Respondents Brief — Marcus Deangelo Jones, Petitioner v. Dewayne Hendrix, Warden

Supreme Court briefAug 8, 2022

Ask Donna

What actually matters in this document.

Text

No. 21-857

In the Supreme Court of the United States

MARCUS DEANGELO JONES, PETITIONER

DEWAYNE HENDRIX, WARDEN

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE RESPONDENT

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

ERIC J. FEIGIN

Deputy Solicitor General

SOPAN JOSHI

Assistant to the Solicitor

General

JOHN M. PELLETTIERI

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether petitioner is entitled to seek federal habeas

corpus relief under 28 U.S.C. 2255(e) based on his claim

that his conviction for possessing a firearm following a

felony conviction, in violation of 18 U.S.C. 922(g)(1) and

18 U.S.C. 924(e)(1) (1994), is invalid under Rehaif v.

United States, 139 S. Ct. 2191 (2019).

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Constitutional and statutory provisions involved...................... 2

Statement ...................................................................................... 3

Summary of argument ................................................................. 7

Argument..................................................................................... 10

I. The saving clause preserves habeas relief for

prisoners who can show actual innocence based on

an intervening statutory decision of this Court.......... 12

A. The saving clause safeguards against leaving

federal prisoners with an “inadequate or

ineffective” substitute for habeas .......................... 13

B. The saving clause permits consideration of

second or subsequent habeas petitions raising

a limited set of statutory claims based on intervening decisions of this Court ................................ 19

1. The habeas remedy allows statutory claims

based on an intervening decision of this

Court establishing that a prisoner is imprisoned for a non-criminal act ....................... 19

2. Pre-AEDPA habeas principles generally

require a prisoner who seeks to present a

statutory claim in a second or subsequent

collateral attack to show actual innocence ..... 22

3. AEDPA’s restrictions on second or subsequent collateral attacks foreclose factual

and constitutional claims under the saving

clause, but not pure statutory claims ............. 25

II. Petitioner cannot rely on the saving clause

because he cannot show actual innocence ................... 32

A. The Court’s decision in Rehaif is a change

in the interpretation of a substantive

federal criminal law ................................................. 32

(III)

Table of Contents—Continued:

Page

B. Petitioner cannot satisfy the threshold

requirement that he establish his actual

innocence .................................................................. 34

III. The court of appeals erred in interpreting the

saving clause to categorically foreclose statutory

claims .............................................................................. 36

IV. Petitioner’s interpretation of the saving clause is

atextual and overbroad ................................................. 41

A. Petitioner’s approach cannot be squared with

the text...................................................................... 41

B. Petitioner’s asserted constitutional concerns

are insubstantial ...................................................... 44

Conclusion ................................................................................... 47

Appendix — Constitutional and statutory provisions .......... 1a

TABLE OF AUTHORITIES

Cases:

Bollman, Ex parte, 8 U.S. (4 Cranch) 75 (1807) ................. 13

Boumediene v. Bush, 553 U.S. 723 (2008)..................... 15, 18

Bousley v. United States, 523 U.S. 614 (1998) ........ 21, 23, 24

Brown v. Davenport, 142 S. Ct. 1510 (2022) ........... 20, 23, 25

Calderon v. Thompson, 523 U.S. 538 (1998) ....................... 30

Coleman v. Thompson, 501 U.S. 722 (1991) ....................... 23

Davis v. United States, 417 U.S. 333 (1974) .............. passim

Dietz v. Bouldin, 579 U.S. 40 (2016) .................................... 41

Dretke v. Haley, 541 U.S. 386 (2004) ............................. 30, 31

Estelle v. McGuire, 502 U.S. 62 (1991) ................................ 28

Felker v. Turpin, 518 U.S. 651 (1996) ............... 27, 44, 45, 46

Fiore v. White, 531 U.S. 225 (2001)...................................... 46

Greer v. United States, 141 S. Ct. 2090 (2021) ........ 32, 33, 34

Gutknecht v. United States, 396 U.S. 295 (1970) ................ 20

Hamm v. City of Rock Hill, 379 U.S. 306 (1964)................ 28

Cases—Continued:

Page

Hill v. United States, 368 U.S. 424 (1962)..................... 17, 20

Holland v. Florida, 560 U.S. 631 (2010) .............................. 29

INS v. St. Cyr, 533 U.S. 289 (2001) ...................................... 44

Kemp v. United States, 142 S. Ct. 1856 (2022) ................... 40

Kuhlmann v. Wilson, 477 U.S. 436 (1986) .......................... 23

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)........... 46

Martinez v. Ryan, 566 U.S. 1 (2012) ................................... 23

McCarthan v. Director of Goodwill IndustriesSuncoast, Inc., 851 F.3d 1076 (11th Cir.),

cert. denied, 138 S. Ct. 502 (2017) ........ 10, 31, 37, 39, 40, 41

McCleskey v. Zant, 499 U.S. 467 (1991) ........................ 23, 29

McQuiggin v. Perkins, 569 U.S. 383 (2013) ............... passim

Musacchio v. United States, 577 U.S. 237 (2016)............... 21

Neder v. United States, 527 U.S. 1 (1999) ........................... 21

Nichols v. United States, 578 U.S. 104 (2016) .............. 15, 37

Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011),

cert. denied, 565 U.S. 1111 (2012) ................... 11, 15, 16, 41

Rehaif v. United States,

139 S. Ct. 2191 (2019) ................................5, 8, 12, 33, 34, 35

Rumsfeld v. Padilla, 542 U.S. 426 (2004)............................ 13

Sanders v. United States, 373 U.S. 1 (1963) ........... 17, 29, 38

Schlup v. Delo, 513 U.S. 298 (1995) ......................... 24, 34, 35

Sunal v. Large, 332 U.S. 174 (1947) ......................... 21, 22, 31

Swain v. Pressley, 430 U.S. 372 (1977) ............................... 18

Taylor v. Gilkey, 314 F.3d 832 (7th Cir. 2002) ............. 41, 42

Triestman v. United States,

124 F.3d 361 (2d Cir. 1997) ................................................ 10

United States v. Addonizio,

442 U.S. 178 (1979).......................................14, 17, 19, 20, 21

United States v. Cotton, 535 U.S. 625 (2002) ...................... 45

United States v. Hall, 98 U.S. 343 (1878) ............................ 45

Cases—Continued:

Page

United States v. Hayman, 342 U.S. 205 (1952) ......... passim

United States v. Hudson,

11 U.S. (7 Cranch) 32 (1812) .............................................. 45

United States v. Jones, 275 F.3d 673 (8th Cir. 2001) ........... 4

United States v. Throckmorton, 98 U.S. 61 (1878) ............ 43

United States v. Williams, 341 U.S. 58 (1951) ................... 45

Constitution and statutes:

U.S. Const.:

Art. I, § 9, Cl. 2 (Suspension Clause)............. 7, 44, 46, 1a

Art. VI, Cl. 2..................................................................... 28

Amend. VIII..................................................................... 46

Amend. XIV (Due Process Clause) ............................... 46

Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 81-82 .................. 13

Act of Feb. 5, 1867, ch. 28, 14 Stat. 385 ............................... 13

Act of June 25, 1948, ch. 646, 62 Stat. 967-968 .................... 14

Antiterrorism and Effective Death Penalty Act

of 1996, Pub. L. No. 104-132, 110 Stat. 1214 ................ 7, 25

§ 105, 110 Stat. 1220 ........................................................ 25

§ 106(b), 110 Stat. 1220-1221 .......................................... 26

1 U.S.C. 1 .......................................................................... 15, 37

18 U.S.C. 922(a)(6) (1994) ............................................. 3, 4, 35

18 U.S.C. 922(g) ........................................................... 5, 33, 42

18 U.S.C. 922(g)(1) ......................................................... 3, 4, 33

18 U.S.C. 922(g)(5) ................................................................. 33

18 U.S.C. 922(g)(5)(A) ........................................................... 33

18 U.S.C. 924(a) ..................................................................... 42

18 U.S.C. 924(a)(2) ................................................................. 33

18 U.S.C. 924(e) ....................................................................... 4

18 U.S.C. 924(e)(1) (1994) ................................................... 3, 4

18 U.S.C. 924(e)(1) ................................................................. 33

VII

Statutes—Continued:

Page

28 U.S.C. 2241 ...................................................... 3, 5, 6, 40, 1a

28 U.S.C. 2244 ...................................................9, 25, 27, 40, 6a

28 U.S.C 2244(b) ....................................... 26, 27, 38, 39, 44, 6a

28 U.S.C. 2244(b)(2) ......................................................... 27, 6a

28 U.S.C. 2244(b)(2)(A) ................................................... 27, 6a

28 U.S.C. 2244(b)(2)(B) ................................................... 27, 7a

28 U.S.C. 2255 (Supp. II 1948) ..................................... 15, 14a

28 U.S.C 2255 .........................................................passim, 11a

28 U.S.C. 2255(a) ..................................................... 14, 38, 11a

28 U.S.C. 2255(e) ...................................................passim, 11a

28 U.S.C. 2255(h) ...................................................passim, 13a

28 U.S.C. 2255(h)(1) ................................................. 25, 26, 14a

28 U.S.C. 2255(h)(2) ....................................................... 26, 14a

Miscellaneous:

Black’s Law Dictionary (4th ed. 1951) ............................... 16

Henry J. Friendly, Is Innocence Irrelevant?

Collateral Attack on Criminal Judgments,

38 U. Chi. L. Rev. 142 (1970) ............................................. 24

5 Oxford English Dictionary (1933) .................................... 16

1 Joseph Story, Commentaries on Equity

Jurisprudence (4th ed. 1846)............................................. 43

Webster’s New International Dictionary

(2d ed. 1934)............................................................. 15, 16, 17

In the Supreme Court of the United States

No. 21-857

MARCUS DEANGELO JONES, PETITIONER

DEWAYNE HENDRIX, WARDEN

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-13a)

is reported at 8 F.4th 683. The opinion of the district

court (Pet. App. 14a-29a) is not published in the Federal

Supplement but is available at 2020 WL 10669427.

JURISDICTION

The judgment of the court of appeals was entered on

August 6, 2021. On October 29, 2021, Justice Kavanaugh

extended the time within which to file a petition for a

writ of certiorari to and including December 9, 2021.

The petition for a writ of certiorari was filed on December 7, 2021, and was granted on May 16, 2022. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

(1)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

28 U.S.C. 2255 provides in pertinent part:

(a) 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.

(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 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.

(h) 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;

(2) a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.

Other relevant constitutional and statutory provisions

are reproduced in the appendix to this brief. App.,

infra, 1a-15a.

STATEMENT

Following a jury trial in the United States District

Court for the Western District of Missouri, petitioner

was convicted on two counts of possessing a firearm following a felony conviction, in violation of 18 U.S.C.

922(g)(1) and 18 U.S.C. 924(e)(1) (1994), and one count

of making false statements to acquire a firearm, in violation of 18 U.S.C. 922(a)(6) (1994). Pet. App. 2a. He

was sentenced to 327 months of imprisonment, to be followed by five years of supervised release. See id. at 15a;

2018 WL 2303783, at *1 (D. Kan. May 21, 2018). The

court of appeals affirmed. 266 F.3d 804 (8th Cir. 2001).

