,

523 U.S. 614, 621 (1998) (“Though petitioner’s claim is [retroactive], there are

nonetheless significant procedural hurdles to its consideration on the merits.”).

Retroactivity means that a court is no longer barred from applying a new rule on

collateral review, not that a court must create a vehicle for collateral review

because there is a new rule. Procedural barriers like procedural default, id., the

statute of limitations, or the bar on successive motions may prevent litigation about

a violation of that new rule. That a procedural rule prevents litigating an error does

not create a constitutional crisis, let alone a suspension of the writ. See, e.g.,

Felker, 518 U.S. at 664 (“The added restrictions which the Act places on second

habeas petitions . . . do not amount to a ‘suspension’ of the writ.”). Our current,

erroneous precedent is not dictated by constitutional avoidance concerns. If

anything, we conform our precedent to the Constitution by rejecting an atextual

judicial invention and faithfully interpreting the text of the statute.

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C. Precedent and Stare Decisis

We recognize that overturning precedent is and should be a rare occurrence.

Our Court follows the principles of stare decisis as described by the Supreme

Court. See Glazner v. Glazner, 347 F.3d 1212, 1216 (11th Cir. 2003) (en banc).

Courts “should not lightly overrule past decisions,” Moragne v. States Marine

Lines, Inc., 398 U.S. 375, 403 (1970), because “[s]tability and predictability are

essential factors in the proper operation of the rule of law,” Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981). Stare decisis is especially

important when we construe statutes because “Congress remains free to alter what

we have done.” John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139

(2008) (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 172–73 (1989)).

But stare decisis “is not an inexorable command.” Payne v. Tennessee, 501

U.S. 808, 828 (1991); Bryan A. Garner, et al., The Law of Judicial Precedent 388

(2016) (“[S]tare decisis isn’t an ineluctable doctrine to be applied with procrustean

rigor.”). We may overrule precedent that is “plainly and palpably wrong” if

overruling the precedent would not “result in more harm than continuing to follow

the erroneous decision.” Garner, et al., supra, at 388. Our Court has held that “we

must follow the Supreme Court’s instruction that stare decisis should be abandoned

where, as here, ‘a prior judicial ruling should come to be seen so clearly as error

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that its enforcement was for that very reason doomed.’” Glazner, 347 F.3d at 1216

(quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854

(1992)). If the statutory and doctrinal underpinnings have eroded and there has not

been significant reliance on the precedent, it may be abandoned. Kimble v. Marvel

Entm’t, LLC, 135 S. Ct. 2401, 2410–11 (2015). The same is true if a decision has

“proved unworkable.” Id.

In this instance, we take the rare step of overruling our precedents for three

reasons. First, they are wholly divorced from the text. Second, reliance interests are

minimal. And third, our precedents have proved unworkable. Continuing to follow

these erroneous precedents would do more harm than good.

First, our precedents are not faithful to the text of the statute. As discussed

above, the Wofford test is “plainly and palpably wrong.” See Garner, et al., supra,

at 388. Even our colleagues writing separately agree that our precedents are wrong.

Rosenbaum Dissent at 107 (“I agree with the Majority that we incorrectly

interpreted 28 U.S.C. § 2255(e) on at least five occasions.”); Martin Dissent at 90

(“I have always believed that Wofford was wrong and that this Court’s rulings on

saving[] clause cases that have since followed Wofford are wrong as well.”);

Jordan Concurring at 59 (“I agree with the majority’s ultimate conclusion that the

‘saving clause’ of § 2255(e) does not permit sentencing claims . . . [b]ut my

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reading of the ‘saving clause’ is broader.”); Wilson Dissent at 82 (agreeing with

Judge Jordan’s textual analysis but extending it to a prisoner whose sentence

exceeds the statutory maximum). We have previously decided to overturn our

precedent when the statute is “clear and unambiguous,” Glazner, 347 F.3d at 1215,

or the precedent is “inconsistent” with the text of the statute, United States v. Svete,

556 F.3d 1157, 1166 (11th Cir. 2009) (en banc). Our decisions in Wofford, Gilbert,

Williams, and Bryant ignored the text. When we first addressed the saving clause,

“we went straight to the legislative history of the clause to divine its meaning, but

unsurprisingly could find no clues.” Samak, 766 F.3d at 1276 (W. Pryor, J.,

concurring). And as we applied this rule, we never returned to a careful

consideration of the text. See Williams, 713 F.3d at 1341 (“[T]he statute says

precious little about what it means for the original motion to have been

‘inadequate’ or ‘ineffective.’”); Gilbert, 640 F.3d at 1307 (“This is one of those

times when it is easier to determine something that a provision does not mean

. . . .”). Because our precedents are so far removed from the text of the statute,

there is less reason to defer to them.

Nor is there a settled consensus about the meaning of the saving clause. The

Tenth Circuit adheres to the text, Prost, 636 F.3d at 584–87, but most of our sister

circuits have focused on legislative purpose and avoided rigorous textual analysis.

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As a result, a wide variety of interpretations of the saving clause exists amongst the

circuits. For example, the Fifth Circuit has refused to apply the saving clause to

sentencing errors, In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011), our Circuit

has extended the saving clause only to sentencing errors that exceed the statutory

maximum, Bryant, 738 F.3d at 1274, and the Seventh Circuit has extended the

saving clause to all sentencing errors, including those under the then-mandatory

sentencing guidelines, Brown, 719 F.3d at 587. Although several circuits have

adopted some version of a “circuit busting” test, they do not agree on its contours.

Some require actual innocence, see, e.g., Wooten, 677 F.3d at 307–08, others

require “complete miscarriage of justice,” In re Dorsainvil, 119 F.3d at 251, and

others focus on constitutional avoidance, Triestman, 124 F.3d at 376. And our

dissenting colleagues propose new tests based on constitutional avoidance,

Rosenbaum Dissent at 107–108, or fundamental defect, Martin Dissent at 93. This

is not a situation where our precedents align with a uniform interpretation.

Second, reliance interests for our precedents are minimal. As a fundamental

matter, rules about collateral review do not create significant reliance interests. In

areas of law like property and contracts, reliance interests are particularly strong.

Kimble, 135 S. Ct. at 2410. And of course, individuals rely on criminal law

because it regulates primary conduct. But unlike rules of property, where court

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decisions are “retrospective and may affect titles purchased on the faith of their

stability,” Garner, et al., supra, at 422 (quoting Minn. Mining Co. v. Nat’l Mining

Co., 70 U.S. (3 Wall.) 332, 334 (1865)), the availability of collateral review does

not prompt reliance. Whether a federal prisoner receives one round of collateral

review or two does not impact his decision-making. He cannot rely on an

unanticipated change in law. And if he intentionally withheld an argument for a

second bite at the apple, he would not have preserved it.

Our current test is relatively recent and has rarely led to a grant of relief.

Although we have been applying some version of the test for intervening changes

in law since Wofford, we did not grant relief until Bryant. When we considered the

matter en banc in Gilbert, we still referred to the Wofford test as “dicta.” 640 F.3d

at 1319. And it has been used to grant relief only one other time, in Mackey.

“[G]overning decisions” are more easily overturned “if the precedent is

particularly recent and has not generated any serious reliance interests” or if it has

“sustained serious erosion from our recent decisions.” Al-Sharif v. United States

Citizenship and Immigr. Servs., 734 F.3d 207, 212 (3d Cir. 2013) (quotation marks

and citations omitted).

There is not even a clear consensus about what the Wofford test entails, even

among the parties to this appeal who favor its retention. McCarthan argues in favor

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of the Wofford test as applied in Bryant but quibbles over the meaning of step four.

The warden agrees that the Wofford test is correct but describes its analysis as a

three-part test: “(1) a Supreme Court decision of statutory construction has

changed controlling circuit law retroactively; (2) in a way that establishes a

fundamental defect in the prisoner’s conviction or sentence and renders his

continued detention illegal; and (3) the prisoner had no reasonable opportunity for

a judicial remedy of that fundamental defect in another proceeding.” And the

National Association of Criminal Defense Lawyers as amicus curiae first describes

Wofford as a four-factor test, and then proposes a new test: “whether the prisoner

had a genuine opportunity to raise his claim in an adequate and effective fashion.”

This cacophony highlights that we do not face a problem of overturning a long-

established, settled test. In fact, it is difficult to imagine how someone could rely

on a test so inscrutable. And when reliance interests are minimal, a court may

overrule its own precedent. Garner, et al., supra, at 401, 408–09.

Third, our precedents have proved unworkable. Wofford has placed a heavy

burden on courts in this Circuit. Hundreds, perhaps thousands, of prisoners have

filed petitions citing the Wofford test in the various districts where federal prisons

are located in this Circuit. These doomed collateral attacks have required wardens

to defend decades-old sentencing determinations and resurrected the exact

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problems that Congress attempted to solve when it created the remedy by motion.

Hayman, 342 U.S. at 219.

And the Wofford test is burdensome to apply. For example, deciding whether

circuit precedent foreclosed an argument, whether the Supreme Court abrogated

that precedent, and whether that decision applies retroactively on collateral review

can be a difficult and controversial task. See, e.g., McCarthan, 811 F.3d at 1247–

50 (discussing the argument that circuit precedent about a Georgia statute did not

foreclose McCarthan from challenging a Florida statute); In re Watkins, 810 F.3d

375, 380 (6th Cir. 2015) (describing the circuit split regarding whether Johnson v.

United States, 135 S. Ct. 2551 (2015), applies retroactively on collateral review).

In this appeal, the panel disagreed about how to apply the Wofford test to

McCarthan. The separate concurring opinion stated that “the cumbersome nature of

that test leads to just the type of confusion we have here,” namely that the steps of

the analysis overlap. McCarthan, 811 F.3d at 1257 (Proctor, J., concurring). In

Samak, we had to apply the law of another circuit to answer these questions

because a federal inmate imprisoned in our circuit was sentenced in another. 766

F.3d at 1275 n.3. In Cortes-Morales, we were asked to decide whether the logic of

the Wofford test should extend to retroactive amendments to state legislation. 827

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F.3d at 1016. Hard questions with no predictable answers will continue to arise if

we insist on applying a test unbound by the text.

Even the questions of the Wofford test that seem straightforward prove

difficult. The Wofford test requires that we determine whether the current sentence

exceeds the statutory maximum. The panel opinion in this appeal went to great

lengths to distinguish this inquiry from the merits of the motion to vacate. The

difference, according to the panel, is that the Wofford test looks at both “invalid

predicate convictions that a federal prisoner could not have challenged in his initial

§ 2255 petition because any challenge was squarely foreclosed by binding Circuit

precedent that the Supreme Court only subsequently overturned (‘squarely

foreclosed convictions’)” and “invalid predicate convictions that a defendant could

have, but failed to, challenge earlier (‘erroneously counted convictions’),” but the

merits inquiry looks only at the former. McCarthan, 811 F.3d at 1251. In the final

part of the Wofford test, we are expected to resolve “whether the saving[] clause in

§ 2255(e) reaches” the kind of claim presented, Bryant, 738 F.3d at 1274, but this

circular standard is meaningless when the issue is one of first impression.

All of these difficult and convoluted determinations are made in a threshold

jurisdictional analysis. The labyrinthian analysis required by our precedents is not

a prudent use of judicial resources. See Duckworth, 454 U.S. at 4 (“Creating a new

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exception” means that “[s]ignificantly more time and resources would be

consumed as district and appellate courts examined the merits to determine

whether a claim met the requisite level of validity.”). True, it is often “more

important that the applicable rule of law be settled than that it be settled right.”

Agostini v. Felton, 521 U.S. 203, 235 (1997) (quoting Burnet v. Coronado Oil &

Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)). But the Wofford test

repeatedly unsettles the law in this Circuit.

Because the Wofford test ignores the text of the saving clause, induces no

reliance, and burdens our courts, it does more harm than good. “[T]his weighing of

alternative harms is the normal assessment in deciding whether to overrule

precedent.” Garner, et al., supra, at 388. In contrast, being faithful to the text of the

saving clause makes our task simple, predictable, and sensible. This appeal

presents the rare circumstance where we should overturn our precedents.

Contrary to McCarthan’s argument, this appeal presents no problems of

justiciability. McCarthan argues that because both parties accept the Wofford test

and “[n]either party stands to obtain meaningful relief from a re-consideration of

[it],” this Court lacks jurisdiction to reconsider its precedents. See U.S. Const. Art.

III, § 2, cl. 1. Nonsense. As the Warden correctly responds, there is a live case or

controversy about whether McCarthan is entitled to relief, “notwithstanding any

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agreement on the rules to be applied.” We have a responsibility to interpret the law

correctly. And the Supreme Court has modeled the use of an amicus curiae to aid

in this endeavor. See Miscellaneous Order, Irizarry v. United States, 552 U.S.

1135 (2008) (inviting Peter B. Rutledge to brief and argue the case, as amicus

curiae, in support of the judgment below); Miscellaneous Order, United States v.

Beckles, 137 S. Ct. 23 (2016) (inviting Adam K. Mortara to brief and argue the

case, as amicus curiae, in support of the judgment below). We must interpret the

statute that governs this appeal and apply it to the parties before us. We have done

so.

A motion to vacate is inadequate or ineffective to test the legality of a

prisoner’s detention only when it cannot remedy a particular kind of claim. Even if

a prisoner’s claim fails under circuit precedent, a motion to vacate remains an

adequate and effective remedy for a prisoner to raise the claim and attempt to

persuade the court to change its precedent, and failing that, to seek certiorari in the

Supreme Court. McCarthan does not qualify for the saving clause because his

claim that escape is not a violent felony is cognizable under section 2255. Because

he “was free to bring” this claim about the interpretation of his sentencing law in

his initial motion to vacate, the remedy by motion was an “adequate and effective

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means for testing such an argument.” Prost, 636 F.3d at 580. He cannot now use

the saving clause to make that claim in a petition for a writ of habeas corpus.

IV. CONCLUSION

For all the above reasons, we overrule the Wofford test as applied in Bryant

and Mackey and AFFIRM the order denying McCarthan’s petition for a writ of

habeas corpus.

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ED CARNES, Chief Judge, concurring:

I join in full the opinion of the Court and write separately only to emphasize

a point that it makes in passing.

Judge Rosenbaum’s dissenting opinion says, in effect, that there should be

another exception to the bar on second and successive § 2255 motions to permit

claims based on a new decision about the scope of a criminal statute that the

Supreme Court has made retroactively applicable to cases on first collateral

review. But Congress has not said that. The place to have said it, of course, would

have been in § 2255(h), which contains the two exceptions to the bar on second

and successive motions. Congress could have simply added a third exception to

the list so that subsection (h) would have read:

A second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals to
contain--

(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence 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, or

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(3) a new rule of statutory law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.

Simple as that would have been, Congress did not do it. Instead, it limited the

exceptions to two.

The dissenting opinion would have us “improve” the statute by writing in

the exception that it favors, but we cannot do that. As the Supreme Court has

instructed us: “It is for Congress, not this Court, to amend the statute if it believes

that the interplay of [some provisions] of § 2255 unduly restricts federal prisoners’

ability to file second or successive motions.” Dodd v. United States, 545 U.S. 353,

359–60, 125 S. Ct. 2478, 2483 (2005).

There is more at stake here than an issue of statutory interpretation. The

question is one of the proper role of the judiciary. As we have explained, “Our oft-

stated rule against judicial revision of statutes finds plenty of anchor weight in the

bedrock principle that we are a country of laws, not one ruled by the musings,

whether pragmatic or otherwise, of the black-robed class.” T-Mobile S., LLC v.

City of Milton, Ga., 728 F.3d 1274, 1285 (11th Cir. 2013); see also id. at 1284

(“We are interpreting a statute, not designing one. Although we, like most judges,

have enough ego to believe that we could improve a good many statutes if given

the chance, statutory construction does not give us that chance if we are true to the

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judicial function. Our duty is to say what statutory language means, not what it

should mean, and not what it would mean if we had drafted it.”); Friends of the

Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1224 (11th Cir. 2009)

(“[W]e are not allowed to add or subtract words from a statute; we cannot rewrite

it.”); Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002)

(“Our function is to apply statutes, to carry out the expression of the legislative will

that is embodied in them, not to ‘improve’ statutes by altering them.”); Harris v.

Garner, 216 F.3d 970, 976 (11th Cir. 2000) (en banc) (“We will not do to the

statutory language what Congress did not do with it, because the role of the judicial

branch is to apply statutory language, not to rewrite it.”).

The dissent invokes the separation of powers, but that constitutional doctrine

is best served by respecting the fundamental principle that it is the role of

Congress, not the Courts, to decide what the statutory law is to be, and Congress

has done that in § 2255(h). We honor the separation of powers doctrine when we

resist the temptation, irresistible as it may seem, to judicially revise statutes to suit

our sense of sound policy.

The dissenting opinion repeatedly protests that it is not an example of

“judicial activism,” using that phrase more than a dozen times to answer an

unstated charge. And with painful accuracy, that opinion charges me with being

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among the judges who have attempted to improve the saving clause of § 2255(e)

by interpretation. See Rosenbaum Dissent at 192. Mea culpa. As the author of the

Wofford opinion and its dicta, I am the one who laid out the seedbed from which

the weeds have grown around this issue in our circuit. Having to watch for the past

17 years as my woefully wrong Wofford opinion worked its mischief is the price I

have paid for my sin, or at least for that particular one. And no one knows sin like

an old sinner.

Which brings to mind the various formulations that other judges have used

to admit their mistakes. Nearly everyone’s favorite is Justice Frankfurter’s:

“Wisdom too often never comes, and so one ought not to reject it merely because it

comes late.” Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600,

69 S. Ct. 290, 293 (1949) (Frankfurter, J., dissenting). But there are other ways of

phrasing judicial repentance. See, e.g., Dart Cherokee Basin Operating Co. v.

Owens, 574 U.S. __, 135 S. Ct. 547, 561 (2014) (Scalia, J., dissenting) (“As for my

own culpability in overlooking the issue, I must accept that and will take it with me

to the grave.”); Massachusetts v. United States, 333 U.S. 611, 639–40, 68 S. Ct.

747, 763 (1948) (Jackson, J., dissenting) (“I see no reason why I should be

consciously wrong today because I was unconsciously wrong yesterday.”). I prefer

to put it more colloquially: Wofford was a screw up. To repeat the error by

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revising that opinion’s revision of the saving clause in another attempt to improve

the text of the statute would be another screw up. Once is enough for me.

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JORDAN, Circuit Judge, concurring in part and dissenting in part.

The text of 28 U.S.C. § 2255(e) has remained unchanged since 1948, despite

Congress’ significant overhaul of federal collateral review in 1996. Given the

difficult task of deciphering language designed for a bygone era in a post-AEDPA

world, it is no wonder that federal courts have struggled to reach a uniform

understanding. Recognizing that the meaning of § 2255(e) “is not easy of

solution,” United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221

(1952), I offer my own perspective.

I agree with the majority’s ultimate conclusion that the “saving clause” of

§ 2255(e) does not permit sentencing claims like the one asserted by

Mr. McCarthan. But my reading of the “saving clause” is broader than the one

articulated by the majority. In my view, the “saving clause” allows a federal

prisoner to seek a writ of habeas corpus pursuant to 28 U.S.C. § 2241 if § 2255

relief is unavailable to him and a new (and governing) interpretation of the statute

of conviction demonstrates that he never committed a crime. Because the

majority’s reading of § 2255(e) apparently forecloses a habeas remedy in such

circumstances, I concur only in the judgment.

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I

Suppose that Congress enacts a new criminal statute, 18 U.S.C. § 999.99,

and makes a violation of that statute punishable by up to ten years in prison. The

Department of Justice believes that persons who commit acts A and B violate

§ 999.99, and sets out to prosecute persons who have committed those acts.

A federal grand jury in the Southern District of Florida indicts Joe Unlucky

for violating § 999.99 by committing acts A and B. At trial, Mr. Unlucky argues

that, when read properly, the statute does not criminalize acts A and B. The

district court rejects the argument and instructs the jury that it may return a verdict

of guilty if it finds that Mr. Unlucky committed acts A and B. Because the

government puts on undisputed evidence that Mr. Unlucky did in fact commit acts

A and B, the jury finds him guilty, and the district court sentences him to eight

years in prison. On appeal, the Eleventh Circuit affirms, and rejects Mr. Unlucky’s

reading of the statute. The Supreme Court denies certiorari.

Mr. Unlucky then files a timely motion to vacate pursuant to 28 U.S.C.

§ 2255. Because his contention about the scope of § 999.99 has already been

rejected on direct appeal, and there have been no intervening changes in governing

law, he is not able to reassert the same claim again. See generally Rozier v. United

States, 701 F.3d 681, 684 (11th Cir. 2012) (“At least where there has been no

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intervening change in controlling law, a claim or issue that was decided against a

defendant on direct appeal may not be the basis for relief in a § 2255

proceeding.”). So Mr. Unlucky alleges in his motion that his trial counsel rendered

ineffective assistance at sentencing. The district court holds an evidentiary

hearing, rejects the ineffectiveness claim on the merits, and grants a certificate of

appealability. The Eleventh Circuit subsequently affirms the district court’s denial

of Mr. Unlucky’s motion to vacate, and the Supreme Court again denies certiorari.

Two years later, the Supreme Court decides a case just like Mr. Unlucky’s,

and holds that a person who commits acts A and B does not violate § 999.99. This

decision by the Supreme Court, of course, means that § 999.99 never criminalized

acts A and B, for “[a] judicial construction of a statute is an authoritative statement

of what the statute meant before as well as after the decision of the case giving rise

to that construction.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 312–13

(1994). The decision, moreover, is fully retroactive to cases on collateral review

under Bousley v. United States, 523 U.S. 614, 620 (1998).

So it turns out that Mr. Unlucky never committed the federal offense with

which he was charged and for which he was convicted. Yet he sits in a federal

prison with about four years left to serve on his sentence for a non-existent crime.

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Mr. Unlucky thinks about filing another § 2255 motion based on the new

Supreme Court decision, but quickly finds out that he cannot do so. The problem

is that AEDPA permits a second or successive motion to vacate only where newly

discovered evidence establishes “by clear and convincing evidence that no

reasonable factfinder would have found the [person] guilty of the offense,” or

where there is a “new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable.” See 28

U.S.C. § 2255(h)(1)–(2). Mr. Unlucky does not have any newly discovered

evidence, and the new Supreme Court decision interpreting § 999.99 is statutory,

not constitutional. See In re Thomas, 823 F.3d 1345, 1349 (11th Cir. 2016) (“We

have held that [the] Supreme Court has not announced a new rule of constitutional

law when it has merely interpreted an existing statute.”). He therefore cannot

satisfy the requirements of § 2255(h) for filing a second or successive motion to

vacate.

Not wanting to waste more years of his life in prison for a non-existent

crime, Mr. Unlucky, relying on the “saving clause” of § 2255(e), files a habeas

corpus petition pursuant to § 2241. He requests that the district court vacate his

conviction based on the new Supreme Court decision and order his release from

custody.

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In this setting, can Mr. Unlucky use the “saving clause” to seek habeas

corpus relief? I think so.

II

Comprised of a single, bedeviling sentence with various clauses, § 2255(e)

states as follows:

[1] An application for a writ of habeas corpus in behalf of a prisoner
who is authorized to apply for relief by motion pursuant to this
section, shall not be entertained if it appears that the applicant has
failed to apply for relief, by motion, to the court which sentenced him,
or that such court has denied him relief, [2] unless it also appears that
the remedy by motion is inadequate or ineffective to test the legality
of his detention.

(brackets added).

The first clause of § 2255(e) is the “authorization clause,” and the second

clause—the one that has proven most difficult to figure out—is the “saving

clause.” As I hope to explain, Mr. Unlucky can use the “saving clause” to file a

habeas corpus petition because a “remedy by [§ 2255] motion is inadequate or

ineffective to test the legality of his detention.”

A

“Congress’ use of a verb tense is significant in construing statutes,” United

States v. Wilson, 503 U.S. 329, 333 (1992), so I begin with the verbs that Congress

chose to use in § 2255(e). As Judge Martin correctly points out in her dissenting

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opinion, see Martin Dissent at 90–91, Congress’ choice of the word “is” in the

“saving clause” is significant.

