Shannon Wayne Agofsky v. Deanna Baysore

In the

United States Court of Appeals

for the Seventh Circuit

____________________

No. 24-1067

SHANNON WAYNE AGOFSKY,

Petitioner-Appellant,

v.

DEANNA BAYSORE, Warden, ∗

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. 2:22-cv-00049-JRS-MKK — James R. Sweeney II, Judge.

____________________

ARGUED DECEMBER 11, 2024 — DECIDED NOVEMBER 26, 2025

____________________

Before ROVNER, SYKES, and KIRSCH, Circuit Judges.

SYKES, Circuit Judge. In 1989 Shannon Agofsky robbed a

bank in southwest Missouri, kidnapped the bank president at

∗ Petitioner Shannon Agofsky was transferred to a different prison while

this appeal has been pending. We have substituted Warden Deanna

Baysore, his current custodian, as the respondent. See FED. R. APP. P. 23(a),

43(c). The transfer does not affect the court’s jurisdiction. In re Hall,

988 F.3d 376, 378 (7th Cir. 2021).

2 No. 24-1067

gunpoint, and drowned him in a lake across the border in

Oklahoma. A federal jury in the Western District of Missouri

convicted him of bank robbery and using a firearm during a

crime of violence; he was sentenced to life in prison. The

Eighth Circuit affirmed, and Agofsky’s several motions for

collateral relief under 28 U.S.C. § 2255 failed.

In 2001, while serving his sentence in a Texas federal

prison, Agofsky killed a fellow inmate. He was convicted in

the Eastern District of Texas of capital murder. The jury found

that several aggravating factors supported the death penalty,

including Agofsky’s firearm conviction in the Missouri case.

The judge imposed a death sentence.

Fast forward to the present: In 2022 Agofsky petitioned for

habeas corpus under 28 U.S.C. § 2241 in the Southern District

of Indiana, where he was confined. Citing Borden v. United

States, 593 U.S. 420 (2021), he challenged his firearm convic-

tion in the decades-old Missouri case, arguing that bank rob-

bery does not qualify as a “crime of violence” under 18 U.S.C.

§ 924(c). Knocking out that conviction was part of his effort to

overturn his sentence in the Texas capital case.

A threshold question, however, concerns jurisdiction. A

§ 2255 motion in the sentencing court is the exclusive method

for federal prisoners to collaterally challenge their sentences.

Only one motion is permitted, with limited exceptions for

claims based on new evidence of actual innocence or a new,

retroactive constitutional rule from the Supreme Court.

28 U.S.C. § 2255(h). To reinforce this finality principle,

§ 2255(e) prohibits courts from entertaining § 2241 habeas ap-

plications from prisoners who have failed to apply for or have

been denied relief under § 2255 “unless it also appears that

the remedy by motion is inadequate or ineffective to test the

No. 24-1067 3

legality of his detention.” Id. § 2255(e). The “unless” language

is known as the “saving clause.”

We held long ago that § 2255 is “inadequate”—and thus

the saving clause is satisfied—for statutory claims barred by

§ 2255(h)’s limits on successive motions. In re Davenport,

147 F.3d 605, 610–12 (7th Cir. 1998). That decision provided a

gateway to § 2241 for Agofsky’s Borden claim. But the

Supreme Court overruled Davenport in Jones v. Hendrix,

599 U.S. 465, 477–78 (2023), ending his habeas quest. The

Indiana district judge dismissed the § 2241 petition for lack of

jurisdiction.

Agofsky initially urged us to adopt an exception to Jones

for capital cases. He dropped that argument after President

Biden commuted his death sentence to life in prison. His

fallback position is that § 2255(e) is merely a venue provision

and that the government waived it. The government replies

that § 2255(e) is jurisdictional and cannot be waived.