In 2002, petitioner filed a motion under 28 U.S.C.

2255 to vacate, correct, or set aside his sentence, which

ultimately resulted in the vacatur of one of his felon-inpossession convictions, but no change in his prison

term. See 403 F.3d 604 (8th Cir. 2005); 185 Fed. Appx.

541 (8th Cir. 2006) (per curiam), cert. denied, 549 U.S.

1273 (2007). In 2019, petitioner filed a petition for a writ

of habeas corpus under 28 U.S.C. 2241 in the United

States District Court for the Eastern District of Arkansas. The court dismissed the petition. Pet. App. 14a29a. The court of appeals affirmed. Id. at 1a-13a.

1. In August 1999, petitioner purchased a semiautomatic handgun from a pawnshop in Missouri. 266 F.3d

at 808-809. As petitioner later admitted, he knew at the

time that he had previously been convicted of a felony

and was not allowed to possess a gun. Id. at 808, 810.

In fact, petitioner had been convicted of 11 felonies and

had served a prison sentence of more than a year on at

least five of them. Id. at 811 & n.6. But when filling out

the federal Form 4473 required to purchase the gun, he

answered “no” to the question whether he had been convicted of a crime for which he could have been imprisoned for more than a year. Id. at 808.

On the same day that petitioner bought the gun, he

was found in possession of it during a traffic stop and

acknowledged possessing it to an undercover officer

during a drug sale. 266 F.3d at 809. In October 1999,

petitioner discharged the gun during a shootout. Ibid.

Petitioner was later charged with two counts of possessing a firearm following a felony conviction, in violation of 18 U.S.C. 922(g)(1) and 18 U.S.C. 924(e)(1)

(1994), and one count of making false statements to acquire a firearm, in violation of 18 U.S.C. 922(a)(6)

(1994). 266 F.3d at 807-808. After a jury trial, he was

convicted on all counts. Pet. App. 15a.

In November 2000, the district court sentenced petitioner to a total of 327 months of imprisonment, consisting of concurrent sentences of 327 months on the felonin-possession counts and a concurrent sentence of 60

months on the false-statement count. Pet. App. 15a;

00-cr-4010 D. Ct. Doc. 49 (W.D. Mo. Nov. 8, 2000). The

court of appeals affirmed. 266 F.3d at 816. Petitioner

was also separately convicted of drug-trafficking offenses and sentenced to 327 months of imprisonment,

which he is serving concurrently with the sentences on

the firearms convictions. United States v. Jones, 275

F.3d 673, 678 (8th Cir. 2001).

2. In August 2002, petitioner filed a motion under 28

U.S.C. 2255 to vacate, correct, or set aside his sentence

on the firearms convictions. 02-cv-775 D. Ct. Doc. 1

(W.D. Mo. Aug. 12, 2002). That motion ultimately resulted in the vacatur of one of petitioner’s two felon-inpossession convictions, but did not change his term of

imprisonment. 02-cv-775 D. Ct. Doc. 27 (Aug. 4, 2005);

see 185 Fed. Appx. at 542-543 (affirming).

Over the years that followed, petitioner “flooded the

federal dockets” with additional “postconviction challenges, including numerous § 2255 motions and repeated petitions to [this] Court.” Pet. App. 3a; see Pet.

II-V (listing some cases); Br. in Opp. II-III (listing others). None yielded further relief. Pet. App. 3a.

3. In July 2019, petitioner again sought to collaterally attack his conviction, this time in a petition for a

writ of habeas corpus under 28 U.S.C. 2241 filed in the

United States District Court for the Eastern District of

Arkansas, the district where he was then confined. Pet.

App. 17a. The petition sought vacatur of his felon-inpossession conviction based on Rehaif v. United States,

139 S. Ct. 2191 (2019). In Rehaif, this Court held that

in a prosecution for possessing a firearm while in a status covered by Section 922(g), the government not only

“must show that the defendant knew he possessed a

firearm,” but “also that he knew he had the relevant status when he possessed it.” Id. at 2194.

The district court dismissed the habeas petition for

lack of jurisdiction. Pet. App. 14a-29a. The court determined that the petition was barred by 28 U.S.C. 2255(e),

which provides that an “application for a writ of habeas

corpus in behalf of a prisoner who is authorized to apply

for relief by motion pursuant to” Section 2255 “shall not

be entertained * * * unless it * * * appears that the

remedy by motion is inadequate or ineffective to test

the legality of his detention.” See Pet. App. 18a-29a.

Although petitioner contended that his claim fit within

Section 2255(e)’s final “saving” clause, the court construed a separate limit in Section 2255(h) to foreclose

that contention by negative implication. See id. at 18a19a. Section 2255(h) provides that a prisoner may file a

“second or successive” Section 2255 motion only if that

motion relies on either (1) “newly discovered evidence”

that establishes the prisoner’s factual innocence or

(2) “a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court, that

was previously unavailable.” 28 U.S.C. 2255(h). The

district court concluded that because Section 2255(h)

does not authorize a second or subsequent motion based

on a statutory claim like petitioner’s, it implicitly precludes him from invoking the saving clause to bring

such a claim under habeas. Pet. App. 26a-27a.

4. The court of appeals affirmed. Pet. App. 1a-13a.

The court reasoned that Section 2255 “ ‘is not [in]adequate or ineffective where a petitioner had any opportunity to present his claim beforehand’ ” and that petitioner “could have raised his Rehaif-type argument either on direct appeal or in his initial § 2255 motion.” Id.

at 6a (citation omitted). The court further reasoned that

even though such an argument would have been contrary to then-existing circuit precedent, “the question is

whether [petitioner] could have raised the argument,

not whether he would have succeeded.” Id. at 7a; see

id. at 6a-10a. And, like the district court, the court of

appeals relied on an inference from Section 2255(h)’s

limits on second or subsequent Section 2255 motions.

Id. at 9a. The court of appeals also rejected petitioner’s

contention that the Constitution’s Suspension Clause

required that his claim be cognizable. Id. at 10a-13a.

SUMMARY OF ARGUMENT

Although the court of appeals’ judgment was correct,

its categorical holding was not. The saving-clause exception to 28 U.S.C. 2255(e)’s bar on habeas corpus petitions

by federal prisoners preserves a narrow but important

category of claims based on intervening statutoryconstruction decisions of this Court that establish that

a prisoner’s conduct was noncriminal. Petitioner, however, cannot satisfy the strict prerequisites for such a

claim, which require a showing of actual innocence that

he cannot make.

I. Congress enacted Section 2255 to channel postconviction claims by federal prisoners into an administratively convenient forum—the original sentencing

court—while maintaining a remedial scheme equivalent

in scope to the writ of habeas corpus. The saving clause

ensures that equivalence by permitting recourse to habeas when the remedy by Section 2255 motion “is inadequate or ineffective to test the legality of [the prisoner’s] detention.” 28 U.S.C. 2255(e). That text and this

Court’s decisions instruct that the benchmark for evaluating the motion remedy’s adequacy and efficacy is the

habeas remedy that it was adopted to replace. Accordingly, in the rare circumstance where Section 2255’s

motion remedy would deny a prisoner an opportunity to

raise a claim that would be cognizable in habeas, it is

inadequate or ineffective to test the legality of his detention.

The Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214,

limited the ability of both federal and state prisoners to

raise factual or constitutional claims in a second or sub-

sequent collateral attack, whether via habeas or Section

2255, to specific types. Those parallel limits make clear

that federal prisoners may not evade Section 2255(h)’s

limits on additional motions by invoking the saving

clause to raise other types of factual or constitutional

claims, because habeas law includes equivalent limits.

Federal prisoners have, however, long been able to

collaterally attack their convictions based on a purely

statutory claim that a decision from this Court has

changed the interpretation of a federal criminal law so

as to make clear that their conduct was noncriminal.

Before AEDPA, such a claim could be vindicated even

in a second or subsequent collateral attack if a prisoner

could show his actual innocence under the corrected

construction of the statute. After AEDPA, such claims

cannot be asserted in a second or subsequent Section

2255 motion. But they remain cognizable through the

saving clause, because AEDPA modified neither the

saving clause itself nor the relevant habeas principles to

which it refers. And any doubt on that question is resolved by this Court’s repeated instruction that Congress must speak clearly to restrict the availability of

habeas relief—a principle that has special force here,

where the relevant class of claims is limited to those

brought by people who can show that they have been

imprisoned for conduct that is not a crime.

II. A claim relying on this Court’s decision in Rehaif

v. United States, 139 S. Ct. 2191 (2019), could conceivably satisfy the requirements for saving-clause relief.

Rehaif is a decision from this Court that narrowed the

scope of a federal crime, holding that knowledge of

a prior felony conviction is an element of the felon-inpossession offense. But few prisoners asserting Rehaif

claims will be able to make the demanding threshold

showing of actual innocence, which requires a prisoner

to demonstrate that no reasonable juror would have

found him guilty under the narrowed definition of the

crime. And petitioner plainly cannot make that showing

here. He was convicted of 11 felonies, spent more than

a year in prison on several of them, and in fact admitted

on the stand that he knew that he was not supposed to

have a gun.

III. Although the court of appeals correctly upheld

the dismissal of petitioner’s habeas petition, it erred in

interpreting the saving clause to categorically exclude

statutory claims. The court departed from Section

2255(e)’s text by assessing the adequacy and efficacy of

the Section 2255 remedy at the time of the prisoner’s

original Section 2255 motion, thereby reading “is” to

mean “was.” The court compounded its error by circularly comparing the adequacy of Section 2255’s remedy

to Section 2255 itself rather than to the habeas benchmark to which the saving clause refers. Finally, the

Court drew an overbroad negative inference from Section 2255(h)’s limits on second or subsequent motions.

Those limits—in conjunction with Section 2244’s associated limits on habeas relief—bar prisoners from invoking the saving clause to bring subsequent collateral attacks based on factual or constitutional claims that fall

outside Section 2255(h). But they do not foreclose the

narrow and unusually compelling set of statutory claims

at issue here.

IV. Petitioner, for his part, appears to assert that

the saving clause is available whenever previous director collateral-review proceedings misapplied substantive

law in any way that calls into question the legality of a

prisoner’s detention. That broad reading rests on an

outcome-focused retrospective inquiry that cannot be

reconciled with Section 2255(e)’s text. It also has no apparent meaningful limiting principle. And it is not supported by the canon of constitutional avoidance, because

the various constitutional concerns that petitioner asserts are insubstantial. This Court should accordingly

correct the court of appeals’ reasoning but affirm its

judgment.

ARGUMENT

This case presents the question whether and under

what circumstances a federal prisoner who has previously filed a motion under 28 U.S.C. 2255 may file a habeas petition claiming that an intervening decision of

statutory interpretation establishes that he was convicted of conduct that is not criminal. Since AEDPA

adopted Section 2255(h)’s limits on second or subsequent motions, the government and the lower courts

have struggled to reconcile the implications of those

limits with Section 2255(e)’s saving clause, which

AEDPA left undisturbed.

Initially, the government argued that habeas relief is

categorically unavailable for statutory claims. In 1998,

after several courts of appeals rejected that “restrictive

reading,” Triestman v. United States, 124 F.3d 361, 376

(2d Cir. 1997), the government reconsidered the matter.

