Petition for Writ of Certiorari — Jason Tywann Bell, Petitioner v. John Gilley, Warden

Supreme Court briefMar 27, 2026

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APPENDIX

TABLE OF CONTENTS

APPENDIX A:

Fourth Circuit Court of Appeals

Opinion (Aug. 6, 2025) .................... 1a

APPENDIX B:

Memorandum Opinion Dismissing

Petition for a Writ of Habeas

Corpus (Feb. 3, 2022) ................... 44a

APPENDIX C:

Final Order Dismissing Petition for

a Writ of Habeas Corpus

(Feb. 3, 2022)................................. 60a

APPENDIX D:

Fourth Circuit Court of Appeals

Order Denying Petition for

Rehearing En Banc

(Oct. 28, 2025) ............................... 61a

APPENDIX E:

28 U.S.C. § 2241 ............................ 62a

APPENDIX F:

28 U.S.C. § 2255(e) ....................... 64a

APPENDIX G:

Order Granting in Part Motion for

Early Termination of Supervised

Release (July 11, 2025) ................ 65a

APPENDIX H:

Letter to Jason Bell Regarding

Completion of Supervised Release

(Dec. 24, 2025) ............................... 68a

APPENDIX I:

Report and Order Terminating

Probation / Supervised Release

(Dec. 24, 2025) ............................... 70a

APPENDIX A

[FILED: AUGUST 6, 2025]

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

—————————

No. 22-6189

—————————

JASON TYANN BELL,

Petitioner – Appellant,

J.C. STREEVAL, Warden of USP Lee,

Respondent – Appellee.

—————————

PROFESSOR BRANDON HASBROUCK,

Amicus Supporting Appellant.

—————————

Appeal from the United States District Court for the

Western District of Virginia, at Roanoke. Elizabeth K.

Dillon, Chief District Judge. (7:21-cv-00094-EKD-JCH)

—————————

Argued: September 26, 2024

Decided: August 6, 2025

—————————

Before THACKER, RICHARDSON, and BENJAMIN,

Circuit Judges.

—————————

(1a)

Affirmed by published opinion. Judge Richardson wrote

the opinion of the Court with respect to Parts I and II(A)–

(B), in which Judges Thacker and Benjamin joined. Judge

Thacker wrote the opinion of the Court with respect to

Part II(C), in which Judge Benjamin joined. Judge

Richardson wrote an opinion concurring in the judgment

with respect to Part II(C).

—————————

ARGUED: Dana Kagan McGinley, ARNOLD &

PORTER KAYE SCHOLER LLP, Washington, D.C., for

Appellant. Paul Theodore Crane, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellee. ON BRIEF: Randy V. Cargill, Assistant

Federal Public Defender, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Roanoke, Virginia; R. Stanton

Jones, Andrew T. Tutt, Washington, D.C., Kevin

Cosgrove, Hafeez Khan, Hailey V. Sullivan, ARNOLD &

PORTER KAYE SCHOLER LLP, San Francisco

California, for Appellant. Kenneth A. Polite, Jr., Assistant

Attorney General, Lisa H. Miller, Deputy Assistant

Attorney General, Criminal Division, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C.;

Adair Ford Boroughs, United States Attorney, Kathleen

M. Stoughton, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY,

Columbia, South Carolina, for Appellee. Michael L.

Rosenthal, Abigail P. Barnes, Joseph DuChane, Sameer

Aggarwal, Austin S. Martin, COVINGTON & BURLING

LLP, Washington, D.C., for Amicus Curiae.

—————————

RICHARDSON, Circuit Judge, writing for the Court in

Parts I and II(A)–(B):

Jason Tywann Bell is asking for habeas relief under

28 U.S.C. § 2241. He argues that because his sentence was

imposed under an unconstitutionally vague Guideline

provision, he is entitled to resentencing. But to even

advance this theory, he must satisfy the procedural

requirements that Congress has imposed on when courts

may grant postconviction relief. He does not.

Bell was convicted of, and sentenced for, a federal

crime. So rather than seek habeas under § 2241, he was

obligated to seek relief under § 2255. If he had done that,

his motion would have been denied because this is not his

first § 2255 motion and § 2255(h) permits second or

successive motions only in limited circumstances that he

does not satisfy.

Bell therefore argues that because § 2255 relief is

unavailable, he should be permitted to seek habeas via §

2241 under the dictates of § 2255(e), the so-called “saving

clause.” The saving clause permits someone—who must

otherwise file under § 2255—to file under § 2241 instead

if § 2255 is “inadequate or ineffective to test the legality of

his detention.” But Bell’s failure to satisfy § 2255(h)’s

limits on successive motions does not by itself make § 2255

inadequate or ineffective. Jones v. Hendrix, 599 U.S. 465,

482 (2023). So we lack jurisdiction over Bell’s § 2241

petition.

Bell also argues that if we interpret § 2255 to bar his

requested habeas relief, then our interpretation will mean

Congress unlawfully suspended the writ of habeas corpus

when it enacted § 2255. See U.S. Const., Art. I, § 9, cl. 2.

But precedent forecloses this argument too.1 We

therefore affirm the district court’s order dismissing

Bell’s petition for want of jurisdiction.

Background

A. Conviction And Postconviction Proceedings

Bell pleaded guilty to two federal offenses: (1)

attempted bank robbery, 18 U.S.C. § 2113(a), and (2)

carrying and using a firearm during and in relation to a

crime of violence, 18 U.S.C. § 924(c). When sentenced in

October 2003, Bell faced mandatory Sentencing

Guidelines since the Supreme Court had not yet made the

Guidelines advisory in United States v. Booker. 543 U.S.

220, 245 (2005). Under those mandatory Guidelines, Bell

qualified as a career offender based on his prior

convictions for two “crime[s] of violence.” U.S.S.G § 4B1.1.

This designation set his mandatory guidelines range at

262 to 327 months. Bell was sentenced to 274 months, plus

a term of supervised release.

Bell has since moved several times for postconviction

relief. His first § 2255 motion in 2004 raised a sentencing

error and was denied. After a ten-year hiatus, Bell began

filing motions again. The content of these motions is

largely irrelevant—what does matter is that this is not

Bell’s first postconviction motion.

B. Intervening Changes In Law—Booker,

Johnson, Beckles, And Brown

Bell now seeks habeas relief on the theory that the

Guidelines’ career-offender provision, which mandatorily

While this panel agrees that precedent forecloses Bell’s Suspension

Clause claim, we disagree about which precedent does so. Compare §

II(C), infra, with Concurring Op. at 42–43 (Richardson, J.,

concurring in the judgment).

enhanced his sentence, is unconstitutionally vague. If he

is correct on his petition’s merits, he was sentenced above

his guidelines range by nearly 100 months.

Understanding Bell’s merits theory—and why he has

chosen Section 2241 as his procedural vehicle as opposed

to Section 2255—requires walking through fifteen years

of intervening Supreme Court and Fourth Circuit

precedent.

To start, after Bell was sentenced in 2003, the

Supreme Court made the Guidelines advisory rather than

mandatory. The Court held in 2005 that judges could not

constitutionally enhance a person’s sentence under the

Guidelines by relying on facts not found by juries. Booker,

543 U.S. at 226–27. To remedy that constitutional

problem, the Court severed and invalidated the portion of

the Guidelines that made them mandatory. The resulting

advisory guidelines did not raise that constitutional

concern. Id. at 246.

A decade later, the Supreme Court limited the ways

to identify career criminals based on their convictions.

Under the Armed Career Criminal Act, a defendant is

subject to more severe punishment for being a felon in

possession of a firearm if he has three or more previous

convictions for “violent felon[ies].” 18 U.S.C. § 924(e).

Congress defined “violent felony” in the Act’s so-called

“residual clause” to include any felony that “involves

conduct that presents a serious potential risk of physical

injury to another.” Id. § 924(e)(2)(B). But in 2015, the

Supreme Court held that the residual clause was

unconstitutionally vague because it provided no guidance

on how “one go[es] about deciding” when the clause is

satisfied. United States v. Johnson. 576 U.S. 591, 593

(2015).

The Supreme Court then combined Booker and

Johnson in Beckles v. United States, 580 U.S. 256 (2017).

Beckles addressed the career-offender provision in an

older version of the Guidelines that enhanced criminal

penalties for defendants with two prior felony convictions

for “crime[s] of violence.” Id. at 258–59 (citing U.S.S.G. §

4B1.2(a)(2) (Nov. 2006)). The Guidelines’ “crime of

violence” definition, in its own residual clause, was

“identically worded” to the unconstitutionally vague

residual clause in Johnson; despite that, the Court upheld

the Guidelines’ residual clause as constitutional because—

unlike the Armed Career Criminal Act—the Guidelines

are merely advisory. Id. at 267. While the Due Process

Clause requires the public to have notice of substantive

crimes and mandatory sentences, it does not require the

same of discretionary sentencing guidance for judges. Id.

at 262–63.

Beckles’s logic depended on the Guidelines’ advisory

(i.e., non-mandatory) nature. That left open a question—

what about the people, like Bell, who were sentenced

before Booker and thus under the mandatory Guidelines’

residual clause? There were two possible answers.

On the one hand, perhaps the Beckles court simply

reserved the question whether the residual clause in §

4B1.2(a)(2) was unconstitutionally vague when the

Guidelines were mandatory. This was Justice

Sotomayor’s view. See Beckles, 580 U.S. at 281 n.4

(Sotomayor, J., concurring in the judgment). On the other

hand, perhaps Beckles’s reasoning necessarily compelled

the conclusion that a mandatory Guidelines residual

clause would be unconstitutionally vague.

The difference between these two views matters for

people like Bell who have previously filed a § 2255 motion.

Second or successive § 2255 motions are ordinarily

prohibited. But under one of two exceptions laid out in §

2255(h), such a motion is permitted when the Supreme

Court establishes a “new rule of constitutional law, made

retroactive to cases on collateral review . . . that was

previously unavailable.” See Dodd v. United States, 545

U.S. 353, 359 (2005) (quoting § 2255(h)); see also In re

Graham, 61 F.4th 433, 442–43 (4th Cir. 2023). If the latter

view—that Beckles compelled the conclusion that a

mandatory

Guidelines

residual

clause

unconstitutionally vague—is correct, then Beckles would

have established a new rule of constitutional law,

potentially opening the door for second or successive §

2255 motions. But this Court has rejected the latter

interpretation, instead explicitly adopting Justice

Sotomayor’s view. See United States v. Brown, 868 F.3d

297, 299 n.1 (4th Cir. 2017). Because the Supreme Court

broke no new constitutional ground in Beckles, Bell

cannot bring a second or successive § 2255 motion on his

theory that the Guidelines’ residual clause is

unconstitutionally vague. Even if Bell is right,2 he cannot

challenge his sentence by filing another § 2255 motion

unless and until the Supreme Court creates a new

retroactive constitutional rule. § 2255(h).

Recognizing he is procedurally barred by § 2255(h),

Bell advanced that same merits theory before the district

court via a different procedural vehicle—§ 2241. The

district court determined that Bell could not proceed

under § 2241 and dismissed his habeas petition. Bell then

Several sister circuits have agreed with Bell that a mandatoryGuidelines residual clause is unconstitutionally vague under Johnson.

See, e.g., Shea v. United States, 976 F.3d 63, 81–82 (1st Cir. 2020);

Cross v. United States, 892 F.3d 288, 291, 294 (7th Cir. 2018). Those

cases involved federal prisoners bringing their first § 2255 motion,

however, and therefore did not involve the second-or-successive

procedural hurdle Bell faces.

appealed. During the pendency of his appeal, he finished

serving his prison sentence and was released.

II. Discussion

Bell’s appeal presents three questions. First, as a

threshold matter, has Bell’s release from prison stripped

us of jurisdiction over this case? Second, was Bell

entitled to file under § 2241, instead of § 2255, due to the

arguable unconstitutionality of his sentence? And third,

would denying Bell access to relief under § 2241 violate

the Constitution’s Suspension Clause?

The answer to all three questions is no. We

possessed jurisdiction at the time Bell filed his habeas

petition and still do. But Supreme Court precedent

forecloses his ability to seek habeas relief under § 2241.

And denying him the § 2241 procedural vehicle in this

case does not violate the Suspension Clause.

Accordingly, we affirm the district court and dismiss

Bell’s petition for want of jurisdiction.3

A. We Have Jurisdiction Over Bell’s Appeal

We begin with the threshold question. While this

appeal was pending, Bell was released from prison. This

raises two potential jurisdiction issues.

First, because § 2241 is limited to people “in custody”

by its plain text, “[a] reasonable reader might think we

lack jurisdiction over a habeas petition when the

petitioner” is “released from custody.” Plymail v.