The “authorization clause” twice employs the past tense (“has failed” and

“has denied”), while the “saving clause” uses a single present-tense verb (“is”)

right before the words “inadequate or ineffective.” Because Congress used a

present-tense verb in the “saving clause,” it seems to me that we must look at

Mr. Unlucky’s present situation, and not at what happened in the past, to determine

whether a § 2255 motion “is” currently “inadequate or ineffective.” See Jennifer

Case, Text Me: A Text-Based Interpretation of 28 U.S.C. § 2255(e), 103 Ky. L. J.

169, 194 (2014–15) (“Another textual mistake that the circuit courts often make

when interpreting § 2255(e)’s [s]aving[ ] [c]lause is to replace the verb ‘is’ with

the word ‘was.’. . . When the linking verb is read (as Congress wrote it) in the

present tense, the prisoner cannot access § 2241 unless § 2255 is—at the moment

her § 2241 petition is filed in federal court—inadequate [or] ineffective to test the

detention’s legality.”).

Contrary to the majority’s approach, we must assess inadequacy and

ineffectiveness as of the time Mr. Unlucky files his § 2241 habeas corpus petition,

and not as of the time when he submitted his initial § 2255 motion. Otherwise,

“Congress[’] use of different sets of verbs, with distinct tenses . . . would be

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pointless[.]” Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034, 2040 (2012). See

also Carr v. United States, 560 U.S. 438, 448 (2010) (“Consistent with normal

usage, we have frequently looked to Congress’ choice of verb tense to ascertain a

statute’s temporal reach.”); 1 U.S.C. § 1 (“In interpreting the meaning of any Act

of Congress, unless the context indicates otherwise . . . words used in the present

tense include the future as well as the present.”).

This temporal approach to the “saving clause” is not only linguistically

proper, it is also historically sound. Before AEDPA, when res judicata did not bar

successive § 2255 motions to vacate, see generally Salinger v. Loisel, 265 U.S.

224, 230–31 (1924), federal prisoners sometimes claimed that they could file a

§ 2241 habeas corpus petition because a motion to vacate would be “inadequate or

ineffective” within the meaning of the last paragraph of § 2255 (which is identical

to what is now § 2255(e)). In response to such claims, at least some federal courts

analyzed whether, at the time of the filing of the § 2241 petition, a § 2255 motion

was “inadequate or ineffective.” A good example is the discussion by the former

Fifth Circuit in a case where the prisoner, having twice been denied § 2255 relief

on a claim relating to his plea, filed a § 2241 habeas corpus petition. The former

Fifth Circuit affirmed the dismissal of the § 2241 petition because the prisoner

could file another § 2255 motion and have it considered by the sentencing court:

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Neither of these [two § 2255] post conviction proceedings is
subject to res judicata as such. Consequently, even though the
petitioner may have presented this contention to the sentencing court
on previous occasions, he is free to assert it again. We have no doubt
that the District Court for the Western District of North Carolina will
accord a full and fair hearing and, if appropriate, a right of appeal to
the Fourth Circuit in the event that its decision on the merits is
adverse to petitioner[.]

Birchfield v. United States, 296 F.2d 120, 122 (5th Cir. 1961) (emphasis added and

citations omitted).1

B

The majority says that the word “or” (in the phrase “inadequate or

ineffective”) merely introduces “ineffective” as a “synonym or ‘definitional

equivalent’” for “inadequate” (which the majority has replaced with “inadequate

remedy at law”). See Maj. Op. at 22–23. Like Judge Rosenbaum, see Rosenbaum

1
For other cases applying a similar temporal scope to the “saving clause,” see, e.g.,
United States v. Hayman, 342 U.S. 205, 223 (1952) (“Nothing has been shown to warrant our
holding at this stage of the proceeding that the [§] 2255 procedure will be ‘inadequate or
ineffective’ if respondent is present for a hearing in the [d]istrict [c]ourt on remand of this case.”)
(emphasis added); Waugaman v. United States, 331 F.2d 189, 191 (5th Cir. 1964) (rejecting
prisoner’s argument that a § 2255 motion would be “inadequate or ineffective”: “But if and when
[the claims] are presented with sufficient factual particularity, we are confident that the Southern
District of Ohio and if necessary on appeal, the Court of Appeals for the Sixth Circuit, would
take cognizance of two things. . . . There is, therefore, every assurance that the sentencing [c]ourt
and the Sixth Circuit will accord the hearing the law requires and will grant the relief which the
circumstances justify.”) (emphasis added); and Johnson v. United States, 447 F.2d 516, 517 (5th
Cir. 1971) (dismissing habeas corpus petition because prisoner had not sought to file a § 2255
motion to vacate: “Nevertheless, we note that Johnson has never had his case for post-conviction
relief heard on the merits. Our decision is in no way intended to preclude Johnson from filing a
properly designated § 2255 motion in the District Court for the District of Wyoming.”)
(emphasis added).

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Dissent at 127–28, I disagree. The Supreme Court has told us that the “ordinary

use [of the word ‘or’] is almost always disjunctive, that is, the words it connects

are to be given separate meanings.” Loughrin v. United States, 134 S. Ct. 2384,

2390 (2014) (rejecting an argument that would “construe . . . two entirely distinct

statutory phrases that the word ‘or’ joins as containing an identical element”). So,

grammatically, words separated by “or” should not be read as duplicative of one

another.

Even if the majority is correct that “inadequate” and “ineffective” are

interchangeable, I’m not sure its textual analysis is correct. When a statutory term

or phrase is undefined, courts try to ascertain its ordinary understanding at the time

of enactment. See, e.g., Perrin v. United States, 444 U.S. 37, 42 (1979). Because

the majority looks to 1948—when the provision that is now § 2255(e) was first

enacted—to determine the ordinary meaning of “inadequate” and “ineffective,” I

will do the same and consider what those words meant almost seven decades ago.

In the 1940s and 1950s, the word “inadequate” meant “[i]nsufficient;

disproportionate; lacking in effectiveness or in conformity to a prescribed standard

or measure.” Black’s Law Dictionary 902 (4th ed. 1951) (emphasis added). See

also The Concise Oxford Dictionary of Current English 573 (3d ed. 1944) (“Not

adequate (to purpose); insufficient.”); Webster’s New Collegiate Dictionary 419

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(2d ed. 1949) (“Not adequate; deficient; insufficient.”). So, contrary to the

majority’s suggestion, one definition of “inadequate” is tied to the ultimate effect,

i.e., the result.

The word “ineffective,” like the word “inadequate,” was also not limited to

process in the 1940s and 1950s. Indeed, some definitions linked the word with

results. For example, one dictionary defined “ineffective” as “[n]ot producing the

desired effect[.]” The Concise Oxford Dictionary of Current English 583 (3d ed.

1944) (emphasis added). According to another dictionary, “ineffective” meant

“[n]ot effective; productive of no effect; ineffectual[.]” Webster’s New Collegiate

Dictionary 428 (2d ed. 1949) (emphasis added).2

So, even if we assume that the words “inadequate” and “ineffective” meant

(and mean) the same thing, that assumption does not help the majority. There is a

strong textual argument that the phrase “inadequate or ineffective” is concerned

with both procedure (i.e., process) and substance (i.e., results). The phrase can

easily be read to have some relationship, some connection, to the ability of a

2
Insofar as “to test” is concerned, one dictionary in the 1940s and 1950s defined “test” as
to “[p]ut to the test, make trial of[.]” The Concise Oxford Dictionary of Current English 1266
(3d ed. 1944). Another used a similar definition: “[t]o put to the test or proof; to try.” Webster’s
New Collegiate Dictionary 878 (2d ed. 1949).

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§ 2255 movant to file a motion to vacate, as well as his ability to obtain a desired

substantive result.

C

Returning to our fictional case, Mr. Unlucky is unable to file a second or

successive § 2255 motion to vacate based on the Supreme Court’s interpretation of

§ 999.99. That is because § 2255(h) only permits a second or successive motion

to vacate when there is newly discovered evidence demonstrating, by clear and

convincing evidence, that no reasonable factfinder would have found the person

guilty of the offense, or where there is a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable. As noted earlier, Mr. Unlucky does not have newly discovered

evidence, and his claim is not based on a new rule of constitutional law.

If Mr. Unlucky, who is innocent of the charge that has landed him in prison,

cannot even file a second or successive § 2255 motion—and by definition cannot

succeed on such a motion—then “the remedy by motion” is presently “inadequate

or ineffective” to test the legality of his detention. See In re Davenport, 147 F.3d

605, 611 (7th Cir. 1998) (“A procedure for postconviction relief can fairly be

termed inadequate when it is so configured as to deny a convicted defendant any

opportunity for judicial rectification of so fundamental a defect in his conviction as

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having been imprisoned for a nonexistent offense. It could indeed . . . be thought

an inadequacy of constitutional dimensions.”); In re Dorsainvil, 119 F.3d 245, 251

(3d Cir. 1997) (recognizing that the “saving clause” may be broad enough to allow

a § 2241 habeas corpus petition where “a defendant [is] imprisoned for a crime that

an intervening decision [later] negates”). As I see it, Mr. Unlucky has satisfied the

“saving clause,” and can file a habeas corpus petition pursuant to § 2241 which

relies on the new Supreme Court decision interpreting § 999.99. Cf. United States

ex rel. Leguilllou v. Davis, 212 F.2d 681, 684 (3d Cir. 1954) (interpreting the last

paragraph of the former version of § 2255: “[W]e think the remedy by motion can

be ‘inadequate or ineffective to test the legality of . . . detention’ only if it can be

shown that some limitation of scope or procedure would prevent a [§] 2255

proceeding from affording the prisoner a full hearing and adjudication of his claim

of wrongful detention.”).3

3
There are some other pre-AEDPA decisions analyzing what makes a § 2255 remedy
“inadequate or ineffective,” but they are not of much help here because in those cases there was a
court available to consider the prisoner’s motion to vacate. See, e.g., Adam v. Hagan, 325 F.2d
719, 720 (5th Cir. 1963) (holding that the distance between the place of confinement and the
sentencing court does not make a § 2255 motion “inadequate or ineffective”); Scott v. Welch,
192 F.2d 676, 677 (4th Cir. 1951) (concluding that the denial of IFP status does not render a
§ 2255 motion “inadequate or ineffective”). Cf. Swain v. Pressley, 430 U.S. 372, 381–83 (1977)
(interpreting a similar “saving clause” in a provision of the D.C. Code and ruling that a post-
conviction remedy is not “inadequate or ineffective” just because it is resolved by an Article I
court).
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D

In order to avoid constitutional problems, the “saving clause” of § 2255(e)

must have some meaning. See Boumediene v. Bush, 553 U.S. 723, 776 (2008);

Swain, 430 U.S. at 381–82; United States v. Hayman, 342 U.S. 205, 223 (1952).

We have a duty to “give effect, if possible, to every clause and word of a statute,”

Duncan v. Walker, 533 U.S. 167, 174 (2001), and if the “saving clause” did not

amount to anything in a post-AEDPA world, Congress likely would not have

carried it over wholesale in 1996. What makes this case hard is figuring out the

proper interplay (and balance) between the “saving clause” of § 2255(e) and the

restrictions that § 2255(h) places on second or successive motions to vacate. The

content of the “saving clause” must be meaningful, but not so broad that it

swallows § 2255(h).

My solution is to draw upon the undisputed—but too often forgotten—

principle that “habeas corpus is, at its core, an equitable remedy,” Schlup v. Delo,

513 U.S. 298, 319 (1995), and read the “saving clause” to allow an innocent person

like Mr. Unlucky to obtain § 2241 habeas relief. First, from the earliest days of the

Republic, the Supreme Court has granted habeas corpus relief and ordered the

discharge of federal prisoners where the facts alleged by the government did not

constitute a federal crime. See Ex parte Bollman, 8 U.S. 75, 136 (1807) (Marshall,

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C.J.) (“[A]s the crime [of treason] with which the prisoners stand charged has not

been committed, the court can only direct them to be discharged.”). Second, the

importance of innocence runs deep in our habeas jurisprudence, and there is

nothing more inequitable than having a person serve a sentence in a federal prison

for a non-existent crime. That is why the Supreme Court, pre-AEDPA, ruled that

claims of innocence based on new statutory interpretations can be asserted under

§ 2255. See Davis v. United States, 417 U.S. 333, 346 (1974) (“If this contention

[about the intervening change in law] is well taken, then Davis’ conviction and

punishment are for an act that the law does not make criminal. There can be no

room for doubt that such a circumstance inherently results in a complete

miscarriage of justice and present[s] exceptional circumstances that justify

collateral relief under § 2255.”) (internal quotation marks omitted).

Even those who advocated for a narrower scope of federal habeas review

prior to AEDPA recognized that the writ should be available in cases where “a

convicted defendant makes a colorable showing that an error, whether

constitutional or not, may be producing the continued punishment of an innocent

man.” Henry Friendly, Is Innocence Irrelevant?: Collateral Attacks on Criminal

Judgments, 38 U. Chi. L. Rev. 142, 160 (1970). I cannot believe that a federal

court, with the “saving clause” available, would deny habeas corpus relief to a

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person who does not have a § 2255 remedy available but can show, based on a new

(and governing) decision, that he never committed a federal crime. 4

Reading the “saving clause” to allow only claims of statutory innocence

under § 2241 does relatively little harm to the structure of § 2255. It gives the

“saving clause” a narrow but important scope, and does not do too much violence

to § 2255(h)’s restrictions on second or successive motions to vacate.

The line I have drawn, admittedly, is not perfect. If Mr. Unlucky is able to

seek habeas corpus relief because a new (and governing) statutory ruling shows

that he never committed a crime, why shouldn’t the writ also be available—as

Judges Martin and Rosenbaum contend—when a new statutory decision by the

Supreme Court makes it clear that a defendant’s sentence exceeds the statutory

maximum? I confess that I don’t have very good answers to that question, but

equity—with its concern for justice—does not always draw clean lines, and the

finality concerns embodied in § 2255(h) cannot be ignored. If we are going to

allow any federal prisoners to use the habeas remedy pursuant to the “saving

clause” of § 2255(e), it should be those who are languishing in prison despite

having never committed a crime. A criminal justice system run by fallible human

4
Innocence is so strong a concept that, when sufficiently proven, it even constitutes a
judge-made vehicle for avoiding hurdles like procedural default and untimeliness. See, e.g.,
McQuiggin v. Perkins, 133 S. Ct. 1924, 1931–35 (2013); House v. Bell, 547 U.S. 518, 522
(2006).
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beings can tolerate most non-capital sentencing errors, but it cannot, I submit,

refuse to hear the claims of those incarcerated for non-existent offenses.

III

The majority, understanding that § 2255(e)’s “saving clause” must allow for

habeas corpus relief in some circumstances to avoid being illusory, carves out

some territory where it posits that the “saving clause” can override § 2255(h)’s

restrictions. It offers two main examples of scenarios where § 2241 can be used.

First, the majority says that § 2255(e) may be used by federal prisoners challenging

determinations about parole or good-time credits. See Maj. Op. at 27, 35–36.

Second, the majority, like the Tenth Circuit in Prost v. Anderson, 636 F.3d 578,

588 (10th Cir. 2011), says that § 2255(e) allows a federal prisoner to file a habeas

petition when his or her sentencing court is no longer available, such as when a

military prisoner’s tribunal has been dissolved. See id. at 35–36. The problem is

that these examples ignore the “authorization clause” of § 2255(e).

As explained in Andrews v. United States, 373 U.S. 334, 338 (1963), the

“motion” that § 2255(e) refers to is a motion to vacate filed by a federal prisoner in

the federal court that imposed the sentence. See also Yirkovsky v. Gonzales, 2007

WL 2476766, at *1 (D.S.D. Aug. 27, 2000) (“Petitioner is ‘authorized to apply for

relief by motion’ pursuant to [ ] § 2255 because he is a prisoner in custody

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pursuant to a federal conviction and sentence who may move the [sentencing]

court that imposed the sentence to vacate, set aside or correct the sentence[.]”). As

a result, § 2255(e) “operates to bar a § 2241 habeas petition only if § 2255

authorizes the prisoner to bring a . . . motion [to vacate]. Importantly, if the

[a]uthorization [c]lause is not satisfied, subsection (e) plays no role in determining

whether a prisoner can bring his habeas petition.” Case, Text Me, 103 Ky. L. J. at

187.5

The majority incorrectly assumes that prisoners challenging determinations

about parole and good-time credits, or attacking a sentence imposed by a military

tribunal that no longer exists, can file a motion to vacate under § 2255. In the

words of § 2255(e)’s “authorization clause,” prisoners in these two scenarios were

never “authorized to apply for relief by motion pursuant to this section [i.e.,

§ 2255]” in the first place. And I’m not sure that prisoners sentenced in dissolved

territorial courts are any different. A statutory “saving clause” (like the one in

§ 2255(e)) is a carve-out from the general requirements of a statute, and if the

statute does not apply to begin with, then the “saving clause” never comes into

play.

5
Judge Rosenbaum aptly explains in her dissenting opinion that not all federal collateral
claims are “authorized” by motion under § 2255. See Rosenbaum Dissent at 117–22. And,
significantly, not all federal prisoners are authorized to file a § 2255 motion. Instead, “[o]nly
federal prisoners who have been ‘sentence[d]’ by a federal court are eligible.” See id. at 118.
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A

Federal prisoners challenging determinations about parole and good-time

credits can seek habeas corpus relief pursuant to § 2241. See, e.g., Granville v.

Hogan, 591 F.2d 323, 324 (5th Cir. 1979) (good-time credits); Gomori v. Arnold,

533 F.2d 871, 874–75 (3d Cir. 1976) (calculation of release date); Zannino v.

Arnold, 531 F.2d 687, 690–91 (3d Cir. 1976) (parole); Halprin v. United States,

295 F.2d 458, 459 (9th Cir. 1961) (parole). But that does not mean that those

prisoners can do so because of § 2255(e).

In fact, prisoners challenging determinations about parole or good-time

credits have always had to proceed under § 2241 and have never been able to file

motions to vacate under § 2255. See, e.g., Hajduk v. United States, 764 F.2d 795,

796 (11th Cir. 1985) (“A challenge to the lawfulness of the parole commission’s

actions cannot be brought pursuant to 28 U.S.C. § 2255. Hajduk’s ex post facto

argument is nothing more than a challenge to the lawfulness of the parole

commission’s actions, not the lawfulness of the sentence imposed by the court.

Such an action must be brought as a petition for writ of habeas corpus pursuant to

28 U.S.C. § 2241.”). As a result, Judge Rosenbaum is correct that such prisoners

do not come within the “authorization clause” of § 2255(e), and therefore do not

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need the “saving clause” to avail themselves of a habeas remedy. See Rosenbaum

Dissent at 121–22.

B

The same is true of prisoners challenging a conviction secured in a military

tribunal. Like federal prisoners who wish to challenge determinations about parole

and good-time credits, federal prisoners convicted and sentenced in military

tribunals have long been able to file traditional habeas corpus petitions. See, e.g.,

United States v. Augenblick, 393 U.S. 348, 350 (1969); Burns v. Wilson, 346 U.S.

137, 139–142 (1953); Gusik v. Schilder, 340 U.S. 128, 129 (1950); Carter v.

McClaughry, 183 U.S. 365, 366–67 (1902); Ex parte Milligan, 71 U.S. 2, 68–69

(1866); Calley v. Callaway, 519 F.2d 184, 199 (5th Cir. 1975) (en banc).

Allowing a federal military prisoner to file a petition for writ of habeas

corpus makes sense because a court-martial (or similar military tribunal) “is a

special body convened for a specific purpose, and when that purpose is

accomplished its duties are concluded and the court is dissolved.” McClaughry v.

Deming, 186 U.S. 49, 64 (1902). Access to habeas for such prisoners, however,

does not come from (or run into the limitations of) § 2255, which is reserved for

federal prisoners convicted in, and sentenced by, federal courts.

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As noted, the majority cites the Tenth Circuit’s decision in Prost with

approval, but in my opinion this aspect of Prost is flawed. Prost relied on an

earlier Tenth Circuit decision, Ackerman v. Novak, 483 F.3d 647 (10th Cir. 2007),

as support for its suggestion that a military prisoner may resort to the “saving

clause” and file a § 2241 petition where a § 2255 motion “ha[s] to be brought in

the (now nonexistent) sentencing court, [and] that remedial mechanism [is]

necessarily inadequate and ineffective to test the legality of his detention . . . .”

Prost, 636 F.3d at 588. But the panel in Prost missed the holding of Ackerman.

In Ackerman, a federal prisoner convicted by a military court-martial sought

authorization from the Tenth Circuit, see 28 U.S.C. § 2244(a), to file a second or

successive habeas corpus petition under 28 U.S.C. § 2254. See Ackerman, 483

F.3d at 648–49. The Ackerman panel first explained, in no uncertain terms, that a

prisoner convicted in, and sentenced by, a military tribunal can seek collateral

review only by way of a habeas corpus petition under § 2241. See id. at 649. Such

a prisoner cannot use § 2254 because that provision is reserved for prisoners in

state custody, and cannot use § 2255 because his military tribunal has dissolved

and cannot entertain a collateral attack. See id. at 649–50 & n.2. The Ackerman

panel concluded that, because a military court-martial is not a “court of the United

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States” within the meaning of § 2244(a), the prisoner did not need to obtain circuit

authorization to file a § 2241 habeas corpus petition. See id. at 651–53.

Ackerman, then, provides no support for the claim by Prost, and by the

majority here, that a military prisoner needs the “saving clause” of § 2255(e) to file

a § 2241 habeas corpus petition. Simply stated, a military prisoner has a § 2241

remedy that is available independent of § 2255. See Clinton v. Goldsmith, 526

U.S. 529, 537 n.11 (1999) (“[O]nce a criminal conviction has been finally

reviewed within the military system, and a servicemember in custody has

exhausted other avenues provided under the [Code of Military Justice] to seek

relief from his conviction, he is entitled to bring a habeas corpus petition, see 28

U.S.C. § 2241(c), claiming that his conviction is affected by a fundamental defect

that requires that it be set aside.”) (citations omitted); Palomera v. Taylor, 344 F.2d

937, 938 (10th Cir. 1965) (“A motion under 28 U.S.C. § 2255 is not proper here

because the petitioner was sentenced by a military court-martial convened in

1944.”).

C

As for prisoners convicted in territorial courts that no longer exist, that is a

more nuanced matter. But it is not clear to me that such prisoners need the “saving

clause” to file a § 2241 habeas corpus petition. First, if the territorial courts in

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question are created by the legislature of the territory, then they are not “courts

established by an Act of Congress” within the meaning of § 2255(a). See In re

Moran, 203 U.S. 96, 104 (1906) (Territory of Oklahoma); Connella v. Haskell, 158

F. 285, 287 (8th Cir. 1907) (same). Such courts, therefore, could never entertain a

§ 2255 motion in the first place, meaning that the “authorization clause” of

§ 2255(e) would not be satisfied. Second, if territorial jurisdiction is being

exercised by federal district courts located in the territory pursuant to an act of

Congress, then those district courts can entertain a § 2255 motion to vacate, and

the scenario suggested by the majority—that of a sentencing court that no longer

exists—is more imagined than real. See Madsen v. Hinshaw, 237 F.2d 370, 371

(9th Cir. 1956) (Territory of Alaska).

In the relatively unusual scenario where a territory becomes a state, and the

federal courts in the new state refuse to entertain § 2255 motions by prisoners

previously convicted of territorial crimes, a motion to vacate may be “inadequate

or ineffective” within the meaning of the “saving clause.” See, e.g., Spaulding v.

Taylor, 336 F.2d 192, 193 (10th Cir. 1964) (federal district court in Alaska,

following admission to statehood, refused to consider motion to vacate, thereby

allowing prisoner convicted of territorial crime to seek a writ of habeas corpus

pursuant to § 2241). Even in such circumstances, however, there are more

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questions than answers. For example, in a case very similar to Spaulding, the

former Fifth Circuit explained that the state courts of Alaska, following Alaska’s

admission to statehood, were willing to consider post-conviction motions filed by

prisoners previously convicted of territorial offenses. See Hutson v. Zeigler, 362

F.2d 200, 204 & n.9 (5th Cir. 1966). As a result, those prisoners had to proceed

under § 2254 in federal court but first had to exhaust their claims in the Alaska

state courts. See id. at 204.

Given this tapestry, I do not understand what possible application the

“saving clause” has under the majority’s rationale. It seems to me that the majority

has come dangerously close to sapping the “saving clause” of any meaning.