From 1998 until 2017, the government argued that the

saving clause sometimes allows a prisoner to seek habeas relief based on a new decision of statutory interpretation. Most courts of appeals agreed—though they

differed somewhat on the circumstances when such relief is available. See Br. in Opp. at 10-11, Ham v.

Breckon, No. 21-763 (Feb. 24, 2022) (collecting cases).

The Tenth and Eleventh Circuits, however, adopted the

categorical position that habeas relief is never available.

See McCarthan v. Director of Goodwill Industries-

Suncoast, Inc., 851 F.3d 1076, 1099-1100 (11th Cir.) (en

banc), cert. denied, 138 S. Ct. 502 (2017); Prost v. Anderson, 636 F.3d 578, 588 (10th Cir. 2011) (Gorsuch, J.),

cert. denied, 565 U.S. 1111 (2012). In 2017, the government reconsidered the matter again and returned to

that position.

In light of its varying positions on this important and

difficult question, the government reexamined the issue

anew after this Court granted certiorari in this case.

Based on fresh consideration of the statutory text, context, and history, the government has determined that

neither of its prior positions reflects the best interpretation of Section 2255. The categorical position the government urged below is difficult to reconcile with Section 2255(e)’s text and rests on an overly expansive negative inference from Section 2255(h). But the government’s pre-2017 position was also insufficiently

grounded in the text and in important respects too

broad.

The position set forth in this brief follows from a natural reading of Section 2255(e), which allows a prisoner

to rely on habeas if the Section 2255 remedy “is inadequate or ineffective to test the legality of his detention.”

28 U.S.C. 2255(e) (emphasis added). That presenttense language requires an assessment of the adequacy

and efficacy of the Section 2255 remedy at the time the

prisoner seeks to file a habeas petition, not in the past.

And the text and context make clear that the yardstick

for measuring Section 2255’s present adequacy and efficacy is the habeas remedy that Section 2255 was

adopted to replace. Section 2255(e) thus generally permits reliance on habeas if Section 2255 does not enable

consideration of a claim that would be cognizable in habeas.

Claims satisfying that standard will be rare. But as

demonstrated below, the saving clause preserves habeas relief for a narrow class of claims that lie at the

heart of habeas’s core function of providing relief from

unjust detention: a federal prisoner who is barred from

filing a second Section 2255 motion under Section

2255(h) may invoke the saving clause and seek habeas

relief if he (1) contends that a new statutory interpretation decision of this Court establishes that his conduct

was not criminal, and (2) establishes that he is actually

innocent in light of the narrowed definition of the

offense—that is, that no reasonable juror would vote to

find him guilty in light of all available evidence.

Petitioner has attempted to raise such a claim based

on Rehaif v. United States, 139 S. Ct. 2191 (2019). But

he cannot show that he is actually innocent; to the contrary, the record makes clear that he knew he was a

felon. Petitioner thus cannot invoke the saving clause,

and his habeas petition was properly dismissed.

I. THE SAVING CLAUSE PRESERVES HABEAS RELIEF

FOR PRISONERS WHO CAN SHOW ACTUAL INNOCENCE BASED ON AN INTERVENING STATUTORY

DECISION OF THIS COURT

Congress enacted Section 2255 to provide federal

prisoners with a procedural alternative to habeas, not a

substantively worse remedy. Habeas accordingly provides the saving clause’s benchmark for determining

whether the Section 2255 remedy is “inadequate or ineffective to test the legality of [a prisoner’s] detention,”

28 U.S.C. 2255(e). And a comparison of the two remedies, as they exist today, reveals that the Section 2255

remedy is an adequate and effective substitute for habeas in the context of factual and constitutional claims,

but not for a circumscribed set of purely statutory

claims where a prisoner establishes actual innocence

based on an intervening decision of this Court narrowing the scope of a federal crime.

A. The Saving Clause Safeguards Against Leaving Federal

Prisoners With An “Inadequate Or Ineffective” Substitute For Habeas

Section 2255 provides federal prisoners a congruent

substitute for habeas, with venue in the original sentencing court rather than the district where the prisoner happens to be confined. Section 2255(e)’s saving

clause, in turn, ensures that the substitute procedure

does not deny federal prisoners a true habeas analogue,

preserving the availability of a habeas petition when

Section 2255 turns out to be “inadequate or ineffective

to test the legality” of a particular prisoner’s detention

because it forecloses a type of claim that otherwise

would be remediable in habeas.

1. The first Congress authorized the federal courts

to issue writs of habeas corpus to persons in federal custody. Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 81-82;

see Ex parte Bollman, 8 U.S. (4 Cranch) 75, 94 (1807).

In 1867, Congress made the writ available to any

prisoner—state or federal—“restrained of his or her

liberty in violation of the constitution, or of any treaty

or law of the United States.” Act of Feb. 5, 1867, ch. 28,

14 Stat. 385.

In the first half of the twentieth century, this Court

construed the habeas statutes broadly, leading to “a

great increase in the number of applications for habeas

corpus filed in the federal courts by state and federal

prisoners.” United States v. Hayman, 342 U.S. 205, 212

(1952). Because a writ of habeas corpus acts on the prisoner’s jailer, it is filed in the district where the prisoner

is confined. See Rumsfeld v. Padilla, 542 U.S. 426, 447

(2004). For federal prisoners, the district of confinement is often located “far from the scene of the facts,

the homes of the witnesses and the records of the sentencing court.” Hayman, 342 U.S. at 213-214. And the

increasing number of petitions by federal prisoners disproportionately burdened the handful of district courts

whose territorial jurisdiction encompassed major penal

institutions like Alcatraz. Id. at 214 n.18.

In 1948, Congress enacted 28 U.S.C. 2255 in response to a Judicial Conference proposal “to alleviate

the burden of habeas corpus petitions filed by federal

prisoners in the district of confinement, by providing an

equally broad remedy in the more convenient jurisdiction of the sentencing court.” United States v. Addonizio, 442 U.S. 178, 185 (1979); see Act of June 25, 1948,

ch. 646, 62 Stat. 967-968; see also Hayman, 342 U.S. at

214-219. Section 2255 provided, and still provides today, that a “prisoner in custody under sentence of a

[federal] court * * * 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 (Supp. II 1948); accord 28 U.S.C. 2255(a)

(same).

The new remedy by motion, when available, was exclusive. In language now appearing in Section 2255(e),

Congress generally precluded federal courts from “entertain[ing]” a habeas petition from a federal prisoner

“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.” 28 U.S.C. 2255

(Supp. II 1948); accord 28 U.S.C. 2255(e).

2. That preclusion of habeas relief, however, has always been subject to an exception—a “saving clause,

providing that a writ of habeas corpus would be available if the alternative process” established in Section

2255 “proved inadequate or ineffective.” Boumediene

v. Bush, 553 U.S. 723, 776 (2008). The saving clause,

both originally and now, specifies that a prisoner who

could or did seek a remedy by motion is barred from

filing a habeas petition “unless it also appears that the

remedy by [Section 2255] motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C.

2255 (Supp. II 1948); accord 28 U.S.C. 2255(e). The saving clause thus ensures that Section 2255 does not deny

a federal prisoner relief on a claim that habeas would

allow. Specifically, its text asks whether the particular

prisoner is able, at present, to use the Section 2255 remedy to obtain a merits decision on a claim that a habeas

petitioner could vindicate in an analogous circumstance.

The saving clause’s text focuses on “his”—i.e., the

specific prisoner’s—circumstances. It looks to how Section 2255’s motion remedy “is”—i.e., currently would

be—applicable. See 1 U.S.C. 1 (specifying that presenttense verbs generally refer to current and future); see

also Nichols v. United States, 578 U.S. 104, 109 (2016)

(construing present-tense verb to exclude past). The

saving clause examines the motion remedy’s ability to

“test the legality of * * * detention”—i.e., to provide

the prisoner with “an opportunity to bring his argument” and obtain a decision, “right or wrong,” on the

“substantive law.” Prost, 636 F.3d at 584; see, e.g., Webster’s New International Dictionary 2609 (2d ed. 1934)

(defining “test” as “[t]o put to the test or proof; to try

the truth, genuineness, or quality of by experiment, or

by some principle or standard”) (Webster’s Second);

Black’s Law Dictionary 1643 (4th ed. 1951) (“To bring

one to a trial and examination, or to ascertain the truth

or the quality or fitness of a thing”) (Black’s). And the

saving clause specifically contemplates that the Section

2255 remedy may be inadequate or ineffective even after a prisoner has completed an initial Section 2255 motion, because it applies to a prisoner who has been “denied * * * relief ” under Section 2255. 28 U.S.C. 2255(e).

The saving clause does not, however, unqualifiedly

authorize resort to habeas any time some legal bar precludes Section 2255 relief. Instead, it applies only when

the remedy by Section 2255 motion is “inadequate or ineffective.” Those words require a comparison to some

benchmark. “Inadequate” means “[i]nsufficient; disproportionate; lacking in effectiveness or in conformity

to a prescribed standard or measure.” Black’s 902; see

Webster’s Second 1254 (“[n]ot adequate; insufficient;

deficient”); 5 Oxford English Dictionary 132 (1933)

(“[n]ot adequate; not equal to requirement; insufficient”) (OED). “Ineffective” similarly means “[n]ot producing, or incapable of producing, the intended effect.”

Webster’s Second 1271; see 5 OED 239 (“Of such a nature as not to produce any, or the intended, effect; insufficient; hence, without effect, ineffectual; inoperative.”). “In asking whether § 2255 is ‘inadequate or ineffective,’ ” therefore, “the question naturally arises:

compared to what?” Prost, 636 F.3d at 584.

Section 2255(e)’s text and context supply the answer:

compared to habeas. The “prescribed standard or

measure,” Black’s 902, for judging the adequacy and efficacy of the Section 2255 remedy is the habeas remedy

that the saving clause expressly refers to and that Sec-

tion 2255 was adopted to replace. As this Court has repeatedly recognized, Section 2255’s “intended effect,”

Webster’s Second 1271, was to provide an alternative to

habeas that was different in form (primarily, in venue)

but “afford[ed] federal prisoners a remedy identical in

scope to federal habeas corpus.” Davis v. United States,

417 U.S. 333, 343 (1974) (emphasis added); see Addonizio, 442 U.S. at 185 (“an equally broad remedy”); Hill v.

United States, 368 U.S. 424, 427 (1962) (“exactly commensurate”); Hayman, 342 U.S. at 219 (“affording the

same rights”). In line with that purpose, the saving

clause ensures that Section 2255 does not disadvantage

federal prisoners as compared to habeas.

This Court has understood the saving clause to serve

that function. For example, in Sanders v. United

States, 373 U.S. 1 (1963), the Court declined to read Section 2255 to incorporate principles of res judicata, which

were inapplicable in habeas. The Court explained that

if Section 2255 imposed a res judicata rule, it would fail

to provide federal prisoners with “ ‘a remedy exactly

commensurate with’ habeas.” Id. at 14. Critically, the

Court added that any attempt to “incorporat[e] res judicata in § 2255 * * * would probably prove to be completely ineffectual,” because a “prisoner barred by res

judicata” from bringing a successive Section 2255 motion “would seem as a consequence to have an ‘inadequate or ineffective’ remedy under § 2255 and thus be

entitled to proceed in federal habeas corpus.” Id. at 1415. Sanders thus illustrates that the Section 2255 remedy is “inadequate or ineffective” if a legal barrier in

Section 2255 prevents a prisoner from bringing a claim

that would be cognizable in habeas—even if the prisoner has already sought relief under Section 2255.