Our caselaw is inconsistent on whether § 2255(e)

addresses jurisdiction, but other circuits have uniformly held

that the statute sets a jurisdictional limit. We now join that

consensus and hold that § 2255(e) limits the court’s

jurisdiction. We affirm the jurisdictional dismissal of the

§ 2241 petition.

I. Background

A. Habeas and § 2255

We begin with an overview of the remedies available to

federal prisoners to challenge the legality of their

confinement—starting with the writ of habeas corpus. The

federal courts are authorized to grant writs of habeas corpus

“within their respective jurisdictions.” 28 U.S.C. § 2241(a).

4 No. 24-1067

Habeas applications must be filed in the judicial district

where the prisoner is confined and directed to the person with

custody of the prisoner—typically the prison’s warden.

Rumsfeld v. Padilla, 542 U.S. 426, 434–36 (2004).

In 1867 Congress expanded the scope of habeas corpus to

permit prisoners to use the writ to collaterally challenge their

convictions and sentences. Jones, 599 U.S. at 472–73; see United

States v. Hayman, 342 U.S. 205, 211–12 (1952). Accordingly,

“[f]or most of our Nation’s history,” the habeas writ served as

the remedial vehicle for collateral review of criminal judg-

ments. Jones, 599 U.S. at 473.

Over time, however, the use of habeas proceedings for

postconviction review created serious administrative prob-

lems. Id. at 474. Federal prisoners often serve their sentences

far away from their sentencing districts and thus “far re-

moved from the records of the sentencing court and other

sources of needed evidence.” Id. And prisoners are not evenly

distributed between judicial districts, leading to dispropor-

tionate habeas workloads for some courts. Id.

Congress responded in 1948 by adopting § 2255, a remedy

specifically designed for collateral attacks on federal criminal

judgments. Id. The statute provides that prisoners may seek

postconviction review by filing a motion in the sentencing

court “to vacate, set aside or correct the sentence.” 28 U.S.C.

§ 2255(a). Importantly, however, Congress channeled all fed-

eral postconviction review into the § 2255 remedy by prohib-

iting courts from entertaining § 2241 habeas applications as

an alternative. Relevant here, the statute provides:

An application for a writ of habeas corpus in be-

half of a prisoner who is authorized to apply for

No. 24-1067 5

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.

§ 2255(e) (emphases added). This language makes § 2255 the

exclusive postconviction remedy for federal prisoners. The

“unless” clause—commonly referred to as the “saving

clause”—retains habeas as a backstop, but it applies only in

very narrow circumstances. Jones, 599 U.S. at 474–75, 482–86.

In the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Congress enacted additional restrictions on

federal postconviction review by strictly limiting successive

§ 2255 motions. As amended by AEDPA, the statute provides

that a “second or successive” motion is permitted only if the

claim is based on newly discovered and decisive evidence of

factual innocence or a new and retroactive constitutional rule

from the Supreme Court. § 2255(h). AEDPA reinforced these

restrictions through a precertification requirement: a succes-

sive motion may not proceed unless a panel of circuit judges

certifies that one of the preconditions is met. Id.; see id. § 2244.

Together, subsections (e) and (h) reinforce the exclusivity of

the § 2255 motion and generally restrict federal prisoners to

one such motion.

In 1998 our circuit recognized an exception to these limi-

tations. We held in Davenport that § 2255 is “inadequate” for

purposes of the saving clause for claims based on new statu-

tory decisions if leaving the error uncorrected would work a

miscarriage of justice. 147 F.3d at 610–12; see Chazen v. Marske,

6 No. 24-1067

938 F.3d 851, 856 (7th Cir. 2019) (synthesizing the Davenport

requirements). Davenport thus opened the door to § 2241 ha-

beas review for nonconstitutional claims, with the anomalous

effect of removing the procedural limits on § 2255 motions—

the one-year limitations period, the certification requirement

for successive motions, and the requirement of a certificate of

appealability—for claims based on new statutory-interpreta-

tion decisions. Jones, 599 U.S. at 479. Davenport also reintro-

duced the administrative problems Congress sought to

address when it consolidated postconviction review in the

sentencing court under § 2255. Id.