IV

I read the “saving clause” of § 2255(e) to permit § 2241 habeas corpus

petitions by federal prisoners who can no longer file a motion to vacate and who,

based on a new (and governing) statutory decision, are in custody despite never

having committed a crime. Because Mr. McCarthan is not asserting such a claim

of innocence, I concur in the judgment.

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WILSON, Circuit Judge, joined by JILL PRYOR, Circuit Judge, dissenting:

I would reverse the denial of Dan McCarthan’s claim and remand for the

district court to consider the merits in the first instance. I am, for the most part,

persuaded by Judge Jordan’s interpretation of the savings clause. I agree with his

textual analysis of the clause, but I believe the equitable nature of the Great Writ

dictates a different result than he reaches.

Judge Jordan states that the equitable nature of the Writ leads him to

conclude that the savings clause applies to a prisoner who asserts a claim of actual

innocence but not to a prisoner who, like McCarthan, argues that his sentence

exceeds the statutory maximum. In my opinion, the savings clause applies to both

types of prisoners. A prisoner who is actually innocent is in the same position as a

prisoner whose sentence exceeds the statutory maximum—each prisoner is being

deprived of his liberty even though no law authorizes the deprivation. As my

colleague Judge Hill once said: “If a petitioner can show that he is illegally

incarcerated, he is entitled to release. Fairness requires it. Justice is the ultimate

goal in the grant of the Writ.” Rozier v. United States, 701 F.3d 681, 690 (11th

Cir. 2012) (Hill, J., dissenting).

Justice demands that, at the very least, McCarthan receive a chance to “test

the legality of his detention.” See 28 U.S.C. § 2255(e).

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MARTIN, Circuit Judge, joined by JILL PRYOR, Circuit Judge, dissenting.

Dan McCarthan was sentenced to serve 211 months (17.5 years) in prison

based on this Court’s mistake of the law. Mr. McCarthan had been convicted of

felony offenses earlier in his life, and he was found with a firearm, so he was due

to go to prison. Ordinarily, a felon convicted of possessing a firearm faces up to

10 years in prison, but no more. 18 U.S.C. § 924(a)(2). On the other hand, when

the person has three earlier convictions for crimes that are either a “violent felony”

or a “serious drug offense,” the Armed Career Criminal Act (ACCA), id. § 924(e),

increases his sentence to no less than 15 years and up to life. Because Mr.

McCarthan was sentenced under ACCA as though he had three qualifying

convictions, he got a sentence that was seven and one-half years longer than the

statute would have otherwise allowed. He got this much longer sentence because

in his past he had been convicted of walkaway escape,1 and Eleventh Circuit

precedent characterized walkaway escape as a “violent felony.” See United States

1
In 1992, Mr. McCarthan was convicted of escape in Florida for walking away from an
unsecured correctional facility without permission. The PSR describes his escape conviction as
follows:
According to court records, on February 14, 1988, the defendant signed out for
work from the Tampa Community Corrections Center with a return time of 1:30
a.m. on February 15, 1998 [sic]. He failed to return to [sic] by 1:30 a.m., as
required. The defendant returned to the center at 12:58 p.m. on February 15, 1998
[sic]. The escape report was canceled. At 3:30 p.m. on February 15, 1988, the
defendant left the center without permission, and an escape report was again
initiated.
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v. Gay, 251 F.3d 950, 953–55 (11th Cir. 2001) (per curiam). But this Court’s

ruling in Gay was wrong. Well after Mr. McCarthan began serving his 17.5-year

sentence, the Supreme Court taught us that escape is not a “violent felony.” Its

decisions in Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), and

Chambers v. United States, 555 U.S. 122, 129 S. Ct. 687 (2009), overturned our

decision in Gay. See United States v. Lee, 586 F.3d 859, 874–75 (11th Cir. 2009).

Mr. McCarthan is now asking us to make right what we caused to go wrong

when he got his 17.5-year sentence. The panel that first heard Mr. McCarthan’s

case (I was a member) applied Eleventh Circuit precedent. See McCarthan v.

Warden, FCI Estill, 811 F.3d 1237 (11th Cir. 2016). Under that precedent, the

panel concluded that he could not satisfy the jurisdictional test our Court created

for habeas cases in which a prisoner is seeking relief from a wrongly imposed

ACCA sentence. So we denied him relief. Id. at 1256–57. The government did

not seek rehearing from our ruling. Indeed, the United States subscribed to this

Circuit’s habeas jurisprudence as set out in the McCarthan panel opinion, and

anyway it had won.

Nevertheless, a majority of this Court voted to vacate the panel’s opinion

and hear Mr. McCarthan’s case en banc. Since the government never asked us to

rehear his case, one might think en banc rehearing would be good news for Mr.

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McCarthan. But today’s majority opinion not only does nothing to change Mr.

McCarthan’s loss into a win, it puts relief out of reach for others who have been

sentenced based on a legal mistake. In other words, this Court voted to rehear Mr.

McCarthan’s case not because the Court believed the panel was wrong in its

application of our circuit precedent, but instead because the Majority wanted to

overturn that precedent. Before today, the path to relief for prisoners like Mr.

McCarthan has been narrow, indeed. Today’s majority opinion cuts off that path

entirely.

The Majority concludes that Mr. McCarthan’s claim cannot be recognized

under the federal statute that governs postconviction challenges by federal

prisoners. My colleagues in dissent say that the law recognizes his claim, and

would remand Mr. McCarthan’s case to be evaluated anew on the merits. My view

is slightly different, so I write separately to say how I believe Mr. McCarthan’s

case should turn out, and why.

I. THE SAVINGS CLAUSE

The majority opinion characterizes this case as a rather dry and complex

exercise in statutory construction. A reader could almost miss the fact that what

we are talking about is who, among the hundreds of thousands of human beings

incarcerated in U.S. prisons, will have access to relief under a writ of habeas

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corpus.2 The writ of habeas corpus is of such fundamental importance to this

nation’s legal system that it is known as the Great Writ. See Ex parte Bollman, 8

U.S. (4 Cranch) 75, 95 (1807) (Marshall, C.J.). The writers of our Constitution

recognized the importance of the writ of habeas corpus when they enshrined its

existence in that document. U.S. Const. art. I, § 9, cl. 2. The Great Writ is the tool

meant to be available to any person who finds himself in jail when he ought not be

there.

In 1948, for reasons explained by the Majority and Judge Rosenbaum, 28

U.S.C. § 2255 was enacted. Then in 1996, the Antiterrorism and Effective Death

Penalty Act (AEDPA) added limitations to § 2255 which remain in effect today.

Under 28 U.S.C. § 2255, once a federal prosecution results in a final conviction,

the prisoner is generally allowed to challenge the legality of his detention only

through a § 2255 motion, and not through a petition for writ of habeas corpus. See

28 U.S.C. § 2255(e) (“An application for a writ of habeas corpus in behalf of a

prisoner who is authorized to apply for relief by motion pursuant to this section,

shall not be entertained . . . .”). Significant to many cases like Mr. McCarthan’s is

that the relief offered by § 2255 is narrowly defined and tightly administered. A

2
The Department of Justice estimates that in 2015 (the latest year for which it has
published statistics), there were 328,500 people in federal correctional custody. See Bureau of
Justice Statistics, U.S. Dep’t of Justice, Correctional Populations in the United States, 2015, at 12
(Dec. 2016).
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prisoner is generally allowed to challenge his conviction and sentence by way of a

§ 2255 motion just one time, id. § 2255(h), and that challenge generally must be

made within one year of his conviction becoming final, id. § 2255(f). While the

statute’s goals of tight deadlines and finality might seem desirable, they were

implemented at the same time the federal prison population was exploding; federal

sentences were getting longer; and the U.S. Sentencing Guidelines were requiring

judges to make many rulings before arriving at the sentence imposed.3 So it is a

fact of life for these prisoners that they can sit in jail for years or even decades

before the Supreme Court comes to tell inferior federal courts (like this one) about

a mistake the court made when a sentence was imposed. This has happened to Mr.

McCarthan and so many others. This Court was wrong when it said that Mr.

McCarthan’s earlier conviction for walkaway escape required his sentence to be

(significantly) longer than the ten-year cap called for by the statute that otherwise

would have governed his sentence. So while this case is about how we construe

the words of a statute, it is also about whether Mr. McCarthan and those like him

should continue to bear the burden of the mistake the federal courts made in

3
Sections 2255(f) and (h) were passed in 1996 as part of AEDPA. In 1990, there were
58,838 people incarcerated in federal prisons; a decade later, that number had risen to 133,921.
See Bureau of Justice Statistics, U.S. Dep’t of Justice, Prisoners in 2000 2 (Aug. 2001). As
mentioned above, the latest available data show that there are now approximately 328,500 people
in federal prison. Supra note 2.
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sentencing him. I part ways with the Majority, because I think not. And while the

Majority highlights the rule in the Tenth Circuit, the fact is that most every other

U.S. Court of Appeals to have reached this question thinks not as well.

The History of Section 2255 in the Eleventh Circuit

Section 2255 generally allows a prisoner to bring a new attack (the statute

uses the term “second or successive motion”) on his conviction only if his claim

falls into one of the two narrow categories in § 2255(h). That is: (1) a claim of

actual innocence based on newly discovered evidence, id. § 2255(h)(1); or (2) a

claim based on “a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable,” id.

§ 2255(h)(2).

Prisoners like Mr. McCarthan, who want to challenge their detention on the

basis of a new, retroactive statutory interpretation by the Supreme Court, do not

fall under either category of § 2255(h). He is hanging his hat on a new rule of

statutory not constitutional law. Since he cannot proceed under § 2255(h), he

seeks to proceed under the “savings clause” 4 of § 2255(e). The savings clause says

4
My colleagues who I join in writing about Mr. McCarthan’s case have adopted the term
“saving clause” as opposed to the term this Court has always used: “savings clause.” See, e.g.,
Mackey v. Warden, FCC Coleman-Medium, 739 F.3d 657, 661 (11th Cir. 2014) (“[The]
exception to § 2255(e)’s bar on a § 2241 petition is commonly referred to as the ‘savings
clause.’”); Samak v. Warden, FCC Coleman-Medium, 766 F.3d 1271, 1279 (11th Cir. 2014)
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a prisoner can bypass the constraints of § 2255(h) and file a habeas petition

challenging his detention if it “appears that the remedy by [§ 2255] motion is

inadequate or ineffective to test the legality of his detention.” Id. § 2255(e). That

leaves us to decide for Mr. McCarthan (and many others): when is § 2255

“inadequate or ineffective to test the legality of [a prisoner’s] detention”?

A lot of ink has spilled and many lives have been touched as a result of this

Court’s work on how to apply the savings clause. The Court offered its first

interpretation of the savings clause in Wofford v. Scott, 177 F.3d 1236 (11th Cir.

1999). Wofford established that, in order for a prisoner to rely on the savings

clause, he had to show his claim had been “squarely foreclosed” by circuit law at

the time of his trial, appeal, and first § 2255 motion. 177 F.3d at 1244. In other

words, the prisoner was required to show that the courts in this Circuit would have

(Pryor, William, J., concurring) (“That exception—the ‘savings clause’—recognizes that a
motion to vacate a sentence may sometimes be inappropriate, that is, ‘inadequate or ineffective,’
so in that circumstance Congress allows a federal prisoner to ‘test the legality of his detention’ in
the traditional action against his custodian.”); Bryant v. Warden, FCC Coleman-Medium, 738
F.3d 1253, 1262 (11th Cir. 2013) (“[The] exception to § 2255(e)’s bar on a § 2241 petition is
commonly referred to as the ‘savings clause.’”); Gilbert v. United States, 640 F.3d 1293, 1305–
06 (11th Cir. 2011) (en banc) (“The [] exception to the § 2255(e) bar on § 2241 petitions,
commonly referred to as the ‘savings clause,’ is the focus of our issue[.]”).
While I recognize that the Supreme Court used the term “saving clause” in Boumediene,
courts still use both “saving” and “savings” in this context. I will continue as we have, not
because of any value judgment about the Majority’s new term, but because I have grown
accustomed to the old.
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ruled against him on this claim at the time he was convicted and sentenced, and

when he appealed, and when he filed for postconviction relief by way of a § 2255

motion. To the extent I have been involved in these cases, I have always believed

that Wofford was wrong and that this Court’s rulings on savings clause cases that

have since followed Wofford are wrong as well. See Bryant, 738 F.3d at 1300

(Martin, J., concurring in part and dissenting in part); Williams v. Warden, Fed.

Bureau of Prisons, 713 F.3d 1332, 1350–56 (11th Cir. 2013) (Martin, J.,

dissenting); Gilbert, 640 F.3d at 1330–36 (Martin, J., dissenting).

Wofford’s “squarely foreclosed” requirement became the bedrock of this

Court’s savings clause jurisprudence. See Bryant, 738 F.3d at 1272 (“What makes

the § 2255 proceeding ‘inadequate or ineffective’ for petitioner Bryant is that he

had no ‘genuine opportunity’ to bring his § 924(e) claim because Circuit precedent

squarely foreclosed that claim throughout his trial, direct appeal, and first § 2255

motion.”). 5 Under this Court’s “squarely foreclosed” requirement, each time we

5
In Bryant, this Court created a five-part test a prisoner must pass before he is allowed to
access the savings clause to make a claim, like the one Mr. McCarthan makes here: that one of
his previous convictions was wrongly characterized as a “violent felony” under § 924(e) causing
him to receive a sentence of at least 15 years under § 924(e) rather than a sentence of no more
than 10 years under § 924(a). This five-part test is found nowhere in the words of the statute. It
was this five-part Bryant test that required the panel to deny relief to Mr. McCarthan.
The first step of the Bryant test is the “squarely foreclosed” requirement. See Bryant,
738 F.3d at 1274 (“[The petitioner] must establish that . . . throughout his sentencing, direct
appeal, and first § 2255 proceeding, our Circuit’s binding precedent had specifically addressed
[his] distinct prior state conviction that triggered § 924(e) and had squarely foreclosed [his]
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consider a prisoner’s claim for savings clause relief, we must look backward and

ask whether the petitioner’s original § 2255 proceeding was “inadequate or

ineffective to test the legality of his detention.” But the savings clause nowhere

requires us to do this. Rather, the savings clause says that the writ of habeas

corpus is preserved for cases in which § 2255 “is inadequate or ineffective to test

the legality of [the prisoner’s] detention.” 28 U.S.C. § 2255(e). The plain text of

the statute allows a prisoner to seek habeas relief when § 2255 is “inadequate or

ineffective” to bring his current challenge to the legality of his detention. When

the statute is read as Congress wrote it, in the present tense, it is clear that a

prisoner can bring a habeas petition if § 2255 is—at the time the petition is filed in

federal court—“inadequate or ineffective” to test the legality of the detention.

The Majority is right when it says that the rules this Court created for these

cases have not worked well. I have seen the problems resulting from this circuit’s

“squarely foreclosed” rule play out over the years. For example, in Albert

Williams’s 2013 appeal, this Court left him to serve a 293-month sentence (more

§ 924(e) claim that he was erroneously sentenced above the 10–year statutory maximum penalty
in § 924(a).”). The second step of the Bryant test further enforces the “squarely foreclosed”
requirement. See id. (“[The petitioner] must establish that . . . subsequent to his first § 2255
proceeding, [a] Supreme Court[ ] decision . . ., as extended by this Court to [his] distinct prior
conviction, overturned our Circuit precedent that had squarely foreclosed [his] § 924(e) claim.”).
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than 24 years), rather than a sentence that, by law, should have been capped at 10

years. Williams, 713 F.3d at 1334. Relief had to be denied to him, this Court said,

because at the time he challenged his sentence on direct appeal, and then again at

the time he filed his § 2255 motion, our Court had never decided the issue of

whether his prior convictions for burglary should be considered “violent felonies”

to enhance his sentence. Id. at 1348. The Williams panel blinded itself to what the

state of the law was at the time we ruled on his § 2255 motion in 2013. We said

that because no Eleventh Circuit precedent had ruled on whether a Florida burglary

conviction is an ACCA-qualifying offense at the time of his direct appeal in 1999,

his claim was not “squarely foreclosed.” Id. That meant, so the logic went, that a

§ 2255 motion would not have been ineffective as a way to raise the claim, and so

Mr. Williams was not entitled to relief. Id. at 1345. For my part as a member of

the Williams panel, I asked how in the world this Court’s lack of having ruled on a

question in the past could possibly give us the power to keep Mr. Williams in

prison for more than 24 years when Congress never gave us the power to keep him

in prison for more than 10. Id. at 1353 (Martin, J., dissenting) (“The correct

question to ask is whether Mr. Williams was erroneously sentenced as an armed

career criminal in light of Begay. If he was, the federal courts never had

jurisdiction to sentence him above the 10 year maximum allowed by law. The

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existence or nonexistence of circuit precedent which conflicts with Begay cannot

operate to confer jurisdiction on this Court.”). Now years have passed and this

Court has only recently resolved the question of whether Florida burglary (the

same statute Mr. Williams was litigating back in 2013) is a “violent felony” for

purposes of ACCA, and held it is not. See United States v. Esprit, 841 F.3d 1235,

1237 (11th Cir. 2016). Meanwhile, Mr. Williams remains in prison based on this

mistake we made in lengthening his sentence. 6

I read § 2255 to allow a prisoner to file a habeas petition under the savings

clause when he shows that, at some point after his first § 2255 proceeding, there

was a retroactive decision from an authoritative federal court, which interpreted a

statute in a way that now reveals a fundamental defect in that prisoner’s conviction

or sentence. Both the Sixth and Seventh Circuits interpret the savings clause this

way. See Hill v. Masters, 836 F.3d 591, 595 (6th Cir. 2016) (“When seeking to

petition under § 2241 based on a misapplied sentence, the petitioner must show (1)

a case of statutory interpretation, (2) that is retroactive and could not have been

invoked in the initial § 2255 motion, and (3) that the misapplied sentence presents

an error sufficiently grave to be deemed a miscarriage of justice or a fundamental

6
Mr. Williams’s quest for relief on this issue continues. Since the Supreme Court gave
retroactive relief to some inmates serving sentences improperly enhanced under ACCA, this
Court granted Mr. Williams permission to file a second or successive petition on July 1, 2016.

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defect.”); Brown v. Caraway, 719 F.3d 583, 586 (7th Cir. 2013) (“First, the

prisoner must show that he relies on a statutory-interpretation case, rather than a

constitutional case. Second, the prisoner must show that he relies on a retroactive

decision that he could not have invoked in his first § 2255 motion. The third

condition is that the sentence enhancement have been a grave enough error to be

deemed a miscarriage of justice corrigible therefore in a habeas corpus

proceeding.” (quotations and citations omitted and alterations adopted)). See also

United States v. Surratt, 797 F.3d 240, 274 (4th Cir. 2015) (Gregory, J.,

dissenting), reh’g en banc granted (Dec. 2, 2015) (“§ 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. . . .[,] the

asserted error represents a fundamental defect, [and] the prisoner cannot satisfy the

gatekeeping provisions of § 2255 because he relies on a new rule that is not one of

constitutional law.” (quotation omitted and alterations adopted)).

The Legislative History of Section 2255 and
the Supreme Court’s Jurisprudence

The legislative history of § 2255 and the Supreme Court’s habeas corpus

jurisprudence confirm this view. Before § 2255 became law in 1948, federal

prisoners who wanted to collaterally attack their conviction or sentence had to file

a petition for habeas corpus in the district where they were in prison. This caused
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the few district courts located near federal prisons to be overwhelmed with habeas

petitions. See United States v. Hayman, 342 U.S. 205, 213–15, 72 S. Ct. 263, 269–

70 (1952). Congress enacted § 2255 to address this problem. The new statute

“replaced traditional habeas corpus for federal prisoners . . . with a process that

allowed the prisoner to file a motion with the sentencing court.” Boumediene v.

Bush, 553 U.S. 723, 774, 128 S. Ct. 2229, 2264 (2008).

The Supreme Court has told us more than once that § 2255 was “designed to

strengthen, rather than dilute, the writ’s protections.” Id. at 776, 128 S. Ct. at

2265. See also Davis v. United States, 417 U.S. 333, 343, 94 S. Ct. 2298, 2304

(1974) (“Th[e] [legislative] history makes clear that § 2255 was intended to afford

federal prisoners a remedy identical in scope to federal habeas corpus.”); id. at 344,

94 S. Ct. at 2304 (“Nowhere in the history of Section 2255 do we find any purpose

to impinge upon prisoners’ rights of collateral attack upon their convictions.”); Hill

v. United States, 368 U.S. 424, 427, 82 S. Ct. 468, 471 (1962) (“[I]t conclusively

appears from the historic context in which § 2255 was enacted that the legislation

was intended simply to provide in the sentencing court a remedy exactly

commensurate with that which had previously been available by habeas corpus in

the court of the district where the prisoner was confined.”); Hayman, 342 U.S. at

219, 72 S. Ct. at 272 (“[T]he sole purpose [of § 2255] was to minimize the

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difficulties encountered in habeas corpus hearings by affording the same rights in

another and more convenient forum.”). And beyond this admonition that § 2255

was not intended to weaken the Great Writ, it is critical that when Congress passed

§ 2255, it did not do away with traditional habeas corpus relief. Instead, it inserted

the savings clause to preserve the habeas remedy for those instances in which

§ 2255 “is inadequate or ineffective to test the legality of [a prisoner’s] detention.”

28 U.S.C. § 2255(e).

In 1996, Congress passed AEDPA to amend § 2255 by adding (among other

things) the § 2255(h) limitations on filing more than one motion under that statute.

At the same time, Congress did nothing to disturb the savings clause, and it

remains a part of the law. It seems obvious that if Congress meant to bar all

successive collateral attacks on convictions and sentences except for the two

categories allowed by § 2255(h), it would have simply repealed the savings clause.

It did not. I say AEDPA’s narrowing of the availability of the § 2255 remedy only

heightens the importance of the savings clause, whose express purpose is to ensure

that, in every case, federal collateral review remains “[]adequate [and] []effective.”

The Supreme Court told us in Boumediene—which was decided after AEDPA—

that the purpose of the savings clause is to “provid[e] that a writ of habeas corpus

would be available if the alternative process proved inadequate or ineffective.”

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Boumediene, 553 U.S. at 776, 128 S. Ct. at 2265. So when there are “challenges to

both convictions and sentences that as a structural matter cannot be entertained by

use of the 2255 motion,” § 2255 is “inadequate or ineffective.” Webster v.

Daniels, 784 F.3d 1123, 1139 (7th Cir. 2015).

The Importance of the Savings Clause Where Section 2255
Is “Inadequate or Ineffective”

There is clearly a gap in the protections offered by § 2255 in this

circumstance: when the Supreme Court interprets a statute in a way that shows a

prisoner’s conviction or sentence was wrongly imposed, and that Supreme Court

decision comes after the prisoner has already used up his first § 2255 proceeding.

For Mr. McCarthan and other prisoners in his situation, the Supreme Court has

given an interpretation of a statute that reveals they were sentenced to a term in

prison longer than that authorized by Congress. And yet because the Supreme

Court ruling comes after his first § 2255 proceeding is complete and because the

decision is one of statutory (not constitutional) interpretation, he does not qualify

to bring a second or successive motion under § 2255(h). So while Congress never

gave the executive or judicial branches of government the power to keep Mr.

McCarthan in jail this long, he has no remedy under § 2255. He has only the

savings clause door to habeas corpus relief.

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There are also other types of cases in which prisoners are serving sentences

much longer than called for by law, with no remedy under § 2255, who should

therefore be eligible for relief under the savings clause. For example, a prisoner

who was convicted for conduct that the law does not in fact criminalize.7 Another

example is prisoners who have been sentenced based on a mistaken application of

the U.S. Sentencing Guidelines at the time when sentencing judges were mandated

by law to follow them. See Brown v. Caraway, 719 F.3d 583, 587–88 (7th Cir.

2013) (holding that the savings clause allows a prisoner to challenge his detention

when a retroactive statutory-interpretation decision reveals the prisoner was

sentenced based on an erroneous application of the mandatory Sentencing

Guidelines, even where the sentence does not exceed the statutory maximum);

Gilbert, 640 F.3d at 1330–36 (Martin, J., dissenting).