The Court applied similar logic in United States v.

Hayman. There, the Court emphasized that if Section

2255 were interpreted to preclude a hearing on a prisoner’s claim, the saving clause would leave “the habeas

corpus remedy * * * open to afford [a] necessary hearing.” 342 U.S. at 223. Again, therefore, the Court reasoned that the saving clause applies to features of Section 2255 that would give the motion remedy less scope

than habeas.

This Court has repeatedly applied the same understanding in placing “explicit reliance” on Section 2255’s

saving clause to “uphold[] the statute[] against constitutional challenges.” Boumediene, 553 U.S. at 776. Because the Court has understood the saving clause to

guarantee that federal prisoners will be able to rely on

habeas when the scope of Section 2255 is more restrictive, the Court has found it “unnecessary” to assess

whether the scope of the Section 2255 remedy itself

might otherwise implicate the constitutional suspension

of the writ. Ibid.; see Hayman, 342 U.S. at 209, 223.

The Court took a similar approach in rejecting a constitutional challenge to an identically worded saving clause

in a parallel statute applicable to the District of Columbia. Swain v. Pressley, 430 U.S. 372, 381 (1977); see

Boumediene, 553 U.S. at 776. Like Sanders and Hayman, those decisions presuppose that the saving clause

guarantees that Section 2255 does not deny federal prisoners the ability to assert claims that would be cognizable in habeas.

B. The Saving Clause Permits Consideration Of Second or

Subsequent Habeas Petitions Raising A Limited Set Of

Statutory Claims Based On Intervening Decisions Of

This Court

Because Section 2255(e)’s text requires a presenttense comparison between a prisoner’s Section 2255

remedy and the analogous habeas remedy, the inquiry

necessarily turns on the current scope of those remedies. In light of AEDPA’s changes to the federal habeas

remedy, with corresponding changes to Section 2255, a

federal prisoner cannot rely on the saving clause to

bring a claim of factual or constitutional error in a second or subsequent application for postconviction relief

(although the prisoner can proceed under Section 2255’s

motion remedy when the requirements in Section

2255(h) are satisfied). But the saving clause remains

available for statutory claims when an intervening decision of this Court has narrowed the definition of the

crime of conviction and the prisoner can show actual

innocence—that is, true factual innocence. That narrow

class of claims was traditionally cognizable in a second

or subsequent application for postconviction relief, and

nothing in AEDPA altered the relevant habeas principles or withdrew the saving clause’s direction that habeas remains available when the Section 2255 motion

remedy excludes a claim cognizable in habeas.

1. The habeas remedy allows statutory claims based on

an intervening decision of this Court establishing

that a prisoner is imprisoned for a non-criminal act

Only a limited class of claims are cognizable on collateral review. It has “long been settled law that an error that may justify reversal on direct appeal will not

necessarily support a collateral attack on a final judgment.” Addonizio, 442 U.S. at 184. In the years after

the Founding, habeas relief generally focused on “jurisdictional defects.” Brown v. Davenport, 142 S. Ct. 1510,

1521 (2022). By the middle of the 20th century, the

scope of the writ was recognized to include “constitutional claims.” Id. at 1522. Certain factual errors can

also be cognizable on collateral review. Addonizio, 442

U.S. at 185-186. But this Court has instructed that a

purely statutory error does not justify a collateral attack on a criminal conviction unless it amounts to a “fundamental defect which inherently results in a complete

miscarriage of justice.” Id. at 185 (quoting Hill, 368

U.S. at 428).

In Davis v. United States, this Court recognized a

narrow set of purely statutory claims by federal prisoners that satisfy that high standard: claims based on an

“intervening change in substantive law” establishing

that the prisoner’s conduct was not criminal. 417 U.S.

at 334. The prisoner in Davis had been convicted of delinquency from military induction. Id. at 338. During

the pendency of his direct appeal, this Court held in another case, Gutknecht v. United States, 396 U.S. 295

(1970), that the regulation under which he had been

classified as delinquent was ultra vires. Davis, 417 U.S.

at 338. But although the lower courts refused to apply

Gutknecht to the prisoner’s direct appeal, the court of

appeals later relied on “the authority of Gutknecht” to

grant relief in a “virtually identical” case. Id. at 338340. The prisoner in Davis then filed a Section 2255 motion, which the lower courts denied because he already

had “unsuccessfully litigated” the same issue “on direct

review.” Id. at 342. This Court reversed, observing that

the prisoner’s claim suggested that his “conviction and

punishment are for an act that the law does not make

criminal” and emphasizing that “[t]here can be no room

for doubt that such a circumstance ‘inherently results in

a complete miscarriage of justice’ and ‘presents exceptional circumstances’ that justify collateral relief.” Id.

at 345-346 (brackets omitted).

Although Davis involved a Section 2255 motion, it relied on habeas principles. See 417 U.S. at 344-346. And

as this Court has explained, Davis stands for the proposition that a federal prisoner may collaterally attack

his conviction based on “a change in the substantive law

that establishe[s] that the conduct for which [he] had

been convicted and sentenced was lawful.” Addonizio,

442 U.S. at 186-187. Such a “nonconstitutional” statutory claim, Davis, 417 U.S. at 345, is distinct from one

that relies on the construction of a statute but is nevertheless couched in constitutional terms, such as a claim

that a misunderstanding of the statutory elements of a

crime produced a “constitutionally invalid” guilty plea,

Bousley v. United States, 523 U.S. 614, 618-619 (1998),

a claim that jury instructions misstated the offense elements, see Neder v. United States, 527 U.S. 1, 12-13

(1999), or a claim that the evidence at trial was constitutionally insufficient to establish guilt under a proper

interpretation of the statute, see Musacchio v. United

States, 577 U.S. 237, 243-244 (2016).

Davis arose in an unusual posture, and the Court did

not have occasion to define with particularity the sort of

change in law that is required to support the type of

purely statutory collateral attack it authorized. But the

Court’s distinction of a prior decision that had upheld

the denial of a similar claim, Sunal v. Large, 332 U.S.

174 (1947), indicates that the ultimate source of that

change in law must be an intervening decision of this

Court. Davis distinguished Sunal on the ground, inter

alia, that Sunal had “not [been a case] where the law

was changed after the time for appeal had expired,” Davis, 417 U.S. at 345 (quoting Sunal, 332 U.S. at 181).

Sunal, in turn, had explained that where “the question

of law ha[s] not been decided by th[is] Court,” and is

instead the proper subject of petitions for this Court’s

review, the case “is not one where the law has changed.”

332 U.S. at 181 (cited at Davis, 417 U.S. at 345). Instead, in the absence of a decision by this Court, “the

definitive ruling on the question of law ha[s] not crystallized.” Ibid. (cited at Davis, 417 U.S. at 345).

A decision of a circuit court alone, therefore, cannot

qualify as an “intervening change in substantive law,”

Davis, 417 U.S. at 334. As Davis recognized, however,

a subsequent decision by a court of appeals may clarify

whether an intervening decision of this Court in fact dictates the outcome in the circumstances of a particular

prisoner’s case. Id. at 338-340; see id. at 341 n.12, 345

(declining to decide whether the court of appeals correctly deemed Gutknecht applicable). The critical question is whether the substantive definition of the prisoner’s offense, as applied by the trial court at the time

of the “conviction,” has now unambiguously been narrowed by a decision of this Court. Id. at 341.

2. Pre-AEDPA habeas principles generally require a

prisoner who seeks to present a statutory claim in a

second or subsequent collateral attack to show actual innocence

Davis involved an initial Section 2255 motion and defined the requirements for a purely statutory claim to

be cognizable on collateral review at all. And even before AEDPA, a prisoner seeking to assert such a claim

in a second or subsequent collateral attack would face a

substantial additional hurdle, because this Court has

exercised its equitable authority over the scope of the

writ to adopt strict limits on such “repetitive filings.”

Brown, 142 S. Ct. at 1523. The upshot of those limits is

that pre-AEDPA habeas principles would ordinarily require a prisoner seeking to assert a Davis claim in a second or subsequent collateral attack to establish his actual innocence.

A prisoner who had already raised his claim in an initial collateral attack would be subject to the rules governing successive petitions, which require the prisoner

to make a “colorable showing of factual innocence.”

Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (plurality

opinion). That requirement applies even if the prisoner’s successive petition relies on an intervening decision of this Court. See id. at 442-443. And a prisoner

who had not pressed his claim in his initial collateral attack would be subject to the rules governing abusive petitions, which likewise permit consideration of a previously omitted claim upon a “colorable showing of factual

innocence.” McCleskey v. Zant, 499 U.S. 467, 495 (1991)

(quoting Kuhlmann, 477 U.S. at 454).*

* A prisoner who failed to present a claim in an initial collateral

attack traditionally could also excuse that default by showing “cause

for failing to raise it and prejudice therefrom,” the same standard

that applies to excuse a failure to raise a claim on direct appeal.

McCleskey, 499 U.S. at 494; see Bousley, 523 U.S. at 622. But those

requirements would not likely be met in the context of a Davis claim.

A narrowing construction of a statute adopted by this Court is

highly unlikely to be “so novel that its legal basis [was] not reasonably available” at the time of the forfeiture. Bousley, 523 U.S. at

622 (citation omitted). In addition, the mere fact that a claim was

“futile” in the sense of being foreclosed by circuit law does not qualify as “cause.” Id. at 623 (citations omitted). And attorney errors

generally cannot constitute cause when they occur on collateral review, where no right to counsel attaches. See Coleman v. Thompson, 501 U.S. 722, 752-753 (1991); see also Martinez v. Ryan, 566

That actual-innocence exception to otherwiseapplicable procedural bars is deeply rooted in this

Court’s habeas jurisprudence. See McQuiggin v. Perkins, 569 U.S. 383, 392-393 (2013) (collecting cases). It

recognizes “the imperative of correcting a fundamentally unjust incarceration.” Schlup v. Delo, 513 U.S.

298, 320-321 (1995) (citation omitted). At the same time,

because “habeas corpus petitions that advance a substantial claim of actual innocence are extremely rare,”

an actual-innocence standard respects “systemic interests in finality, comity, and conservation of judicial resources.” Id. at 321-322 (citing Henry J. Friendly, Is

Innocence Irrelevant? Collateral Attack on Criminal

Judgments, 38 U. Chi. L. Rev. 142, 145 (1970)).

The Court has made clear that the standard for a

“ ‘colorable claim’ ” of actual innocence of a crime requires a prisoner to “show that it is more likely than not

that no reasonable juror would have convicted him” of

the crime as properly defined. Schlup, 513 U.S. at 322,

327 (citation omitted); see McQuiggin, 569 U.S. at 387,

399; Bousley, 523 U.S. at 622. Furthermore, “ ‘actual

innocence’ means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623. “In other words,

the Government is not limited to the existing record”

and may “present any admissible evidence of [the prisoner’s] guilt even if that evidence was not presented

during” the original proceedings. Id. at 624; see Schlup,

513 U.S. at 327-328. In addition, “[i]n cases where the

Government has forgone more serious charges in the

course of plea bargaining, [the prisoner’s] showing of

actual innocence must also extend to those charges.”