Mirandy, 8 F.4th 308, 314 (4th Cir. 2021). But precedent

says that reader would be wrong. It’s true courts lack the

We review the availability of the saving clause and whether § 2255

is inadequate de novo. Farkas v. Butner, 972 F.3d 548, 553 (4th Cir.

2020). We also review the applicability of the Suspension Clause de

novo. Cf. United States v. Schnittker, 807 F.3d 77, 81 (4th Cir. 2015).

“jurisdiction to entertain [an] application” for habeas

under § 2241(c) if the application was not made by a

person “in custody.” But this jurisdictional check for

custody is performed “at the time an action is filed,” not

later. Plymail, 8 F.4th at 314. That Bell has been released

from prison does not change the fact that he filed his §

2241 application for habeas while he was in prison—

unquestionably while he was “in custody.” Thus, his

petition is not barred by the requirement that a habeas

petitioner be “in custody” under § 2241(c).

Second, “a logical assumption is that the release of a

prisoner from [prison] renders a habeas petition moot,”

stripping us of jurisdiction under Article III’s case-orcontroversy requirement. Plymail, 8 F.4th at 315. But

this assumption, too, is wrong. “A case becomes moot only

when it is impossible for a court to grant any effectual

relief whatever to the prevailing party.” Knox v. Serv.

Emps. Int'l Union, Loc. 1000, 567 U.S. 298, 307 (2012)

(cleaned up). And we can still provide effectual relief to

Bell.

Bell is currently serving three years of supervised

release. If Bell is right that he was unconstitutionally

sentenced to 100 months more than he should have been—

that is, if he were to prevail—then a decision from this

Court would lead to his resentencing. And at the

resentencing, the court could take his excess prison time

into account and adjust the length or conditions of his

term of supervised release. Cf. United States v. Johnson,

529 U.S. 53, 60 (2000) (permitting a trial court to “modify”

or “terminate” an individual’s term of supervised release

under 18 U.S.C. § 3582(e)(2) in the event an individual is

incarcerated for too long). Therefore, because it is not

“impossible” for us to “grant effectual relief,” Knox, 567

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U.S. at 307, his claim is not moot.4 We turn now to the next

question: whether he can use the § 2241 procedural

vehicle.

B. Bell’s Habeas Petition Is Not Cognizable

Under § 2241

The district court determined below that Bell could

not bring a habeas petition under § 2241 because he failed

to satisfy the § 2255(e) saving clause. On appeal, Bell asks

us to reverse. We cannot do so. A federal prisoner may not

seek postconviction relief through § 2241 unless § 2255 is

“inadequate or ineffective” to test his detention’s legality.

§ 2255(e). Bell insists he meets that standard because he

cannot satisfy the standard to file a second or successive

§ 2255 motion. But the Supreme Court has rejected that

argument. Under Jones v. Hendrix, the mere failure to

satisfy § 2255(h)’s procedural limitations does not make §

In some cases, a petitioner’s case is not mooted even after being

“unconditionally released” from custody—that is, he may continue to

challenge the legality of his conviction even after any term of

supervised release. The Supreme Court has explained that a criminal

conviction can bring collateral consequences that linger beyond

custody, such as the loss of voting rights and the privilege of serving

on a jury. Carafas v. LaVallee, 391 U.S. 234, 237–38 (1968). And the

Supreme Court has further instructed us to “presume[] that collateral

consequences exist.” Plymail, 8 F.4th at 315 (citing Sibron v. New

York, 392 U.S. 40, 55 (1968)). So the “mere ‘possibility of

consequences collateral to the imposition of sentence is sufficiently

substantial to justify our dealing with the merits.’” Id. (quoting

Pollard v. United States, 352 U.S. 354, 358 (1968)). The Carafas line

of cases, however, does not apply here. Bell is challenging the length

of his sentence, not the validity of his underlying conviction. And so

even if he wins, any potential collateral consequences flowing from his

conviction will remain the same.

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2255 inadequate or ineffective. He therefore cannot avail

himself of § 2241.5

The structure of the various “habeas”

rules.

To understand why Bell cannot use § 2241 requires a

background on how various federal postconviction

statutes interact with one another.

“Habeas” colloquially refers to a whole family of

common-law writs, pre-American Revolution English

statutes, federal statutes, and state statutes. The most

important common-law habeas writ is habeas corpus ad

subjiciendum (roughly translated, “you shall have the

body to submit”). This is “a writ antecedent to statute”

that has “its root deep into the genius of our common law.”

Farkas, 972 F.3d at 553 (quoting Rasul v. Bush, 542 U.S.

466, 473 (2004)). The writ of habeas corpus ad

subjiciendum allows a person to challenge “the causes[]

and extent” of their detention, thus permitting “a court to

examine the grounds” for the prisoner’s confinement. Id.

(citing 3 William Blackstone, Commentaries on the Laws

of England 133 (1st ed. 1768)). For its service in

protecting liberty, it is famously called “the Great Writ.”

Id.; Stone v. Powell, 428 U.S. 465, 474 n.6 (1976) (citation

omitted).6 As its importance waxed in England, the writ

When Bell originally filed his § 2241 petition in the district court, the

Supreme Court had not yet decided Hendrix. Consequently, the

district court applied this circuit’s pre-Hendrix saving clause

jurisprudence to Bell’s petition. But our prior jurisprudence is no

longer good law after Hendrix, and we do not apply it on appeal. We

explain this conclusion in more depth below.

Though the habeas corpus ad subjiciendum earned the lofty title,

this is a relatively recent development—and historians are right to

step carefully around anachronism. Various forms of habeas corpus

appeared in England as early as the Middle Ages. Often, different

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was codified in various forms by statutes, Farkas, 972

F.3d at 553, though the common-law forms remained too,

see Paul D. Halliday & G. Edward White, The Suspension

Clause: English Text, Imperial Contexts, and American

Implications, 94 Va. L. Rev. 575, 631 (2008).

The developed Great Writ came to “receive[] explicit

recognition in the Constitution” via the Suspension

Clause. Farkas, 972 F.3d at 553 (quoting Rasul, 542 U.S.

at 474); see also Brandon L. Garrett & Lee Kovarsky,

Federal Habeas Corpus: Executive Detention and PostConviction Litigation 22 (2d ed. 2024). We discuss the

contours of the Suspension Clause in depth later, but in

general, “judges in all camps tend to view the Suspension

Clause’s reference to the ‘privilege of the writ of habeas

corpus’ as a textual reference to the writ as it existed in

England, before the American revolution.” Garrett &

Kovarsky, supra, at 15.

Courts and litigants also use the word “habeas” to

describe the federal statutes that govern postconviction

review by federal courts.7 See 28 U.S.C. §§ 2241, 2243,

2244, 2253, 2254, and 2255. Section 2241 “is considered the

general grant of habeas authority.”8 Garrett & Kovarsky,

forms of the writ were used by different courts, but used similar

language, served similar functions, and influenced each other’s

development. Alongside the ad subjiciendum was another, almost

equally important form of the writ: the corpus cum causa. The writs’

functions were similar, and both evolved in parallel until the ad

subjiciendum became dominant. Paul D. Halliday, Habeas Corpus:

From England to Empire 17–18, 61–62 (2010).

Postconviction review is also often referred to as “collateral review,”

as it is outside the original proceeding.

The first federal habeas statute was § 14 of the 1789 Judiciary Act.

1 Stat. 73, § 14. This grant of authority was split in two. See Garrett

& Kovarsky, supra, at 45. The statutory authority to issue the Great

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supra, at 45. Sections 2244, 2253, and 2254 govern federal

court review of state custody, providing jurisdiction to do

so while simultaneously imposing procedural limitations.

Review of federal custody, meanwhile, is largely governed

by § 2255. While § 2255 is an independent statutory

privilege and not technically “habeas” in the sense of the

common-law writ inherited by the Colonies, it governs

almost all federal postconviction review.

In 1996, Congress worked a sea change in federal

statutory postconviction law. See Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132,

110 Stat. 1214 (“AEDPA”). AEDPA is “Congress’ latest

pronouncement on the writ of habeas corpus.” Farkas,

972 F.3d at 554. Among other things, AEDPA changed

and recodified several habeas statutes, sharply limiting

the scope of postconviction relief in federal court. See, e.g.,

Taylor A.R. Meehan, Postconviction Remedies,

Retroactivity, and Montgomery v. Louisiana’s Other New

Rule, 88 Mo. L. Rev. 1077, 1100 (2024); Brandon L.

Garrett & Kaitlin Phillips, AEDPA Repeal, 107 Cornell L.

Rev. 1739, 1756 (2022).

With this background, we can turn to Bell’s claim.

Bell cannot use the saving clause as

interpreted by Hendrix.

As noted above, most federal detainees are required

to pursue postconviction relief under § 2255—not § 2241.

Section 2255 is not an optional alternative to § 2241—“the

general rule [is] that convicted federal prisoners must

proceed under § 2255.” Farkas, 972 F.3d at 555 (emphasis

Writ—writs of habeas corpus ad subjiciendum—was codified in §

2241. Id. There are also other habeas writs, none of which are relevant

here. The statutory authority to issue them is the All Writs Act, 28

U.S.C. § 1651(a). Id.

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added). There is, however, one exception to the general

rule: the so-called saving clause. Id. (citing § 2255(e)). The

saving clause provides that if § 2255 is “inadequate or

ineffective” for a person “to test the legality of his

detention,” he may proceed directly under § 2241. §

2255(e). After much discussion in the courts of appeals,

the Supreme Court recently explained when § 2255(e) is

satisfied. See Hendrix, 599 U.S. at 474–75.

In Hendrix, the Supreme Court held that the

petitioner could not bring a second or successive9 motion

under § 2255(h) because his claim of innocence was based

on a new statutory ruling, rather than a new constitutional

ruling. The plain text of § 2255(h) explains this result:

Second or successive motions based on changes in law

must allege “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.” § 2255(h)

(emphasis added).10 Claims based on changes in statutory

What counts as a “second or successive” motion is deceptively selfexplanatory. Often it just means any § 2255 motion that comes after

a person has filed their first. Makes sense, as second comes after first.

But not always—“the phrase second or successive” “is a term of art”

that “does not necessarily refer to all habeas filings made second or

successively in time.” Rivers v. Guerrero, 145 S. Ct. 1634, 1643 (2025)

(quotations omitted). Some types of literally successive motions have

been deemed not “second or successive” in the relevant sense. See,

e.g., Slack v. McDaniel, 529 U.S. 473, 478 (2000) (motions filed after

an initial motion was dismissed without adjudication on the merits for

failure to exhaust state remedies); Panetti v. Quarterman, 551 U.S.

930, 947 (2007) (claims brought in successive motions under Ford v.

Wainwright, 477 U.S. 399 (1986), when those claims become ripe).

Second or successive § 2255 motions are also permissible if the

movant presents “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.” §

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law will not do. Hendrix, 599 U.S. at 476–77. Section

2255(h) describes “two—and only two—conditions in

which a second or successive § 2255 motion may proceed,”

and a change in statutory law is not one of them. Id. at

477.11

Because § 2255 was procedurally unavailable, Jones

argued that he should be able to use § 2255’s exception,

the saving clause, to route his claim through § 2241. In

essence, he argued that if a legally innocent person cannot

test the legality of his detention under § 2255 because of §

2255(h), then § 2255 is “inadequate or ineffective.” While

not without intuitive appeal, the argument was rejected

by the Supreme Court.

In addressing Jones’ claim, the Supreme Court

explained § 2255(e)’s scope. The Court first explained that

the “sole purpose” of § 2255 is to provide administrative

convenience. Id. at 473. A federal prisoner can be

sentenced in one judicial district but imprisoned in

another. In such cases, the former district court would

contain the records relevant to the prisoner’s habeas

petition, yet the prisoner would have to file his § 2241

2255(h)(1). But this provision is irrelevant to Bell, both because he

does not present new evidence and because he is challenging his

sentence, not his conviction.

Setting aside those procedural limits in § 2255(h), the underlying

claim in Hendrix was plainly meritorious. The petitioner was

convicted under § 922(g)(1) before Rehaif v. United States, 588 U.S.

225 (2019). Rehaif held that a defendant’s knowledge of his status that

disqualifies him from owning a firearm is an element of a § 922(g)

conviction. See Hendrix, 599 U.S. at 470. Rehaif overruled the Eighth

Circuit precedent that Jones’s convicting court had applied and that

the Eighth Circuit had applied on direct appeal. Id. So the

prosecution in Jones’s case had not proven an essential element of his

922(g) count, making him legally innocent. But there is no legal

innocence exception to § 2255(h)’s strictures: “Congress has chosen

finality over error correction.” Id. at 480.