The Supreme Court has been clear that decisions “narrow[ing] the scope of a

criminal statute by interpreting its terms” are given retroactive effect “because

7
Every circuit to have considered the issue—except for the Tenth Circuit and now this
Circuit—has concluded that, at the least, the savings clause allows a prisoner to challenge his
detention when a retroactive statutory-interpretation decision from the Supreme Court shows that
the prisoner was convicted for conduct that the law does not in fact make criminal. See Trenkler
v. United States, 536 F.3d 85, 99 (1st Cir. 2008); Poindexter v. Nash, 333 F.3d 372, 378 (2d Cir.
2003); In re Dorsainvil, 119 F.3d 245, 251–52 (3d Cir. 1997); In re Jones, 226 F.3d 328, 333–34
(4th Cir. 2000); Reyes–Requena v. United States, 243 F.3d 893, 903–04 (5th Cir. 2001); Wooten
v. Cauley, 677 F.3d 303, 307–08 (6th Cir. 2012); Brown v. Caraway, 719 F.3d 583, 586–87 (7th
Cir. 2013); Marrero v. Ives, 682 F.3d 1190, 1192, 1194–95 (9th Cir. 2012); In re Smith, 285 F.3d
6, 8 (D.C.Cir. 2002).

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[such decisions] necessarily carry a significant risk that a defendant stands

convicted of an act that the law does not make criminal or faces a punishment that

the law cannot impose upon him.” Schriro v. Summerlin, 542 U.S. 348, 351–52,

124 S. Ct. 2519, 2522–23 (2004) (quotation omitted). When the Supreme Court

interprets a statute and applies its ruling retroactively, but a prisoner is barred from

relying on that interpretation merely because the Supreme Court decided the case

after his first § 2255 proceeding was done, § 2255 has certainly “proved

inadequate or ineffective,” Boumediene, 553 U.S. at 776, 128 S. Ct. at 2265,

within the meaning of the savings clause. See Unthank v. Jett, 549 F.3d 534, 536

(7th Cir. 2008) (noting that the savings clause is available where “a glitch in

§ 2255 prevents application to [a petitioner’s] situation of a retroactive decision of

the Supreme Court”).

The Majority says my reading of the savings clause would allow prisoners to

make an end-run around the limitations on successive motions in § 2255(h). Maj.

Op. at 29–33. I say my reading just gives effect to the words Congress wrote. It is

critical to remember that Congress preserved the savings clause as an avenue of

relief for prisoners even as it passed strict restrictions on the filing of successive §

2255 motions. Under the rule the Majority adopts today, so long as the prisoner

had a formal chance to raise his claim in a § 2255 motion—whether the court’s

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ruling on that claim was right or wrong—the § 2255 proceeding is deemed

“[]adequate [and] []effective.” That means the prisoner can never file another

collateral attack on his sentence unless he can meet one of § 2255(h)’s two

exceptions to the successive-motions bar. This, of course, reads the savings clause

right out of the statute. As I have said before, “[b]y grafting the requirements of §

2255(h) onto the savings clause, the Majority has stripped that clause of any

independent meaning.” Gilbert, 640 F.3d at 1333 (Martin, J., dissenting).

As lawyers, we’re taught that an interpretation rendering a statutory clause

meaningless violates the “cardinal principle of statutory construction”: that we

must “give effect, if possible, to every clause and word of a statute.” Williams v.

Taylor, 529 U.S. 362, 404, 120 S. Ct. 1495, 1519 (2000). And this bromide takes

on real significance when we use it to interpret a statute that governs habeas

jurisdiction, because it affects so many real people who may be wrongly

imprisoned. The Supreme Court has admonished us there is a “longstanding rule

requiring a clear statement of congressional intent to repeal habeas jurisdiction.”

I.N.S. v. St. Cyr, 533 U.S. 289, 298, 121 S. Ct. 2271, 2278 (2001). No one writing

on the other side of this issue has pointed to any indication—much less a clear

statement—from Congress that it intended for § 2255(h) to repeal the savings

clause of § 2255(e). So the Majority’s reading should not stand. See Boumediene,

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553 U.S. at 738, 128 S. Ct. at 2243 (“Congress should ‘not be presumed to have

effected such denial of habeas relief absent an unmistakably clear statement to the

contrary.’” (quoting Hamdan v. Rumsfeld, 548 U.S. 557, 575, 126 S. Ct. 2749,

2764 (2006) (alteration adopted))).

Federal judges wield enormous power. But we are human beings who make

mistakes. The Majority’s interpretation of § 2255 leaves federal judges

unaccountable when we wield our power to take away people’s liberty for longer

than the law allows. This is particularly striking here, where both of the other

branches of government make our mistake clear. The Legislative branch passed a

law allowing Mr. McCarthan’s crime to be punished for up to ten years in prison,

but no more. The Executive branch rejected the position the Majority takes here—

to the extent that our Court had to bring in another lawyer to even advocate for the

position it adopts today. And now the Majority, on behalf of the Judicial branch,

has made a rule that prevents federal judges from correcting an illegal sentence. A

system of government set up with branches to check and balance each other simply

should not work this way. No one branch should be able to insulate its mistakes

from its own review, much less the review of the other branches. Most anyone

performs better, day in and day out, when they know they can be called to account

for getting it wrong. Federal judges are no different.

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II. THE MERITS OF MR. MCCARTHAN’S PETITION

In the midst of all of this debate about these statutes, it is important to now

return to Mr. McCarthan’s case. I agree with Judge Rosenbaum that Mr.

McCarthan’s case should be remanded to the District Court. However, I write

separately because I believe the law limits what the District Court can do on

remand. My understanding of the law tells me Mr. McCarthan is eligible for

habeas relief under the savings clause, so I turn to the merits of his habeas petition.

Mr. McCarthan argues he was sentenced to a term of imprisonment beyond that

authorized by law because he does not have the three predicate felony convictions

necessary to support the ACCA enhancement. He is right, and I would grant him

relief.

Throughout its prosecution of Mr. McCarthan for being a felon in possession

of a firearm, the government pointed to three (and only three) prior convictions as

predicates for the ACCA enhancement. Those were: (1) a 1987 conviction in

Florida for possession of cocaine with intent to sell or deliver; (2) a 1992

conviction in Florida for escape; and (3) a 1994 conviction in Florida for third-

degree murder. Only these prior convictions were listed in the indictment. And

these convictions were the only ones offered at Mr. McCarthan’s guilty plea

hearing to justify a 15-year minimum sentence under ACCA. Again when Mr.

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McCarthan was sentenced, the government mentioned no other convictions as

qualifying him for an ACCA sentence.

Everyone agrees that Mr. McCarthan’s escape conviction would not be

accepted as a valid ACCA predicate for him if he were sentenced today. Both the

Supreme Court and this Circuit have said so. Lee, 586 F.3d at 874; Chambers, 555

U.S. at 122, 129 S. Ct. at 687. This means, even if we assume that Mr.

McCarthan’s two remaining prior convictions properly support his longer sentence,

all we have is two ACCA predicates. This is one short of the number of

convictions required to keep Mr. McCarthan behind bars for more than 10 years.

Because escape does not qualify as one of the three convictions required for an

ACCA sentence of longer than ten years, and because the government offered no

proof of any prior convictions other than the three it listed in Mr. McCarthan’s

indictment, Mr. McCarthan is being held in violation of § 924(a)(2), which sets a

ten year limit on his prison term.

When the government asks a court to give a person a sentence above the

term the statute sets as a limit, the government bears the burden of proving the

longer sentence is proper under the law and the facts of the case. Lee, 586 F.3d at

866 (“The [government] bears the burden of proving that a sentencing

enhancement under the ACCA is warranted.”); see also United States v. Young,

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527 F.3d 1274, 1277 (11th Cir. 2008). Here, the government asked for an

enhanced sentence for Mr. McCarthan based solely on the three convictions listed

in Mr. McCarthan’s indictment. The government never mentioned any other basis

for an enhanced sentence.

It is true that the PSR listed two other earlier felony convictions for Mr.

McCarthan, those being two 1988 Georgia convictions for possession of cocaine.

It is also true that, at sentencing, Mr. McCarthan did not object to any of the prior

convictions in the PSR, and that the District Court adopted the facts stated in the

PSR. But the PSR did not identify which convictions qualified Mr. McCarthan for

an ACCA enhancement. So when he did not contest the PSR, Mr. McCarthan

conceded only that these Georgia cocaine convictions existed. Whether these

convictions qualify as “serious drug offenses” under ACCA is a separate question,

and one that was never even discussed at any court proceeding that resulted in his

211-month sentence. The government never mentioned them. The sentencing

judge never mentioned them. I write separately to reject any idea that it was

incumbent upon Mr. McCarthan to interrupt his sentencing hearing, a time where

he was no doubt nervously awaiting to hear his fate, to bring up these other

convictions that no one else thought worthy of mention. He simply had no burden

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to disprove something the government never sought to prove in the first place. To

place that burden on him would surely turn the sentencing process on its head.

To place that burden on him also defies our own precedent. Our Court has a

waiver rule that says where the government never told the District Court (or for

that matter the defendant being sentenced) that a particular conviction is a reason

to impose a longer sentence, the government is barred on appeal from arguing that

the previously unmentioned felony can now take the place of a conviction that was

relied upon by the sentencing court, but which no longer supports the sentence. In

Bryant, this Court considered and rejected the government’s effort to bring up on

appeal new bases for Mr. Bryant’s longer sentence, when the reasons it gave at the

time of his sentencing no longer supported the sentence he got. In Bryant, like

here, the government sought to substitute a prior burglary conviction for a

concealed-firearm conviction that no longer worked, when “[a]t no time during

Bryant’s direct criminal proceedings did the government ever rely on the burglary

conviction as a predicate felony for § 924(e) purposes.” 738 F.3d at 1279. We

“den[ied] the government’s request to substitute the burglary conviction” because

“the government waived this burglary issue at the initial sentencing.” Id. See also

United States v. Canty, 570 F.3d 1251, 1257 (11th Cir. 2009) (stating that, while

the government is “entitled to an opportunity to offer evidence and seek rulings

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from the sentencing court in support of an enhanced sentence,” the government is

“entitled to only one such opportunity”). Like Bryant, the government in this case

“never suggested at any point” prior to collateral review that Mr. McCarthan’s

Georgia cocaine convictions could serve as ACCA predicates. 738 F.3d at 1279.

The “government cannot offer for the first time on appeal a new predicate

conviction in support of an enhanced ACCA sentence.” United States v. Petite,

703 F.3d 1290, 1292 n.2 (11th Cir. 2013). This is as it should be, because our

Court has never allowed criminal defendants to contest their harsh sentence on

appeal for reasons they had not presented to the sentencing court. I cannot

sanction applying different rules to opposing parties appearing in this Court in one

and the same proceeding.

I would grant Mr. McCarthan relief and send his case to the District Court

with direction that he be resentenced to a term of no more than ten years. Mr.

McCarthan has, of course, already served more than ten years in the penitentiary. I

respectfully dissent from this Court’s treatment of Mr. McCarthan, as well as its

remaking of our law as it governs habeas corpus for those sentenced in this Circuit.

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ROSENBAUM, Circuit Judge, dissenting:

I agree with the Majority that we incorrectly interpreted 28 U.S.C. § 2255(e)

on at least five occasions: Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999),

Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011) (en banc), Williams v.

Warden, Federal Bureau of Prisons, 713 F.3d 1332 (11th Cir. 2013), Bryant v.

Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013), and Mackey v.

Warden, FCC Coleman-Medium, 739 F.3d 657 (11th Cir. 2014). And today,

unfortunately, makes a sixth.

Though the Majority is right when it concludes that the existence of adverse

circuit precedent on a prisoner’s claim has no relevancy to whether a second or

successive claim may be brought under § 2255(e), the Majority’s analysis is not

itself faithful to the text of § 2255(e)’s so-called saving clause,1 does not recognize

the crucial constitutional-failsafe purpose that the saving clause serves, and does

not acknowledge the role that the Suspension Clause plays in determining whether

a second or successive claim may proceed under the saving clause. As a result, the

Majority misses the fact that § 2255(e) must allow for consideration of second or

successive claims that rely on a retroactively applicable new rule of statutory law.

1
Our Circuit has, in the past, referred to the clause as the “savings clause.” See, e.g.,
Wofford, 177 F.3d at 1237. I agree with the Majority, see Maj. Op. at 7-8, that we should refer to
it as the “saving clause.” Indeed, the Supreme Court has called this clause the “saving clause.”
Boumediene v. Bush, 553 U.S. 723, 776 (2008).
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The saving clause serves as a failsafe mechanism to protect § 2255 from

unconstitutionality by providing a substitute remedy for habeas corpus relief that §

2255 otherwise precludes but the Suspension Clause may require. 2 And since the

Suspension Clause exists to protect habeas corpus, the Suspension Clause

demands, at a minimum, the availability of habeas corpus relief to redress federal

detention when it violates the very doctrinal underpinnings of habeas review.

Habeas review, in turn, finds its doctrinal underpinnings in the doctrine of

separation of powers and the principle of limited government powers. See Bousley

v. United States, 523 U.S. 614, 620-21 (1998) (characterizing separation-of-powers

concerns as “the doctrinal underpinnings of habeas review”); see also Welch v.

United States, 136 S. Ct. 1257, 1268 (2016) (equating the principle of limited

government powers with separation-of-powers concerns in federal habeas

jurisprudence). So detention that violates the separation-of-powers doctrine or the

principle of limited government powers necessarily tramples upon the doctrinal

underpinnings of habeas review. See Bousley, 523 U.S. 614; Welch, 136 S. Ct.

1257.

2
My analysis does not foreclose the possibility that a constitutional deficiency of another
type may allow for other kinds of second or successive claims to be considered under the saving
clause. But because this case involves only a second or successive claim that relies on a
retroactively applicable new rule of law, I do not analyze what types of other claims, if any,
might so qualify.
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To remedy this affront to habeas corpus, new rules of statutory and

constitutional interpretation that reveal detention in violation of the separation of

powers or the principle of limited government powers are retroactively applicable

on federal collateral review. In other words, these new rules of constitutional and

statutory law are retroactively applicable on federal collateral review because the

doctrinal underpinnings of habeas corpus—and therefore the Suspension Clause—

require that they be.

And the very same concepts that, under the Suspension Clause, demand the

retroactivity of new rules of constitutional or statutory law on initial collateral

review—the separation-of-powers doctrine and the principle of limited government

powers—apply with equal force in the context of second or successive claims for

collateral review based on a previously unavailable retroactively applicable rule of

constitutional or statutory law. When a prisoner is detained in violation of the

separation of powers or the principle of limited government, the violation does not

somehow become less significant simply because the Supreme Court does not

recognize the violation by issuance of a new retroactively applicable rule of law

until after the prisoner’s initial § 2255 claim has been resolved.

Indeed, § 2255(h)(2) implicitly recognizes this fact as it pertains to second or

successive claims based on a new retroactively applicable rule of constitutional

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law. But since § 2255 does not authorize second or successive claims based on a

retroactively applicable new rule of statutory law though the Suspension Clause

requires courts’ consideration of such claims when a prisoner has not previously

had a meaningful opportunity to have had such claims heard, the saving clause

necessarily must allow these claims in order to save § 2255 from

unconstitutionality.

Dan McCarthan’s claim relies on a new retroactively applicable rule of

statutory law. So I would reverse the district court’s dismissal of his petition and

remand for consideration of the merits.

This first section of this dissent explains why the text of § 2255 and

Supreme Court jurisprudence on habeas corpus, the Suspension Clause, and

retroactivity necessarily require that the saving clause allow for consideration of

second or successive claims based on a new retroactively applicable rule of

statutory law. Part II of the dissent addresses the Majority’s criticism of the theory

I espouse in Part I. In Part III, I explore why the Majority’s construction of the

saving clause cannot be correct under the statutory text and Supreme Court

precedent. And in Part IV, I respond to Chief Judge Carnes’s concurrence.

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I.

To assess whether the saving clause requires consideration of McCarthan’s

second or successive claim, we must answer two questions: first, does the saving

clause permit at least some second or successive claims? And second, if so, does

the saving clause allow second or successive claims that, like McCarthan’s, are

based on a new retroactive rule of statutory construction that, if applicable, would

mean that the applicant has been imprisoned beyond valid congressional

authorization? By itself, the statutory language of the saving clause tells us the

answer to the first question is “yes.” To resolve the second, we must consult the

statutory language and the Supreme Court’s jurisprudence on habeas corpus.

Together, they reveal that the answer to the second question is also “yes.”

A. The language of the saving clause necessarily contemplates that the saving
clause will be used to bring at least some types of second or successive
claims.

In all cases of statutory construction, we start our analysis by examining the

language of the statute for a “plain and unambiguous meaning with regard to the

particular dispute in the case.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438,

450 (2002) (citation and internal quotation marks omitted). Our inquiry ends here

as well if the statutory language is “unambiguous and the statutory scheme is

coherent and consistent.” Id. (citation and internal quotation marks omitted). In

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this case, we can answer our first question—whether the saving clause allows for

consideration of second or successive claims of at least some type—solely by

consulting the statutory language.

The saving clause, in the context of § 2255(e), provides,

An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such
court has denied him relief, unless it also appears that the
remedy by motion is inadequate or ineffective to test the
legality of his detention.

28 U.S.C. § 2255(e) (emphasis added). The words “such court” refer to “the court

which sentenced him,” so the words “such court has denied him relief”

unambiguously contemplate that a prisoner previously made at least a first § 2255

motion,3 and his sentencing court denied it. That means that the claim that any

such prisoner seeks to bring under the saving clause necessarily must be a second

or successive claim. By its language, then, the saving clause specifically requires

courts to consider a prisoner’s second or successive claim when “it also appears

3
This must be a § 2255 motion, as opposed to any other kind of motion, for two reasons:
(1) the preceding term “by motion” is shorthand for the “by motion pursuant to this section”
phrase used earlier in § 2255, and (2) no other type of relevant motion would be filed with the
sentencing court.
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that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality

of [the prisoner’s] detention.” Id.

Any reading of the saving clause that completely precludes courts from

considering second or successive claims can achieve that result only by ignoring

the language “such court has denied him relief” and its natural meaning. But the

court has a “duty to give effect, if possible, to every clause and word of a statute.”

Duncan v. Walker, 533 U.S. 167, 174 (2001) (citation and internal quotation marks

omitted). When we do that in this case, we cannot escape the conclusion that the

language of the saving clause plainly envisions consideration of at least some

second or successive claims. 4

B. Under the saving clause, a petitioner may bring a second or successive
claim based on a new retroactively applicable rule of statutory law that
means that his sentence exceeds what Congress has validly authorized.

Since the saving clause allows at least some second or successive claims, the

question is, “Which ones?” When we view the terms of the saving clause in the

4
Of course, the language of the saving clause also anticipates the filing of some initial
claims. The statute employs the language, “the applicant has failed to apply for relief, by
motion, to the court which sentenced him,” which means that the applicants to whom it refers are
first-time filers in the sense that they have not yet filed a § 2255(a) motion with the court that
sentenced them. This language appears in the disjunctive, as an alternative to “such court has
denied him relief.” So first-time claimants, like applicants who bring second or successive
claims, also are entitled to bring a § 2241 petition under the saving clause, provided the saving
clause is otherwise satisfied. These first-time claimants would be those who, for practical
reasons, cannot obtain “adequate” relief through a § 2255(a) proceeding in the court that
sentenced them. See infra at 129-31.
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light of Supreme Court precedent, the answer becomes clear. The saving clause

allows for two categories of claims: (1) those that, though permissible under §

2255’s provisions other than the saving clause, cannot, for practical and logistical

reasons, be brought under those provisions, and (2) those that cannot otherwise be

brought under the other parts of § 2255 and that are constitutionally required to be

considered, including those that assert a prisoner is detained in violation of the

government’s, or a branch of the government’s, powers, as supported by a

retroactively applicable new rule of substantive law.

To identify the particular second or successive claims for which the saving

clause requires consideration, we must focus on, in particular, three parts of the

language of § 2255(e): (1) “a prisoner who is authorized to apply for relief by

motion pursuant to this section”; (2) “legality of his detention”; and (3)

“inadequate or ineffective to test.” Like a series of filters, each phrase limits the

preceding universe of claims, yielding a successively smaller universe. So for a

claim to be entitled to consideration under the saving clause, it must pass through

all three filters.

1. “a prisoner who is authorized to apply for relief by motion pursuant
to this section”

By making the saving clause applicable to “a prisoner who is authorized to

apply for relief by motion pursuant to this section,” the first filter the saving clause
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imposes restricts its availability to sentenced federal prisoners who raise a type of

claim that § 2255(a) permits. The unambiguous statutory language of § 2255

dictates this construction.

To explain why, we begin by evaluating § 2255 for any language that

authorizes a petitioner to apply for relief. A review of § 2255’s language reveals

that the only parts of it that “authorize” a “prisoner” to do anything include

subsections 2255(a) and (d). Subsection (a) provides,

A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise
subject to collateral attack, may move the court which
imposed the sentence to vacate, set aside or correct the
sentence.

28 U.S.C. § 2255(a) (emphasis added). By directing that a “prisoner . . . may

move,” subsection (a) plainly authorizes a prisoner to apply for relief under the

circumstances set forth in subsection (a). Id. (emphasis added).

Similarly, subsection (d) states that “[a]n appeal may be taken to the court of

appeals from the order entered on the motion as from a final judgment on

application for a writ of habeas corpus.” Id. § 2255(d) (emphasis added). Under

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our system, a losing litigant may take an appeal where permitted. So like

subsection (a), subsection (d) authorizes an applicant to take action.

But none of the remaining parts of § 2255 “authorize” a “prisoner” to do

anything. Rather, they give processing instructions to the court. Subsection (b),

for example, states, in relevant part,

Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no
relief, the court shall . . . [engage in various actions]. If
the court [makes certain findings], the court shall vacate
and set the judgment aside and shall [take appropriate
corrective action].

Id. § 2255(b) (emphasis added). Likewise, subsection (c) provides that “[a] court

may entertain and determine such motion without requiring the production of the

prisoner at the hearing.” Id. § 2255(c) (emphasis added). And subsection (g)

enables the court to appoint counsel for proceedings under § 2255. See id. §

2255(g) (“[I]n all proceedings brought under this section, . . . the court may

appoint counsel . . . .”) (emphasis added). Subsection 2255(h) tells the court how

to process a second or successive motion. See id. § 2255(h) (“A second or

successive motion must be certified . . . by a panel of the appropriate court of

appeals . . . .”) (emphasis added). All of these parts of § 2255 instruct a court on

how to handle a § 2255 application.

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Finally, subsection (f), AEDPA’s statute of limitations, is either a

jurisdictional requirement for the reviewing court or an affirmative defense for the

defendant, depending on which circuit construes the provision. Compare, e.g.,

Williams, 713 F.3d at 1338-40,5 with Acosta v. Artuz, 221 F.3d 117, 121-22 (2d

Cir. 2000). Either way, it does not purport to authorize a prisoner to do anything.

A jurisdictional provision empowers a court to hear a case, while an affirmative

defense is a tool that a defendant may use to bar suit.

In short, only subsections (a) and (d) authorize a prisoner to take action.6 So

we must review those subsections to determine which prisoners subsections (a) and

(d) permit to apply for relief under § 2255.

Beginning with subsection (d), as it pertains to prisoners, that subsection

authorizes only appeals from denied claims brought under subsection (a). As a

5
After today’s decision, obviously, at least some aspects of Williams’s interpretation of §
2255(e) are no longer valid. Whether the determination that § 2255(e) is jurisdictional
withstands our sua sponte abrogation of our prior interpretation of § 2255(e) in cases such as
Williams is unclear.
6
The Majority argues that subsections (f) and (h) also “authorize” a prisoner to apply for
relief. Based on the language of these sections, I respectfully disagree. But even if the Majority
is right about that, it would have no impact on the ultimate conclusion that the saving clause
requires consideration of second or successive claims that are based on a retroactively applicable
new rule of statutory law. See infra at 175-78 & 77 n.22. Ironically, though, if the Majority is
correct and subsections (f) and (h) also “authorize” a prisoner to apply for relief under § 2255,
that fact would undermine some of the Majority’s criticism of my theory in ways additional to
those that exist if subsections (f) and (h) do not “authorize” a prisoner to apply for relief under §
2255. See id.; see also id. at 164.
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result, it does not expand the category of prisoners “authorized to apply for relief

by motion pursuant to [§ 2255]” beyond what subsection (a) provides.

I therefore turn to subsection (a). By its terms, subsection (a) allows an

applicant meeting four qualifications to seek relief under § 2255 (“A prisoner . . .

may move . . . .”).