Bousley, 523 U.S. at 624. The actual-innocence standU.S. 1, 16-17 (2012) (recognizing an exception for “limited circumstances” not applicable here).

ard is accordingly “demanding.” McQuiggin, 569 U.S.

at 387, 401.

3. AEDPA’s restrictions on second or subsequent collateral attacks foreclose factual and constitutional

claims under the saving clause, but not pure statutory claims

In AEDPA, Congress supplemented this Court’s equitable habeas doctrines with new statutory limits on

collateral attacks under both habeas and Section 2255.

See Brown, 142 S. Ct. at 1524. But AEDPA left the saving clause undisturbed, so it continues to require the

same present-tense comparison: the Section 2255 remedy is “inadequate or ineffective”—and habeas is

available—if Section 2255 denies a prisoner the opportunity to raise a claim that would be cognizable in habeas. AEDPA’s similar limits on the availability of second or subsequent postconviction applications based on

factual or constitutional claims under both Section 2255

and habeas foreclose resort to the saving clause to bring

other factual or constitutional claims. But the saving

clause remains available for prisoners who can satisfy

the stringent prerequisites for bringing a statutory

claim under Davis in a second or subsequent collateral

attack yet are precluded from pursuing the Section 2255

motion remedy.

a. Section 2255(h), the language of which was added

to the statute by AEDPA § 105, 110 Stat. 1220, allows

for the filing of a “second or successive motion” under

Section 2255 only when it is “certified as provided in

section 2244 * * * to contain” one of two specific types

of claims. 28 U.S.C. 2255(h). The first, described in 28

U.S.C. 2255(h)(1), is a claim of “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.” The second, described in 28 U.S.C. 2255(h)(2), is 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.”

A federal prisoner who has previously sought Section 2255 relief thus cannot file another Section 2255

motion based on a factual claim that falls outside Section 2255(h)(1), a constitutional claim that falls outside

Section 2255(h)(2), or a purely statutory claim—which

by definition falls outside both Section 2255(h)(1) and

Section 2255(h)(2). Instead, a federal prisoner seeking

to file a second or subsequent collateral attack that does

not satisfy either condition of Section 2255(h) would

need to rely—if possible—on a habeas petition under

the saving clause.

If such a second or subsequent collateral attack were

premised on a factual claim falling outside Section

2255(h)(1) or a constitutional claim falling outside Section 2255(h)(2), however, the saving clause would provide no recourse, because the preclusion of such claims

does not make the Section 2255 remedy “inadequate or

ineffective” as compared to habeas. At the same time

that Congress added the language in Section 2255(h)

limiting second or subsequent motions by federal prisoners, Congress also amended Section 2244(b) to impose analogous restrictions on second or subsequent habeas petitions by state prisoners. AEDPA § 106(b), 110

Stat. 1220-1221; see 28 U.S.C. 2244(b)(2); McQuiggin,

569 U.S. at 396. Similar to Section 2255(h), Section

2244(b) forecloses habeas relief on a “claim presented

in a second or successive habeas corpus application” by

a state prisoner “that was not presented in a prior ap-

plication * * * unless” it satisfies one of two conditions.

28 U.S.C. 2244(b)(2). The first is where “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.” 28 U.S.C. 2244(b)(2)(A). The second is where

“the factual predicate for the claim could not have been

discovered previously through the exercise of due diligence” and “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 reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. 2244(b)(2)(B). Those limits

on additional constitutional and factual claims by state

prisoners in habeas are analogous to (indeed, stricter

than) the limits on federal prisoners in Section

2255(h)—which expressly cross-references Section

2244.

Because claims filed by state prisoners based on

newly discovered facts or new rules of constitutional law

are analogous in all relevant respects to such claims

filed by federal prisoners, the limits on state prisoners’

ability to file such claims in habeas reflect the imposition of general limits on the scope of federal habeas relief for state and federal prisoners alike. See, e.g.,

McQuiggin, 569 U.S. at 396 (recognizing that Section

2244(b)(2)(B) imposed restrictions on habeas relief

“that did not exist prior to AEDPA’s passage”); see also

Felker v. Turpin, 518 U.S. 651, 664 (1996) (describing

Section 2244(b)’s limits on second or subsequent habeas

petitions as “well within the compass of th[e] evolutionary process” of habeas). Particularly in light of Section

2255’s express invocation of Section 2244, the Section

2255 remedy is not “inadequate or ineffective” when it

bars second or subsequent factual and constitutional

claims not permitted under Section 2255(h), because

such claims would not be cognizable in habeas either.

b. AEDPA’s limits on state-prisoner habeas claims

did not, however, withdraw the habeas remedy for statutory claims of unauthorized imprisonment based on a

since-recognized misconstruction of substantive federal

criminal law. Such claims are uniquely federal. A state

prisoner by definition has not been convicted under a

federal statute, so any pure statutory claim of that sort

would be a matter of state law and thus not remediable

in federal habeas. See Estelle v. McGuire, 502 U.S. 62,

67 (1991) (“We have stated many times that federal habeas corpus relief does not lie for errors of state law.”)

(citation and internal quotation marks omitted). And

the rare state-prisoner habeas claim that depends in

part on the construction of a federal statute (such as a

preemption claim) necessarily would rely on the Supremacy Clause, and thus could not be described as

“nonconstitutional,” Davis, 417 U.S. at 345. Cf. Hamm

v. City of Rock Hill, 379 U.S. 306, 315 (1964). AEDPA’s

restrictions on state-prisoner habeas claims therefore

did not need to—and did not—address pure statutory

claims.

Nothing in AEDPA justifies an inference that Congress silently repealed the traditional habeas remedy

for federal prisoners who have been imprisoned for conduct that Congress did not criminalize. “The importance of the Great Writ, * * * along with congressional efforts to harmonize the new statute with prior

law,” instead “counsel[] hesitancy before interpreting

AEDPA’s statutory silence as indicating a congressional intent to close courthouse doors that a strong eq-

uitable claim would ordinarily keep open.” Holland v.

Florida, 560 U.S. 631, 649 (2010) (citation omitted). Accordingly, this Court has repeatedly and recently emphasized in the habeas context that it “will not construe

a statute to displace courts’ traditional equitable authority absent the clearest command” and that

“[e]quitable principles have traditionally governed the

substantive law of habeas corpus.” McQuiggin, 569

U.S. at 397 (citation omitted); see Holland, 560 U.S. at

646.

Indeed, in Sanders, this Court construed the thencurrent version of Section 2255 to align with the traditional habeas remedy even though the Court acknowledged that that the language of Section 2255 “literally”

precluded that construction. 373 U.S. at 13; see McCleskey, 499 U.S. at 484. The Court in Sanders further suggested that if the Section 2255 remedy could not be construed to align with habeas, the saving clause—whose

language is the same now as it was then—would be

available to fill the gap between the Section 2255 motion

remedy and habeas. 373 U.S. at 14-15.

Accordingly, because a pure statutory claim of the

sort addressed in Davis is not available in a second or

subsequent motion under Section 2255, but would be

cognizable in a second or subsequent habeas petition, a

prisoner with such a claim may be able to establish that

“the remedy by motion is inadequate or ineffective,” as

compared to habeas, “to test the legality of his detention.” 28 U.S.C. 2255(e). But that will be true only in

the rare cases where the prisoner can satisfy the prerequisites for asserting such a claim in habeas: he must

contend that an intervening decision of this Court

means that he is in prison for conduct that is not a crime,

and he must make the “demanding” showing that “it is

more likely than not that no reasonable juror would

have convicted him” of the crime as properly defined.

McQuiggin, 569 U.S. at 387, 399 (citations omitted).

c. That interpretation of the saving clause is

grounded in Section 2255(e)’s text and the background

principles of habeas to which that text points. It is consistent with the principles of “finality * * * and the orderly administration of justice,” Dretke v. Haley, 541

U.S. 386, 388 (2004), that animate the statutory and prudential limits on postconviction review. And it is simpler and more limited than the approach taken by some

courts of appeals (often at the government’s urging

prior to 2017), under which a prisoner can invoke the

saving clause if (1) he contends that an intervening decision has narrowed the application of a federal criminal

statute; and (2) controlling circuit precedent squarely

foreclosed his claim at the time of his trial (or plea), appeal, and first motion under Section 2255. The interpretation in this brief differs from that approach in several

important respects.

First, the interpretation here allows a prisoner to

seek habeas relief only if he can make a threshold showing of actual innocence. That requirement limits relief

to a narrow—but compelling—category of cases that lie

at the core of the habeas remedy’s concern with preventing unjust detention. And the actual-innocence

standard is “objective in content, ‘well-defined in the

case law,’ and ‘familiar to federal courts.’ ” Calderon v.

Thompson, 523 U.S. 538, 559 (1998) (brackets and citation omitted).

Second, the interpretation here requires a prisoner to

assert a claim based on a new statutory-interpretation

decision issued by this Court, because only such a decision constitutes a “definitive ruling” that changes the

governing law. Sunal, 332 U.S. at 181. An approach

under which circuit law alone is sufficient is inconsistent

with Sunal, allows for the vacatur of long-final convictions on grounds with which other courts—including

this Court—may disagree, and is difficult to administer

when decisional law in the circuits of conviction and confinement is not precisely equivalent.

Third, the interpretation in this brief demands a

showing that the prisoner is in prison for conduct that

Congress did not make criminal. That requirement is

clearly satisfied when a subsequent decision of this

Court narrows the scope of a criminal statute. And although this case does not present the issue, in the government’s view it could also be satisfied when a subsequent decision establishes that a defendant is serving a

sentence above an otherwise-applicable statutory maximum. Cf. Haley, 541 U.S. 391-394 (declining to resolve

whether actual innocence applies to “noncapital sentencing error”). But that requirement would not be satisfied when a prisoner contends that he was incorrectly

subject to a statutory minimum sentence but was sentenced to a term within the otherwise applicable statutory maximum.

Finally, the interpretation here does not require a

prisoner to show that his claim was foreclosed by circuit

precedent at the time of his direct appeal and initial Section 2255 motion. Courts of appeals have adopted that

requirement, which could lead to difficult inquiries

about the implications of circuit law at earlier stages of

the prisoner’s case. Cf. McCarthan, 851 F.3d at 1084.

But Davis imposed no such circuit-foreclosure requirement, and reading such a backward-looking requirement into the saving clause would be inconsistent with

the clause’s present-tense text. The better interpreta-

tion thus requires that the prisoner’s claim be based on

a new decision of this Court that narrows the interpretation of the relevant criminal statute applied by the

court of conviction, but does not require a further showing that the prisoner’s claim was previously foreclosed

by circuit precedent.