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habeas petition against the prison warden in the latter

court. Id. at 474. The geographic split from this traditional

method of habeas filing resulted in “serious

administrative problems.” Id. at 473–74 (quoting United

States v. Hayman, 342 U.S. 205, 212 (1952)).12 To remedy

these problems, Congress enacted § 2255, which requires

a prisoner to file in “the court which imposed [his]

sentence,” § 2255(a).

The saving clause’s narrow scope reflects its

rationale. Resort to § 2241 via the saving clause and filing

in the judicial district of imprisonment is permitted only

in “the unusual circumstances in which it is impossible or

impracticable for a prisoner to seek relief from the

sentencing court.” Hendrix, 599 U.S. at 474–75. And

impossibility and impracticability are not defined with

reference to the prisoner’s ability to succeed; rather, they

are defined with reference to the prisoner’s ability to seek

relief from the sentencing court. Id.13 Nor could it reading

AEDPA as a cohesive whole. Congress in AEDPA

established

clear

procedural

restrictions

postconviction relief by motion. And as the Supreme

Court emphasized repeatedly in Hendrix, any reading of

§ 2255(e) that shunts procedurally barred claims into §

2241 would turn the saving clause into an “end-run

around” those procedural restrictions, making AEDPA

“curiously self-defeating.” Id. at 477, 479. The Court thus

In addition to the evidentiary problems this posed, this

concentrated habeas petitions in the handful of judicial districts areas

where prisons were located, forcing those few district courts to

process “an inordinate number of habeas corpus actions.” Hayman,

342 U.S. at 213–14.

For example, a prisoner would lack access to his sentencing court if

the sentencing court were dissolved (i.e., it literally “no longer

exists.”). Hendrix, 599 U.S. at 474 (citing Witham v. United States,

355 F.3d 501, 504–05 (6th Cir. 2004)).

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forbade us from making AEDPA “internally inconsistent”

by applying the saving clause to claims that may be

meritorious but are procedurally barred. Id. at 479

(quotation omitted).

Under

Hendrix,

then,

Bell’s

case

straightforward—it is essentially the same as Jones’s was

in Hendrix itself. Bell’s petition, like Jones’s petition,

would have been procedurally barred had it been brought

as a second or successive § 2255 motion because it does

not fall into either of the two exceptions laid out in §

2255(h). So Bell, like Jones, brought his claim through §

2241, arguing that he could do so because of the saving

clause. But it remains possible and practicable for Bell to

file his § 2255 motion with his sentencing court. Hendrix,

599 U.S. at 474. So Bell, like Jones, cannot use the saving

clause. That Bell, like Jones, may have a meritorious claim

of legal innocence stymied by § 2255(h)’s procedural

restrictions does not make § 2255 “inadequate or

ineffective.” “The inability of a prisoner . . . to satisfy [§

2255(h)] does not mean that he can bring his claim in a

habeas petition under the saving clause. It means that he

cannot bring it at all.” Id. at 480; see also Slusser v.

Vereen, 36 F.4th 590, 592 (4th Cir. 2022).

Unable to prevail under Hendrix, Bell attempts to

escape its reasoning in two ways. First, he attempts to

distinguish the case by arguing that Hendrix involved a

change in statutory law, while his involves a change in

constitutional law. That is indeed a distinction—but one

without a difference. Bell’s problem is that, like Jones, he

fails to satisfy § 2255(h). To be sure, Jones failed because

§ 2255(h) makes no exception for new statutory law, while

Bell fails because § 2255(h)(2)’s exception for new

constitutional law does not apply unless the Supreme

Court has said that there is new (and retroactive)

constitutional law. But the reason someone fails to satisfy

18a

§ 2255(h) does not change the saving clause’s availability.

The result for both is the same.

In fact, our answer is clearer than the answer was in

Hendrix itself. The Supreme Court interpreted §

2255(h)’s enumerated list of two exceptions to give rise to

the “negative inference” that Congress intended to

provide only those two exceptions, foreclosing the

possibility of an implied third exception for new statutory

claims smuggled into the saving clause. Id. at 477. That

negative inference is even stronger for Bell because one

of those two enumerated exceptions already addresses

changes in constitutional law and “speaks exactingly to

the circumstances that permit a constitutional claim.”

Farkas, 972 F.3d at 559.14 We will not assume that

Congress meant to implicitly permit kinds of

constitutional claims when Congress has addressed other

kinds explicitly.15

There was some suggestion that the several related but not

dispositive changes in constitutional law that followed Bell’s

sentencing are “unusual” and therefore Bell satisfies § 2255(e)’s

strictures. Cf. Hendrix, 599 U.S. at 478. But as we have explained,

“unusual” refers to the inability to seek relief, not the inability to

obtain it. Moreover, there is nothing “unusual” about denying relief

to habeas petitioners who would have benefitted from changes in law

that happen after they are sentenced. See Teague v. Lane, 489 U.S.

288 (1989) (judge made limits on when retroactive changes in law

apply on collateral review); Greene v. Fisher, 565 U.S. 34, 38

(recognizing that collateral relief for state prisoners under § 2254(d)

is limited to mistakes based on the law that existed at the time of the

state’s last adjudication on the merits, rather than law made after).

Bell could have raised his theory in his first § 2255 motion. Had he

done so, § 2255(h)’s bar on certain constitutional claims would not

have applied. Whether fair or not, Congress requires a prisoner to

raise available theories in the first instance and within a set amount

of time. See §§ 2255(a), (f). If he chooses not to, his options moving

forward will be more limited. But in any event, § 2255 was available

19a

Bell’s second contention is that a decision against him

would render the saving clause vestigial. If Hendrix

forecloses all statutory claims, and we foreclose

constitutional claims (that do not fit into §§ 2255(a),

(h)(2)), the saving clause would never apply—or so the

argument goes. It is true that, were the saving clause to

be rendered “mere surplusage,” that would offend our

presumption “that the legislature intended each portion

[of a statute] to be given full effect.” Navy Fed. Credit

Union v. LTD Fin. Servs., LP, 972 F.3d 344, 359 (4th Cir.

2020) (quoting Fontenot v. Taser Int’l, Inc., 736 F.3d 318,

327 (4th Cir. 2013)).

But this second argument simply misunderstands

Hendrix. Far from foreclosing statutory claims, Hendrix

makes clear that both constitutional and statutory claims

can be routed through the saving clause into § 2241.

Hendrix just clarifies that this happens only in the

“unusual circumstances in which it is impossible or

impracticable for a prisoner to seek relief from the

sentencing court.” 599 U.S. at 474–75. Bell’s argument

thus proceeds on a false premise.

So Bell’s claim under the saving clause is foreclosed

by Hendrix for the same reasons given in Hendrix itself.

Hendrix abrogated this Court’s contrary

precedent.

That was all the law that applies today. Bell, however,

appeals a decision based on pre-Hendrix decisions from

this Court that established when petitioners could bring

sentencing challenges under § 2241 via the saving clause.

See Bell v. Streeval, No. 7:21-CV-00094, 2022 WL 329229,

at *6–7 (W.D. Va. Feb. 3, 2022). We do not apply that law.

and adequate to test his current theory in his first petition, had he

chosen to argue it.

20a

Instead, we resolve Bell’s appeal without applying those

cases because we recognize that, after Hendrix, they are

no longer good law. See Henderson v. United States, 568

U.S. 266, 271 (2013) (“The general rule is that an appellate

court must apply the law in effect at the time it renders its

decision.” (cleaned up)).

Before Hendrix, a trilogy of Fourth Circuit cases

interpreted the saving clause. First came In re Jones, 226

F.3d 328, 333–34 (4th Cir. 2000), overruled by Hendrix,

599 U.S. at 477. In re Jones had essentially identical facts

to Hendrix: A prisoner was barred from bringing a

second or successive motion under § 2255(h) for a change

in statutory law and so used the saving clause to bring a

habeas petition under § 2241 instead. To evaluate his

petition, this Court created a three-part test to determine

when the saving clause was available. Id. That test

reasoned that “§ 2255 is inadequate and ineffective to test

the legality of a prisoner’s conviction when,” among other

requirements, “the prisoner cannot satisfy the

gatekeeping provisions of § 2255 because the new rule is

not one of constitutional law.”16 Id (emphasis added).

Second came United States v. Wheeler, 886 F.3d 415

(4th Cir. 2018). Extending In re Jones from conviction

challenges to sentencing challenges, this Court in Wheeler

laid out a similar multipart test that allowed a prisoner to

More specifically, In re Jones laid out a three-part test:

“Accordingly, we conclude that § 2255 is inadequate and ineffective to

test the legality of a conviction when: (1) at the time of conviction,

settled law of this circuit or the Supreme Court established the

legality of the conviction; (2) subsequent to the prisoner's direct

appeal and first § 2255 motion, the substantive law changed such that

the conduct of which the prisoner was convicted is deemed not to be

criminal; and (3) the prisoner cannot satisfy the gatekeeping

provisions of § 2255 because the new rule is not one of constitutional

law.” 226 F.3d at 333–34.

21a

bring a § 2241 habeas petition when, among other

requirements, “the prisoner is unable to meet the

gatekeeping provisions of § 2255(h)(2) for second or

successive motions.”17 Id.

The last case in this trilogy is Young v. Antonelli, 982

F.3d 914 (4th Cir. 2020). Young brought a Section 2241

habeas petition arguing—like Bell in this case—that a

new Supreme Court case interpreting language in 21

U.S.C. § 841 applied to equivalent language in a

Guidelines sentencing enhancement. Id. at 915–16 (citing

Burrage v. United States, 571 U.S. 204, 206 (2014)). But

Young was a federal detainee who had previously filed a §

2255 motion and thus was barred from using § 2241 unless

he satisfied § 2255(e). We acknowledged that Burrage was

a change in statutory law that the Supreme Court had not

yet applied to the Sentencing Guidelines, much less

holding them to be retroactive. This meant if Young had

filed a § 2255 motion, it would have been barred by §

2255(h). Id. at 918–19. Nevertheless we, as an inferior

court, found that Burrage applied to the Sentencing

Guidelines; and we, as an inferior court, held them to be

retroactive. Id. at 919–20. Proceeding on the premise that

those were permissible moves, we found that Young

satisfied the test we had laid out in Wheeler and so could

Again, more specifically, Wheeler laid out a four-part test: “[W]e

conclude that § 2255 is inadequate and ineffective to test the legality

of a sentence when: (1) at the time of sentencing, settled law of this

circuit or the Supreme Court established the legality of the sentence;

(2) subsequent to the prisoner’s direct appeal and first § 2255 motion,

the aforementioned settled substantive law changed and was deemed

to apply retroactively on collateral review; (3) the prisoner is unable

to meet the gatekeeping provisions of § 2255(h)(2) for second or

successive motions; and (4) due to this retroactive change, the

sentence now presents an error sufficiently grave to be deemed a

fundamental defect.” 886 F.3d at 429 (citing In re Jones, 226 F.3d at

333–34).

22a

use the saving clause to bring a § 2241 habeas petition to

challenge his Guidelines enhancement. Id.

This trilogy of cases forms a tower, with Young built

on Wheeler and Wheeler built on In re Jones. But in

Hendrix the Supreme Court explicitly overruled In re

Jones by name. Hendrix, 599 U.S. at 477. And when the

Supreme Court demolished that foundation, the Wheeler

and Young floors crumbled with it.18

Hendrix explained that § 2255 is only inadequate or

ineffective when access to the sentencing court is

“impossible or impracticable.” See Hendrix, 599 U.S. at

477–78. The Hendrix test for when the saving clause is

available, then, is unrelated to whether the prisoner is

procedurally barred by § 2255—and so supplants the test

created in In re Jones, expanded in Wheeler, and

expanded again in Young.

As Hendrix explained, and as we reiterated above,

when Congress enumerated “two—and only two—

conditions in which a second or successive § 2255 motion

may proceed,” it intended to bar all other types of second

or successive motions. Id. at 477. That means that second

or successive motions premised on changes in this Court’s

precedent cannot proceed through the saving clause,

contrary to our pronouncements in the trilogy. See In re

Jones, 226 F.3d at 333–34 (requiring changes in the

“settled law of this circuit or the Supreme Court”

(emphasis added)); Wheeler, 886 F.3d at 429 (same);

Young, 982 F.3d at 918 (same). Only second or successive

Other courts have recognized this. See, e.g., Scheetz v. Ciolli, No.

22-1300, 2023 WL 6366049, at *3 (10th Cir. Sept. 29, 2023); Barrie v.