In June 2023 the Supreme Court overruled Davenport and

similar decisions in other circuits. Id. at 477. As the Court ex-

plained, “[i]n § 2255(h), Congress enumerated two—and only

two—conditions in which a second or successive § 2255 mo-

tion may proceed,” and the straightforward inference of the

enumeration “is that a second or successive collateral attack

on a federal sentence is not authorized unless one of those two

conditions is satisfied.” Id. at 477–78. The saving clause, the

Court explained, applies only in “unusual circumstances in

which it is impossible or impracticable for a prisoner to seek

relief from the sentencing court”—for example, when the

court has been dissolved or the prisoner is incapable of being

present where he was tried and sentenced. Id. at 474.

In all other cases, the Court held, the enumerated limits

strictly apply:

Section 2255(h) specifies the two limited condi-

tions in which Congress has permitted federal

prisoners to bring second or successive collat-

eral attacks on their sentences. The inability of a

prisoner with a statutory claim to satisfy those

No. 24-1067 7

conditions does not mean that he can bring his claim

in a habeas petition under the saving clause. It means

that he cannot bring it at all. Congress has chosen

finality over error correction in his case.

Id. at 480 (emphasis added).

B. Agofsky’s Case

With the legal background in place, we turn to the specif-

ics of Agofsky’s case. The history is long and complex; we will

simplify where appropriate.

In October 1989 Agofsky and his brother robbed a bank in

in rural southwest Missouri and kidnapped Dan Short, the

bank’s president, at gunpoint. United States v. Agofsky, 20 F.3d

866, 868–69 (8th Cir. 1994). Five days after the robbery, Short’s

body was found in a lake across the state line in Oklahoma.

The victim was duct-taped to a chair with a concrete block

and metal chain secured to his ankle. Id.

A grand jury in the Western District of Missouri indicted

Agofsky for aggravated armed bank robbery resulting in

death, 18 U.S.C. § 2113(a), (d), (e); use of a firearm during a

crime of violence, id. § 924(c)(1)(A); and conspiracy, id. § 371.

Agofsky, 20 F.3d at 868. A jury found him guilty on all charges,

and the district judge imposed a sentence of life plus

60 months in prison. Id.

The Eighth Circuit affirmed. Id. at 874. Agofsky then filed

a collateral challenge in the sentencing court under § 2255, but

the judge denied relief in 1997. Agofsky tried three times to

obtain authorization from the Eighth Circuit to file a second

or successive § 2255 motion, but the court denied each re-

quest.

8 No. 24-1067

In 2001, while serving his life sentence in a Texas prison,

Agofsky brutally attacked and killed a fellow inmate. He was

charged in the Eastern District of Texas with capital murder.

United States v. Agofsky, 516 F.3d 280, 283 (5th Cir. 2008);

United States v. Agofsky, 458 F.3d 369, 371 (5th Cir. 2006). A

jury found him guilty, and during the penalty phase of the

trial, found that four aggravating factors supported the death

penalty, including Agofsky’s firearm conviction in the Mis-

souri case. The Texas district judge accepted the jury’s find-

ings and imposed a death sentence.

That brings us to the present case, filed more than three

decades after the bank robbery and drowning of Dan Short

and more than two decades after Agofsky murdered the

inmate in the Texas federal prison. It’s a challenge to the

Missouri judgment, but the defense team’s ultimate goal in

filing it was to reopen the Texas federal death sentence.

In 2022 Agofsky’s lawyers filed a petition for habeas

corpus under § 2241 in the Southern District of Indiana, where

he was then confined in the death-row facility. Relying on the

Supreme Court’s 2021 decision in Borden, the petition sought

to invalidate his § 924(c) firearm conviction in the Missouri

case, arguing that bank robbery is not a “crime of violence”

under the statute. Borden addressed the term “violent felony”

in § 924(e), which is materially identical to the term “crime of

violence” in § 924(c).