First, the language requires an applicant to be “[a] prisoner in custody.” 28

U.S.C. § 2255(a). That requirement is self-explanatory.

Second, the language “under sentence of a court established by Act of

Congress” means that the prisoner must be a federal prisoner. See id.

Third, not just any federal prisoner may apply for relief under § 2255. Only

federal prisoners who have been “sentence[d]” by a federal court are eligible to

seek relief under the statute. See id. (“[a] prisoner . . . under sentence . . .”)

(emphasis added). So, for example, a pretrial detainee may not use § 2255 to seek

relief.

And last, under subsection (a)—and therefore under subsection (e)—only

those sentenced federal prisoners “claiming the right to be released upon [a]

ground [that subsection (a) specifies]”—“the right to be released upon the ground

that the sentence was imposed in violation of the Constitution or laws of the United

States, or that the court was without jurisdiction to impose such sentence, or that

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the sentence was in excess of the maximum authorized by law, or is otherwise

subject to collateral attack,” id.—are “authorized” to bring a § 2255 motion.

The clause “claiming the right to be released upon the ground[s] [articulated

in subsection (a)]” 7 is a restrictive clause that modifies the subject clause in

subsection (a)—“[a] prisoner in custody under sentence of a court established by

Act of Congress.” Restrictive clauses limit and define the subjects they modify,

and unlike non-restrictive clauses, they are not set off by commas. See Strunk &

White, supra, at 16. Significantly, the “claiming” clause in subsection (a) is not

separated from the subject clause by a comma and is plainly intended as a

restrictive clause. It therefore limits and defines the “prisoner in custody” clause.

As Justice Scalia and Bryan Garner have noted, Congress is “presumed to be

grammatical in [its] compositions.” Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 140 (2012). For this reason, only those

sentenced federal prisoners in custody who are claiming one of the specific

violations set forth in subsection (a) “may move” for relief—and are therefore

“authorized to apply for relief”—by § 2255 motion.

7
The words “who is” are understood at the beginning of the clause “claiming the right to
be released upon the ground[s] [articulated in subsection (a)].” See, e.g., William Strunk Jr. &
E.B. White, The Elements of Style 16 (4th ed. 2000) (providing as an example of a restrictive
clause, “People sitting in the rear couldn’t hear.”).
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The Majority incorrectly contends that Congress intended under subsection

(e) to include as prisoners “authorized” to bring a § 2255 motion, those prisoners

bringing any type of collateral claim at all—not just the challenges to sentences

that subsection (a) allows. See Maj. Op. at 35-37. That cannot be correct for three

independent reasons. First, as explained above, the text and grammatical structure

of the saving clause do not bear the Majority’s proposed interpretation. Second, a

comparison of the wording of subsections (a) and (e) does not support the

Majority’s theory. And finally, the function of § 2255 has only ever dealt with

federal prisoners’ sentencing claims and not indiscriminately with all kinds of

collateral claims.

Turning to the second reason, if Congress had intended under subsection (e),

as the Majority suggests, to include as prisoners “authorized” to bring a § 2255

motion, those prisoners bringing any kind of collateral claim, Congress had a ready

way of expressing that—which it chose not to use. In subsection (e), Congress

could have relied on the phrase “[a] prisoner in custody under [order] of a court

established by Act of Congress,” similar to what it employed in subsection (a)

before limiting that phrase with a laundry list of specific permissible claims. See

28 U.S.C. § 2255(a), (e). Had Congress done so, it would have authorized

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consideration of any collateral claim of a federal prisoner—not just collateral

claims relating to sentencing.

But Congress did not do that.

Instead, it relied on a different and slightly longer phrasing. Under

subsection (e) as Congress actually enacted it, that provision allows for

consideration of an application from only “a prisoner who is authorized to apply

for relief by motion pursuant to this section.” Id. § 2255(e). So “a prisoner who is

authorized to apply for relief by motion pursuant to [§ 2255],” id., must mean

something different than “[a] prisoner in custody under [order] of a court

established by Act of Congress,” id. § 2255(a), because “[w]e generally seek to

respect Congress’ decision to use different terms to describe different categories of

people or things.” Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1708 (2012).

And, indeed, the phrase does mean something different. “[A] prisoner who

is authorized to apply for relief by motion pursuant to [§ 2255],” 28 U.S.C. §

2255(e), necessarily means a sentenced federal prisoner in custody who seeks

relief on one of the claims specified in subsection (a)—that is, a federal prisoner in

custody after sentencing, who is “claiming the right to be released upon the ground

that the sentence was imposed in violation of the Constitution or laws of the United

States, or that the court was without jurisdiction to impose such sentence, or that

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the sentence was in excess of the maximum authorized by law, or is otherwise

subject to collateral attack,” id. § 2255(a).

Returning to the language of subsection (e), it provides that the habeas

petition of a prisoner “authorized to apply for relief” under § 2255 “shall not be

entertained if it appears that the applicant has failed to apply for relief, by [§ 2255]

motion . . . unless it also appears that the remedy by [§ 2255] motion is inadequate

or ineffective to test the legality of his detention.” Id. § 2255(e). This language

expressly contemplates that the saving clause allows courts to consider habeas

petitions of only those prisoners bringing one of the four types of claims articulated

in § 2255(a), and only if “it also appears that the remedy by motion is inadequate

or ineffective to test the legality of [the prisoner’s] detention.”

Not surprisingly, this straightforward interpretation is also entirely consistent

with § 2255’s intended function—to provide a more practical substitute remedy for

habeas corpus in cases of federal prisoners who challenge their sentences.

Congress enacted § 2255 in 1948 to address the problems created by large-scale

administration of habeas corpus. Among other practical problems, it was not

economical to haul multiple witnesses across the country for a hearing on a

collateral challenge to a sentence in a forum where the prisoner had not been

sentenced. See United States v. Hayman, 342 U.S. 205, 212-14 (1952). Doing so

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imposed both the expense of transporting the witnesses from their home district to

the district where the prisoner was housed and the judicial cost of requiring a

second judge to familiarize herself with the prisoner’s case and sentencing. So

Congress passed § 2255 as a habeas substitute that did not in any way limit the

substantive scope of habeas but merely shifted the forum for cases involving

sentenced federal prisoners challenging their sentences, to the district of the

sentencing court, often a district different from the district of confinement. See id.

at 219; Swain v. Pressley, 430 U.S. 372, 377-78 (1977).

The practical concerns that motivated the enactment of § 2255 pertain to

claims involving sentencing and related conviction challenges, so by its terms, §

2255 provides a substitute remedy for habeas corpus for only those collateral

claims that raise sentencing and related conviction challenges. See 28 U.S.C. §

2255(a) (federal prisoners may bring claims under § 2255 “claiming the right to be

released upon the ground that the sentence was imposed in violation of the

Constitution or laws of the United States, or that the court was without jurisdiction

to impose such sentence, or that the sentence was in excess of the maximum

authorized by law, or [that the sentence] is otherwise subject to collateral attack,

may move the court which imposed the sentence to vacate, set aside or correct the

sentence”) (emphasis added).

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Indeed, the same concerns of financial expense and cost in judicial economy

do not apply in the context of other types of collateral claims, such as execution-of-

sentence claims. In execution-of-sentence claims, witnesses are generally located

in the district where the § 2241 claim is filed, and familiarity with the prisoner’s

underlying case and sentencing is not required to the same extent as in sentencing

claims, if it is required at all.

So collateral claims that do not raise challenges to a prisoner’s sentence have

been able to be brought in habeas corpus under § 2241 8 since its enactment at the

same time as § 2255,9 and those claims have never been affected in any way by §

2255. See 28 U.S.C. § 2241; see also Antonelli v. Warden, U.S.P. Atlanta, 542

F.3d 1348, 1352 (11th Cir. 2008) (“challenges to the execution of a sentence,

rather than the validity of the sentence itself, are properly brought under § 2241”).

True, collateral claims attacking the validity of a federal conviction and sentence

normally may not be brought in a habeas petition under § 2241—but only because

§ 2255 expressly carves out those specific claims from § 2241’s authorization of

8
Section 2241 “descends directly from § 14 of the Judiciary Act of 1789[,] [which
authorized federal courts to issue writs of habeas corpus,] and the 1867 Act [that amended the
Judiciary Act of 1789].” INS v. St. Cyr, 533 U.S. 289, 305 & n.25 (2001).
9
Both statutes were enacted in 1948. Section 2241(e)(2) refers expressly to habeas
petitions “relating to any aspect of the detention, transfer, treatment, . . . or conditions of
confinement.” (emphasis added). Though it provides for no jurisdiction for such claims when
they are raised by enemy combatants, the unambiguous negative implication is that courts have
jurisdiction to entertain non-enemy-combatant prisoners’ habeas petitions raising execution-of-
sentence claims. See Scalia & Garner, supra, at 107-11.
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courts’ consideration of habeas claims. See 28 U.S.C. § 2255(e). Since § 2255

does not cover non-sentencing claims in the first place, there is no need for—and,

indeed, it would make no sense for—the saving clause to exempt from § 2255’s

coverage collateral claims that do not raise sentencing challenges.

To summarize, (1) the plain meaning and grammatical structure of the text

of subsections (e) and (a); (2) the deliberate difference between the phrasing of “a

prisoner who is authorized to apply for relief by motion pursuant to [§ 2255],” 28

U.S.C. § 2255(e), and “[a] prisoner in custody under sentence of a court

established by Act of Congress,” id. § 2255(a); and (3) the fact that § 2255 has

only ever dealt with federal prisoners’ sentencing claims and not execution-of-

sentence or pretrial-detention claims, all demand the following conclusion: the

first limitation subsection (e) unambiguously imposes on the availability of habeas-

corpus relief through the saving clause requires that a petitioner be a sentenced

federal prisoner in custody who is making a claim expressly authorized by

subsection (a).

2. “legality of his detention”

Next, subsection (e) filters the universe of claims that a qualifying prisoner

may otherwise raise under subsection (a), allowing through only those claims that

test the “legality of [the applying prisoner’s] detention.” See 28 U.S.C. § 2255(e).

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The plain language of this phrase limits eligible claims to only those where the

prisoner’s success on his claim would result in a reduced period of detention.

For example, a prisoner may be sentenced to two or more concurrent terms

of imprisonment. If that prisoner does not challenge the conviction or sentence

that resulted in the longest period of imprisonment, he does not challenge the

“legality of his detention.” That’s because even if that prisoner succeeds on his

claim, he will remain legally detained for the exact same period for which he was

to be detained before he filed his claim, since his unchallenged sentence requiring

that will remain in force. In that instance, the saving clause does not reach the

prisoner’s § 2255(a) claim. See, e.g., Brown v. Warden, FCC Coleman-Low, 817

F.3d 1278, 1284 (11th Cir. 2016) (“When a prisoner has only one conviction and

sentence, his detention is legal as long as his sentence is legal. However, if a

prisoner is serving multiple sentences, his detention may be legal even if one of his

sentences is not.”). So not all § 2255(a) claims necessarily challenge the “legality

of [a prisoner’s] detention.” And only those that do survive § 2255(e)’s second

filter.

3. “inadequate or ineffective to test”

Finally, we come to § 2255(e)’s third filter: “inadequate or ineffective to

test.” 28 U.S.C. § 2255(e). Congress’s use of the disjunctive in the phrase

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“inadequate or ineffective” has significance. When Congress employs the word

“or,” “the words it connects are to be given separate meanings.” Loughrin v.

United States, 134 S. Ct. 2384, 2390 (2014) (citation and internal quotation marks

omitted). So in the saving clause, the words “inadequate” and “ineffective” have

different and distinct meanings. And because these words are joined by “or,” a

prisoner must demonstrate that his claim satisfies only one of these standards

(though some claims will satisfy both): the remedy by § 2255 must be either

“inadequate” or “ineffective” for a prisoner’s claim to pass through § 2255(e)’s

third filter.

The Majority resists this intuitive interpretation, turning the natural meaning

of “or” on its head. In the Majority’s view, the saving clause uses “or” to

“introduce[] a synonym or definitional equivalent.” Maj. Op. at 22-23 (citing

Scalia & Garner, supra, at 122). So under the Majority’s analysis, Congress

intended for “inadequate” and “ineffective” to mean the same thing in the saving

clause.

Notably, the “synonym-introducing or” exception that the Majority relies on

“is typically set off by commas.” Scalia & Garner, supra, at 122. But that is not

the case with the words “inadequate or ineffective” in the saving clause.

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So, to explain how it reaches this conclusion that the far less natural

“synonym-introducing or” exception to the conjunctive/disjunctive canon applies

to the “or” in the saving clause, the Majority simply states that “it is the better

reading of the text when the terms share the same ordinary meaning.” Maj. Op. at

23. But this reasoning is circular: to decide the meanings of “inadequate” and

“ineffective” in the saving clause, the Majority relies on the “synonym-introducing

or” exception, which it, in turn, relies on because it finds that the words have the

same meaning.

Habeas is a specialized area of the law, and in specialized areas of the law,

words are often endowed with specialized meanings—creating “terms of art”—as

in the case of the saving clause. Indeed, both “inadequate” and “ineffective” are

used in habeas jurisprudence as legal terms of art. But the Majority does not even

consider this fact.

And the Majority’s application of the “synonym-introducing or” exception

to the conjunctive/disjunctive canon cannot be correct for another reason: the

Majority’s interpretation of “inadequate” and “ineffective” as definitional

equivalents does not account in any way for the saving clause’s crucial

constitutional-failsafe function. See infra at 133-35.

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Since the “or” in the saving clause indicates that “inadequate” and

“ineffective” have different meanings from each other, we must consider what

each word encompasses. We apply the meanings these words have acquired

through Supreme Court habeas precedent.

a. “inadequate . . . to test”

Beginning with the term “inadequate,” this term of art appears in the

jurisprudence of equity, of which habeas jurisprudence is a part. See Boumediene,

553 U.S. at 780 (“Habeas ‘is, at its core, an equitable remedy’” (quoting Schlup v.

Delo, 513 U.S. 298, 319 (1995))). It is well established that a remedy at law is

“inadequate” if it is not “as complete, practical and efficient as that which equity

could afford.” Terrace v. Thompson, 263 U.S. 197, 214 (1923).

Applying that concept in the context of the saving clause, and giving effect

to a significant part of the congressional motivation behind § 2255’s enactment

(dealing with practical problems that arose under the pre-§ 2255 habeas regime,

see supra at 122-23), § 2255 is inadequate if practical considerations effectively or

actually render the procedures § 2255 establishes unavailable for testing the

legality of a prisoner’s detention. So, for example, imagine a physically

challenged or medically limited prisoner who, at the time that the saving clause

was originally enacted in 1948, was housed in a different district from where he

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was sentenced and was a necessary witness in his collateral case, though he could

not travel. One possible solution could involve allowing the prisoner to use the

saving clause because, in that case, the review provisions of § 2255 might not be

able to, as a practical matter, provide a remedy. The saving clause then opens the

gateway to habeas corpus to allow such a prisoner access to collateral relief. 10

10
The Majority relies on Prost v. Anderson, 636 F.3d 578, 588 (10th Cir. 2011), to argue
that the remedy by § 2255 is inadequate where an otherwise-permissible § 2255 claim that
challenges the legality of detention cannot proceed because the sentencing court has dissolved, as
in the case of a military prisoner. Maj. Op. at 35-36. Judge Jordan disagrees. Under the current
state of the law, I do not believe that the answer to this question is clear. As far as I can tell,
neither we nor the Supreme Court has yet determined whether military prisoners’ habeas corpus
petitions pass through the saving clause or whether instead they are authorized directly under §
2241. The answer to this question depends, in turn, on whether the military petitioner’s claim is
“authorized” by § 2255. See 28 U.S.C. § 2255(e). For if it is, the language of § 2255(e) requires
him to bring his habeas petition pursuant to § 2255’s strictures, meaning he must bring it under
the saving clause. See id. But whether § 2255 “authorize[s]” the military prisoner’s claim—a
question that turns on whether a military court is a “court established by Act of Congress” within
the meaning of § 2255(a)—does not appear to be a settled matter. Judge Jordan refers to Prost’s
citation of Ackerman v. Novak, 483 F.3d 647 (10th Cir. 2007), a case in which the Tenth Circuit
held that, “because a military court martial is not a ‘court of the United States’ within the
meaning of § 2244(a), the prisoner did not need to obtain circuit authorization to file a § 2241
habeas corpus petition.” Jordan Op. at 78-79 (quoting Ackerman, 483 F.3d at 651-53). But that
does not tell us whether a military tribunal is a “court established by Act of Congress” within the
meaning of § 2255(a). And the Tenth Circuit in Ackerman found that “military justice courts are
established by an Act of Congress,” even though these courts are not considered “courts of the
United States.” 483 F.3d at 652. So Ackerman may provide some support for the proposition
that military prisoners’ habeas petitions must pass through the saving clause. Yet while the court
in Ackerman found § 2255 unavailable, see id. at 649 n.2, the court did not pass on the
applicability of the saving clause. In sum, I find the law unclear as to whether a prisoner in
custody under sentence of a military court brings a § 2241 petition directly under § 2241 or
whether that petition must first pass through § 2255(e). If the latter, then § 2255 is “inadequate”
to test the legality of the petitioner’s detention, given the practical difficulty created by the
dissolution of the petitioner’s sentencing court. It is likewise not clear to me, as it is not clear to
Judge Jordan, whether the habeas petitions of prisoners convicted in territorial courts that no
longer exist must pass through the saving clause. See Jordan Op. at 79-81. If the saving clause
is necessary, however, then I suspect that it would be because § 2255 is “inadequate” for these
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When we apply these considerations in a case like McCarthan’s, though, we

see that § 2255 does not provide an “inadequate” remedy because the prisoner in

such a case does not have the type of practical or logistical problems in using §

2255’s remedy mechanism that the word “inadequate” contemplates.

b. “ineffective to test”

On the other hand, § 2255’s remedy, or procedures, are “ineffective to test”

the legality of a prisoner’s detention when the prisoner files a second or successive

claim like McCarthan’s, asserting that a retroactively applicable new rule of

statutory law means that the prisoner’s sentence exceeds what Congress has validly

authorized.

The term “ineffective” is a term of art in Sixth Amendment claims, a

frequent subject of habeas jurisprudence. In this context, “ineffective” means

“constitutionally deficient,” as in “ineffective assistance of counsel.” See, e.g.,

Strickland v. Washington, 466 U.S. 668 (1984); see also Powell v. Alabama, 287

U.S. 45, 71-72 (1932) (noting that “the right to have counsel appointed, when

petitioners as well, given the logistical conundrum posed by the non-existence of their sentencing
courts. We need not resolve these vexing questions today. In any case, we know that in 1948,
Congress was concerned with the practical and logistical problems attendant to the
administration of habeas corpus, and Congress was likely mindful that such problems may
continue to exist even after the enactment of § 2255. By including the saving clause in § 2255,
Congress protected against that problem.
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necessary, is a logical corollary from the constitutional right to be heard by

counsel” and holding that “under the circumstances . . . , the necessity of counsel

was so vital and imperative that the failure of the trial court to make an effective

appointment of counsel was likewise a denial of due process within the meaning of

the Fourteenth Amendment.”).

Though, like me, the Majority also looks to the context of “ineffective

assistance of counsel” for instruction on the meaning of “ineffective,” see Maj. Op.

at 25 (quoting Brown v. Caraway, 719 F.3d 583, 597 (7th Cir. 2013) (Easterbrook,

C.J., concerning the circulation under Circuit Rule 40(e))), it nonetheless opines

that this dissent “takes this analogy too far when it asserts that because the

ineffective assistance of counsel creates a constitutional deficiency under the Sixth

Amendment, the term ‘ineffective’ means ‘constitutionally deficient’” in the

saving clause. Id.

But the Majority offers no reason why that is so—especially considering that

ineffective-assistance claims are nearly exclusively decided in the context of

collateral review (particularly in the Eleventh Circuit). Instead, the Majority just

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conclusorily asserts that the meaning of “ineffective” in the saving clause cannot

be “constitutionally deficient.” I respectfully disagree.11

Section 2255 is “ineffective”—or constitutionally deficient—when it fails to

allow for consideration of any claims authorized by § 2255(a) that the minimum

constitutional requirements of habeas corpus that the Suspension Clause of the

Constitution imposes, demand. As relevant here, the Suspension Clause requires

that prisoners (1) have a “meaningful opportunity” (2) to have a court consider any

claim that relies on a new retroactively applicable rule of law that reveals that a

petitioner’s sentence exceeds what Congress has validly authorized.

To explain why, we start by considering why the saving clause must

authorize consideration of any claims that the Suspension Clause requires if such

claims may not be reviewed under any other part of 28 U.S.C. § 2255.

The Suspension Clause of the Constitution provides, “The 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. This

11
As discussed below, if “ineffective” did not include the definition of “constitutionally
deficient” in the context of the saving clause, the saving clause would not serve the failsafe-
constitutional purpose that the Supreme Court has repeatedly relied upon to find § 2255
constitutional. See Boumediene, 553 U.S. at 776 (“The [Supreme] Court placed explicit reliance
upon [the saving clause] provisions in upholding [28 U.S.C. § 2255 and the District of Columbia
equivalent of § 2255] against constitutional challenges.” (citing Swain, 430 U.S. at 381; Hayman,
342 U.S. at 223)).
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provision constitutionally “secure[s] the writ [of habeas corpus] and ensure[s] its

place in our legal system.” Boumediene, 553 U.S. at 740. As the Supreme Court

has explained, “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.” Id. at 739.

Since the Suspension Clause protects the writ of habeas corpus under the

Constitution, the Supreme Court has always construed the saving clause of § 2255

to ensure access to the writ of habeas corpus commensurate with what the

Suspension Clause constitutionally may require, to the extent that the rest of §

2255 does not provide for such review. 12 See id. at 776 (“The [Supreme] Court

placed explicit reliance upon [the saving clause] provisions in upholding [28

U.S.C. § 2255 and the District of Columbia equivalent of § 2255] against

constitutional challenges.” (citing Swain, 430 U.S. at 381; Hayman, 342 U.S. at

223)). The Supreme Court has expressly warned that failure to interpret the saving

clause in this way would raise “serious question[s] about the constitutionality of [§

2255].” Id. (quoting Swain, 430 U.S. at 381 (internal quotation marks omitted)).

12
When Congress initially passed § 2255, the statute had no numbered subsections. But
the language of the saving clause—what is now located at § 2255(e) of the current version of the
statute—appeared verbatim as part of the original enactment of § 2255. See Pub. L. No. 80-773,
62 Stat. 869, 968 (1948).
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Put simply, the saving clause plays the critical role of a constitutional failsafe for §

2255.

For this reason, the saving clause must require consideration of any second

or successive claims that the Suspension Clause protects but the rest of § 2255 fails

to permit. If the saving clause did not, § 2255 would violate the Suspension

Clause.

So we must consider the constitutional demands of the Suspension Clause.

As explained next, Supreme Court precedent shows that, at a minimum, the

Suspension Clause requires that prisoners have a “meaningful opportunity” for

judicial consideration of any claim that a court has imposed detention in violation

of the government’s powers, whether because of a violation of the doctrine of

separation of powers or a violation of the principle that our government is one of

limited powers. As a result, a prisoner may show that § 2255 is constitutionally

deficient under the Suspension Clause if his claim meets two requirements: (1) the

claim must assert that his detention violates the principles of separation of powers

or limited government, or both; and (2) the prisoner must not have had a

“meaningful opportunity” to have brought this claim previously.

i. At a minimum, the Suspension Clause requires consideration
of claims alleging that a prisoner’s imprisonment was imposed
in excess of government powers.

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We begin by considering the types of claims that the Suspension Clause

requires be heard. As Supreme Court precedent demonstrates, the Suspension

Clause demands consideration of claims raising challenges that a sentence was

imposed in excess of a government branch’s valid powers.

The Supreme Court has described the separation of powers as the “essential

design of the Constitution.”13 Boumediene, 553 U.S. at 745. To help ensure the

continuing vitality of our system of government, the Framers viewed the writ of

habeas corpus, in turn, as “an essential mechanism in the separation-of-powers

scheme.” Id. at 743; see also id. at 765 (“the writ of habeas corpus is itself an

indispensable mechanism for monitoring the separation of powers”). They

similarly emphasized the important role that habeas corpus plays in “preserv[ing]

limited government.” Id. at 744 (citing The Federalist No. 84 (Alexander

Hamilton)).