United States, No. 1:22-CV-203, 2023 WL 5044977, at *3 (E.D. Va.

Aug. 8, 2023); Johnson v. Dunbar, No. 5:22-3677, 2023 WL 5211052,

at *3 (D.S.C. July 12, 2023); Murphy v. United States, No. 1:21-00053,

2023 WL 9103097, at *5 (S.D.W. Va. Sept. 13, 2023).

23a

motions premised on “a new rule of constitutional law,

made retroactive to cases on collateral review by the

Supreme Court” will do. § 2255(h)(2) (emphasis added). So

although Hendrix does not mention Wheeler or Young by

name, the reasoning in those cases has been

fundamentally rejected.19 Along with Jones, they are no

longer good law. See Rose v. PSA Airlines, Inc., 80 F.4th

488, 504 (4th Cir. 2023) (“Where prior decisions in our

Circuit use reasoning inconsistent with Supreme Court

authority, we are not bound to follow them.”) (internal

quotations omitted).

At bottom, Hendrix controls this case, and Bell can

find no recourse in our pre-Hendrix precedent.

C. Bell’s Inability To Obtain Relief Does Not

Violate The Suspension Clause

THACKER, Circuit Judge, writing for the Court in Part

II(C):

Last, we consider Bell’s argument that denying him

access to relief under § 2241 would violate the

Constitution’s Suspension Clause. This argument is

resolved by our decision In re Vial, 115 F.3d 1192 (4th Cir.

1997) (en banc), which held that “the limitations imposed

on second and successive § 2255 motions by [§ 2255(h)] do

not constitute a suspension of the writ.” Id. at 1198.

As discussed supra, § 2241 relief is unavailable to Bell

because the § 2255(e) “saving clause does not authorize []

an end-run around [§ 2255(h)].” Jones v. Hendrix, 599

U.S. 465, 477 (2023). This means that Bell’s petition for

habeas relief is subject to and defaulted by “the

limitations imposed on second and successive § 2255

To be clear, the merits question about Burrage addressed in Young

was not presented in this case. This Court takes no position on that

part of Young’s analysis.

24a

motions by [§ 2255(h)].” In re Vial, 115 F.3d at 1198. As

we have recognized, this barrier to relief does not

implicate the Suspension Clause. Id. Indeed, as Appellee

pointed out at oral argument, we “need go no further than

that” to dispose of Bell’s Suspension Clause argument.

Oral Argument at 15:35–15:49, Bell v. Streeval, No. 226189 (4th Cir. Sept. 26, 2024), https://www.ca4.uscourts.

gov/OAarchive/mp3/22-6189-20240926.mp3 (“This court

in In re Vial . . . held that the limitations in 2255(h) do not

violate the Suspension Clause. So under that holding, this

panel need go no further than that.”).

Our concurring colleague opts for a different

approach. According to the concurrence, in Hendrix the

Supreme Court established a bright line rule that “the

Suspension Clause only protects claims that would have

been cognizable in habeas at our country’s Founding.”

Post at 29 (discussing Hendrix, 599 U.S. at 482–83 (2023)

(dismissing

petitioner’s

constitutional

avoidance

Suspension Clause argument on the ground that “it would

extend the writ of habeas corpus far beyond its scope

when the Constitution was drafted and ratified” (internal

quotations omitted))). And, according to the concurrence’s

historical analysis, Founding era habeas relief was

confined to claims alleging a jurisdictional defect in a

prisoner’s underlying judgment. Id. at 30 (“[A] prisoner

at the Founding had no privilege vindicable by habeas to

be freed from custody imposed as a criminal sentence

unless some jurisdictional defect afflicted his judgment.”).

Thus, according to the concurrence, since Bell’s

constitutional claim in his § 2241 petition does not allege a

jurisdictional defect in his underlying judgment, it is not

the type of claim that is within the scope of the protection

enshrined by the Suspension Clause. The concurrence

posits, therefore, that denying Bell relief through

25a

recourse to the saving clause does not amount to a

suspension of the writ.

We do not read Hendrix to establish such a bright

line rule on the scope of the protection enshrined by the

Suspension Clause. In Hendrix, the Court considered the

Suspension Clause in the context of the petitioner’s

constitutional doubt canon argument, which asserted that

denying the petitioner the chance to raise his Rehaif*

claim in a § 2241 petition would “raise[] serious

constitutional questions.” Hendrix, 599 U.S. at 482. The

petitioner in Hendrix argued, notwithstanding the merits

of the lower circuit’s rule that “the Suspension Clause

refers to [the] specific legal instrument that existed [in

1789][,]” the petitioner’s incarceration still “pose[d]

constitutional concerns.” Brief for Petitioner at 36, Jones

v. Hendrix, 599 U.S. 465 (2023) (No. 21-857). From this

footing, the Hendrix Court held that the petitioner’s

Suspension Clause argument failed because it “would

extend the writ of habeas corpus far beyond its scope

‘when the Constitution was drafted and ratified.’”

Hendrix, 599 U.S. at 482–83 (quoting Dep’t of Homeland

Sec. v. Thuraissigiam, 591 U.S. 103, 107 (2020) (quoting

Boumediene v. Bush, 553 U.S. 723, 746 (2008))).

Facially, this assertion in Hendrix would appear to

support the proposition espoused by the concurrence that

the Suspension Clause is confined to claims cognizable in

habeas at the Founding. Post at 29 (“[T]he Suspension

Clause only protects claims that would have been

cognizable in habeas at our country’s Founding.”). The

Rehaif v. United States, 588 U.S. 225, 237 (2019) (holding that a

defendant’s knowledge “that he knew he belonged to the relevant

category of persons barred from possessing a firearm” is an element

the Government must prove in a prosecution for violation of 18 U.S.C.

§ 922(g)).

26a

authorities that the Hendrix Court relied on in support of

its own assertion, however, undermine the concurrence’s

interpretation of it. Specifically, in Thuraissigiam, the

Court relied on a concession from the parties to avoid

answering “whether the scope of the writ as it existed in

1789 defines the boundary of the constitutional protection

[of the Suspension Clause].” Thuraissigiam, 591 U.S. at

116 n.12. The Court consequently analyzed whether the

Suspension Clause was limited to the habeas right as it

existed at the Founding, without deciding whether that

represented the full scope of the right protected by the

Suspension Clause. Likewise, Hendrix relied on

Boumediene, which expressly cautioned, “at the absolute

minimum the [Suspension] Clause protects the writ as it

existed when the Constitution was drafted and ratified.”

Boumediene, 553 U.S. at 746 (citation and internal

quotation marks omitted).

We do not take the Hendrix Court’s reliance on these

authorities to be inadvertent. Rather, we interpret the

Court to be deliberately citing them, to mimic the analysis

of Thuraissigiam based on the Hendrix petitioner’s

concession that his incarceration violated the Suspension

Clause even if the Clause is confined to the scope of

habeas relief available at the Founding. That is, Hendrix

did not resolve the question about the scope of the

Suspension Clause en toto. It merely decided the question

presented to it by the petitioner, about whether his

incarceration “pose[d] constitutional concerns” even

conceding the lower circuit’s interpretation of the

Suspension Clause. This reading explains the Court’s

reliance on authorities expressly disavowing adjudication

of the scope of the Suspension Clause protection,

Thuraissigiam, 591 U.S. at 116, and authorities that

describe Founding era habeas relief as the floor rather

than the ceiling of the Suspension Clause protection,

27a

Boumediene, 553 U.S. at 746. Thus, we are not

“uncertain[]” as to the holding of Hendrix. Post at 41. We

simply apply a more thorough analysis of the holding of

Hendrix based on the reasoning supplied in the Hendrix

opinion itself.

This interpretation of the majority decision in

Hendrix is replicated in Justice Jackson’s dissenting

opinion. Justice Jackson interprets the Hendrix majority

as “admit[ting] that, at a minimum, the Suspension Clause

protects the right of habeas corpus as it existed at the time

of the founding.” Hendrix, 599 U.S. at 528 (Jackson J.,

dissenting) (citing Hendrix, 599 U.S. at 482–83).

Moreover, Justice Jackson couches the Hendrix

majority’s read of the Suspension Clause as a

“suggestion” -- the kind of ambiguous terminology that is

dissonant to the legal pronouncement the concurrence

perceives. Id. at 528 n.24 (Jackson J., dissenting) (“I reject

the majority’s suggestion that the Suspension Clause

protects only the scope of the great writ as it existed in

the founding era.”) (first emphasis supplied) (second

emphasis in original). Notably, Justice Jackson’s point

went unrebutted by the Hendrix majority.

Certainly, “[i]t goes without saying that the majority

opinion, not the gloss that the [dissent] seeks to place

thereon, is controlling.” Dababnah v. Keller-Burnside,

208 F.3d 467, 471 n.3 (4th Cir. 2000). But in this specific

context, where the Hendrix majority relied on authorities

that specifically reserved the ultimate question on the

scope of the Suspension Clause, the dissent’s description

is not “gloss.” Rather, it is a plausible interpretation of the

majority’s decision, considering the proper context. One

we agree with, pursuant to our own independent

consideration of the Hendrix majority decision.

28a

The concurrence asserts that our application of In re

Vial is incorrect, since the decision is “incompatible” with

Hendrix. Post at 41. But that conclusion only holds water

if one accepts the concurrence’s interpretation of Hendrix

with respect to the Suspension Clause as a starting

premise. And the concurrence fails to account for how its

interpretation of Hendrix coheres with the context of that

decision or the authorities the Court applied. Instead, the

concurrence adopts a perspective that was not proffered

by any party to this appeal and is at odds with Justice

Jackson’s own unrebutted interpretation of her

colleagues’ ruling. This footing does not provide adequate

ground to overrule our own en banc precedent. Thus, we

decline to take that step in this appeal. We instead adopt

the more modest disposition proposed by Appellee and

hold that denying Bell habeas relief pursuant to § 2255(h)

does not amount to a suspension of the writ.

There is no constitutional right for every worldly

wrong, no judicial solution for every perceived problem.

The scope of the habeas statutes reflects Congress’

balance between the benefits of further review and the

harms of endless litigation. In Bell’s case, Congress has

chosen finality over error correction. We are bound to

follow that choice. Section 2255 may be unavailable to

Bell, but it is nevertheless adequate and effective to test

the legality of his claim. So he cannot bring a habeas

petition under § 2241. Bell’s further arguments are

foreclosed by precedent. Regardless of the merits of his

claim, the district court must be.

AFFIRMED.

29a

RICHARDSON, Circuit Judge, concurring in the

judgment with respect to Part II(C):

I agree that precedent forecloses Bell’s Suspension

Clause claim but diverge from my good colleagues on

which precedent does so. The Court in Part II(C) retreats

to one of our prior decisions—a decision whose reasoning

I find incompatible with recent Supreme Court precedent.

On my view, like every other issue in this case, Bell’s

Suspension Clause claim turns on Hendrix.

The Suspension Clause reads: “The Privilege of the

Writ of Habeas Corpus shall not be suspended, unless

when in Cases of Rebellion or Invasion the public Safety

may require it.” U.S. Const. art. 1, § 9, cl.2. Bell contends

that if he cannot use the saving clause, then he cannot get

any relief at all under AEDPA’s scheme, and so Congress

will have suspended habeas corpus in violation of the

Suspension Clause. But the Suspension Clause only

protects claims that would have been cognizable in habeas

at our country’s Founding. Hendrix, 599 U.S. at 482–83

(“This Suspension Clause argument fails because it would

extend the writ of habeas corpus far beyond its scope

when the Constitution was drafted and ratified.” (cleaned

up)). Bell’s claim extends beyond the ambit of late

eighteenth-century habeas because he seeks to challenge

the judgment of a court of competent jurisdiction on its

merits. I would thus find that the Suspension Clause

cannot help him.

The Suspension Clause is often invoked in—yet

rarely relevant to the disposition of—modern-day habeas

cases. This confusion arises because in modern usage,

“habeas” has two meanings: a colloquial sense and

another, distinct, constitutional sense. As explained

above, in colloquial usage, “habeas” often refers to the

various statutory provisions governing postconviction

30a

review today. But when the Constitution speaks of the

“Writ of Habeas Corpus,” it refers to the common-law

tradition this country inherited from England. See

Farkas, 972 F.3d at 553. It is this tradition—not any

subsequent statutory enactments—that “receive[d]

explicit recognition in the Constitution.” Id. (citing Rasul,

542 U.S. at 474) (alteration in original). While today’s

statutory postconviction review regime permits claims

that reach beyond the Founding-era scope of the writ,

that is a policy choice Congress has made—not a

constitutional command.