Because Borden is a statutory decision—not a new

constitutional rule—and Agofsky wasn’t relying on new

evidence of actual innocence, his new claim satisfied neither

of § 2255(h)’s conditions for a successive postconviction

motion. But our decision in Davenport gave him a path to raise

his claim in a § 2241 habeas petition. While his petition was

No. 24-1067 9

pending, however, the Supreme Court shut the door we had

opened in Davenport, abrogating our decision and similar

ones in other circuits. Jones, 599 U.S. at 477.

After Jones was issued, the Indiana district judge ordered

Agofsky to show cause why the § 2241 petition should not be

dismissed for lack of jurisdiction. Agofsky responded that

Jones should not apply in capital cases because the Eighth

Amendment imposes a heightened requirement of reliability

for death sentences. The judge rejected this argument and dis-

missed the petition for lack of jurisdiction.

II. Discussion

On appeal Agofsky initially reprised his argument that the

Eighth Amendment requires an exception to Jones for capital

cases, but that claim has dropped out of the case. On

December 23, 2024, shortly after we heard oral argument,

President Biden commuted Agofsky’s death sentence to life

in prison. Agofsky tried to challenge the commutation in

several pro se filings, but the judge rejected that effort. Once

the time to appeal expired, Agofsky’s defense team formally

withdrew the Eighth Amendment argument.

What’s left is a backup argument about waiver: Agofsky

maintains that the government waived reliance on § 2255(e)’s

bar to habeas. 1 He argues that the statute is merely a venue

provision—not a jurisdictional limit—and thus can be waived

if not properly asserted; he insists that the government

waived it here. The government responds that § 2255(e) is a

1 Agofsky belatedly raised this fallback argument, after briefing had con-

cluded but before oral argument. We permitted supplemental briefs on the

jurisdictional status of § 2255(e).

10 No. 24-1067

limit on the court’s jurisdiction and cannot be waived, and in

any event, there was no waiver. 2

Agofsky’s argument finds support in Harris v. Warden,

425 F.3d 386 (7th Cir. 2005), though his reasoning does not

precisely map onto ours in that case. We did not characterize

§ 2255(e) as a venue provision; we did, however, say that the

statute does not limit the court’s jurisdiction. Harris, 425 F.3d

at 387–88.

Harris involved a federal prisoner who had pursued his

one allotted § 2255 motion without success in the District of

Columbia, where he was sentenced, and later petitioned for

habeas relief under § 2241 in the Southern District of Illinois,

where he was then confined. Id. The district court denied

relief, and on appeal we observed that the petition might be

inconsistent with § 2255(e) but that the infirmity did not affect

jurisdiction. In a brief analysis, we explained that

“[s]ections 2241 and 2255 deal with remedies; neither one is a

jurisdictional clause.” Id. at 388. We noted that the petitioner’s

claim might have been barred by § 2255(e) “had the United

States Attorney resisted,” but the government had not raised

the statutory bar in the district court. Id. So we did not

independently address it, stating that § 2255(e) “does not

diminish the district court’s subject-matter jurisdiction, which

rests on 28 U.S.C. § 1331 because the claim arises under

federal law.” Id. We also said that § 2241 is “unaffected” by

AEDPA, so “the special rules for second and successive

2 Though it’s not necessary to our resolution of this appeal, we note for

completeness that there was no waiver. In its response to Agofsky’s § 2241

petition, the government explicitly preserved its argument that § 2255(e)

barred the district court from hearing the petition and that Davenport (and

similar cases in other circuits) were incorrectly decided.

No. 24-1067 11

collateral attacks under § 2254 and § 2255 do not change the

jurisdictional footing of a proceeding under § 2241.” Id. In the

end we affirmed the denial of § 2241 relief based on an

unrelated procedural flaw. Id. at 389.