So, at its core, habeas corpus is about keeping government powers in

constitutional check. It accomplishes this crucial function by requiring

consideration of claims where a prisoner tests the legality of his imprisonment on

13
And with good reason: “The accumulation of all powers, legislative, executive, and
judiciary, in the same hands, whether of one, a few, or many, and whether hereditary,
selfappointed, or elective, may justly be pronounced the very definition of tyranny.” The
Federalist No. 47 (James Madison), available at https://www.congress.gov/resources/display/
content/The+Federalist+Papers (last accessed Jan. 3, 2017).
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the basis that, in jailing him, at least one of the branches of government violated

the separation of powers or the principle of limited government by exceeding its

constitutional powers.

The Suspension Clause, in turn, safeguards the writ of habeas corpus, so it

necessarily constitutionally requires consideration of claims revealing that a branch

of the government has exceeded its constitutional powers to the same extent that

habeas does. Indeed, the Supreme Court has explained that the Suspension Clause

“protects the rights of the detained by a means consistent with the essential design

of the Constitution . . . to maintain the ‘delicate balance of governance’ that is

itself the surest safeguard of liberty.” Boumediene, 553 U.S. at 745 (quoting

Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion)). For this reason,

the separation-of-powers doctrine and the principle of limited government powers

“must inform the reach and purpose of the Suspension Clause.” Id. at 746

(emphasis added).

That brings us back to the critical role of the Suspension Clause in

understanding the meaning of § 2255(e). As we have already established, §

2255(e) must allow for consideration of all § 2255(a) claims protected by the

Suspension Clause but not otherwise permitted by § 2255. And the Suspension

Clause demands, at a minimum, that claims that show that the government or a

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branch of it has acted in excess of its constitutional powers be cognizable under

habeas. So the separation-of-powers doctrine and the closely related principle of

limited government powers act as the twin Rosetta Stones we must use to reveal

the claims under § 2255(e) for which § 2255 can be constitutionally deficient—or

“ineffective”—under the Suspension Clause, to test the legality of detention.

When we view potential habeas-corpus claims through the prism of the

doctrine of separation of powers and the principle of limited government powers,

we can see that the Suspension Clause demands consideration of those claims that

challenge the power of the government to impose detention, whether because the

imprisoning branch has exceeded its constitutionally authorized powers or because

the government as a whole lacks the constitutional powers to detain under the

circumstances. So when § 2255(e) speaks of § 2255’s “ineffective[ness] to test,” it

necessarily is concerned with the constitutional deficiency that can exist under the

Suspension Clause when a prisoner seeks to test the authorization of the

government, under the separation of powers and the principle of limited

government powers, to impose detention, and § 2255 does not allow that claim to

proceed.

In the context of the Judiciary, under the separation of powers and the

principle of limited government powers, we may not sentence someone for a

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“crime” that no congressionally enacted statute actually criminalizes (or validly

criminalizes), nor may we sentence a person to more time in prison than Congress

has validly authorized. See United States v. Lanier, 520 U.S. 259, 267 n.6 (1997)

(“Federal crimes are defined by Congress, not the courts.”); United States v.

DiFrancesco, 449 U.S. 117, 139 (1980) (“[A] defendant may not receive a greater

sentence than the legislature has authorized.”). Congress—not the Judiciary—has

the power to define crimes and their respective punishments. See United States v.

Kebodeaux, 133 S. Ct. 2496, 2503 (2013). So, as relevant in McCarthan’s case,

the “ineffective to test” filter permits consideration of those claims that challenge a

sentence imposed beyond the Judiciary’s constitutionally authorized powers. But,

as we next discuss, it does so only when the prisoner has not previously had a

“meaningful opportunity” to have his claim considered.

ii. The Suspension Clause entitles a prisoner to a “meaningful
opportunity” to have his claim considered.

In addition to protecting, at a minimum, habeas claims challenging

imprisonment in excess of the government’s powers and the separation of powers,

the Suspension Clause imposes another requirement: a prisoner must have a

“meaningful opportunity” to present his claim. As the Supreme Court has

explained, “We . . . consider it uncontroversial . . . that the privilege of habeas

corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is
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being held pursuant to ‘the erroneous application or interpretation’ of relevant

law.” Boumediene, 553 U.S. at 779 (emphasis added) (quoting St. Cyr, 533 U.S. at

302).

And because the Suspension Clause requires the availability of habeas

corpus for cases of detention resulting from a branch’s overreaching its powers, §

2255 is a constitutionally deficient substitute for habeas corpus—and is therefore

“ineffective to test the legality of . . . detention”—if it does not provide a

“meaningful opportunity” for a prisoner to “test” the authorization of the

government, under the separation of powers and the principle of limited

government powers, to imprison him.

As Supreme Court precedent shows, a remedy does not provide a prisoner

with a “meaningful opportunity” and is therefore constitutionally deficient if it

does not allow a prisoner to present a collateral challenge at a meaningful time.

That is precisely the case under § 2255 (without reference to the saving clause)

when a prisoner tries to present a second or successive claim based on a

retroactively applicable new rule of statutory law.

When we’re talking about the Suspension Clause, timing matters. As the

Supreme Court’s collateral-review retroactivity jurisprudence emphatically

demonstrates, the timing of a remedy’s availability can be the difference between

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constitutional deficiency and constitutional sufficiency. Indeed, the very existence

of retroactivity doctrine itself is a shrine to the concept that a prisoner must be able

to present his Suspension-Clause-required claim at a meaningful time.

When a new rule is retroactively applicable, a prisoner may make a new

claim based upon it even if he raised the same issue on direct appeal and lost and

his conviction became final before the Supreme Court announced the new rule. If

timing were irrelevant to habeas-corpus jurisprudence, the Supreme Court would

have had no reason to develop retroactivity analysis. As long as nothing prevented

a petitioner from having raised an issue at trial or in his direct appeal, that would

have been enough to satisfy habeas corpus concerns that a litigant have had a

meaningful opportunity to present his argument—even if, after the prisoner’s

conviction became final, the Supreme Court determined a new substantive rule

that, had it been issued earlier, would have required granting the prisoner’s

challenge. On collateral review, then, we would hear only claims based on

arguments that, by their nature, generally could not have been raised on direct

review—arguments like ineffective assistance of counsel, see Kimmelman v.

Morrison, 477 U.S. 365 (1986), and discovery of new, previously unavailable

evidence showing actual innocence.

But that’s not how collateral review works.

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Instead, the Supreme Court has spent considerable time and effort

developing the retroactivity framework. See, e.g., Mackey v. United States, 401

U.S. 667, 675-702 (1971) (Harlan, J., concurring); Teague v. Lane, 489 U.S. 288,

299-316 (1989) (plurality opinion); Bousley, 523 U.S. at 616-24; Welch, 136 S. Ct.

at 1260-68. It has done this because “the ‘retroactivity’ of a new constitutional

rule [is] a function of the scope and purposes of the habeas corpus writ.” Mackey,

401 U.S. at 684 (Harlan, J., concurring). In other words, retroactivity exists

because habeas corpus and thus the Suspension Clause constitutionally require it.

Under the retroactivity framework, a prisoner may obtain relief on collateral

review of a new claim raising an issue that was denied on direct review, where the

Supreme Court has announced a new rule of substantive law after the prisoner’s

conviction became final.14 Bousley, 523 U.S. at 620-21; Welch, 136 S. Ct. at 1264-

67.

And what does the Supreme Court use to determine whether a new rule

qualifies as a new rule of substantive law? Our old friends the separation-of-

powers doctrine and the principle of limited government powers, of course, since

14
Prisoners may also obtain relief on collateral review of claims based on a “new
watershed rule[] of criminal procedure.” Welch, 136 S. Ct. at 1264 (citation and internal
quotation marks omitted). These are procedural rules that implicate “the fundamental fairness
and accuracy of the criminal proceeding.” Id. (citation and internal quotation marks omitted).
To date, the Supreme Court has identified only the right to counsel as falling within this
category. See Beard v. Banks, 542 U.S. 406, 417 (2004).
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retroactivity doctrine is a constitutionally required aspect of habeas corpus, and

habeas corpus, in turn, is grounded in the separation-of-powers doctrine and the

principle of limited government powers. So as Supreme Court precedent

convincingly demonstrates, the concern for keeping government powers in

constitutional check drives the determination of whether a new rule qualifies as

substantive, just as it does the jurisprudence of habeas corpus as a whole.

Indeed, Justice Harlan’s Mackey concurrence defines substantive rules that

warrant retroactivity as “those that place, as a matter of constitutional

interpretation, certain kinds of primary, private individual conduct beyond the

power of the criminal law-making authority to proscribe,” 401 U.S. at 692 (Harlan,

J., concurring)—meaning rules that show that Congress has enacted legislation

beyond its constitutionally authorized powers, in violation of the principle of

limited government powers.

Nor has the Supreme Court limited the availability of retroactivity to claims

involving only Congress’s overstepping of its constitutional powers. In Bousley,

the Supreme Court reasoned that the separation-of-powers doctrine rendered

substantive—and thus retroactive—the new rule that it had announced in Bailey v.

United States, 516 U.S. 137 (1995)—a case involving the Judiciary’s overreaching

of its constitutional powers. Bousley, 523 U.S. at 616-24.

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In Bailey, the Supreme Court construed 18 U.S.C. § 924(c)(1), which, at the

time, imposed a prison term upon a person who “during and in relation to any . . .

drug trafficking crime . . . uses or carries a firearm,” to require evidence that the

defendant actively employed the firearm during and in relation to the predicate

crime. Bailey, 516 U.S. at 142-43. Previously, some courts had interpreted the

provision to require evidence of only accessibility and proximity of a firearm

during a drug-trafficking crime, not of active employment. Based on Bailey’s

reading of § 924(c)(1), the Supreme Court concluded, courts exceeded their powers

if they sentenced prisoners for an act that Congress did not make a crime under §

924(c)(1). As a result, the Supreme Court determined in Bousley that the Bailey

rule had to be retroactively available.

In reaching this conclusion, the Supreme Court emphasized the important

role that the separation-of-powers doctrine plays in habeas—and therefore

retroactivity—analysis: “[U]nder our federal system it is only Congress, and not

the courts, which can make conduct criminal. . . . Accordingly, it would be

inconsistent with the doctrinal underpinnings of habeas review to preclude

petitioner from relying on our decision in Bailey in support of his claim that his

guilty plea was constitutionally invalid.” Bousley, 523 U.S. at 620-21 (citations

omitted) (emphasis added). In other words, the separation-of-powers doctrine—

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and thus habeas corpus and the Suspension Clause—constitutionally requires new

substantive rules, including those like the Bailey rule, which are statutory in nature,

to be retroactively applicable and available to prisoners on collateral review.

And just last year, in Welch, the Supreme Court found that the separation of

powers mandated the conclusion that the rule established in Johnson v. United

States, 135 S. Ct. 2551 (2015), is retroactive.15 To explain why, the Supreme

Court hearkened back to its separation-of-powers reasoning in Bousley, observing

that the separation-of-powers doctrine precludes a court from sentencing a person

to more time in prison than Congress authorized, in the same way that it does not

allow a court to imprison a person for an act that Congress did not validly

criminalize:

Bousley noted that the separation of powers prohibits a
court from imposing criminal punishment beyond what
Congress meant to enact. . . . But a court likewise is
prohibited from imposing criminal punishment beyond
what Congress in fact has enacted by a valid law. In
either case a court lacks the power to exact a penalty that
has not been authorized by any valid criminal statute.

Welch, 136 S. Ct. at 1268 (citation omitted).

15
The Supreme Court held in Johnson that the residual clause of the Armed Career
Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague and therefore
void. See Johnson, 135 S. Ct. at 2555-63.
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The Supreme Court’s pronouncements in Bousley and Welch illustrate

Justice Harlan’s observation 45 years ago that the “relevant frame of reference [for

determining whether a new rule is retroactively applicable to cases on collateral

review] . . . is not the purpose of the new rule whose benefit the petitioner seeks,

but instead the purposes for which the writ of habeas corpus is made available.”

Mackey, 401 U.S. at 682 (Harlan, J., concurring). And we already know that the

essential purpose of habeas corpus is to keep the government in check by zealously

guarding the separation of powers and the principle of limited government. So it

makes perfect sense that these same doctrines play a vital role in determining the

retroactivity on collateral review of new rules of law.

True, the Supreme Court has also accounted for finality interests in criminal

cases in its retroactivity framework. But the Supreme Court does not consider

finality interests in a vacuum. Rather, the Court’s retroactivity analysis “creates a

balance between, first, the need for finality in criminal cases, and second, the

countervailing imperative to ensure that criminal punishment is imposed only

when authorized by law,” Welch, 136 S. Ct. at 1266—meaning only as permitted

by the separation of powers and the principle of limited government powers.

Indeed, new substantive rules are retroactive for the very reason that “where

the conviction or sentence in fact is not authorized by substantive law, . . . finality

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interests are at their weakest. As Justice Harlan explained, ‘[t]here is little societal

interest in permitting the criminal process to rest at a point where it ought properly

never to repose.’” Id. (quoting Mackey, 401 U.S. at 693 (Harlan, J., concurring))

(emphasis added).

Notably, Welch and Justice Harlan did not distinguish between illegal

convictions and illegal sentences, emphasizing that in both cases, “finality interests

are at their weakest.” Id. So while I agree with Judge Jordan that equity “does not

always draw clean lines, and the finality concerns embodied in § 2255(h) cannot be

ignored,” Jordan Op. at 73, if, as Judge Jordan opines (and I agree), finality

interests do not outweigh the interests in imposing punishment for a conviction

when that conviction is not authorized by law, they are equally insufficient to

outweigh the interests in imposing a sentence when that sentence is not authorized

by law because it exceeds a congressionally imposed statutory maximum.

All of this—that is, the existence of retroactivity analysis—shows that, for

purposes of understanding the meaning of “ineffective,” timing is everything when

it comes to having a “meaningful opportunity”—an opportunity that is not

constitutionally deficient—to present claims that are ultimately governed by new

rules of substantive law.

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And as Bousley, which involved a new rule of statutory law, and Welch,

which concerned a new rule of constitutional law, show, the separation-of-powers

and limited-government-powers concerns are exactly the same for both

retroactively applicable new rules of statutory law and retroactively applicable new

rules of constitutional law. Compare Bousley, 523 U.S. at 620-21 (statutory rule),

with Welch, 136 S. Ct. at 1268 (constitutional rule). For this reason, new statutory

and constitutional rules must be retroactively applicable on collateral review to the

same extent. In both cases, a branch of the government has exceeded its

constitutional powers. So on initial collateral review, a petitioner may make a

claim based on the Supreme Court’s new rule that did not exist during the

petitioner’s direct appeal, even though the petitioner had the opportunity to raise

the same issue on direct appeal.

That’s because not just any opportunity to raise an issue will do under

habeas corpus jurisprudence; to comport with constitutional requirements, the

opportunity to raise an issue must be meaningful. And an opportunity on direct

review is not meaningful if a claim is denied and a new retroactively applicable

rule subsequently establishes that the right not to be detained under the challenged

provision in violation of the separation of powers or the principle of limited

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government always existed—regardless of whether that new rule is statutory or

constitutional in nature.

Nor has the Supreme Court suggested that a different standard of

retroactivity applies for second or successive claims than for initial claims on

collateral review. Why would it? As we have discussed, the separation-of-powers

doctrine and the principle of limited government powers are the animating reasons

for why a new rule of substantive law must be retroactively applicable on collateral

review. A sentence imposed in excess of the court’s constitutional authority

violates the separation of powers just as much if it is raised in a second or

successive claim as it does if it is raised in an initial claim.

And an opportunity is not a meaningful one on an initial claim any more

than it is on direct review if the initial claim is denied and a new retroactively

applicable rule subsequently establishes that the right not to be detained under the

detaining mechanism at issue in the case, in violation of the separation of powers

and the principle of limited government powers, has always existed. Cf. 28 U.S.C.

§ 2255(h)(2) (permitting consideration of second or successive claims based on a

retroactively applicable new rule of constitutional law). Because the Suspension

Clause preserves habeas to protect against government action in excess of

constitutional powers, the Suspension Clause requires consideration of second or

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successive claims that rely on a new retroactively applicable rule of law that was

not available during direct appeal or earlier collateral proceedings.16 For it is here,

“where the conviction or sentence in fact is not authorized by substantive law,”

that “finality interests are at their weakest.” Welch, 136 S. Ct. at 1266.

Of course, that is not to say that no finality interests are at play here, for

limitations can and do exist on the habeas-corpus right to bring a claim based on a

retroactively applicable new rule of substantive law. Habeas corpus entitles a

petitioner to one meaningful opportunity to present his claim. So if, for example, a

prisoner presents a claim based on a new retroactively applicable rule of law and

loses, his habeas-corpus rights have been satisfied, and he may not continue to file

new petitions raising the same claim, see 28 U.S.C. § 2244(a), without the

Supreme Court’s having issued an intervening new retroactively applicable rule.

C. Section 2255 does not otherwise permit consideration of second or
successive claims based on a new rule of statutory law that reveals a
violation of the separation of powers, so such claims must be
cognizable under § 2255(e).

16
For this reason, Bryant’s test, see 738 F.3d at 1274, which requires that binding
precedent have foreclosed the prisoner’s claim at the time of his first motion to vacate in order
for the prisoner to access habeas through the saving clause, cannot be correct. Under Bryant, the
prisoner whose claim is the one that establishes the precedent that squarely forecloses the claims
of those who come after him has no meaningful opportunity to present his second or successive
claim based on the new retroactively applicable rule of statutory law that allows those who
follow to present their second or successive claims once the Supreme Court issues its new
retroactively applicable rule of statutory law.
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Now that we have established that habeas corpus requires consideration of a

petitioner’s claim based on a retroactively applicable new rule of substantive law—

whether constitutional or statutory in nature and whether raised as an initial or

second or successive collateral claim—we review whether § 2255, in fact, allows

for consideration of such claims. Clearly, it does for claims based on retroactively

applicable new constitutional rules. See 28 U.S.C. § 2255(h)(2). The express

language of subsection (h)(2) provides that “[a] second or successive motion must

be certified as provided in section 2244 by a panel of the appropriate court of

appeals to contain—(2) a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was previously unavailable.”

But nothing in § 2255 expressly allows consideration of second or

successive claims raising a retroactively applicable new rule of statutory law. On

the contrary, 28 U.S.C. § 2255(h), in conjunction with the provisions of § 2244 that

it incorporates by reference, precludes consideration of claims relying on a

retroactively applicable new rule of statutory law. Because the Suspension Clause

requires consideration of these claims and yet § 2255 otherwise does not allow

them, § 2255(e) must permit a prisoner to bring such claims in an application for

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writ of habeas corpus. 17 And since McCarthan seeks to rely on a new retroactively

applicable rule of statutory law that was not available when he filed his initial §

2255 petition, § 2255(e) authorizes consideration of his claim. 18

17
A reader might wonder why Congress did not enumerate this type of claim along with
the two types of claims listed in § 2255(h), particularly § 2255(h)(2). This question initially
bothered me as well. So I extensively examined the legislative history for § 2255, but I could not
find an explanation for why Congress enacted § 2255(h)(2). Based on my review of Supreme
Court precedent, however, I believe the answer is that § 2255(h) was Congress’s effort to ensure
that constitutionally required second or successive claims not be precluded by AEDPA’s
amendments. But when Congress enacted § 2255(h) in 1996, the Supreme Court had not yet
ruled that new statutory rules could be retroactive just like new constitutional rules could be.
Instead, at that time, as far as claims based on retroactively applicable new rules were concerned,
Congress likely understood the Constitution to require consideration of only those claims based
on new substantive rules of constitutional law, as Justice Harlan’s Mackey concurrence had
suggested. See Mackey, 401 U.S. at 684 (Harlan, J., concurring). So while I read § 2255(h) as
Congress’s attempt to ensure that § 2255 preserved habeas’s constitutional scope, I read §
2255(e) in tandem as a failsafe mechanism that Congress continued to allow to exist because it
recognized that it may have overlooked constitutionally required claims. Congress could have
repealed § 2255(e) in 1996 if it intended § 2255(h) to render § 2255(e) superfluous, but it did
not. To the extent that an argument might be made that Congress kept the saving clause for the
separate reason that the clause was needed to provide relief where practical considerations arose,
Congress could have amended the clause to expressly limit it to that situation, such as by
explicitly referring to “practical considerations” or by removing the language “or ineffective.”
Again, it did not. And to the extent that some might note that habeas corpus did not always
require what are now considered to be retroactively applicable new rules of statutory
construction to be retroactively applicable, the Supreme Court has stated that “Felker, Swain, and
Hayman stand for the proposition that the Suspension Clause does not resist innovation in the
field of habeas corpus.” Boumediene, 553 U.S. at 795. As the Court has further explained,
“[h]abeas is not a static, narrow, formalistic remedy; its scope has grown to achieve its grand
purpose.” Id. at 780 (quoting Jones v. Cunningham, 371 U.S. 236, 243 (1963) (internal
quotation marks omitted)). So the fact that Congress may have viewed the scope of habeas
narrowly in 1996 is no answer to the Supreme Court’s current explanation of the Suspension
Clause’s constitutional scope.
18
Of course, to the extent that McCarthan procedurally defaulted the claim and the
government raises this as an affirmative defense, McCarthan would have to show “cause and
prejudice” for the default or “actual innocence” in order for his claim to be considered on the
merits. See Bousley, 523 U.S. at 621-22.
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Because the district court did not consider McCarthan’s claim on the merits

in the first instance, I would reverse the district court’s dismissal of McCarthan’s

claim and remand for consideration of the merits.

II.

The Majority’s criticism of my proposed interpretation of the saving clause

focuses on three things: (1) my reliance on Boumediene, 553 U.S. 723; (2) my

conclusion that retroactivity doctrine is constitutionally required; and (3) the

alleged mooting of my theory by Felker v. Turpin, 518 U.S. 651 (1996). The

Majority is mistaken on all three counts.

A. The Majority’s attack on my reliance on Boumediene does not withstand
scrutiny.

The Majority takes issue with my reliance on Boumediene because that case

“addressed the scope of habeas corpus for executive detainees ‘where no trial has

been held’ and distinguished decisions like Felker, in which a prisoner sought

relief from a judgment imposed in a ‘fair, adversary proceeding.’” Maj. Op. at 40

(quoting Boumediene, 553 U.S. at 732, 774, 782). On its face, this might seem like

a good way of distinguishing Boumediene—until we look at how this dissent

actually uses Boumediene.

First, I rely on Boumediene primarily for citation of principles universally

applicable to habeas corpus and the Suspension Clause—regardless of the posture
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of the litigating prisoner. For example, I cite Boumediene for its interpretation of

Swain and Hayman as standing for the proposition that failure to interpret the

saving clause as a constitutional failsafe would raise “serious question[s] about the

constitutionality of [§ 2255].” Swain and Hayman involved prisoners who had

already gone through a presumably “fair, adversary proceeding” and had been

sentenced, and the fact that Boumediene involved Guantanamo prisoners instead of

sentenced federal prisoners does not somehow render the lessons of Swain and

Hayman any less correct or applicable.

Similarly, to the extent that the Majority’s criticism of my reliance on

Boumediene is intended to apply to my citations of Boumediene for the principle

that concerns of separation of powers and limited government powers animate

habeas corpus, and therefore the Suspension Clause, the Majority likewise

provides no explanation why the fact that Boumediene involved Guantanamo

prisoners somehow makes that general principle less applicable in the case of

sentenced federal prisoners. After all, there is only one Suspension Clause, and it

applies to executive-branch prisoners and federally sentenced prisoners alike.