The only question relevant for Bell’s constitutional

claim, then, is whether he would have had access to habeas

at the Founding. “At the founding, a sentence after

conviction ‘by a court of competent jurisdiction’ was ‘in

itself sufficient cause’ for a prisoner’s continued

detention.” Hendrix, 599 U.S. at 483 (quoting Brown v.

Davenport, 596 U.S. 118, 129 (2022)).1 In other words, “the

black-letter principle of the common law [is] that the writ

was simply not available at all to one convicted of [a] crime

by a court of competent jurisdiction.” Paul M. Bator,

Finality in Criminal Law and Federal Habeas Corpus

for State Prisoners, 76 Harv. L. Rev. 441, 466 (1963). Put

one more way, a prisoner at the Founding had no privilege

vindicable by habeas to be freed from custody imposed as

a criminal sentence unless some jurisdictional defect

afflicted his judgment.

To understand why common-law habeas—and thus

the Suspension Clause—was unconcerned with the merits

See also Dallin H. Oaks, Legal History in the High Court—Habeas

Corpus, 64 Mich. L. Rev. 451, 468 (1966) (“[A] court disposing of a

habeas corpus petition could not go behind the conviction for any

purpose other than to verify the formal jurisdiction of the committing

court.”).

31a

of jurisdictionally sound judgments, it is helpful to

consider what habeas corpus was originally for. Since long

before the Founding, habeas was a remedy for lawless

confinement. See, e.g., Edward Coke, The Second Part of

the Institutes of the Lawes of England 55 (London,

Fischer & Young 1642); 3 William Blackstone,

Commentaries on the Laws of England *137. And lawless

confinement could take many forms, not just

incarceration. For this reason, habeas had many

applications, extending so far as to even provide recourse

to “a wife confined by her husband.” Halliday, supra, at

43–44; see also id. at 35–38 (habeas as remedy for

impressment into military service). Its sweep and

versatility rightly earned it the moniker, “palladium of

Liberty.” Id. at 8.

For all its many uses, one stood out: “Habeas is at its

core a remedy for unlawful executive detention.” Dep’t of

Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 119 (2020)

(quotation omitted). In pre-Founding England, detention

by local executive officers who claimed no authorization

but their titles was a common problem. The writ

developed as a potent weapon against such detention.

Halliday, supra, at 30.2 This “classical function”—warding

off inadequately authorized “detention by the executive or

the military,” see Bator, supra, at 475—endures in

America today as “an important judicial check on the

Reaching this point took centuries and bloodshed. Until the

seventeenth century, habeas was at best an unreliable remedy for

executive detention. See, e.g., Darnel’s Case (The Case of the Five

Knights) (1627) 3 How. St. Tr. 1 (K.B.) (denying writ because

confinement was at King’s command). Only by statute and then war

was this use of habeas fully secured. See Habeas Corpus Act 1640, 16

Car. 1 c. 10 (expanding the writ to reach detentions by the King and

Privy Council); Habeas Corpus Act 1679, 31 Car. 2 c. 2 (entrenching

developments in habeas jurisdiction).

32a

Executive’s discretion in the realm of detentions.” Hamdi

v. Rumsfeld, 542 U.S. 507, 536–38 (2004); see also

Boumediene v. Bush, 553 U.S. 723, 739–45 (2008). Like

preventing impressment and spouses confining one

another, preventing summary executive detention falls

within habeas’s core historical function because it aims at

the same ill: confinement without law.

The problem with using habeas for postconviction

review is that imprisonment as a criminal sentence does

have the authorization of law. That law, of course, is a

court’s judgment. As the Supreme Court held in Ex parte

Watkins and reaffirmed three terms ago in Davenport, “a

judgment of conviction” is “in itself sufficient cause” for

detention. Davenport, 596 U.S. at 129 (quoting Ex parte

Watkins, 28 U.S. 193, 202 (1830)). This concept is a

familiar one. Historically, although a judgment may have

been wrong, it was nevertheless final because of res

judicata: “A judgment, in its nature, concludes the

subject on which it is rendered, and pronounces the law of

the case. The judgment of a court of record whose

jurisdiction is final, is . . . conclusive on all the world.”

Watkins, 28 U.S. at 202–03; see Davenport, 596 U.S. at 129

(relying on Watkins for this point).3 But as with res

judicata generally, there is “an important exception” to

this rule: A judgment was not immune to collateral attack

if the court rendering it lacked jurisdiction. Davenport,

596 U.S. at 130. For habeas purposes, a jurisdictionally

defective “judgment [was] an absolute nullity” and could

thus be set aside. Watkins, 28 U.S. at 203. By contrast,

merits errors “constituted no ground for relief” and

The statutory scope of postconviction relief today no longer maps

cleanly onto the traditional rules of preclusion. But that reflects

Congress’s choice to offer more postconviction process than is

constitutionally required. The Suspension Clause imposes only a

floor, not a ceiling, on what Congress can do.

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accordingly lay outside the concern of the Suspension

Clause. Davenport, 596 U.S. at 129 (cleaned up).

Of course, criminal defendants could still seek errorcorrection on the merits. But that error-correction relied

other procedural vehicles, not habeas. Similar to today,

common-law habeas existed alongside writs of error,

appeals, and certiorari: All of these guarded against

erroneous judgments, but they were used in different

ways. See, e.g., Sir John Baker, An Introduction to

English Legal History 145–48, 156–60 (5th ed. 2019).

“Even in its widest application . . . [habeas] [did] not

enable an appeal on the merits of a decision to imprison.

Its function [was] to question the lawfulness, not the

inherent correctness, of an imprisonment.” Id. at 158.

Early American courts followed this historical distinction.

They required a “writ of error or other direct remedy”—

not habeas, which is a collateral remedy—to reverse the

“judgment of a court of competent jurisdiction.” Ex parte

Toney, 11 Mo. 661, 662 (Mo. 1848) (emphasis added);

Watkins, 28 U.S. at 202–03. As far as habeas was

concerned, a judgment from a court of competent

jurisdiction ended the matter.

So the natural question is: Was Bell sentenced

pursuant to a judgment from a court of competent

jurisdiction? Bell says no. According to Bell, a court lacks

“jurisdiction” when it commits constitutional error, such

as in his case when it (allegedly) imposes a sentence under

an unconstitutional mandatory sentencing guideline. Oral

Arg. at 9:30–11:00. In asserting this view, Bell has

company; the dissent in Hendrix and the dissent in

Davenport argued the same. See Hendrix, 599 U.S. at

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528–29 (Jackson, J., dissenting); Davenport, 596 U.S. at

146–50 (Kagan, J., dissenting).4

To Bell’s credit, the question he raises is not a simple

one. “[T]he line between mere errors and jurisdictional

defects was not always a ‘luminous beacon’ and [has]

evolved over time.” Davenport, 596 U.S. at 129 (quoting

Bator, supra, at 470); see also Danforth v. Minnesota, 552

U.S. 264, 271–72 (2008) (tracking the “expan[sion]” of the

concept of jurisdiction). “Jurisdiction,” after all, “is a word

of many, too many, meanings.” Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 90 (1998) (quotation omitted).

But though the boundary where jurisdictional defect ends

and mere error begins may be blurry, the basic concept of

jurisdiction that prevailed at the Founding is clear:

Jurisdiction is the power to enter judgment in a case. See

Rose v. Himely, 8 U.S. 241, 269 (1808), overruled on other

grounds by Hudson v. Guestier, 10 U.S. 281 (1810); see

also Grignon’s Lessee v. Astor, 43 U.S. 319, 338 (1844);

Fauntleroy v. Lum, 210 U.S. 230, 234–35 (1908); Ryan C.

Williams, Jurisdiction as Power, 89 U. Chi. L. Rev. 1719,

1729–30 (2022); William Baude, The Judgment Power, 96

Geo. L.J. 1807, 1850 (2008).

Still, this basic definition does not foreclose Bell’s

view. One could reasonably believe that, in one sense of

the word “power,” courts lack the power to make

constitutional mistakes (like rely on unconstitutional

statutes or misunderstand the scope of constitutional

rights). If that were so, such merits errors might indeed

be jurisdictional. See Hendrix, 599 U.S. at 529 n.25

(Jackson, J., dissenting) (citing Ex parte Siebold, 100 U.S.

Several academics also disagree with the Supreme Court majority.

See, e.g., Jonathan R. Siegel, Habeas, History, and Hermeneutics, 64

Ariz. L. Rev. 505, 527 (2022).

35a

371, 376–77 (1880)); Davenport, 596 U.S. at 146–49

(Kagan, J., dissenting).

That this conception of power is best supported by

dissents is telling. The majority of the Supreme Court has

ruled out the possibility that merits errors, like the one

Bell cites, deprive a court of its power to act: “[A] habeas

court could ‘examin[e] only the power and authority of the

court to act, not the correctness of its conclusions.’”

Davenport, 596 U.S. at 129 (quotation omitted). Treating

these two concepts as one—even when the merits error is

constitutional—elides Davenport’s careful distinction,

“trivializ[ing] . . . the writ” in a way “inconsistent with the

presumption of finality that traditionally attached to

criminal convictions.” Id. at 130 (quoting Brown v. Allen,

344 U.S. 443, 536, 543 (1953) (Jackson, J., concurring in

the judgment)); see also Hendrix, 599 U.S. at 485–87 &

n.7 (rejecting the argument that merits errors are

jurisdictional and describing Ex parte Siebold as

“seemingly abandoned”).5 It would also contradict

In addition to American cases with a confused sense of jurisdiction,

there are English cases that seemed to allow merits review using

habeas. Many of these can be explained by the fact that writs of

habeas corpus were not always used alone. For instance, something

akin to direct review of convictions could be had in King’s Bench by

writ of certiorari—not to be confused with the Supreme Court’s writ

by the same name, which no longer bears a meaningful connection to

the English writ. See Frank J. Goodnow, The Writ of Certiorari, 6

Pol. Sci. Q. 493, 501–05 (1891). The King’s Bench’s writ of certiorari

was often aided by a ministerial form of habeas corpus necessary to

physically produce the prisoner, whose presence was mandated by

the longstanding norm that someone’s liberty should not be

adjudicated in absentia. See 2 Matthew Hale, Historia Placitorum

Coronæ 401 (London, Nutt & Gosling 1736); see also id. at 211. The

ambit of habeas corpus when combined with the certiorari writ in

England should therefore not be confused with the ambit of habeas

alone, which was much more limited after a court had entered

judgment. See Halliday, supra, at 118–19.

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longstanding precedent. The modern Court has explained

that the boundaries of Davenport’s jurisdictional-defect

rule can be found in the older cases on which it relies. See

Hendrix, 599 U.S. at 483–86 & n.8; Davenport, 596 U.S.

at 128–130 & nn.1–2. And that precedent belies the notion

that a court is powerless to mistake or misapply the law.

So long as a court has the power to enter judgment, errors

do not render that judgment a nullity.

The jurisdictional defect concept is not, however, a

“habeas petitioner always loses” rule; Bell’s problem is

simply that he does not allege a true jurisdictional defect.

Under the precedents the modern Court has stressed,

three jurisdictional conditions are relevant to habeas—

none of which covers constitutional merits errors. See

Davenport, 596 U.S. at 128–30 & nn.1–2. To have

jurisdiction in the sense relevant on habeas, the convicting

court must have “had jurisdiction of the party, and of the

offense for which he was tried, and has not exceeded its

powers in the sentence which it pronounced.” The Ku

Klux Cases, 110 U.S. 651, 653–54 (1884). If those three

conditions were satisfied, the habeas court could “inquire

no further.” Id.