Despite our seemingly straightforward holding in Harris,

our caselaw on the jurisdictional status of § 2255(e)—both

before and after that decision—has been marked by

inconsistency. Prior to Harris we had described § 2255(e) as a

jurisdictional provision and routinely affirmed jurisdictional

dismissals of § 2241 petitions that did not satisfy the saving

clause. See, e.g., Kramer v. Olson, 347 F.3d 214, 217, 219 (7th Cir.

2003) (per curiam); Garza v. Lappin, 253 F.3d 918, 921 (7th Cir.

2001) (“Determining whether the district court had

jurisdiction to consider Garza’s petition requires us to

examine the interaction between 28 U.S.C. § 2255 and

28 U.S.C. § 2241.”); Atehortua v. Kindt, 951 F.2d 126, 129 (7th

Cir. 1991) (“Atehortua has failed to demonstrate that a § 2255

motion is inadequate to test the legality of his detention … .

The trial court lacked jurisdiction to hear a claim under

§ 2241.”); Domer v. Smith, 422 F.2d 831, 832 (7th Cir. 1969) (per

curiam) (“[A] § 2255 proceeding would not be ineffective and

the court below was correct in holding that … it did not have

jurisdiction.”). Harris did not address this line of cases.

On the other hand, we have applied Harris and bypassed

opportunities to reconsider it—at least when the government

hasn’t asked us to do so. See, e.g., Bourgeois v. Watson, 977 F.3d

620, 629 & n.4 (7th Cir. 2020) (“The government has not asked

us to reconsider our conclusion that § 2255(e) is non-jurisdic-

tional.”); Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019) (ac-

cepting the government’s concession that §§ 2241 and 2255

address remedies, not jurisdiction); Shepherd v. Krueger,

12 No. 24-1067

911 F.3d 861, 863 (7th Cir. 2018) (electing to “bypass … proce-

dural hurdles,” like § 2255(e), to resolve a § 2241 petition on

the merits); Prevatte v. Merlak, 865 F.3d 894, 900–01 (7th Cir.

2017) (affirming the dismissal of a prisoner’s § 2241 petition

but citing Harris and remanding for entry of a modified judg-

ment reflecting a merits rather than a jurisdictional dismissal).

Since the Supreme Court’s decision in Jones, however, a

pronounced intracircuit conflict has emerged: our decisions

applying Jones reflect both jurisdictional and nonjurisdictional

dispositions. Compare Hogsett v. Lillard, 72 F.4th 819, 822 (7th

Cir. 2023) (“Jones holds that federal courts lack jurisdiction to

consider habeas petitions filed by prisoners in Hogsett’s posi-

tion.”), and Fields v. Gilley, 121 F.4th 598, 604 (7th Cir. 2024)

(same, citing Hogsett), with Horton v. Lovett, 72 F.4th 825, 827

(7th Cir. 2023) (affirming the denial of a § 2241 petition based

on Jones, implicitly treating § 2255(e) as a merits issue, not a

jurisdictional bar), and Sanders v. Joseph, 72 F.4th 822, 825 (7th

Cir. 2023) (same).

In contrast to the confusion in our circuit, other appellate

courts are notably consistent on this issue. Every circuit that

has addressed the jurisdictional status of § 2255(e)—both

before and after Jones—has disagreed with Harris and held

that the statute sets a jurisdictional limit. See Dhinsa v. Krueger,

917 F.3d 70, 81 (2d Cir. 2019); Voneida v. Johnson, 88 F.4th 233,

236 n.1, 239 (3d Cir. 2023); Cordaro v. United States, 933 F.3d

232, 240 n.2 (3d Cir. 2019) (“Only the Seventh Circuit Court of

Appeals has held that § 2255(e) is not jurisdictional … .”);

United States v. Wheeler, 886 F.3d 415, 425–26 (4th Cir. 2018);

see also Hammoud v. Ma’at, 49 F.4th 874, 878, 883 (5th Cir. 2022)