II. PETITIONER CANNOT RELY ON THE SAVING CLAUSE

BECAUSE HE CANNOT SHOW ACTUAL INNOCENCE

This Court’s decision in Rehaif narrowed the scope

of the felon-in-possession offense by requiring proof

that the defendant knew that he had been convicted of

a felony. Accordingly, a pure statutory claim asserting

the invalidity of a felon-in-possession conviction in light

of Rehaif could in theory be filed in a second or subsequent collateral attack under the saving clause. As a

practical matter, however, few Rehaif claims are likely

to satisfy the saving clause, because a prisoner will

rarely be able to show that he is actually innocent of the

offense—that is, that it is more likely than not that no

reasonable juror could have found that he knew he had

been convicted of a felony. Cf. Greer v. United States,

141 S. Ct. 2090, 2098 (2021). And petitioner cannot

make that showing here: the record makes abundantly

clear that he knew that he had been convicted of multiple felonies and, moreover, actually knew that he was

not supposed to have a gun.

A. The Court’s Decision In Rehaif Is A Change In The Interpretation Of A Substantive Federal Criminal Law

Rehaif can provide the basis for the type of statutory

claim that falls within the saving clause. Before Rehaif,

the circuits had unanimously held that the government

need not prove the defendant’s knowledge of the facts

that render his firearm possession unlawful as an ele-

ment of the unlawful-possession crime, see Rehaif, 139

S. Ct. at 2210 & n.6 (Alito, J., dissenting), and that was

the standard applied in the court of conviction here. Rehaif then narrowed that understanding of the law’s

scope by interpreting 18 U.S.C. 922(g) and 924(a)(2) to

contain such a knowledge element. See 139 S. Ct. at

2200 (majority opinion).

Rehaif involved a defendant convicted under 18

U.S.C. 924(a)(2) for having “knowingly violate[d]” Section 922(g), and whose disqualifying status was “being

an alien” who “is illegally or unlawfully in the United

States” under 18 U.S.C. 922(g)(5) and (A). But the government has acknowledged, and lower courts have uniformly agreed, that Rehaif ’s holding—namely, that the

government “must show that the defendant * * * knew

he had the relevant status,” 139 S. Ct. at 2194—applies

equally to the other alternative status elements in Section 922(g), including the prior-felony-conviction status

in Section 922(g)(1) at issue here. Similarly, although

the Court’s reasoning in Rehaif relied in part on 18

U.S.C. 924(a)(2), see 139 S. Ct. at 2195-2196, the Court’s

holding also applies to defendants (like petitioner)

whose criminal proceedings for unlawful firearm possession relied on 18 U.S.C. 924(e)(1).

Because Rehaif makes clear that a person who actually lacked knowledge of his prohibited status would not

be guilty of the unlawful-possession crime, it creates the

possibility (even if remote, see Greer, 141 S. Ct. at 2098)

that someone convicted under his circuit’s prior construction was convicted for conduct that Congress did

not criminalize. As a result, a federal prisoner convicted

under the prior construction can point to Rehaif as an

“intervening change in substantive law,” Davis, 417

U.S. at 334, for purposes of seeking relief in a habeas

petition under the saving clause.

B. Petitioner Cannot Satisfy The Threshold Requirement

That He Establish His Actual Innocence

Although Rehaif thus may provide the basis for the

sort of claim that could be brought under the saving

clause, petitioner cannot satisfy the threshold requirement to bring such a claim because he cannot make the

requisite showing of actual innocence: he plainly cannot

show “that it is more likely than not that no reasonable

juror would have convicted him” under Rehaif ’s construction of the felon-in-possession crime. Schlup, 513

U.S. at 327.

As this Court recently emphasized, “demonstrating

prejudice under Rehaif ” even on direct review of a forfeited claim “ ‘will be difficult for most convicted felons

for one simple reason: Convicted felons typically know

they’re convicted felons.’ ” Greer, 141 S. Ct. at 2098 (citation omitted). And the record here establishes that

petitioner knew that he was a felon at the time he possessed a firearm.

Petitioner had a total of 11 prior felony convictions—

and had served more than a year in prison on at least

five of them. 266 F.3d at 811 & n.6. He testified at his

trial “that he knew he had been convicted of a felony” at

the time he acquired the firearm. Id. at 810; see J.A.

48-49, 64. Petitioner suggests (Br. 5-6; Cert. Reply Br.

3) that he thought it possible that one or more (though

not necessarily all) of his prior felony convictions might

have been automatically expunged.

But even if

knowledge of non-expungement were part of Rehaif ’s

knowledge requirement, see 139 S. Ct. at 2194, petitioner went so far as to admit to the police at the time

of his arrest “that he knew that he was not supposed to

have a gun,” 266 F.3d at 808. Petitioner’s own statements thus unambiguously establish that “he knew he

belonged to the relevant category of persons barred

from possessing a firearm.” Rehaif, 139 S. Ct. at 2200.

Moreover, to find petitioner guilty of knowingly

making a false statement in the acquisition of a firearm,

in violation of 18 U.S.C. 922(a)(6) (1994), the jury had to

find that petitioner possessed “knowledge of his prior

felony convictions,” 266 F.3d at 811, the same finding

required for a felon-in-possession conviction under Rehaif, see 139 S. Ct. at 2194. As the court of appeals recognized in his direct appeal, ample evidence established

that petitioner possessed that knowledge. 266 F.3d at

811. Petitioner suggested at the certiorari stage (Reply

Br. 7-8) that the jury might have premised its guilty

verdict on the false-statement count on his use of the

name “Jones,” instead of his given name “Lee,” on the

requisite forms. But the trial testimony established

that petitioner used “Jones” precisely because his felony convictions were under the name “Lee.” 266 F.3d

at 808-810; see J.A. 44-45. Any vote of guilt on the falsestatement charge based on the false name therefore was

premised on petitioner’s knowledge of his status.

The record thus establishes that petitioner knew of

his prohibited status. At a minimum, petitioner cannot

show that “no reasonable juror would have convicted

him.” Schlup, 513 U.S. at 327 (emphasis added). And

because petitioner cannot show actual innocence, his

statutory claim would not be a basis for habeas relief.

Section 2255 thus is not “inadequate or ineffective to

test the legality of his detention,” 28 U.S.C. 2255(e)

(emphasis added), and the dismissal of his habeas petition was correct.

III. THE COURT OF APPEALS ERRED IN INTERPRETING THE SAVING CLAUSE TO CATEGORICALLY

FORECLOSE STATUTORY CLAIMS

Although the judgment below is correct, the court of

appeals erred by adopting an overly restrictive reading

of the saving clause. On its view, Section 2255(e) precludes any prisoner from raising any second or subsequent statutory claim—even if he can show that an “intervening change in substantive law” now establishes

that his “conviction and punishment are for an act that

the law does not make criminal,” Davis, 417 U.S. at 334,

346, and even if he can meet the demanding actualinnocence standard. Had Congress intended to foreclose habeas relief in such circumstances, which present

the most compelling case for collateral review, it would

have directly addressed that issue and spoken clearly.

See McQuiggin, 569 U.S. at 397. But the court of appeals’ approach rests on no such textual instruction, and

in fact contradicts the best reading of the statutory text

and this Court’s precedents addressing Section 2255(e).

A. The court of appeals correctly recognized that

“the saving clause is interested in opportunity, not outcome.” Pet. App. 6a. But the court mistakenly focused

on the initial or previous Section 2255 proceedings,

deeming Section 2255 adequate and effective whenever

“a petitioner had any opportunity to present his claim

beforehand.” Ibid. (emphasis added; citation omitted).

That interpretation contradicts Section 2255(e)’s text,

which expressly contemplates that the saving clause

may apply even when a prisoner has already been “denied * * * relief ” in an earlier Section 2255 motion. 28

U.S.C. 2255(e).

In addition, the court of appeals’ backward-looking

inquiry is inconsistent with the saving clause’s use of

the present tense (“is inadequate or ineffective”). See

1 U.S.C. 1; Nichols, 578 U.S. at 109. That focus on the

present adequacy of the Section 2255 remedy was a deliberate congressional choice. The Judicial Conference’s initial proposal used a formulation very similar to

the court of appeals’ reading, asking whether “it has not

been or will not be practicable” to determine the legality

of the prisoner’s detention in a Section 2255 motion.

Hayman, 342 U.S. at 216 n.23 (citation omitted). But

Congress rejected that language, which focused on the

past as well as the present. Under the statute Congress

enacted, the question is not whether petitioner “could

have raised his Rehaif-type argument either on direct

appeal or in his initial § 2255 motion.” Pet. App. 6a. Instead, the relevant inquiry is whether the remedy by

Section 2255 motion currently “is inadequate or ineffective.”

B. That inquiry, in turn, requires a fixed baseline

against which to measure adequacy and efficacy. The

court of appeals provided none—except, perhaps, a circular reference to the Section 2255 motion remedy itself, see Pet. App. 6a. But the contours of the motion

remedy say nothing about whether that remedy “is inadequate or ineffective” when it forecloses a prisoner,

who may already have been “denied * * * relief ” by

motion, from “test[ing]” his claim. 28 U.S.C. 2255(e).

The circularity of comparing a remedy to itself may

explain why the only content the court of appeals’ approach gives to the saving clause is to allow resort to

habeas for claims for “good-time credits,” claims challenging “parole determinations,” or claims by a prisoner whose “sentencing court has been dissolved.”

McCarthan, 851 F.3d at 1093. The first two are not even

clearly covered by Section 2255(a) in the first place, be-

cause they are not obviously characterized as “collateral

attack[s]” for which an appropriate remedy would be

“to vacate, set aside or correct the sentence” that the

court of conviction imposed. 28 U.S.C. 2255(a). And

limiting saving-clause relief to cases where the prisoner

finds it impossible to file a motion in a nonexistent sentencing court is, among other things, in tension with

Congress’s rejection of the Judicial Conference’s proposal, which had focused on “practicab[ility],” Hayman,

342 U.S. at 216 n.23 (citation omitted).

The enacted text of the saving clause, in contrast, is

not limited to practical impediments, but instead looks

to whether a Section 2255 motion “is inadequate or ineffective to test the legality” of detention. 28 U.S.C.

2255(e). As this Court recognized in Sanders and Hayman, the Section 2255 remedy may be considered “inadequate or ineffective” based on a legal impediment

that Section 2255 itself uniquely imposes. See Sanders,

373 U.S. at 14-15 (res judicata bar); Hayman, 342 U.S.

at 223 (limit on evidentiary hearing). The court of appeals’ interpretation thus diverges from this Court’s

precedents.

C. The same circularity of comparing Section 2255’s

motion remedy to itself led the court of appeals to draw

an overly broad negative inference from Section

2255(h). See Pet. App. 9a. As explained above (see Pt.

I.B.3, supra), Section 2255(h) is explicitly intertwined

with AEDPA’s limitations on second or successive state

habeas claims in Section 2244(b). Under the textually

grounded approach that recognizes habeas as the

benchmark for when the motion remedy “is inadequate

or ineffective,” see Sanders, 373 U.S. at 14-15, Sections

2244(b) and 2255(h) inform the saving-clause inquiry,

but do not fundamentally alter its operation.

Those provisions show that Congress, in imposing

linked limitations on second or subsequent factual and

constitutional claims brought by state prisoners in habeas and federal prisoners under Section 2255, sought

to impose an overarching limitation on all forms of federal collateral review for such claims. The Section 2255

remedy is not “inadequate or ineffective” simply for incorporating limitations that are analogous to, and crossreference, corresponding limitations on habeas relief.