The Supreme Court laid out these conditions in

slightly varying terms across several early American

habeas cases. See, e.g., Ex parte Parks, 93 U.S. 18, 21–23

(1876) (requiring the convicting court to have “jurisdiction

of the person,” “of the offence,” and to have “[done] no act

beyond the powers conferred upon it”); Ex parte Reed,

100 U.S. 13, 23 (1879) (similar); see also William S.

Church, A Treatise of the Writ of Habeas Corpus § 362

(1886) (stating that habeas is unavailable when the

convicting court possesses “jurisdiction of the person, of

the subject-matter, and to render the particular judgment

assailed”). Despite a temporary “shift” toward a broader

conception of habeas relief toward the tail end of the 20th

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century, the Supreme Court has recently confirmed the

correctness of those early American cases. Davenport,

596 U.S. at 128–130 & nn.1–2.

The first required condition—that the court have

jurisdiction over the person—roughly tracks our modern

notion of personal jurisdiction. The idea is that the

convicting court must have been able to exert power over

that specific individual. See, e.g., Ex parte Bigelow, 113

U.S. 328, 329–30 (1885) (confirming that the convicting

court “had jurisdiction of the prisoner, who was properly

brought before the court”). The historical baseline for this

jurisdiction was territorial: “Where a party is within a

territory, he may justly be subjected to its process, and

bound personally by the judgment pronounced.” Picquet

v. Swan, 19 F. Cas. 609, 612 (C.C. D. Mass. 1828) (Story,

Cir. J.). For this reason, a sovereign generally had the

power to criminalize and punish conduct occurring within

its borders. See Joseph Story, Commentaries on the

Conflict of Laws § 539 (6th ed. 1865); see also Emma

Kaufman, Territoriality in American Criminal Law, 121

Mich. L. Rev. 353, 361–65 (2022). But this rule of thumb

was neither exclusive nor exhaustive. As Story also

acknowledged, “nations generally assert a claim to

regulate the . . . acts of their own citizens, wherever they

may be domiciled.” Story, supra, § 540; see also Kaufman,

supra, at 375–96. And although a sovereign might lay

claim to the persons within its territory, seldom will a

single court have jurisdiction over every person within its

territory—take, for instance, a court-martial without

jurisdiction over civilians. See, e.g., Wise v. Withers, 7 U.S.

331, 337 (1830); Reid v. Covert, 354 U.S. 1, 19–21 (1957);

see also Robert Leider, Retiring Military Jurisdiction

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over Military Retirees, 68 Vill. L. Rev. 751, 777 (2023).6

While questions of this sort may present hard cases, Bell

has given me no reason to believe his convicting court

lacked jurisdiction over him.

The second required condition—that the court have

jurisdiction over the offense—roughly tracks our modern

notion of subject matter jurisdiction. Though the

convicting court may have power over someone generally,

it can convict for a crime “only when the offense charged

is within the class of offenses placed by the law under its

jurisdiction.” Bowen v. Johnston, 306 U.S. 19, 24 (1939);

see also Ex parte Bigelow, 113 U.S. at 329–30 (similar).

When a sovereign allocates jurisdiction among its courts,

it need not give every court power over all offenses, just

as it need not give every court power over every person.

Some courts may adjudicate only petty offenses. See, e.g.,

Callan v. Wilson, 127 U.S. 540, 556 (1888) (vacating felony

conviction by D.C. police court because, among other

reasons, its jurisdiction, “as defined by existing statutes,

does not extend to the trial of infamous crimes or offenses

punishable by imprisonment in the penitentiary”); Miller

v. Snyder, 6 Ind. 1, 3 (1854) (similar). Others lack criminal

jurisdiction altogether. See, e.g., Wedmore v. Indiana, 122

N.E.2d 1, 2–3 (Ind. 1954) (probate court conviction for

assault and battery).7 While questions of this sort may

Questions of personal jurisdiction were more acutely relevant in

English practice. In the centuries leading up to the Founding,

England had many courts with extremely limited personal

jurisdiction. When they acted beyond that jurisdiction, their

judgments were deemed “coram non judice.” The Marshalsea, 77

Eng. Rep. at 1038.

In England, this principle was of surpassing importance given its

complex, multilayered system of courts. See, e.g., Sir John Baker,

Sources of English Legal History: Public Law to 1750 at 332 (2024)

(habeas to ecclesiastical courts); id. at 339 (habeas to administrative

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present hard cases, Bell’s federal crime plainly fell within

his convicting court’s subject matter jurisdiction.

As some of these examples suggest, jurisdiction over

person or offense might fail not because proceedings

happen in the wrong court but because the wrong

sovereign tries to handle the case. In those cases, it’s hard

to cut a clear distinction between personal and subject

matter jurisdiction because both are subsumed within this

fundamental problem. Take the example of crimes

committed within a national park. See Bowen, 306 U.S. at

28–30 (exclusive federal-court jurisdiction even though

the park lies within a state). Or crimes committed by

members of some Indian tribes. See Ex parte Mayfield,

141 U.S. 107, 115–16 (1891) (exclusive tribal-court

jurisdiction under treaty). And usually the federal courts

lack power to adjudicate state common-law offenses. See

Ex parte Coy, 127 U.S. 731, 757–58 (1888).8 Likewise, the

federal courts have exclusive jurisdiction over “crime[s]

against the laws of the United States only.” Ex parte

Bridges, 4 F. Cas. 98, 105 (C.C. N.D. Ga. 1875) (Bradley,

Cir., J.).9 In cases like these, habeas would presumably be

bodies); William F. Duker, The English Origins of the Writ of Habeas

Corpus: A Peculiar Path to Fame, 53 N.Y.U. L. Rev. 983, 1023–25

(1978) (habeas to courts of admiralty).

This is not to suggest, however, that criminal jurisdiction over the

same conduct is always exclusive. See, e.g., Heath v. Alabama, 474

U.S. 82, 88 (1985) (“When a defendant in a single act violates the peace

and dignity of two sovereigns by breaking the laws of each, he has

committed two distinct offences . . . for each of which he is justly

punishable.” (quotations omitted)).

Justice Bradley went on to explain that it would be a “manifest

incongruity for one sovereignty to punish a person for an offense

committed against the laws of another sovereignty.” Id. And in

Bridges, there could be no doubt how the principle applied, because

Congress had expressly given jurisdiction to the federal courts,

40a

available for a prisoner convicted by a court belonging to

the wrong sovereign. But again, Bell alleges no such

defects, and none are apparent.

Most of the time, when a court has jurisdiction of the

person and of the offense, its judgment will be

jurisdictionally sound. But the third condition requires

that a court have jurisdiction to impose the punishment it

doles out. The Ku Klux Cases, 110 U.S. at 653–54. Errors

in assessing those punishments are generally merits

errors, not jurisdictional ones. See In re Eckart, 166 U.S.

481, 482–83 (1897) (“explaining that “an error” in

determining what “punishment” is “authoriz[ed]” for “the

offense charged . . . does not present a jurisdictional

defect”); see also Davenport, 596 U.S. at 129 n.1. But some

such errors, we have been told, may be jurisdictional. See

In re Mills, 135 U.S. 263, 270 (1890) (finding a sentence

contrary to clear statutory command beyond the

jurisdiction of the court); Ex parte Snow, 120 U.S. 274, 285

(1887) (granting habeas when the trial court sentenced a

man for three crimes although the indictment charged

only one); Ex parte Lange, 85 U.S. 163, 176 (1874)

(granting habeas where the court had already meted out

a sentence following conviction and then purported to

impose a second one).10 Weaving these cases, and others,

“exclusive of the state courts, of all crimes and offenses cognizable

under its authority.” Id.

The Supreme Court has repeatedly taken care to distinguish the

theory animating Snow and Lange cases from one that would

authorize factual or legal innocence claims on habeas. See Hendrix,

599 U.S. at 485 n.7 (“[I]f a court has jurisdiction of the case the writ

(Continued)

of habeas corpus cannot be employed to re-try the issues, whether of

law, constitutional or otherwise, or of fact.” (alteration and emphasis

original) (quoting Glasglow v. Moyer, 225 U.S. 420, 429 (1912)). What

is important in Snow and Lange is that the defendant was not in fact

41a

together is a difficult task. But I see no need to thread the

needle in this case, as Bell has not alleged anything

resembling a claim that the court lacked jurisdiction to

impose his 274-month sentence. So I would leave these

problems for another day, comfortable with the

conclusion that Bell’s judgment was jurisdictionally

sound.

True jurisdictional defects like these, however, are

thankfully rare. Mostly, courts act within their

jurisdiction. Here, Bell’s allegations amount to an

ordinary merits error, not a jurisdictional defect. See Oral

Arg. at 9:30–11:00. And for that reason I would find the

Suspension Clause is irrelevant to his claim. See Hendrix,

599 U.S. at 482–87.

My good friends take a different approach, urging

that Hendrix is irrelevant to Bell’s Suspension Clause

claim. On their view, uncertainty about Hendrix’s holding

suggests we can just apply our pre-Hendrix decision In

re Vial, which held that § 2255(h) categorically does not

violate the Suspension Clause. 115 F.3d 1192 (4th Cir.

1997) (en banc). I disagree. First, while Hendrix presents

hard questions, whether the protections afforded by the

Suspension Clause are tied to the scope of habeas at the

Founding is not one of them. Second, In re Vial’s

categorical holding does not permit ignoring Hendrix’s

Suspension Clause analysis, as In re Vial’s reasoning is

incompatible with Hendrix.

As the Court acknowledges in Part II(C), the opinion

in Hendrix “facially” supports the proposition that “the

convicted—not whether the conviction turned on accurate facts or

whether those facts met the offense’s elements or even whether the

offense satisfied constitutional rules. Though the distinction is subtle,

the Court continues to insist that it is important. See, e.g., Davenport,

596 U.S. at 129 & n.1; see also Hendrix, 599 U.S. at 485–86 & n.8.

42a

Suspension Clause is confined to claims cognizable in

habeas at the Founding.” Ante, at 25; see Hendrix, 599

U.S. at 483 (relying on the scope of the writ at the

Founding to announce the court-of-competentjurisdiction rule); id. at 487 (making clear that the

“Suspension Clause does not constitutionalize” postFounding developments). I do not, contrary to the Court,

think that an inferior court may disregard what Hendrix

says based on a belief that the Supreme Court failed to

adequately justify its holding. Ante, at 25–27. Nor do I

think that the characterizations of the Hendrix majority

given by Hendrix’s dissenting voices change the

majority’s holding. Id. at 27–28.

This Suspension Clause holding in Hendrix is

inconsistent with our Court’s reasoning in In re Vial, so

that prior decision can no longer be applied. See Rose, 80

F.4th at 504. In re Vial held that § 2255(h)’s second or

successive bar for federal detainees does not violate the

Suspension Clause because § 2254’s second or successive

bar (located in § 2244(b)) for state detainees does not

violate the Suspension Clause. 115 F.3d at 1197–98. But

that reasoning cannot be squared with Hendrix itself. At

the Founding, federal habeas did not extend to state

detainees—this only changed upon the passage of the

Habeas Corpus Act of 1867. Consequently, the

constitutionality of § 2254 cannot bear on the

constitutionality of § 2255(h) after Hendrix.

On my view we ought to give Bell the benefit of

modern caselaw, and since In re Vial habeas

jurisprudence has gone through a sea change. Bell alleges

that his court lacked competent jurisdiction, and Hendrix

tells us that a prisoner in executive detention, or a

prisoner convicted by a court which lacked competent

jurisdiction, might have Suspension Clause protection

even if he has filed successive petitions. That’s because his

43a

judgment is a nullity, and a claim of that sort was

cognizable in habeas at the Founding. See Ex parte

Watkins, 28 U.S. at 203. In other words, if Bell is right

that his convicting court had a true jurisdictional defect,

he would have a claim under Hendrix that § 2255(h)

cannot constitutionally be applied against him. In re Vial

would improperly preclude any such challenge under

Hendrix’s framework. So it cannot stand. Rather than

applying In re Vial—which did not apply anything

resembling the test Hendrix required for Suspension

Clause inquiries—I think Bell is entitled to the benefit of

the Supreme Court’s current law, even if his effort here

fails.

APPENDIX B

[FILED: FEBRUARY 3, 2022]

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

JASON TYWANN

BELL,

Petitioner,

J.C. STREEVAL,

Respondent.

Civil Action No.

7:21-cv-00094

By: Elizabeth K. Dillon

United States District

Judge

MEMORANDUM OPINION

Pending before the court is a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2241 filed by

Petitioner Jason Tywann Bell. In his petition, Bell argues

that, after Johnson v. United States, 576 U.S. 591 (2015),

one of the two convictions used to sentence him as a career

offender under then-mandatory U.S. Sentencing

Guideline § 4B1.1 would no longer qualify as a crime of

violence.1 Thus, his argument continues, he should not

have been sentenced as a career offender. Bell argues

“The Guidelines were initially binding on district courts,” but in

United States v. Booker, 543 U.S. 220 (2005), the Supreme Court

“rendered them ‘effectively advisory.’” Beckles v. United States, 137

S. Ct. 886, 894 (2017) (quoting Booker, 543 U.S. at 245). The court

refers in this opinion to the pre-Booker sentencing guidelines, under

which Bell was sentenced, as the “mandatory” guidelines.

(44a)

45a

that, without the career offender enhancement, his

guidelines range would have been significantly lower and

he should have been released from custody already.