(en banc) (affirming a jurisdictional dismissal of a § 2241

petition that did not satisfy § 2255(e)’s saving clause); Taylor

No. 24-1067 13

v. Owens, 990 F.3d 493, 497–99 (6th Cir. 2021); Jones v. Hendrix,

8 F.4th 683, 686 (8th Cir. 2021), aff’d, 599 U.S. 465 (2023);

Marrero v. Ives, 682 F.3d 1190, 1194–95 (9th Cir. 2012);

Abernathy v. Wandes, 713 F.3d 538, 557–58 (10th Cir. 2013);

Amodeo v. FCC Coleman-Low Warden, 984 F.3d 992, 996–97

(11th Cir. 2021).

And Jones itself has undermined Harris—not explicitly, but

by necessary implication. The Supreme Court granted

certiorari in Jones to review a judgment of the Eighth Circuit

affirming a jurisdictional dismissal of a prisoner’s § 2241

petition based on § 2255(e). Jones, 599 U.S. at 471 (“The District

Court dismissed Jones’ habeas petition for lack of subject-

matter jurisdiction, and the Eighth Circuit affirmed.”); see

Jones v. Hendrix, 8 F.4th 683, 686 (8th Cir. 2021) (explaining

that if the prisoner fails to show that the saving clause applies,

“a court must dismiss his habeas petition for lack of subject-

matter jurisdiction”). The Court affirmed the judgment

“[c]onsistent with the Eighth Circuit’s reasoning.” Jones,

599 U.S. at 471.

It’s true that Jones did not expressly consider the

jurisdictional status of § 2255(e), but the Court’s mandate—

affirming the judgment dismissing the prisoner’s § 2241

petition on jurisdictional grounds—casts significant doubt on

the continued vitality of Harris. At the very least, it suggests

that our caselaw on this issue warrants reconsideration.

In sum, although it takes a compelling reason to recon-

sider circuit precedent, here we have three: (1) Harris is the

minority position, indeed the lone outlier; (2) the Supreme

Court has signaled that our decision is likely incorrect; and

(3) our own caselaw has been persistently inconsistent on the

jurisdictional status of § 2255(e). See Glaser v. Wound Care

14 No. 24-1067

Consultants, Inc., 570 F.3d 907, 915 (7th Cir. 2009) (identifying

these three circumstances as compelling reasons to overrule

circuit precedent). Taking a fresh look at the matter, we now

align with the appellate consensus.

“Jurisdictional requirements mark the bounds of a court’s

adjudicatory authority,” but “not all procedural requirements

fit that bill.” Boechler, P.C. v. Comm’r, 596 U.S. 199, 203 (2022)

(quotation marks omitted). Many procedural requirements

are simply claim-processing rules that instruct the litigants to

“take certain procedural steps at certain specified times with-

out conditioning a court’s authority to hear the case on com-

pliance with those steps.” Id. (quotation marks omitted).

“These nonjurisdictional rules promote the orderly progress

of litigation but do not bear on a court’s power.” Id. (quotation

marks omitted).

Jurisdictional requirements, on the other hand, define and

limit the court’s power, so they “cannot be waived or

forfeited, must be raised by courts sua sponte, and … do not

allow for equitable exceptions.” Id. Mindful of these serious

consequences, the Supreme Court “treat[s] a procedural

requirement as jurisdictional only if Congress clearly states

that it is.” Id. (quotation marks omitted). The clear-statement

rule as applied in this context doesn’t require that Congress

specifically use the word “jurisdiction” or otherwise “incant

magic words” to promulgate a jurisdictional requirement. Id.

Rather, the Court has instructed us to apply the traditional

tools of statutory interpretation to determine if Congress has

“imbued a procedural bar with jurisdictional consequences.”

Id. (quotation marks omitted).