But a similar inference cannot be drawn in the context of pure statutory claims by federal prisoners asserting that their conduct has been retroactively reclassified by this Court as noncriminal. Nothing in Section

2255(h) (which does not itself apply to habeas petitions

by federal prisoners), the saving clause (which AEDPA

did not amend), or Section 2244(b)’s limits on habeas

claims by state prisoners (which do not and could not

address such statutory claims) requires the broader inference that Congress entirely foreclosed traditional

habeas relief for uniquely federal statutory claims like

those at issue here. That is especially true because Congress acted against the backdrop of the interpretation

of Section 2255(e) adopted in Sanders and this Court’s

other decisions, which made clear that the saving clause

could permit reliance on habeas if Section 2255 incorporated a legal barrier to considering a claim that would

be cognizable in habeas.

D. The Eleventh Circuit viewed its categorically restrictive approach as necessary to ensure that prisoners

who pursue second or subsequent statutory claims under the saving clause are not better off than counterparts who bring factual or constitutional claims in a second or subsequent motion under Section 2255(h). See

McCarthan, 851 F.3d at 1091. But that policy concern

is no reason to depart from the natural reading of Section 2255(e)’s text. And the concern is overstated.

Most fundamentally, although a prisoner seeking to

invoke the saving clause need not follow the special procedures in Sections 2244 and 2255(h), he must make a

stringent threshold showing of actual innocence. That

requirement forecloses petitioner’s reliance on the saving clause here and illustrates how courts can weed out

nonmeritorious invocations of the saving clause at the

outset. See Pt. II.B, supra.

In addition, although habeas petitions under 28

U.S.C. 2241 are not subject to a statute of limitations,

see McCarthan, 851 F.3d at 1091, courts can use their

equitable discretion to preclude late filings—and can

look to Section 2255’s statute of limitations for guidance. See, e.g., McQuiggin, 569 U.S. at 399; cf. Kemp v.

United States, 142 S. Ct. 1856, 1864 (2022) (analogizing

a “reasonable time” standard in a rule to an express

time limit in a related provision). And as this Court has

observed, “unjustified delay” might affect the actual-innocence inquiry. McQuiggin, 569 U.S. at 399.

Congress thus had no need to bar all second or subsequent statutory claims under Section 2255(e) in order

to appropriately cabin the limited applications of the habeas remedy that the saving clause preserves. And

Congress did not do so. If, unlike petitioner, a federal

prisoner can in fact make a showing of actual innocence

indicating that he is in prison for conduct now definitively understood not to be a crime under the correct

interpretation of the statute of conviction, he may seek

relief in a habeas petition under the saving clause—a

result that lies at the very core of “the historic function

of habeas corpus to provide relief from unjust incarceration.” Kuhlmann, 477 U.S. at 452 (plurality opinion).

IV. PETITIONER’S INTERPRETATION OF THE SAVING

CLAUSE IS ATEXTUAL AND OVERBROAD

In order to fit his own case within the saving clause,

petitioner would construe the clause to cover a wide

swath of claims—including, potentially, factual and constitutional claims outside the limits that Congress imposed on both Section 2255 motions and habeas petitions. That interpretation is inconsistent with the saving clause’s text and lacks a coherent limiting principle.

The saving clause’s role is to preserve the established

parameters of collateral review, not to upset the delicate balancing of fairness and finality that those parameters reflect. And petitioner errs in asserting that principles of constitutional avoidance support his approach.

A. Petitioner’s Approach Cannot Be Squared With The

Text

The starting point for petitioner’s construction—the

assertion that “the § 2255 remedy cannot ‘test’ the legality of a detention * * * if the court applies the wrong

substantive law,” Pet. Br. 16; see id. at 16-18—is undermined by the very definitions of “test” on which he relies. Those definitions use verbs like “try,” “put to,” and

“ascertain,” id. at 17 (citations and emphases omitted),

all of which evoke a certain process—not a particular

result. See McCarthan, 851 F.3d at 1086; Prost, 636

F.3d at 584. That evocation is even stronger when the

word “test” appears in the context of a judicial “test,”

which reinforces the “focus on procedures rather than

outcomes.” Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir.

2002). Petitioner’s hypotheticals (Br. 18) are far removed from the present context and at most suggest

that a “test” must be genuine and not a sham. But “[a]ll

judges make mistakes,” Dietz v. Bouldin, 579 U.S. 40,

53 (2016), and neither Congress nor any other reasona-

ble legal observer would say that a judge has failed to

“test” a claim anytime she errs. See Taylor, 314 F.3d

at 835 (“Judges sometimes err, but this does not show

that the procedures are inadequate; it shows only that

people are fallible.”).

Petitioner’s reading of “test” as invariably requiring

application of the correct substantive law also lacks any

limiting principle. It cannot logically be cabined to statutory claims, because a Section 2255 proceeding that

applies an incorrect constitutional rule would also appear to satisfy petitioner’s proposed framework. See,

e.g., Pet. Br. 29. Furthermore, petitioner’s focus on

prior judicial decisions—under which each circuit’s settled construction of 18 U.S.C. 922(g) and 924(a) was a

“test” only until the moment Rehaif was issued—is in

tension with his own recognition (Br. 27) that the saving

clause is focused on the prisoner’s current Section 2255

remedy, not how a past motion was (or would have been)

resolved. Petitioner’s assertion (Br. 26) that Section

2255 is “ineffective” when “it procedurally allows [a

prisoner] to make fruitless arguments previously foreclosed by circuit precedent” likewise mistakenly focuses

on prior Section 2255 motions instead of the current

one.

Petitioner also relies heavily (Br. 19-25) on the assertion that Congress used “inadequate” not in its ordinary

sense, but as a term of art borrowed from equity jurisprudence, under which the chancery courts could provide a remedy where the remedy at law was deficient.

Petitioner cites (Br. 20-22) various bills in equity—the

equivalent of complaints, not judicial opinions—filed

during the reigns of Richard II (1377-1399) and Henry

VI (1422-1461, 1470-1471). But the relevance of those

bills is unclear. All of them appear to have involved

claims related to fraud or abuse of process with respect

to a civil proceeding; none stands for the proposition

that equity would have permitted a collateral attack on

a final criminal judgment on the ground that the trial

court applied the wrong substantive criminal law. Cf.

United States v. Throckmorton, 98 U.S. 61, 65-67 (1878)

(explaining that “equity” does not “interfere to grant a

trial of a matter which has already been discussed in a

court of law”) (citation omitted).

Even if petitioner could show that the bills he cites

reflected a common practice in the Court of Chancery’s

infancy, Congress could not have employed the word

“inadequate” with the expectation that it would be

understood to require transposing an ancient civil doctrine across time and context. Cf. 1 Joseph Story, Commentaries on Equity Jurisprudence 23-24 (4th ed.

1846) (explaining that while “[i]n the early history” of

equity, courts operated with “no certain limits or rules,”

that sort of “unlimited authority [had] totally been disclaimed” by Blackstone’s time). It is especially unlikely

that Congress would do so when the doctrine (according

to petitioner, see Br. 22) would require that the standard remedy be supplanted whenever doing so would advantage the person seeking relief. The principal directive of Section 2255(e) is that federal prisoners

should not generally be filing habeas petitions, and instead should use the substitute remedy by motion in the

court of conviction. See 28 U.S.C. 2255(e); see also, e.g.,

Hayman, 342 U.S. at 210-214 (describing statute’s history). The saving clause’s exception cannot become the

default rule.

Petitioner can neither justify the expansive loophole

he proposes nor meaningfully cabin its scope. He

briefly suggests that the saving clause’s reference to

claims concerning the “legality” of “ ‘detention’ ” would

preclude his proposed construction from becoming “disruptive to the federal system.” Pet. Br. 34 n.3 (citation

omitted). But he does not provide a specific view on

what he would classify as a challenge to the “ ‘legality of

detention,’ ” other than by excluding “statutory procedural” claims, ibid., that have not even been recognized

as a basis for relief. See, e.g., Davis, 417 U.S. at 346-347

(distinguishing claim recognized in that case from nonconstitutional procedural claims that are not cognizable

on collateral review). And in any event, his proposal

would override the express provisions of Sections

2255(h) and 2244(b), which otherwise limit when prisoners can bring additional factual or constitutional claims,

including claims that challenge “detention.” See Pet.

Br. 28-29.

B. Petitioner’s Asserted Constitutional Concerns Are Insubstantial

Petitioner’s reliance on the constitutional-avoidance

canon to bolster his reading of the statute is misplaced.

Even assuming that petitioner’s construction of the saving clause’s text were “fairly possible,” as the canon requires, he cannot identify any “serious constitutional

problems” that it might be necessary to avoid. INS v.

St. Cyr, 533 U.S. 289, 300 (2001).

1. Petitioner argues at length (Br. 34-42) that his

reading is necessary to avoid violating the Suspension

Clause. That contention cannot be reconciled with this

Court’s decision in Felker v. Turpin, which rejected the

argument that AEDPA’s limitations on second or subsequent habeas petitions violated that Clause. 518 U.S.

at 663-664. The Court there recounted the evolution of

habeas corpus from the Framing to the modern day and

explained that the “added restrictions which [AEDPA]

places on second habeas petitions are well within the

compass of this evolutionary process” and thus “do not

amount to a ‘suspension’ of the writ.” Id. at 664.

In an attempt to situate this case within the historical roots of habeas corpus before that evolution, petitioner asserts (Br. 36-42) that a district court lacks “jurisdiction” to convict a defendant based on what is later

revealed to be an incorrect view of the law. But the decisions on which petitioner relies simply stand for the

uncontroversial proposition that federal courts lack jurisdiction to create common-law crimes, United States

v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812), or to adjudicate cases over which Congress has not granted them

jurisdiction, United States v. Hall, 98 U.S. 343, 345

(1878). None suggests that a court deprives itself of jurisdiction whenever it misinterprets a criminal statute.

To the contrary, as this Court made clear around the

time of the saving clause’s enactment, even a conviction

under a “wholly unconstitutional” statute does not retroactively “oust [the trial] court of jurisdiction.” United

States v. Williams, 341 U.S. 58, 68 (1951); see United

States v. Cotton, 535 U.S. 625, 630-631 (2002) (explaining that “defects in an indictment do not deprive a court

of its power to adjudicate a case”). It follows a fortiori

that a nonconstitutional error in the construction of a

statute is likewise nonjurisdictional.

2. Petitioner’s other constitutional arguments are

likewise meritless. Petitioner briefly contends (Br. 4243) that a denial of saving-clause relief would violate the

separation of powers. Noting that “the exclusive power

to define criminal acts resides with Congress,” he theorizes that a conviction based on an incorrect interpretation of a statute would “usurp[] Congress’s authority to

define crime.” Ibid. But “[i]t is emphatically the prov-

ince and duty of the judicial department to say what the

law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177

(1803), and a court does not usurp Congress’s power

simply because it turns out to have been mistaken in its

construction of a statute. Moreover, the question in this

case is whether Congress itself authorized federal

courts to entertain a habeas petition like petitioner’s. If

Congress has not done so, it would be the entertaining

of a habeas petition, not the denial of it, that would

usurp congressional power.

Petitioner additionally suggests (Br. 43-45) that a

denial of saving-clause relief would raise due process

concerns. But the decision on which he relies, Fiore v.