This § 2241 petition was filed on November 27, 2018,

in the District of South Carolina, where Bell was

incarcerated at the time. After more than two years of

proceedings in that court, including two separate stays

pending decisions from higher courts, that court learned

that Bell had been transferred to USP Lee, which is

located within the Western District of Virginia. Although

the petition was fully briefed, the District of South

Carolina transferred the petition here on February 16,

2021.2

After transfer here, the court ordered the respondent

to file a new response and appointed the Federal Public

Defender to represent Bell. Respondent filed a motion to

dismiss, and Bell’s attorney filed a response after being

directed to do so by the court. The motion to dismiss is

now fully briefed and ripe for disposition.

Bell pursued a number of post-conviction challenges

before this one, and the court will recite that procedural

As previously noted by this court (Dkt. No. 87 at 1 n.2) and as both

parties appear to agree (see Dkt. No. 96 at 1 n.2; Dkt. No. 100 at 2

n.1), transfer to this court was not necessary, as the South Carolina

court retained jurisdiction over the petition. Regardless, this court

has jurisdiction over Bell’s current custodian, and sees no reason to

engage in “jurisdictional ping-pong” or to further prolong resolution

of Bell’s petition. See Wilkerson v. Warden Williamsburg Fed. Corr.

Inst., No. 1:18CV211, 2020 WL 760397, at *2 (N.D. W. Va. Feb. 14,

2020), aff’d, 830 F. App’x 108 (4th Cir. 2020) (exercising jurisdiction

in similar circumstance despite the transferor court’s “likely error,”

because the “transfer order was not so ‘clearly erroneous’ under

existing case law as to work a manifest injustice” in the case and

because the court sought to avoid any further delay after the

“jurisdictional ping-pong that has already occurred”) (internal

citation omitted).

46a

history in order to ensure that an accurate picture is

presented of the timing of his challenges. That history is

set forth at length in Respondent’s most recent motion to

dismiss (Dkt. No. 96), and Bell does not dispute it in his

response. (See generally Dkt. No. 100.) Much of that

history, though, is not crucial to the court’s ultimate

resolution of Bell’s petition, which the court decides on a

narrow basis. Specifically, the court agrees with

respondent that Bell cannot meet the second prong of the

test set forth in United States v. Wheeler, 886 F.3d 415

(4th Cir. 2018), and thus this court lacks jurisdiction to

consider his § 2241 petition. For this reason, discussed in

more detail herein, the court will grant respondent’s

motion to dismiss and dismiss Bell’s petition without

prejudice for lack of jurisdiction.

BACKGROUND

A. Bell’s Conviction and Sentencing

In April 2003, Bell was named in several counts of a

superseding indictment in the Middle District of North

Carolina, and he eventually pled guilty to two: (1)

attempted bank robbery in violation of 18 U.S.C. §§

2113(a) and 2 (Count Two); and (2) carrying and using a

firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c) (Count Four). United States

v. Bell, No. 1:03CR00046-1 (M.D.N.C.) (hereinafter

“Bell”), ECF No. 38.

At the time of Bell’s sentencing, the U.S. Sentencing

Guidelines were mandatory. See supra note 1. The

sentencing court determined that Bell was a career

offender under U.S.S.G. § 4B1.1 based on two prior

convictions: a South Carolina conviction for felony armed

robbery and a North Carolina conviction for conspiracy to

commit robbery with a dangerous weapon. Bell, ECF No.

116 (Presentence Investigation Report (PSR) ¶¶ 36, 38,

47a

docketed in this case at Dkt. No. 34-1).) Bell’s criminal

history category was a VI, both because of his criminal

history points and because of his career offender status.

(PSR ¶¶ 42–43.) His mandatory guideline range was 262

to 327 months, including the 84-month mandatory

consecutive sentence for his firearm offense. (PSR ¶ 62.)

The sentencing court imposed a sentence of 190 months

on Count Two and 84 months on Count Four, to run

consecutively, for a total sentence of 274 months’

imprisonment. Bell, ECF No. 71. Bell also was sentenced

to 5 years’ supervised release and a $200 special

assessment. Id. Judgment was entered on October 1,

2003, id., and Bell did not appeal.

B. Bell’s First 28 U.S.C. § 2255 Motion

Bell filed his first 28 U.S.C. § 2255 motion in

September 2004, in the Middle District of North Carolina,

raising an alleged sentencing error pursuant to Blakely v.

Washington, 542 U.S. 296 (2004). The magistrate judge

recommended that the motion be denied. On April 1, 2005,

the district judge adopted the recommendation, dismissed

the motion with prejudice, and denied a certificate of

appealability. Bell, ECF No. 90. Again, Bell did not

appeal.

C. Bell’s Letter Motion Raising Johnson Claim

Johnson was decided on June 26, 2015. About two

months later, on August 28, 2015, Bell filed a letter motion

with the Middle District of North Carolina seeking relief

under Johnson. Bell, ECF No. 105. Bell claimed in that

motion, as he does now, that his prior North Carolina

conviction for conspiracy to commit robbery with a

dangerous weapon was no longer a crime of violence

under Johnson and that he was no longer a career

offender. Id. The court advised that it would treat the

letter as a § 2255 motion, but the court dismissed the

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motion because it was not on the proper forms, without

prejudice to Bell refiling on proper forms. Bell, ECF No.

110.

D. Bell’s First § 2241 Petition Is Dismissed as a

Second or Successive 28 U.S.C. § 2255 Motion

Instead of refiling a § 2255 motion using the proper

forms as directed, Bell filed his first § 2241 petition.3

Adopting the magistrate judge’s recommendation, to

which Bell did not object, the sentencing court dismissed

the motion as a successive § 2255 motion on February 1,

2016. Bell v. Matevousian, No. 1:15-cv-01079, ECF No. 4

(adopting report and recommendation of magistrate

judge, ECF No. 2). Once more, Bell did not appeal.

E. Bell’s 2016 Authorized Successive § 2255 Motion

On May 31, 2016, Bell requested authorization from

the Fourth Circuit to file a § 2255 motion raising a

Johnson claim, and the Fourth Circuit gave him such

authorization on June 23, 2016. Bell, ECF No. 113. Bell’s

§ 2255 motion was filed in the sentencing court the same

day. Bell, ECF No. 114. He argued there, as he does here,

that under Johnson, his prior North Carolina conviction

for conspiracy to commit robbery with a dangerous

weapon was no longer a crime of violence, and he was

improperly sentenced as a career offender. Bell, ECF No.

114. The government was ordered to respond, but the case

was twice held in abeyance, pending decisions in Beckles

v. United States, 137 S. Ct. 886 (2017), and United States

v. Brown, 868 F.3d 285, 297 (4th Cir. 2017). The holdings

“Bell captioned the document as being filed in the United States

Eastern District of California, where Petitioner is housed, but he

apparently submitted it to the United States Court of Appeals for the

Ninth Circuit Court, which mailed it to” the Middle District of North

Carolina. Bell v. Matevousian, No. 1:15CV01079 (M.D.N.C. Jan. 4,

2016 Rec. & Order), ECF No. 2.

49a

in Beckles and Brown will be discussed in the context of

addressing Bell’s claims. See supra Section II-B. But the

Fourth Circuit’s decision in Brown effectively dictated the

outcome in Bell’s § 2255 motion. After the Supreme Court

denied certiorari in Brown in October 2018, the district

court dismissed Bell’s motion as untimely on April 15,

2019. Bell, ECF No. 126. Bell did not appeal. Instead, he

continued to pursue relief through the instant § 2241

petition, which was filed in November 2018, while his 2016

§ 2255 motion was still pending.

F. Bell’s 2021 Authorized Successive § 2255 Motion

Bell has since received authorization from the Fourth

Circuit—in June 2021—to file another § 2255 motion, this

time based on United States v. Davis, 139 S. Ct. 2319

(2019).4 Bell, ECF No. 129. His latest § 2255 motion

remains pending before the sentencing court. Bell, ECF

Nos. 130–134.

In one of the filings in the instant case, Bell’s South Carolina counsel

noted that Bell may have a separate claim for relief based upon

United States v. Davis, __ U.S. __, 139 S. Ct. 2319 (2019), and United

States v. Taylor, 979 F.3d 203 (4th Cir. 2020), cert. granted, 141 S. Ct.

2882 (2021), in which he could challenge the validity of his § 924(c)

conviction in Count Four. (Dkt. No. 78 at 2.) But counsel stated that

“counsel does not . . . represent Bell on this issue as it is not

specifically related to the issues presented in this § 2241 petition.”

(Dkt. No. 78 at 2.) Similarly, appointed counsel in this court did not

raise any issue based on either Davis or Taylor. Accordingly, the

applicability of those cases to Bell’s § 924(c) conviction is not before

this court.

50a

II.

DISCUSSION

A. The Availability of 28 U.S.C. § 2241 To Challenge

A Sentence

Ordinarily, a motion pursuant to § 2255, not § 2241, is

the appropriate vehicle for challenging a conviction or

sentence. However, the “savings clause” in § 2255 allows

a prisoner to challenge the validity of his conviction and/or

his sentence by filing a § 2241 petition for writ of habeas

corpus, if he demonstrates that § 2255 is “inadequate or

ineffective to test the legality of his detention.” 28 U.S.C.

§ 2255(e).5

Under United States v. Wheeler, 886 F.3d 415 (4th

Cir. 2018), a petitioner may proceed under § 2241 to

challenge the legality of his sentence only if he satisfies all

of the following four conditions:

1. At the time of sentencing, settled law of this

circuit or the Supreme Court established the

legality of the sentence;

2. Subsequent to the prisoner’s direct appeal and

first § 2255 motion, the aforementioned settled

substantive law changed and was deemed to

apply retroactively on collateral review;

3. The prisoner is unable to meet the

gatekeeping provisions of § 2255(h)(2) for

second or successive motions; and

4. Due to this retroactive change, the sentence

now presents an error sufficiently grave to be

deemed a fundamental defect.

This provision “is commonly referred to as the ‘savings clause’ as it

arguably saves § 2255 from unconstitutionally suspending habeas

corpus.” Lester v. Flournoy, 909 F.3d 708, 711 (4th Cir. 2018).

51a

Wheeler, 886 F.3d at 429; see also Lester v. Flournoy, 909

F.3d 708, 712 (4th Cir. 2018). The Wheeler court also

affirmed that the requirements of the savings clause are

jurisdictional. Thus, a § 2241 petitioner relying on the

savings clause to challenge his sentence must meet the

Wheeler test for the district court to have subject-matter

jurisdiction to evaluate the merits of the petitioner’s

claims. Wheeler, 886 F.3d at 423–26. Respondent concedes

that Bell has adequately satisfied the first Wheeler prong,

but contends that he cannot satisfy the second and third

prongs.

B. Bell’s Claim

Bell raises here the same argument that he did in

several of his other post-conviction challenges, including

his authorized 2016 § 2255 motion, which was denied as

untimely. He asserts that changes in the law subsequent

to his sentencing (and specifically the Supreme Court’s

decision in Johnson) mean that he no longer qualifies as a

career offender under U.S.S.G. § 4B1.1(a). As it existed

when Bell was sentenced, that provision stated:

A defendant is a career offender if (1) the

defendant was at least eighteen years old at the

time the defendant committed the instant offense

of conviction; (2) the instant offense of conviction

is a felony that is either a crime of violence or a

controlled substance offense; and (3) the

defendant has at least two prior felony

convictions of either a crime of violence or a

controlled substance offense.

U.S.S.G. § 4B1.1(a). Bell claims that subsection (3) is no

longer satisfied because his prior North Carolina

conviction for conspiracy to commit robbery with a

dangerous weapon is no longer a crime of violence.

52a

When Bell was sentenced, U.S.S.G. § 4B1.2(a) defined

a crime of violence as:

any offense under federal or state law,

punishable by imprisonment for a term

exceeding one year, that –

(1) has as an element the use, attempted use, or

threatened use of physical force against the

person of another, or

(2) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of

physical injury to another.

U.S.S.G. § 4B1.2(a). Additionally, in the commentary to

that provision, application note 1 stated that the term

“crime of violence” includes a number of specific offenses,

listing murder, manslaughter, kidnapping, aggravated

assault, and robbery, among others, although it did not

include conspiracy. In both U.S.S.G. § 4B1.2(a) as it

existed then, and the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), which has a similar

provision, the language of subsection (1) is known as the

“elements clause” or “force clause.” The first half of

subsection (2) is called the enumerated clause because it

enumerates generic crimes, and the second half of

subsection (2)—“or otherwise involves conduct that

presents a serious potential risk of physical injury to

another”—is often referred to as the “residual clause.”