Using those tools, we agree with our sister circuits that

§ 2255(e) establishes a limit on the court’s jurisdiction. As the

No. 24-1067 15

Sixth Circuit aptly explained: “The key is the statutory text,”

and the text of § 2255(e) is a directive to the courts, not the

parties. Taylor, 990 F.3d at 497. To repeat, § 2255(e) says that

“[a]n application for a writ of habeas corpus … shall not be

entertained” if the applicant has failed to apply for or has been

denied relief under § 2255. (Emphasis added.) The statutory

command is to the court, not the litigants: it tells the court

what to do—or more accurately, what not to do. Id.

The statute bars the court from “entertaining” a habeas

application as a substitute for a § 2255 motion, with an

exceedingly narrow carveout for proper saving-clause cases.

“Entertaining a legal claim—declaring the law, applying the

law to the facts, and issuing a judgment—is exactly what it

means to exercise jurisdiction.” Id. By prohibiting the courts

from “entertaining” habeas applications except in qualifying

saving-clause cases, Congress established a limit on the

court’s subject-matter jurisdiction.

Other parts of the statutory scheme reinforce this

interpretation. We’ve held that § 2255(h)’s certification

requirement for successive § 2255 motions is a jurisdictional

limit. Blitch v. United States, 39 F.4th 827, 832 (7th Cir. 2022);

Adams v. United States, 911 F.3d 397, 403 (7th Cir. 2018); Nunez

v. United States, 96 F.3d 990, 991 (7th Cir. 1996). In similar

fashion, appeals from final orders in § 2255 and habeas cases

require certification from the court of appeals, 28 U.S.C.

§ 2253(c)(1), and the Supreme Court has held that this

requirement is a jurisdictional limit, Miller-El v. Cockrell,

537 U.S. 322, 335–36 (2003).

Just like § 2255(e), neither of these certification provisions

uses the term “jurisdiction,” but they are understood as

jurisdictional because the language addresses the court’s

16 No. 24-1067

adjudicative authority. We particularly note that the text of

§ 2253(c)(1), which states that “an appeal may not be taken”

without precertification, closely tracks the language of

§ 2255(e), which states that “[a]n application for a writ of

habeas corpus … shall not be entertained.” It’s hard to

reconcile treating the former as jurisdictional and the latter as

nonjurisdictional.

Agofsky resists this conclusion, citing Moore v. Olson,

368 F.3d 757 (7th Cir. 2004), but that case doesn’t help him.

Moore addressed § 2241(a)—specifically, whether a prisoner’s

transfer to a prison in another district during the pendency of

his § 2241 petition extinguishes the court’s jurisdiction over

the petition. We answered that question “no,” reasoning that

although § 2241(a) authorizes courts to grant habeas writs

“within their respective jurisdictions,” the clause is better un-

derstood as a venue provision that can be waived by the pris-

oner’s custodian. Id. at 758–60. Importantly here, Moore did

not address the interplay between § 2255(e) and § 2241; in-

deed, it did not mention § 2255 at all.

In sum, the statutory text and context support the unani-

mous view of our sister circuits that § 2255(e) addresses the

court’s adjudicative power, not venue or some other filing re-

quirement that the litigants may waive or forfeit. Congress

has issued a clear command that operates on the court’s com-

petence: the court shall not “entertain”—i.e., adjudicate—a

habeas application if the prisoner has failed to apply for or

has been denied relief under § 2255. We therefore join the ap-

pellate consensus in holding that § 2255(e) limits the court’s

No. 24-1067 17

jurisdiction. Harris and similar cases to the contrary are over-

ruled. 3

The district court properly dismissed Agofsky’s § 2241

petition for lack of jurisdiction.

AFFIRMED

3 Because this opinion resolves a conflict in circuit caselaw and overrules

circuit precedent, we circulated it to all judges in active service under

Circuit Rule 40(e). No judge requested to hear this case en banc. Circuit

Judge Rebecca Taibleson did not participate in the consideration of this

matter.