White, 531 U.S. 225 (2001) (per curiam), simply observed that the Due Process Clause “forbids a State to

convict a person of a crime without proving the elements of that crime beyond a reasonable doubt.” Id. at

229. That principle speaks to the quantum of proof that

must be introduced at trial. This case concerns an

entirely different question: the extent of the postconviction procedures that must be available to allow a

prisoner to assert such a claim of trial error. Petitioner

cites no authority suggesting that due process forbids

the sort of limits on second or subsequent collateral attacks that this Court upheld under the more specific

Suspension Clause. See Felker, 518 U.S. at 663-664.

Petitioner’s invocation (Br. 45-47) of the Eighth

Amendment’s prohibition against punishment in the absence of a crime rests on a similar conflation of a claim

of error and the necessity of providing additional opportunities to raise that claim. The question in this case is

whether and under what circumstances a federal prisoner who has been convicted of a crime is entitled to collaterally attack his conviction. The Eighth Amendment

would be relevant only if its ban on cruel and unusual

punishment also implicitly requires the government to

provide multiple rounds of postconviction review—a

proposition for which petitioner identifies no support.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

ERIC J. FEIGIN

Deputy Solicitor General

SOPAN JOSHI

Assistant to the Solicitor

General

JOHN M. PELLETTIERI

Attorney

AUGUST 2022

APPENDIX

U.S. Const. Art. I, § 9, Cl. 2 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.

28 U.S.C. 2241 provides:

Power to grant writ

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in

the records of the district court of the district wherein

the restraint complained of is had.

(b) The Supreme Court, any justice thereof, and

any circuit judge may decline to entertain an application for a writ of habeas corpus and may transfer the

application for hearing and determination to the district

court having jurisdiction to entertain it.

The writ of habeas corpus shall not extend to a

prisoner unless—

(c)

(1) He is in custody under or by color of the authority of the United States or is committed for trial

before some court thereof; or

(2) He is in custody for an act done or omitted in

pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the

United States; or

(1a)

(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or

(4) He, being a citizen of a foreign state and

domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the

commission, order or sanction of any foreign state,

or under color thereof, the validity and effect of

which depend upon the law of nations; or

(5) It is necessary to bring him into court to testify or for trial.

(d) Where an application for a writ of habeas corpus

is made by a person in custody under the judgment and

sentence of a State court of a State which contains two

or more Federal judicial districts, the application may

be filed in the district court for the district wherein such

person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district

courts shall have concurrent jurisdiction to entertain the

application. The district court for the district wherein

such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.

(e)(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by

the United States who has been determined by the

United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in paragraphs (2) and (3) of

section 1005(e) of the Detainee Treatment Act of 2005

(10 U.S.C. 801 note), no court, justice, or judge shall

have jurisdiction to hear or consider any other action

against the United States or its agents relating to any

aspect of the detention, transfer, treatment, trial, or

conditions of confinement of an alien who is or was detained by the United States and has been determined

by the United States to have been properly detained as

an enemy combatant or is awaiting such determination.

28 U.S.C. 2241 (1964 & Supp. II 1966) provided:

Power to grant writ.

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in

the records of the district court of the district wherein

the restraint complained of is had.

(b) The Supreme Court, any justice thereof, and

any circuit judge may decline to entertain an application for a writ of habeas corpus and may transfer the

application for hearing and determination to the district

court having jurisdiction to entertain it.

The writ of habeas corpus shall not extend to a

prisoner unless—

(c)

(1) He is in custody under or by color of the authority of the United States or is committed for trial

before some court thereof; or

(2) He is in custody for an act done or omitted in

pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the

United States; or

(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or

(4) He, being a citizen of a foreign state and

domiciled therein is in custody for an act done or

omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the

commission, order or sanction of any foreign state, or

under color thereof, the validity and effect of which

depend upon the law of nations; or

(5) It is necessary to bring him into court to testify or for trial.

(d) Where an application for a writ of habeas corpus

is made by a person in custody under the judgment and

sentence of a State court of a State which contains two

or more Federal judicial districts, the application may

be filed in the district court for the district wherein such

person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district

courts shall have concurrent jurisdiction to entertain

the application. The district court for the district

wherein such an application is filed in the exercise of its

discretion and in furtherance of justice may transfer the

application to the other district court for hearing and

determination.

28 U.S.C. 2241 (Supp. II 1948) provided:

Power to grant writ.

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in

the records of the district court of the district wherein

the restraint complained of is had.

(b) The Supreme Court, any justice thereof and any

circuit judge may decline to entertain an application for

a writ of habeas corpus and may transfer the application

for hearing and determination to the district court having jurisdiction to entertain it.

prisoner unless—

(1) He is in custody under or by color of the authority of the United States or is committed for trial before

some court thereof; or

(2) He is in custody for an act done or omitted in

pursuance of an Act of Congress, or an order, process,

judgment or decree of a court or judge of the United

States; or

(3) He is in custody in violation of the Constitution

or laws or treaties of the United States; or

(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order

or sanction of any foreign state, or under color thereof,

the validity and effect of which depend upon the law of

nations; or

(5) It is necessary to bring him into court to testify

or for trial.

28 U.S.C. 2244 provides:

Finality of determination

(a) No circuit or district judge shall be required to

entertain an application for a writ of habeas corpus to

inquire into the detention of a person pursuant to a

judgment of a court of the United States if it appears

that the legality of such detention has been determined

by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided

in section 2255.

(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) 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 reasonable factfinder would have found the applicant guilty

of the underlying offense.

(3)(A) Before a second or successive application permitted by this section is filed in the district court, the

applicant shall move in the appropriate court of appeals

for an order authorizing the district court to consider

the application.

(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a threejudge panel of the court of appeals.

a second or successive application only if it determines

that the application makes a prima facie showing that

the application satisfies the requirements of this subsection.

(D) The court of appeals shall grant or deny the authorization to file a second or successive application not

later than 30 days after the filing of the motion.

(E) The grant or denial of an authorization by a

court of appeals to file a second or successive application shall not be appealable and shall not be the subject

of a petition for rehearing or for a writ of certiorari.

(4) A district court shall dismiss any claim presented in a second or successive application that the

court of appeals has authorized to be filed unless the

applicant shows that the claim satisfies the requirements of this section.

of a person in custody pursuant to the judgment of a

State court, a prior judgment of the Supreme Court of

the United States on an appeal or review by a writ of

certiorari at the instance of the prisoner of the decision

of such State court, shall be conclusive as to all issues

of fact or law with respect to an asserted denial of a Federal right which constitutes ground for discharge in a

habeas corpus proceeding, actually adjudicated by the

Supreme Court therein, unless the applicant for the

writ of habeas corpus shall plead and the court shall find

the existence of a material and controlling fact which

did not appear in the record of the proceeding in the

Supreme Court and the court shall further find that the

applicant for the writ of habeas corpus could not have

caused such fact to appear in such record by the exercise of reasonable diligence.

(d)(1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court.

The limitation period shall run from the latest of—

(A) the date on which the judgment became final

by the conclusion of direct review or the expiration

of the time for seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed,

if the applicant was prevented from filing by such

State action;

Court, if the right has been newly recognized by the

Supreme Court and made retroactively applicable to

cases on collateral review; or

(D) the date on which the factual predicate of the

claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review

with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation

under this subsection.

28 U.S.C. 2244 (Supp. II 1966) provided:

Finality of determination.

(a) No circuit or district judge shall be required to

entertain an application for a writ of habeas corpus to

inquire into the detention of a person pursuant to a

judgment of a court of the United States if it appears

that the legality of such detention has been determined

by a judge or court of the United States on a prior application for a writ of habeas corpus and the petition

presents no new ground not heretofore presented and

determined, and the judge or court is satisfied that the

ends of justice will not be served by such inquiry.

10a

(b) When after an evidentiary hearing on the merits

of a material factual issue, or after a hearing on the

merits of an issue of law, a person in custody pursuant

to the judgment of a State court has been denied by a

court of the United States or a justice or judge of the

United States release from custody or other remedy on

an application for a writ of habeas corpus, a subsequent

application for a writ of habeas corpus in behalf of such

person need not be entertained by a court of the United

States or a justice or judge of the United States unless

the application alleges and is predicated on a factual or

other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on

the earlier application deliberately withheld the newly

asserted ground or otherwise abused the writ.

of a person in custody pursuant to the judgment of a

State court, a prior judgment of the Supreme Court of

the United States on an appeal or review by a writ of

certiorari at the instance of the prisoner of the decision

of such State court, shall be conclusive as to all issues

of fact or law with respect to an asserted denial of a Federal right which constitutes ground for discharge in a

habeas corpus proceeding, actually adjudicated by the

Supreme Court therein, unless the applicant for the

writ of habeas corpus shall plead and the court shall find

the existence of a material and controlling fact which

did not appear in the record of the proceeding in the

Supreme Court and the court shall further find that the

applicant for the writ of habeas corpus could not have

11a

caused such fact to appear in such record by the exercise of reasonable diligence.

28 U.S.C. 2244 (Supp. II 1948) provided:

Finality of determination.

No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States, or of any State, if

it appears that the legality of such detention has been

determined by a judge or court of the United States on

a prior application for a writ of habeas corpus and the

petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such

inquiry.

28 U.S.C. 2255 provides:

Federal custody; remedies on motion attacking sentence

(a) 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.

12a

(b) Unless the motion and the files and records of

the case conclusively show that the prisoner is entitled

to no relief, the court shall cause notice thereof to be

served upon the United States attorney, grant a prompt

hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not

authorized by law or otherwise open to collateral attack,

or that there has been such a denial or infringement of

the constitutional rights of the prisoner as to render the

judgment vulnerable to collateral attack, the court shall

vacate and set the judgment aside and shall discharge

the prisoner or resentence him or grant a new trial or

correct the sentence as may appear appropriate.

the hearing.

(d) An 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.

(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 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.

13a

(f ) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run

from the latest of—

(1) the date on which the judgment of conviction

becomes final;

(2) the date on which the impediment to making

a motion created by governmental action in violation

of the Constitution or laws of the United States is

removed, if the movant was prevented from making

a motion by such governmental action;

(3) 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; or

(4) the date on which the facts supporting the

claim or claims presented could have been discovered through the exercise of due diligence.

(g) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under

this section, and any subsequent proceedings on review,

the court may appoint counsel, except as provided by a

rule promulgated by the Supreme Court pursuant to

statutory authority. Appointment of counsel under

this section shall be governed by section 3006A of title

18.

(h) A second or successive motion must be certified

as provided in section 2244 by a panel of the appropriate

court of appeals to contain—

14a

(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.

28 U.S.C. 2255 (Supp. II 1948) provided:

Federal custody; remedies on motion attacking sentence.

A prisoner in custody under sentence of a court of the

United States 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.

A motion for such relief may be made at any time.

Unless the motion and the files and records of the

case conclusively show that the prisoner is entitled to no

relief, the court shall cause notice thereof to be served

upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of

fact and conclusions of law with respect thereto. If the

court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that

15a

there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the

prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

A court may entertain and determine such motion

without requiring the production of the prisoner at the

hearing.

The sentencing court shall not be required to entertain a second or successive motion for similar relief on

behalf of the same prisoner.

An 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.

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.