B. The Majority mistakenly views retroactivity doctrine as an exception to
procedural barriers.

And even if we did not consider Boumediene, the Majority’s criticism does

not properly account for Supreme Court jurisprudence on retroactivity—an area
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that directly involves and applies to sentenced federal prisoners. As I have noted,

the Supreme Court in retroactivity doctrine has relied on the very same separation-

of-powers and limited-government-powers concerns as it has in explaining in

Boumediene the driving forces behind habeas and the Suspension Clause. See

supra at 144-45 (“[U]nder our federal system it is only Congress, and not the

courts, which can make conduct criminal. . . . Accordingly, it would be

inconsistent with the doctrinal underpinnings of habeas review to preclude

petitioner from relying on our decision in Bailey in support of his claim that his

guilty plea was constitutionally invalid.” (quoting Bousley, 523 U.S. at 620-21

(citations and quotation marks omitted) (emphasis added))); see id. at 145

(“Bousley noted that the separation of powers prohibits a court from imposing

criminal punishment beyond what Congress meant to enact. . . . But a court

likewise is prohibited from imposing criminal punishment beyond what Congress

in fact has enacted by a valid law. In either case a court lacks the power to exact a

penalty that has not been authorized by any valid criminal statute.” (quoting Welch,

136 S. Ct. at 1268 (citation and quotation marks omitted)).

That is no accident. Retroactivity doctrine is based on “the doctrinal

underpinnings of habeas review,” Bousley, 523 U.S. at 621—meaning the

Suspension Clause’s concerns for separation of powers and the principle of limited

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government powers—because it is required by “the doctrinal underpinnings of

habeas review” and therefore by the Suspension Clause. This fact seems to escape

the Majority, so it incorrectly suggests that Congress could do away altogether

with collateral review of claims that rely on retroactively applicable rules if it so

desired. See Maj. Op. at 42 (“Retroactivity means that a court is no longer barred

from applying a new rule on collateral review, not that a court must create a

vehicle for collateral review because there is a new rule.”). But that is not an

option because the “doctrinal underpinnings of habeas review”—and therefore the

Suspension Clause—constitutionally require retroactivity doctrine and therefore a

procedural vehicle for collateral review of claims that rely on retroactively

applicable new rules.

So even without considering Boumediene, the Suspension Clause requires

consideration of second or successive claims that involve retroactively applicable

new rules of statutory law because they expose detention in violation of the

“doctrinal underpinnings of habeas review”—that is, detention in violation of the

separation of powers and the principle of limited government powers.

The Majority has no sufficient answer to this. Instead, it responds by

confusing two distinct concepts: retroactivity doctrine and procedural barriers.

See id. First, the Majority states, “When the Supreme Court makes a right

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retroactively available on collateral review, it does not mean that a prisoner is

constitutionally entitled to have a court review a violation of that right on the

merits.” Id. I agree. But a prisoner is constitutionally entitled to a meaningful

opportunity to have a court review a violation of that right on the merits.

The Majority does not appreciate the difference between a meaningful

opportunity to have a claim heard and an unqualified constitutional right to have a

claim heard, regardless of the prior availability of meaningful opportunities to have

done so. So it next invokes the existence of procedural barriers such as the

procedural-default rule and the statute of limitations as evidence supporting its

incorrect premise. Id.

To be sure, procedural barriers like procedural default and the statute of

limitations may constitutionally preclude a prisoner from bringing his claim on a

new retroactively applicable rule. But that has nothing to do with why retroactivity

doctrine is or is not constitutionally required. Nor does it have anything to do with

whether a prisoner has a meaningful opportunity to bring his claim if he

procedurally defaults it or files it after the statute of limitations has expired.

Procedural barriers like procedural default and the statute of limitations can

constitutionally limit access to collateral review through retroactivity doctrine

because even when they act to bar a claim, they do not bar a meaningful

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opportunity to present the claim. In other words, it is possible to obtain collateral

review, so long as the petitioner complies with these procedural rules.

But that is not the case with a second or successive claim that rests on a new

retroactively applicable rule of statutory law. At every stage of the proceedings

through initial collateral review, a petitioner may raise the argument on which the

new rule is based (thereby not procedurally defaulting) and may file a second or

successive claim within a year of the Supreme Court’s announcement of a

retroactively applicable new rule of statutory law. But in the absence of the saving

clause, § 2255 provides no opportunity to present the claim if the Supreme Court

does not recognize, until after the initial collateral claim has been disposed of, that

the right has always existed. And since the doctrinal underpinnings of habeas

constitutionally require one meaningful opportunity to present a claim based on a

retroactively applicable rule of statutory law, the Majority’s construction of § 2255

not to provide such an opportunity amounts to a suspension of the writ.

C. Felker does not solve the Majority’s problem.

In response to this problem, the Majority invokes Felker. Maj. Op. at 41.

The Majority reasons that its own “interpretation of the saving clause cannot

suspend the writ because the Original Writ in the Supreme Court remains

available, habeas corpus at common law did not apply to prisoners sentenced by a

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court of competent jurisdiction, and the decision of the Supreme Court in Felker

. . . upheld a bar on successive motions against constitutional challenge.” Maj. Op.

at 38-39. None of these arguments saves the Majority’s interpretation of the

saving clause from constitutional peril.

Beginning with the Majority’s third argument first, the Majority asserts that

the Supreme Court’s opinion in Felker supports the conclusion that the limitations

that § 2255(h) places on second or successive claims are absolute and

constitutional. This argument is based on the premise that Felker held that the

second or successive restrictions for state prisoners seeking federal habeas relief,

codified at 28 U.S.C. § 2244(b), 19 do not violate the Suspension Clause. See

19
Section 2244(b) provides,
(b)(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a
prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable; or
(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of
due diligence; and
(ii) the facts underlying the claim, if proven and viewed
in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that, but for constitutional error, no
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Felker, 518 U.S. at 664. Because those restrictions are significantly similar to the

second or successive restrictions in § 2255(h), and because the limitations on

successive state petitions do not contain a saving clause like § 2255 does, the

argument goes, the § 2255(h) restrictions must be constitutional if the § 2244(b)

restrictions are constitutional. See Maj. Op. at 41.

The logic is superficially appealing, but it fails to take into account a

fundamental difference between federal prisoners’ collateral claims and state

prisoners’ habeas claims: separation-of-powers and limited-government-powers

concerns can constitutionally require habeas relief for federal prisoners, while

these doctrines are irrelevant to determining the availability of habeas relief for

state prisoners. Federal courts adjudicating federal prisoners’ claims like

McCarthan’s enforce federal separation-of-powers values by correcting

convictions or sentences where an Article III court exceeded its congressionally

authorized powers.

That aspect of a federal collateral proceeding like McCarthan’s is not present

in a federal-court adjudication of a state prisoner’s habeas petition. A state court

cannot act in violation of the federal separation of powers because the state court is

reasonable factfinder would have found the
applicant guilty of the underlying offense.
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not a part of the federal Judiciary. So not surprisingly, § 2254 does not contain a

saving clause, since unlike with habeas review of federal cases, habeas review of

state cases does not raise separation-of-powers or limited-government-powers

concerns. As a result, the Court in Felker had no reason to and did not consider the

separation of powers in its analysis because it was irrelevant in that case. Here, in

contrast, the separation-of-powers doctrine drives the analysis of the saving

clause’s meaning.

The Majority responds to this important difference between federal and state

habeas by calling it “‘interpretive jiggery-pokery’” and suggesting that I “ignore[]”

the fact that the principle of limited government powers also animates habeas

corpus. Maj. Op. at 41 (quoting King v. Burwell, 135 S. Ct. 2480, 2500 (2015)

(Scalia, J., dissenting)). Setting aside the irony in the Majority’s charge, the

Majority misses the point: the principle of limited government powers in the

context of habeas is the principle that the federal government may not exceed the

powers granted to it by the Constitution. Neither this concept nor the separation-

of-powers doctrine is in play when a federal court grants a state prisoner’s habeas

petition. In that context, the state’s adjudication of a claim yields to federal

interpretation of the governing law under principles of federalism and the

supremacy of federal law—concepts distinct from the separation-of-powers

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doctrine and the principle of limited government that drive habeas for federal

prisoners.

The Majority also suggests that we need not consider the Suspension Clause

in interpreting the saving clause because a would-be petitioner like McCarthan has

an alternate route for obtaining the relief he seeks: he may petition for an “Original

Writ” from the Supreme Court. In support, the Majority cites Judge Pryor’s

concurrence in Samak, which, in turn, cites Felker. See Maj. Op. at 39.

But a careful reading of Felker dispels this notion that the existence of the

Original Writ allows Congress to preclude relief for second or successive claims

required under the Suspension Clause to be permitted. To be sure, Felker relied on

the availability of the Supreme Court’s original jurisdiction to strike down a

challenge to § 2244(b) under the Exceptions Clause. 20 Notably, though, it chose

not to rely on the availability of the Court’s original jurisdiction to strike down a

challenge to § 2244(b) under the Suspension Clause.

In Felker, the Court held that § 2244(b)’s stripping of the Supreme Court’s

appellate jurisdiction to review a court of appeals’s denial of a state prisoner’s

motion for leave to file a second habeas petition in the district court did not affect

20
The Exceptions Clause provides, in relevant part, “In all the other Cases . . . the
supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions,
and under such Regulations as the Congress shall make.” U.S. Const. art. III, § 2, cl. 2.
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the Supreme Court’s original jurisdiction to entertain original habeas petitions. See

Felker, 518 U.S. at 658-61. This conclusion consequently “obviate[d]” the need to

address the constitutionality of Congress’s jurisdiction-stripping under the

Exceptions Clause; since the Supreme Court retained its jurisdiction to entertain

an original petition, the Court reasoned, “no plausible argument” could exist that §

2244(b) violated the Exceptions Clause. Id. at 661-62.

Then the Court turned for the first time to the challenge to § 2244(b) under

the Suspension Clause. Significantly, the Court did not rule that those restrictions

did not violate the Suspension Clause because the “Original Writ” was still

available in the Supreme Court for any of the number of claims precluded by the

second-or-successive bar. In fact, the Court in its analysis of the Suspension

Clause issue did not even consider the Supreme Court’s original jurisdiction to

hear habeas petitions. Instead, the Court held that the § 2244(b) restrictions passed

muster under the Suspension Clause because they substantially mirrored common-

law habeas rules. See id. at 664. Felker thus requires us to ask not whether the

narrowest avenue for relief, such as the Original Writ, still exists, but rather

whether the statutory provision at issue adequately substitutes for common-law

habeas rules.

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When it comes to second or successive claims based on retroactively

applicable new rules of statutory law, the availability of the Original Writ does not

adequately substitute for common-law habeas rules for three reasons.

First, it is not even clear that the Supreme Court would have original

jurisdiction to entertain a claim that is expressly precluded by § 2255(h). If, as the

Majority and Chief Judge Carnes’s concurrence have effectively argued, see Maj.

Op. at 36-38; E. Carnes Op. at 54, only a prisoner whose second or successive

claim complies with § 2255(h)’s bars is “authorized” to proceed under § 2255 and

therefore under the saving clause, § 2255(h)’s bars would then also arguably

restrict the Supreme Court. Cf. Felker, 518 U.S. at 662-63 (pondering the

applicability of §§ 2244(b)(1) and (2)’s unqualified restrictions on the filing of

second or successive state habeas claims, to the Supreme Court’s review).

Second, even if subsection (h)’s bars do not apply to the Supreme Court, the

Original Writ does not provide a federal prisoner with a “meaningful opportunity”

to test the legality of his detention—despite the fact that common-law habeas rules

demand such a meaningful opportunity. Under Supreme Court Rule 20.4(a), the

writ is “rarely granted” and only when “exceptional circumstances warrant the

exercise of the Court’s discretionary powers.” So consideration of claims based on

a retroactively applicable new rule of statutory law would not occur as a matter of

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course. As a result, while the Supreme Court’s original jurisdiction might provide

an opportunity, it would not be a meaningful one.

That leads to the third point. Even if the Supreme Court had upheld §

2244(b) against the Suspension Clause challenge on the basis of the availability of

the Original Writ—which it did not—the procedure at issue in Felker was

materially different—and far more conducive to Original Writ review—than that at

issue under the saving clause. In Felker, the Court relied on its original

jurisdiction to safeguard against individual incorrect decisions that an appellate

court might make in denying the availability of habeas relief on the merits of a

given case. We would hope these cases would be relatively few, but in any event,

the § 2244(b) procedure does not on its face deny relief to an entire class of

prisoners who we know are entitled to relief.

That, however, would not be the situation if prisoners with second or

successive claims based on retroactively applicable new rules of statutory law all

had to use the Original Writ to obtain relief to which the Suspension Clause

entitles them. Then the Original Writ would have to serve as a regular mechanism

for an entire class of prisoners—not just an individual prisoner here or there who

was mistakenly denied the opportunity for habeas relief by an appellate court—to

obtain relief. Imagine, for example, the Supreme Court’s having to entertain in the

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first instance all second or successive claims based on a retroactively applicable

new rule of statutory law! That cannot be what is contemplated by the Court’s

“rare[]” and “exceptional” use of its Original Writ jurisdiction. See Felker, 518

U.S. at 665 (quoting Sup. Ct. R. 20.4(a)).

Nor does the Majority’s reliance on Article III, § 1, of the Constitution

adequately address the problem. See Maj. Op. at 39. Invoking this constitutional

provision, the Majority reasons that under its interpretation of the saving clause,

the existence of the Original Writ must suffice to maintain the constitutionality of §

2255 under the Suspension Clause “because the Constitution does not even require

Congress to create inferior courts.” Id. In other words, in the Majority’s view,

Congress could enact legislation that completely abolished habeas corpus, as long

as it preserved the Original Writ.

I respectfully disagree. Such a system would be entirely unworkable in

today’s world. Even setting aside the fact that abolition of habeas-corpus review

outside the Supreme Court would require more than “exceptional” or “rare” review

by Original Writ, it is difficult to conceive of how the nine Justices would be able

to timely process in the first and last instance all habeas petitions from around the

country, in addition to maintaining the rest of their important workload. And a

system that systematically deprives prisoners of timely habeas review is a system

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that provides no meaningful habeas review. Unquestionably, the lack of a

meaningful habeas review system would violate the Suspension Clause.

So putting the Majority’s argument in the best light, the question is one of

degree. I respectfully submit that using the Original Writ as a regular and only

processing mechanism for an entire class of second or successive claims that are

constitutionally required to be considered amounts to not providing a meaningful

habeas-review system for those claims. It bears repeating that the claims we are

talking about are required by the Suspension Clause to receive consideration.

As for the Majority’s argument that habeas corpus at common law did not

apply to prisoners sentenced by a court of competent jurisdiction, Maj. Op. at 40,

the Supreme Court itself has noted that “Felker, Swain, and Hayman stand for the

proposition that the Suspension Clause does not resist innovation in the field of

habeas corpus.” Boumediene, 553 U.S. at 795. As the Court has further explained,

“[h]abeas is not a static, narrow, formalistic remedy; its scope has grown to

achieve its grand purpose.” Id. at 780 (quoting Jones, 371 U.S. at 243 (internal

quotation marks omitted)). And since retroactivity doctrine is constitutionally

required under current habeas and Suspension Clause jurisprudence, the Majority’s

argument in this regard cannot provide a basis for denying a meaningful

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opportunity for collateral review to prisoners whose second or successive claims

rest on a new, retroactively applicable rule of substantive law.

III.

Turning now to the Majority’s interpretation of the saving clause, it suffers

from three fatal flaws. First, it defies the statutory text it purports to respect.

Second, it shortchanges Supreme Court jurisprudence on the Suspension Clause

and habeas corpus. And third, it inexplicably limits the meanings of the general

definitions it cites to shoehorn them into supporting the Majority’s incorrect

construction of the saving clause.

A. The Majority’s interpretation of the saving clause contradicts the text of §
2255.

Though I do not question my colleagues’ earnestness in their proposed

construction of the saving clause, the Majority opinion’s approach to deciphering

the text of § 2255, disappointingly, is like something right out of Alice’s

Adventures in Wonderland.21 True, the Majority opinion repeatedly claims that its

analysis does nothing more than apply the plain meaning of § 2255’s text. See,

e.g., Maj. Op. at 3, 8-9, 14-37, 42-45, 51. But saying so—no matter how many

21
Lewis Carroll, Alice’s Adventures in Wonderland (BookVirtual Digital Ed. v.1.2 2000),
available at https://www.adobe.com/be_en/active-use/pdf/Alice_in_Wonderland.pdf (last
accessed Jan. 3, 2017).
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times—doesn’t make it so. In fact, the Majority opinion’s interpretation of the

statutory text clashes in significant ways with what the text actually says.

For starters, the Majority opinion seems most confused when it asserts that

execution-of-sentence claims may be brought under the saving clause. In support

of its theory, the Majority opinion reasons that § 2255 is “‘inadequate or

ineffective to test’ a prisoner’s claim about the execution of his sentence because

that claim is not cognizable under section 2255(a).” Maj. Op. at 23-24 (emphasis

in original deleted; emphasis added).

But that’s exactly why execution-of-sentence claims cannot be brought

under the saving clause—because those claims are not cognizable under § 2255.

Proceeding on a type of claim that § 2255 actually authorizes is an absolute

prerequisite for a habeas petition to be considered under the saving clause. See

supra at 114-25; see also 28 U.S.C. § 2255(e) (the habeas petition of a prisoner

“authorized to apply for relief by [§ 2255] motion . . . shall not be entertained . . .

unless it also appears that the remedy by [§ 2255] motion is inadequate or

ineffective to test the legality of his detention”) (emphasis added). The universe of

claims that § 2255 “authorize[s],” however, does not include execution-of-sentence

claims—even by the Majority’s admission. Nor would it make sense for

execution-of-sentence claims to be considered under the saving clause because

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they are authorized under § 2241, without regard to § 2255. See Antonelli, 542

F.3d at 1352.

So bringing an execution-of-sentence claim under § 2255’s saving clause

would be a lot like putting scuba gear on a swordfish so it could breathe

underwater; neither the saving clause nor scuba gear is designed, is necessary, or

works for the asserted purpose (or, as the Mock Turtle in Wonderland might say,

“for the asserted porpoise”). See Carroll, supra, at 154-55.

The Majority responds to this problem by saying that the defect in its theory

“proves nothing about whether a prisoner with a claim based on a change in

caselaw or a prisoner with a claim based on actual innocence satisfies the saving

clause.” Maj. Op. at 38. True. It doesn’t.

But it’s not intended to. The first section of this dissent already explains

why a claim based on a new retroactively applicable rule of statutory

interpretation—not just any “change in caselaw,” as the Majority incorrectly

characterizes my dissent as arguing—must be considered under the saving clause.

I write about the incorrectness of the Majority’s argument solely in an effort to

prevent our Circuit from supplanting eighteen years of precedent with another

interpretation of the law that cannot possibly be correct. After all, “if you drink . . .

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from a bottle marked ‘poison,’ it is almost certain to disagree with you, sooner or

later.” Carroll, supra, at 10.

The Majority’s textual confusion does not end with its incorrect insistence

that execution-of-sentence claims may be brought under the saving clause. Rather,

the Majority’s interpretation just gets “[c]uriouser and curiouser!” Carroll, supra,

at 15. The Majority also asserts that prisoners “‘[kept] in custody’ without a

criminal sentence” may have their claims heard through the saving clause. Maj.

Op. at 26.

But that is precisely the opposite of what the saving clause’s unambiguous

language permits. Only prisoners who have already been sentenced by a federal

court are eligible to take advantage of the saving clause—and only they need to do

so to access habeas relief because prisoners who have not yet been sentenced are

not subject to § 2255’s strictures and may proceed directly under § 2241. See

supra at 114-25. That’s because the saving clause allows consideration of claims

presented by only those prisoners “authorized to apply for relief by [§ 2255]

motion.” 28 U.S.C. § 2255(e). Section 2255, in turn, authorizes the claims of only

those prisoners “under sentence of a court established by Act of Congress.” Id. §

2255(a) (emphasis added).

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Not only that, but § 2255 authorizes solely those claims challenging

sentences. See id. Only in Wonderland would it make sense for an unsentenced

prisoner to bring a claim challenging his sentence. Cf. Carroll, supra, at 187

(“Sentence first—verdict afterwards.”).

But the Majority goes even deeper down the rabbit hole, asserting next that

the saving clause does not allow for consideration of second or successive claims

that do not satisfy the requirements of subsection (h)’s bar on second or successive

§ 2255 motions. See Maj. Op. at 28-31; see also E. Carnes Op. at 54-55. The

Majority does not look to the language of the saving clause in divining this

supposed rule; instead, it relies incorrectly on the general/specific canon of

construction and again does not account for the saving clause’s failsafe function or

apply the actual language of § 2255.

Invoking the general/specific canon, the Majority contends, “The specific

language of section 2255(h), enacted nearly 50 years after the saving clause, limits

the reach of the saving clause.” Maj. Op. at 30. First, this argument implicitly

concedes that the language of the saving clause does not require a prisoner’s claim

to satisfy subsection (h) in order for a court to consider it under the saving clause.

For if it did, the Majority would not need to invoke this canon.

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Second, to the extent that the general/specific canon even applies to the

analysis of § 2255, in invoking the general/specific canon of construction, the

Majority gets things backwards; it wrongly characterizes the saving clause as the

general provision and subsection (h) as the more specific provision. The

general/specific canon states that “[i]f there is a conflict between a general

provision and a specific provision, the specific provision prevails.” Scalia &

Garner, supra, at 183. This canon relies on the principle that “the two provisions

are not in conflict, but can exist in harmony.” Id. at 185. As Justice Scalia and

Bryan Garner have explained, “The specific provision does not negate the general

one entirely, but only in its application to the situation that the specific provision

covers.” Id.

Applying the general/specific canon can be challenging because it is not

always easy to ascertain which provision lays the general rule and which the

specific. Id. at 187; see also id. at 188 (quoting Radzanower v. Touche Ross &

Co., 426 U.S. 148, 159 (1976) (Stevens, J., dissenting)). And timing of enactment

does not necessarily reveal the answer. Id. at 187. Here, the bars contained in

subsection (h), though enacted later in time, establish the general rule that courts

may consider only those second or successive claims that satisfy the conditions of

subsection (h). The saving clause provides the exception: if failure to consider a

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second or successive claim that does not satisfy the criteria of subsection (h) would

result in a violation of the Suspension Clause, the saving clause requires

consideration of that claim.

The general and specific labels make no sense if applied in the other

direction. It would be “uncommon nonsense,” Carroll, supra, at 158, indeed, to

allow the unconstitutional provision (subsection (h), in the absence of subsection

(e)’s failsafe mechanism) to trump the provision whose job it is to ensure

subsection (h)’s and the rest of § 2255’s constitutionality. So subsection (h)’s bar

cannot preclude consideration of second or successive claims that the Suspension

Clause—and therefore the saving clause—requires.

Each of the three errors discussed above—the insistence that execution-of-

sentence claims may be considered under the saving clause; the suggestion that

unsentenced prisoners’ claims may be considered under the saving clause; and the

notion that subsection (h), which purports to bar second or successive claims that

are constitutionally required to be considered, takes priority over the saving

clause’s constitutional-failsafe mechanism—are examples of “needlessly rendering

provisions in conflict [though] they can be interpreted harmoniously.” See Maj.

Op. at 28 (quoting Scalia & Garner, supra, at 180) (quotation marks omitted). As

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the Majority itself notes, though, “[t]here can be no justification” for such an

analysis. Id. (quoting Scalia & Garner, supra, at 180) (quotation marks omitted).

Finally, the Majority expresses concern that construing the saving clause to

allow consideration of second or successive claims that may not be entertained

under subsection (h) allows saving-clause claims to avoid subsection (f)’s statute

of limitations. Maj. Op. at 31. But that is doubly wrong, even if, as the Majority

suggests, subsection (f)’s statute of limitations is incorporated into subsection (e),

see Maj. Op. at 36-38 (arguing that subsections (f) and (h) “authorize” a prisoner to

apply for relief under § 2255 and therefore are incorporated into the saving

clause’s requirement that a prisoner be “authorized” to apply for relief under §

2255 in order to have his second or successive claim considered under the saving

clause).

First, under subsection (f)(3), courts may consider claims filed within one

year of “the date on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral review.” 28 U.S.C. §

2255(f)(3). Among other functions, this provision allows courts to entertain (h)(2)

claims—“contain[ing] . . . a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court that was previously unavailable,”

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id. § 2255(h)(2)—even if more than a year of untolled time has passed since the

prisoner’s conviction became final.

If claims satisfying subsection (h)(2)’s criteria were not viewed as asserting

a “right [that] has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review,” id. § 2255(f)(3), they could

not be considered under § 2255’s statute of limitations if they were brought more

than a year after the prisoner’s conviction became final because subsection (f)(3)

would not apply to them, and subsection (f)(3) would lack a function. This

interpretation would violate the surplusage canon. See Scalia & Garner, supra, at

174-79; see also Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“In

construing a statute we are obliged to give effect, if possible, to every word

Congress used.”).

But that’s not how courts apply § 2255’s statute of limitations to second or

successive claims that rely on a retroactively applicable new rule of constitutional

law. Necessarily then, second or successive claims that “contain . . . 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)(2), must also assert a

“right [that] has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review,” id. § 2255(f)(3).

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That right is the right protected by the Suspension Clause not to be detained

in violation of the separation of powers or the principle of limited government

powers, through the impermissible interpretation of the statute or other device used

to detain the prisoner, that has since been invalidated by the Supreme Court’s

retroactively applicable new rule of substantive law—whether constitutional or

statutory. And since subsection (f)(3) imposes a one-year statute of limitations on

all claims involving retroactively applicable rights—without respect to whether

they are based on a new rule of statutory or constitutional law—if it is incorporated

into subsection (e), it necessarily imposes a one-year statute of limitations on

second or successive claims that raise a right that depends on a new rule of

statutory law made retroactively applicable by the Supreme Court to cases on

collateral review. As a matter of fact, then, accounting for the Majority’s view that

subsection (e) incorporates subsection (f)’s statute of limitations, second or

successive claims that depend on new retroactively applicable rules of statutory

law do not evade § 2255’s statute of limitations.22

22
The upshot of this fact is that the Majority’s contention that subsections (f) and (h)
“authorize” prisoners to apply for relief by § 2255 motion, see Maj. Op. at 36-38, has no bearing
on the ultimate construction of the saving clause to require consideration of second or successive
claims that rely on a new retroactively applicable rule of statutory law. Even if subsections (f)
and (h) “authorize” prisoners to apply for relief by § 2255 motion, that means that subsection (f)
necessarily imposes a one-year statute of limitations on second or successive claims that rely on
a new retroactively applicable rule of statutory law, which does not begin to run until the
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Second, even if second or successive claims based on a “right [that] has been

newly recognized by the Supreme Court and made retroactively applicable to cases

on collateral review,” id. § 2255(f)(3), do avoid the statute of limitations, 23 that is

not sufficient grounds to disregard the saving clause’s constitutional-failsafe

function and interpret § 2255 to prohibit claims that are constitutionally required.

If Congress wants to impose a statute of limitations on saving-clause claims,

nothing stops it from doing so. 24 The same is true of requiring prisoners to seek a

certificate of appealability to bring claims based on a new retroactively applicable

rule of statutory law.

B. The Majority’s Interpretation of the Saving Clause Ignores Critical Supreme
Court Precedent.

Supreme Court recognizes the right by announcing the new rule, and subsection (h) must give
way to the saving clause to the extent that its failure to do so would cause § 2255 to violate the
Suspension Clause.
23
The Majority inaccurately characterizes this dissent as taking the position that any
prisoner who fails any procedural bar in section 2255 can petition for a writ of habeas corpus.
Maj. Op. at 32-33. That has never been my argument. Rather, I contend that a prisoner whose
second or successive sentencing claim is otherwise barred by § 2255 from being brought may
have his claim considered under the saving clause only if failure to consider the claim would
render § 2255 constitutionally deficient, as in the case of second or successive claims based on a
retroactively applicable new rule of statutory law.
24
Indeed, that’s exactly what Congress did with respect to the claims identified at §
2255(f) when it passed AEDPA. Before AEDPA was enacted, habeas doctrine allowed courts to
consider petitions “filed after even extraordinary delays.” Day v. McDonough, 547 U.S. 198,
215 (2006) (Scalia, J., dissenting) (citing cases where petitions were entertained 40 years, 36
years, and 24 years after the filing prisoner was sentenced).
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To support its interpretation of the saving clause, the Majority’s opinion

purports to rely primarily on dictionaries, Judge William Pryor’s concurrence in

Samak v. Warden, FCC Coleman-Medium, 766 F.3d 1271, 1275-95 (11th Cir.

2014) (W. Pryor, J., concurring), and the Tenth Circuit’s decision in Prost v.

Anderson, 636 F.3d 578 (10th Cir. 2011) (on which Judge Pryor’s Samak

concurrence, in turn, relies).

Prost, however, specifically declined to consider “whether, when, and how

the application of § 2255(h)’s limits on second or successive motions might (ever)

raise a serious constitutional question.”25 Id. at 594; see also id. at 583 n.4

(acknowledging that the Suspension Clause may require “some avenue of

collateral attack”). So Prost’s analysis does not account for—and does not purport

to account for—the Suspension Clause and its attendant constitutional

considerations. Yet Prost expressly recognized that to the extent that § 2255’s

bans on second or successive motions violated the Constitution, § 2255 could not

be upheld. See id. at 586 n.6 (“[Courts] [h]aving created our own (if different)

hierarchy of innocence claims, it’s hard to say Congress wasn’t entitled to enact its

25
Though the Majority claims to follow Prost’s interpretation of the saving clause, see
Maj. Op. at 3, Prost also does not adopt the Majority’s position that the saving clause authorizes
execution-of-sentence and pretrial-detention claims. That construction appears to have
originated as purely an invention of Judge Pryor’s. See Samak, 766 F.3d at 1291 (W. Pryor, J.,
concurring).
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own—unless of course its particular hierarchy in some way can be said to violate

the Constitution.”).

We are in a different posture than the Tenth Circuit. Today we abrogate

nearly 20 years of Circuit precedent on our interpretation of the saving clause and

replace it with an entirely different framework of understanding. When we

undertake this type of drastic change in our jurisprudence, we have the deepest of

responsibilities to try to ensure that our new solution is correct—or at least that it

has accounted for constitutional concerns.

But the Majority gives short shrift to the Suspension Clause and barely

mentions retroactivity doctrine or the importance in habeas jurisprudence of the

separation-of-powers doctrine and the principle of limited government powers.

Having a discussion about the saving clause without delving into all of these

constitutional concepts is a lot like trying to play football without a ball: it can’t be

done correctly.

The point of the saving clause is to save § 2255 from any potential

unconstitutionality. See supra at 133-35; see also Boumediene, 553 U.S. at 776. If

§ 2255 did not permit consideration of claims that are constitutionally required, it

would be unconstitutional. See supra at 133-35. So addressing the

Constitution’s—and in particular, the Suspension Clause’s—requirements is

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critical to the correct interpretation of the saving clause. And since the separation-

of-powers doctrine and the principle of limited government powers drive the

Suspension Clause’s protection of habeas claims, we must consider the role of

those doctrines as well when we construe the saving clause. Finally, because these

same concerns require retroactivity of new rules of both constitutional and

statutory law, we must also account for retroactivity in our analysis.

But the Majority’s analysis dismisses all of these concerns without adequate

reasoning. The Majority’s reliance on Felker for its Original-Writ answer to the

Suspension Clause problem fails because Felker does not hold that Suspension

Clause problems may be resolved by the existence of original jurisdiction. See

supra at 158-68. Nor does the Majority address the importance of the separation-

of-powers doctrine and the principle of limited government powers in habeas and

Suspension Clause jurisprudence. And while the Majority Opinion mentions

“retroactivity,” it does not acknowledge that retroactivity exists because it is

constitutionally required. The Majority likewise neglects to give any consideration

to the constitutional reasons requiring retroactivity. See Maj. Op. at 42; see supra

at 154-58.

Instead, the Majority opines that determining whether a new rule of law

“applies retroactively on collateral review can be a difficult and controversial task”

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and then employs that opinion as a reason to support its interpretation of the saving

clause because the Majority’s construction conveniently does not require courts to

determine whether a new rule applies retroactively. Maj. Op. at 49-51. But courts’

convenience cannot excuse failure to comply with constitutional requirements.

And the Majority does not account for the constitutional basis for retroactivity

doctrine at all in arriving at its construction of the saving clause.

Because the Majority does not adequately consider the Suspension Clause,

the doctrine of separation of powers and the principle of limited government

powers, and retroactivity doctrine, the Majority does not recognize that the saving

clause requires consideration of second or successive claims that rely on a new

retroactively applicable rule of statutory law. 26 As a result, the Majority’s

interpretation of the saving clause renders § 2255 unconstitutional.

C. The Majority’s interpretation relies on artificially limited definitions,
contorted to fit the Majority’s desired construction of the saving clause.

The Majority identifies and defines four terms from the saving clause:

“remedy,” “to test,” “inadequate or ineffective,” and “detention.” Maj. Op. at 17.

None of these terms requires the construction that the Majority devises today. And

26
Again, the Majority misrepresents my dissent when it asserts in response, “[T]he writ
has not been suspended whenever a prisoner cannot file a successive collateral attack.” Maj. Op.
at 41. That has never been my argument. Instead, I contend that a procedural mechanism that
fails to allow for consideration of second or successive claims that rely on a new retroactively
applicable rule of statutory law violates the Suspension Clause.
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none precludes the interpretation of the saving clause to permit second or

successive claims based on a retroactively applicable new rule of statutory law.

The Majority begins by defining “remedy” as “[t]he means by which a right

is enforced or the violation of a right is prevented, redressed, or compensated.” Id.

at 18 (quoting Remedy, Black’s Law Dictionary 1526 (3d ed. 1933)) (quotation

marks omitted). And it asserts that “remedy” does not necessarily equate with

“relief.” See id. I have no quarrel with this definition up to this point.

In fact, I agree with it. And the interpretation of the saving clause that I

offer is entirely consistent with this definition. Under the language of § 2255, the

“right [to be] enforced,” see id., is the right protected by the Suspension Clause not

to be detained in violation of the separation of powers or the principle of limited

government powers, through the impermissible interpretation of the statute or other

device used to detain the prisoner, that has since been invalidated by the Supreme

Court’s retroactively applicable new rule of substantive law—whether

constitutional or statutory. See supra at 133-50.

Regardless of whether the Supreme Court’s new substantive rule is

characterized as constitutional or statutory in nature, the right under which access

to that rule is claimed is constitutional—a constitutional right protected by the

Suspension Clause not to be detained in excess of the government’s powers. And,

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as a practical matter, that constitutional right, which is based on a new rule of

substantive law made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable, cannot be vindicated until after the

Supreme Court announces the new rule. 27

But § 2255, in the absence of the saving clause, does not provide a

“remedy,” or “means by which a right is enforced,” Maj. Op. at 18, when it comes

to new rules of statutory law. For this reason, § 2255 (without the saving clause)

fails to provide a “meaningful opportunity” for a prisoner to test the legality of his

detention when the Supreme Court issues a retroactively applicable new rule of

statutory law. See supra at 139-50. As a result, the construction of the saving

clause that I put forward comports with the Majority’s initial proposed definition

of “remedy.”

27
The Majority asserts that “this argument ignores that litigants often make novel
arguments in the hope that a court will adopt them as a matter of first impression or in a rejection
of past precedent” and that “[i]t is unclear why the chance to have precedent overruled en banc
or by the Supreme Court would not qualify as a theoretically successful challenge or meaningful
opportunity.” Maj. Op. at 21, 32. This argument misses the point. The fact that litigants may
raise novel arguments to courts before such time that the Supreme Court has issued a new rule of
substantive law made retroactive to cases on collateral review, that was previously unavailable,
does not mean that litigants have an opportunity at all—let alone a meaningful opportunity—to
invoke a right that is based on a new retroactively applicable rule of substantive law issued by
the Supreme Court, which was not recognized prior to the Supreme Court’s announcement of it.
How could litigants when the Supreme Court had not yet recognized the very rule on which their
right relies?
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Next, the Majority initially defines “to test” as meaning “to try.” Maj. Op. at

20 (citing Test, 11 Oxford English Dictionary 220 (1st ed. 1933)). It then turns to

Prost to argue that in order “to test,” a “petitioner [must have] an opportunity to

bring his argument.” Id. (quoting Prost, 636 F.3d at 584) (quotation marks

omitted). Setting aside for the moment the facts that Prost expressly declined to

consider constitutional issues in its interpretation, see supra at 179, and that “an

opportunity” must be a “meaningful opportunity,” see id. at 139-50, I do not take

issue with this construction.

And as with the Majority’s dictionary definition of “remedy,” the

construction of the saving clause that I offer in this dissent is consistent with the

Majority’s initial definition of “to test.” A prisoner whose argument depends on a

“right [that] has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review” has no argument based on

that right until the Supreme Court has newly recognized the rule on which the right

invoked is based and rendered that rule retroactively applicable. So that prisoner

has no opportunity—and certainly no meaningful opportunity—to test the legality

of his detention until after the Supreme Court announces a new retroactively

applicable rule of substantive law, whether constitutional or statutory.

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Nor do I object to the Majority’s initial definition of “detention,” which it

defines as “[k]eeping in custody or confinement,” Maj. Op. at 26 (quoting

Detention, 3 Oxford English Dictionary 266 (1st ed. 1933)), and “[t]he act of

keeping back or withholding, either accidentally or by design, a person or thing,”

id. (quoting Detention, Black’s Law Dictionary 569 (3d ed. 1933)). Once again,

the interpretation of the saving clause presented in this dissent comports with these

definitions of “detention” and ascribes a different meaning to “sentence” and

“detention” as used in § 2255. See supra at 125-26 (citing Brown, 817 F.3d at

1284). As I have explained, testing the “legality of detention” means bringing a

claim that, if correct, would result in a reduced period of detention, not just a

reduced sentence on a given count that may or may not affect the overall period of

detention.

But the Majority’s explanation of these terms’ meanings flies off the rails

when the Majority contorts its original version of its definitions to fit its vision of

the saving clause’s meaning. For instance, in interpreting “remedy” and “to test”

to mean that the saving clause precludes a claim when a prisoner had an

opportunity under § 2255 to raise an argument on an issue—as opposed to a right

based on a new retroactively applicable rule, see Maj. Op. at 18-20—the Majority

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ignores the meaning of “right” as that term is used in § 2255(f)(3), see supra at

175-77, and proves too much.

Under the Majority’s construction, in the absence of subsection (h)(2), the

saving clause would not allow a prisoner to bring a second or successive claim

based on a new retroactively applicable rule of constitutional law because the

prisoner would have had the opportunity to have made the argument on the same

general issue on his initial § 2255 motion, before the Supreme Court announced a

new retroactively applicable rule of constitutional law on that issue. Necessarily,

then, in the Majority’s view, Congress could have chosen to ban second or

successive claims based on a retroactively applicable new rule of constitutional

law.

But Congress’s inclusion of the subsection (h)(2) exception to the ban on

second or successive motions was not optional. The Suspension Clause required it.

See supra at 135-50. As we have discussed, the separation-of-powers doctrine and

the principle of limited government powers “must inform the reach and purpose of

the Suspension Clause.” Boumediene, 553 U.S. at 746 (emphasis added). And

“the ‘retroactivity’ of a new constitutional rule [is] a function of the scope and

purposes of the habeas corpus writ,” Mackey, 401 U.S. at 684 (Harlan, J.,

concurring), so new constitutional rules are retroactively applicable on collateral

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review because the Suspension Clause requires it, not because Congress was in a

generous mood when it enacted AEDPA. Any construction of the saving clause

that does not acknowledge this fact does not account for the saving clause’s

function to save § 2255 from unconstitutionality.

As for the Majority’s reinterpretation of (as opposed to initial citation to) the

dictionary definitions for “detention,” see Maj. Op. at 26-28, it relies on no sources

that support it, 28 other than Judge Pryor’s own concurrence in Samak, and it

conflicts directly with the plain language of § 2255. See supra at 168-72. For this

reason, it cannot be correct.

Finally, and perhaps most glaring of all, the Majority’s definition of

“inadequate or ineffective” entirely fails to account for the saving clause’s

constitutional-failsafe function. We know that “[t]he [Supreme] Court placed

explicit reliance upon [the saving clause] provisions in upholding [28 U.S.C. §

2255 and the District of Columbia equivalent of § 2255] against constitutional

challenges.” Boumediene, 553 U.S. at 776 (citing Swain, 430 U.S. at 381;

Hayman, 342 U.S. at 223). If, as the Majority’s construction suggests, the term

28
The Majority cites several cases, but they do not stand for the proposition that
execution-of-sentence claims are cognizable under the saving clause. See Maj. Op. at 27-28. On
the contrary, without mentioning the saving clause in any way, they assert that execution-of-
sentence claims are not appropriately brought under § 2255 but rather under § 2241—my point
exactly.
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“ineffective” does not require consideration of claims that the Suspension Clause

requires be heard, what part of the saving clause authorizes consideration of

constitutional challenges when no other part of § 2255 does? The Majority offers

no alternative, even though the Supreme Court has repeatedly acknowledged §

2255’s constitutional-failsafe function. See id.

For all of these reasons, the Majority’s interpretation of the saving clause

cannot be correct.

IV.

Chief Judge Carnes’s concurrence asserts that I engage in judicial activism29

in this dissent, “‘improv[ing]’ the statute by writing in the exception that [I]

favor[].” E. Carnes Op. at 55. As always with the Chief, his concurrence is

beautifully written. So it would be easy to succumb to its seductive Siren song

without considering whether the comments in the concurrence are, in fact, correct.

29
The Chief’s concurrence takes issue with my characterization of its criticism as
charging that I have engaged in judicial activism. See E. Carnes Op. at 56. So I pause to explain
why I describe its criticism that way. True, the concurrence never actually employs the phrase
“judicial activism.” Instead, it describes my dissent as having “‘improve[d]’ the statute by
writing in the exception that [I] favor[],” “amend[ed] the statute,” engaged in an activity that is
not in line with “the proper role of the judiciary,” “judicial[l]y revis[ed] . . . [the] statute[],”
imposed my “musings, whether pragmatic or otherwise,” on the statute, “design[ed]” a statute,
and “rewrit[ten]” the statute. Id. at 55-56. My goodness! The concurrence sure thinks I’ve been
very busy doing our legislators’ jobs. And “[l]egislating from the bench . . . [is just] another
name for judicial activism.” Thomas L. Jipping, Legislating From the Bench: The Greatest
Threat to Judicial Independence, 43 S. Tex. L. Rev. 141, 146 (2001).
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But let’s take a moment to think about the concurrence’s premise. In the

concurrence’s view, I have “added a third exception” to subsection (h)’s bar on

second or successive claims, and I have done so because that is the result I

allegedly desire. Id. at 54. So as the concurrence sees things, before we even start

our analysis of the saving clause, we necessarily must agree to a ground rule that

the saving clause cannot have a constitutional-failsafe purpose as it relates to

second or successive claims. For if it does and any constitutionally required

second or successive claims are not accounted for by subsection (h)’s exceptions to

the bar on second or successive claims, the judge who observes this deficiency

must be a judicial activist.

In an ironic twist, though, the concurrence’s approach itself embodies

judicial activism: instead of reviewing the text and relevant precedents and seeing

where they take us, it begins with an end in mind before analysis even starts—and

it does so despite the fact that the Supreme Court has reminded us on more than

one occasion that the saving clause must have a constitutional-failsafe function to

protect § 2255 from unconstitutionality. See Boumediene, 553 U.S. at 776 (citing

Swain, 430 U.S. at 381; Hayman, 342 U.S. at 223).

Even if we were to accept the concurrence’s accusation at face value, exactly

when does the analysis in this dissent engage in judicial activism? When it spends

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seventeen pages parsing the text, grammar, and function of § 2255? When it relies

on the Supreme Court cases Hayman, Swain, and Boumediene for the proposition

that the saving clause acts as a constitutional failsafe to protect § 2255 from

unconstitutionality? When it invokes Boumediene, The Federalist No. 84, and

Hamdi to show that the separation-of-powers doctrine and the principle of limited

government powers drive habeas and the Suspension Clause? Or perhaps when

this dissent cites Justice Harlan’s concurrence in Mackey and the Supreme Court’s

opinions in Bousley and Welch to show that retroactivity doctrine—including

retroactivity doctrine as it relate to new rules of statutory law—is required by the

same separation-of-powers and limited-government concerns that animate habeas

and the Suspension Clause?

Maybe the judicial activism occurs when this dissent suggests the Majority’s

contention that execution-of-sentence and pretrial detention claims may be

considered under the saving clause conflicts with the language and function of §

2255. I don’t know. And the reason I don’t know is that the Chief’s concurrence

does not direct its criticism to any particular step in my analysis, instead just

asserting that I have added a third exception to § 2255’s bar on second or

successive motions.

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I acknowledge that this dissent may present a new theory on why the saving

clause requires consideration of second or successive claims based on a

retroactively applicable new rule of statutory law—though, of course, it is not the

first opinion to conclude that second or successive claims based on a retroactively

applicable new rule of statutory law may be considered under the saving clause.

See, e.g., Wofford, 177 F.3d at 1244 (E. Carnes, J.); 30 Triestman v. United States,

124 F.3d 361, 363 (2d Cir. 1997); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.

1997); In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000); Reyes-Requena v. United

States, 243 F.3d 893, 904 (5th Cir. 2001); Wooten v. Cauley, 677 F.3d 303, 307-08

(6th Cir. 2012); In re Davenport, 147 F.3d 605, 611-12 (7th Cir. 1998); In re

Smith, 285 F.3d 6, 8 (D.C. Cir. 2002).

Presenting a new theory, however, is not the same thing as engaging in

judicial activism. If it were, we could not have circuit splits unless judicial

30
The Chief’s concurrence falls on its Wofford sword in the most eloquent fashion. See
E. Carnes Op. at 56-58. Though I can’t help but admire and be entertained by the Chief’s way
with words, I see no reason for the concurrence to apologize for Wofford or its progeny. I do not
aim to impose blame on the Chief or this Court for our prior jurisprudence on the saving clause.
Our understanding of the law should develop in response to Supreme Court precedent, and I
agree with the concurrence that we should reconsider our views when another demonstrates the
incorrectness of an existing precedent. I also share the concurrence’s position that our analysis
of the saving clause should not start from Wofford’s analysis and “revis[e]” it. Id. at 57-58.
Instead, our analysis must begin with the statutory text and function, as informed, where the text
is ambiguous, by Supreme Court precedent. And it should end wherever that analysis may take
us—without some preexisting idea of where that should be. I cite Wofford for only the point that
my ultimate conclusion—that second or successive claims based on a retroactively applicable
new rule of statutory law may be considered under the saving clause—is not novel.
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activism occurred—any circuit that arrived at an interpretation contrary to the first

court’s resolution of the issue would necessarily be engaging in judicial activism

just by proposing a new theory. But the mere fact that judges may disagree over

the meaning of a provision and may offer an alternative theory to explain the basis

for the disagreement does not mean that a judge is engaged in judicial activism.

Instead, we evaluate that by how the new theory is supported. We must

consider whether the new theory is based on a fair interpretation of the statutory

text and binding precedent. I respectfully submit that this dissent’s theory is.

This dissent relies on the plain meaning of § 2255’s text, to the extent that it

is unambiguous. And to the extent that it is not, this dissent reviews, considers,

and then simply points out existing, though perhaps not previously observed, lines

among Supreme Court cases to inform the meaning of the saving clause’s

constitutional-failsafe function. That is not judicial activism; it is legal analysis.

V.

The range of interpretations courts—including ours—have applied to §

2255(e) may make construing the saving clause seem like the Kobayashi Maru 31 of

31
In the Star Trek universe, Kobayashi Maru is a training exercise for Starfleet Academy
cadets. In it, the cadet must determine whether to attempt a rescue of the Kobayashi Maru, a
disabled Starfleet ship, risking death to the rescuers, or whether instead to decline the rescue of
the Kobayashi Maru, risking death to those onboard the stranded vessel. Though cadets taking
the training exercise are under the impression that it tests their strategic skills as ship
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law training exercises. But, actually, the saving clause has a single correct

meaning, and the secret to understanding it lies in the text of the clause, as

informed by the constitutional-failsafe function of the clause. That meaning

requires consideration of second or successive claims, the failure of which to

consider would render § 2255 constitutionally deficient. Second or successive

claims based on retroactively applicable new rules of statutory law announced by

the Supreme Court fall within this category. Since McCarthan invokes such a rule,

I would reverse the denial of his claim and remand for the district court to consider

the merits in the first instance. Because we don’t do that, I respectfully dissent.

commanders, unbeknownst to the cadets, the exercise is designed as an unwinnable scenario and
is administered for the purpose of testing the character of the cadets. See Star Trek (Paramount
Pictures, Spyglass Entertainment, Bad Robot, Mavrocine Pictures GmbH & Co. KG 2009); Star
Trek II: The Wrath of Khan (Paramount Pictures 1982).
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