Johnson v. United States, 576 U.S. 591 (2015), struck

down the similar residual clause of the ACCA as

unconstitutionally vague. Bell’s argument is that, without

the residual clause, his prior conviction for conspiracy to

commit robbery with a dangerous weapon is no longer a

crime of violence under § 4B1.2. This is so because,

53a

according to Bell, his prior North Carolina conspiracy

conviction does not qualify as a crime of violence under

the enumerated clause or force clause, either. To support

his argument as to the force clause, Bell points to Fourth

Circuit’s decision in United States v. McCollum, 885 F.3d

300 (4th Cir. 2018), which held that in order to determine

whether a conspiracy offense is a crime of violence under

the force clause, a court must review not only of the

elements of the substantive offense, but also the elements

of the conspiracy offense. In McCollum, because the

federal crime of conspiracy at issue (conspiracy to commit

murder in aid of racketeering) did not require an overt act

(like generic conspiracy does), it was not categorically a

crime of violence and could not satisfy the force clause.

885 F.3d at 309. Bell notes that, like federal conspiracy, a

conspiracy offense under North Carolina law does not

require an overt act. See States v. Oliphant, 747 S.E.2d

117, 125 (N.C. Ct. App. 2013) (“[N]o overt act is necessary

to complete the crime of conspiracy.”). (See Dkt. No. 78 at

4.)

Respondent offers no argument in response to Bell’s

contention that his North Carolina conspiracy conviction

would not qualify as a crime of violence under the force

clause. (See generally Dkt. No. 82.) Thus, the parties

appear to agree on this point, and there is other authority

that supports Bell’s argument. For example, in United

States v. White, 571 F.3d 365, 368 (4th Cir. 2009),

abrogated on other grounds by Johnson, 576 U.S. 591

(2015), a pre-Johnson case, the Fourth Circuit held that

the precise offense challenged here by Bell—North

Carolina conspiracy to commit robbery with a dangerous

weapon—did not satisfy the force clause of the ACCA.

Subsequent to Johnson other cases have reached the

same conclusion as to similar offenses. See, e.g., United

States v. Simms, 914 F.3d 229, 233–34 (4th Cir. 2019)

54a

(holding that conspiracy to commit Hobbs Act robbery is

not a crime of violence under the force clause); United

States v. Cooper, 410 F. Supp. 3d 769, 772 (S.D. W. Va.

2019) (concluding that conspiracy to commit robbery

under West Virginia law, which does not require an overt

act, is not a crime of violence under the guidelines). See

also United States v. Taylor, 979 F.2d 203, 205 (4th Cir.

2020) (noting that “[t]he parties agree that conspiracy to

commit Hobbs Act robbery” is not a crime of violence

under the ACCA’s force clause).

Because Bell’s prior conspiracy conviction does not

satisfy the force clause, it is a proper predicate under the

mandatory career offender only if it constitutes a crime of

violence under the residual clause of U.S.S.G. § 4B1.2. If

the residual clause of the mandatory guideline is

unconstitutionally vague, then Bell’s conspiracy

conviction was not a proper predicate, and Bell was not a

career offender. If, however, the residual clause of the

mandatory guideline remains valid, then Bell has not

shown that settled law has changed under the second

Wheeler prong.

As noted, the Johnson decision struck down the

ACCA’s residual clause as unconstitutionally vague. It did

not address the guidelines at all. In Beckles, 137 S. Ct. 886

(2017), the Court concluded that Johnson’s reasoning did

not extend or in any way invalidate the career offender

guideline, at least as to defendants who were sentenced

under the advisory Guidelines. Beckles, 137 S. Ct. at 895.

The Beckles Court did not address whether Johnson’s

reasoning could apply to the mandatory Guidelines. Id. at

896 (“We hold only that the advisory Sentencing

Guidelines, including § 4B1.2(a)’s residual clause, are not

subject to a challenge under the void-for-vagueness

doctrine.”). Beckles, therefore, did not change any settled

55a

law applicable to Bell, as required to satisfy Wheeler’s

second requirement.

The Fourth Circuit’s decision in United States v.

Brown, 868 F.3d 297 (4th Cir. 2017), cert. denied, 139 S.

Ct. 14 (2018), did not extend the reasoning of Johnson to

the mandatory guidelines, either. Brown discussed a

Johnson claim challenging the mandatory career offender

guideline in the context of determining whether a 28

U.S.C. § 2255 motion was timely under § 2255(f)(3). That

provision allows a § 2255 motion to be filed within a year

of “the date on which the right asserted was initially

recognized by the Supreme Court.” Brown, 868 F.3d at

301. The Brown Court explained that by leaving the

question open (as the Supreme Court did in Beckles), the

Supreme Court had not yet recognized the “right” that a

vagueness challenge applies to the mandatory guidelines.

Brown, 868 F.3d at 302. Because the Supreme Court had

not itself extended Johnson to the career offender

guideline, even for defendants sentenced while the

Guidelines were mandatory, the Brown Court concluded

that Johnson did not start anew the one-year limitations

period under § 2255(f)(3). See also United States v.

Rumph, 824 F. App’x 165 (4th Cir. 2020) (affirming

dismissal of § 2255 motion as untimely where movant was

sentenced under the mandatory career offender guideline

and relied on Johnson because movant had not asserted a

right “newly recognized by the Supreme Court” and thus

could not proceed under § 2255(f)(3)). Because § 2253(f)(3)

did not render his § 2255 motion timely, Brown’s motion,

filed more than a year after his conviction became final,

was time-barred. 868 F.3d at 302–03.

The Brown Court acknowledged that, if it were

considering the same claim on direct appeal, the court

“might have had the inferential license necessary to credit

[his] interpretations of the negative implications found in

56a

Booker, Johnson, and Beckles.” Id. at 304. But in the

context of § 2253(f)(3), “only the Supreme Court can

recognize the right” that could render the petitioner’s

motion timely. Id. at 304. And the court reasoned that it

was “constrained from reading between the lines of

Booker, Johnson, and Beckles to create a right that the

Supreme Court has yet to recognize.” Id.6

Bell argues that the procedural vehicle here is

different than in Brown and that this court can—and

should—conclude that the reasoning of Johnson (in

conjunction with Booker and Beckles) applies with equal

force to invalidate the residual clause of the mandatory

career offender guideline. The primary problem with

Bell’s argument is that, although some circuits have

extended Johnson to invalidate the residual clause in the

mandatory career offender guideline, the Fourth Circuit

has not. Nor has the Supreme Court. Neither Johnson

nor Beckles changed settled law applicable to Bell because

neither held that the residual clause of the mandatory

career offender guideline was unconstitutional or invalid.

And in Brown, which occurred in a different procedural

context, the Fourth Circuit refused to extrapolate from

Booker, Johnson, and Beckles to conclude that the

residual clause of the mandatory career offender

guideline was unconstitutional because of vagueness.

When the Supreme Court denied certiorari in Brown, Justice

Sotomayor, joined by Justice Ginsburg, dissented from the denial.

Brown v. United States, 139 S. Ct. 14 (2018) (Sotomayor, J.,

dissenting from denial of certiorari). In doing so, the dissent

recognized that there was a circuit split on the issue of whether the

residual clause of the mandatory guidelines was invalid under

Johnson, noted that “the Court has thus far left the validity” of

sentences like Brown’s “an open question,” and further stated that

the case “presents an important question of federal law that has

divided the courts of appeals and in theory could determine the

liberty of over 1,000 people.” Id. at 15–16.

57a

Accordingly, none of those decisions, including Johnson,

changed the settled law of the Supreme Court or of the

Fourth Circuit as it relates to Bell’s sentencing under the

mandatory career offender guideline.

Bell’s suggestion that this court can itself determine

that a change exists (or should exist) is contrary to Fourth

Circuit law. As the Fourth Circuit recently explained, the

“settled substantive law that must have changed is the

“settled law of this circuit or the Supreme Court.” Young

v. Antonelli, 982 F.3d 914, 918 (4th Cir. 2020). The Young

court expressly cautioned that “[i]f neither the Supreme

Court nor this Court had [changed the law], the district

court could not make the change on its own.” Id.

Young’s proclamation is consistent with cases

granting relief under Wheeler, in which the courts relied

on either a Supreme Court or a court of appeals decision

to identify the changed substantive law. See, e.g., Wheeler,

886 F.3d at 429–30 (identifying Fourth Circuit decision

that changed the law); Young, 982 F.3d at 918 (pointing to

Supreme Court decision, which the Young Court then

relied upon to change the law, in the appeal of the § 2241

itself); Lester, 909 F.3d at 712 (explaining that Fourth

Circuit, in reliance on a Supreme Court decision, had

issued a published decision changing the law and thus the

second Wheeler prong was satisfied).7 Like it did in

Bell correctly notes that in Lester, the Fourth Circuit found that a §

2241 petitioner could challenge, pursuant to Wheeler, his sentence

under the then-mandatory career offender guideline when

subsequent law later showed that his predicate convictions were no

longer convictions for purposes of the career offender guideline. But

in Lester, the claim was not based on Johnson. Instead, the petitioner

was relying on Chambers v. United States, 555 U.S. 122, 127–28

(2009), which held that the generic crime of failing to report to a

prison was not a crime of violence, and a later Fourth Circuit case

58a

Young, the Fourth Circuit could itself change the law in

addressing an appeal from this court’s ruling, and it could

elect to extend Johnson to the mandatory career offender

guideline. But see Ham v. Breckon, 994 F.3d 682, 695 n.9

(4th Cir. 2021) (characterizing Young’s decision to create

the change in substantive circuit law as part of its Wheeler

analysis a “drastic step” that “should be used sparingly

. . . and only when a change in Supreme Court precedent

necessarily dictates a change in our circuit law”), petition

for cert. filed, No. 21-763, 2021 WL 5506428 (U.S. Nov. 23,

2021). But it is the court of appeals or the Supreme Court

that can change the “settled circuit law,” not this one. See

Young, 982 F.3d at 918.

In sum, neither the Supreme Court nor the Fourth

Circuit has held that the residual clause of the mandatory

career offender guidelines is unconstitutional. Because

there has not been a change in settled circuit law, Bell

cannot satisfy the second Wheeler requirement. Accord

Lyles v. Warden, FCI Bennettsville, Case No. 1:19-cv00207, 2021 WL 6426622, at *4 (Dec. 14, 2021) (Report and

Recommendation) (concluding that § 2241 petitioner

holding that the escape offense used as a predicate for Lester’s career

offender enhancement was not a crime of violence. Based on these

decisions (and with the respondent’s concession), the Fourth Circuit

found that the second Wheeler requirement was satisfied. The

primary issue in Wheeler was whether the petitioner’s

misclassification as a career offender was a “fundamental defect”

under the fourth Wheeler prong, and the Fourth Circuit concluded

that it was. Similarly, the fact that Bell was subject to a longer

mandatory guideline range than he would be if Johnson were applied

to the mandatory guideline, might satisfy the fourth Wheeler

requirement. But satisfying one or two of Wheeler’s requirements is

insufficient to bestow jurisdiction on this court; if any one is missing,

then jurisdiction is lacking. Braswell v. Smith, 952 F.3d 441, 447 (4th

Cir. 2020) (“[W]e independently examine whether all four prongs of

the Wheeler test are met.”).

59a

sentenced under the mandatory guidelines could not

satisfy the second Wheeler prong because his “argument

based upon Johnson is foreclosed by the decisions in

Beckles and Brown”); Smith v. Breckon, No.

7:19CV00016, 2020 WL 1236313, at *6 (W.D. Va. Mar. 13,

2020) (holding petitioner, who raised a Johnson claim

similar to Bell’s, failed to establish the second Wheeler

prong), aff’d sub nom. Smith v. Brecken, 818 F. App’x 245

(4th Cir. 2020), cert. denied, 141 S. Ct. 1257 (2021).

Because Bell cannot satisfy the second Wheeler

requirement,8 he fails to meet the Wheeler test to show

that § 2255 is inadequate and ineffective to test the

legality of his sentence. Accordingly, this court lacks

jurisdiction over his § 2241 petition.

III.

CONCLUSION

For the reasons stated herein, Bell cannot proceed

under § 2241 and his petition will be dismissed for lack of

jurisdiction. An appropriate order will be entered.

Entered: February 3, 2022.

Elizabeth K. Dillon

United States District Judge

In light of its ruling, the court need not address either the

retroactivity of any changed law or any of the remaining Wheeler

prongs.

APPENDIX C

[FILED: FEBRUARY 3, 2022]

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

JASON TYWANN

BELL,

Petitioner,

J.C. STREEVAL,

Respondent.

Civil Action No.

7:21-cv-00094

By: Elizabeth K. Dillon

United States District

Judge

FINAL ORDER

In accordance with the accompanying memorandum

opinion, it is hereby ORDERED that Bell’s petition for a

writ of habeas corpus, pursuant to 28 U.S.C. § 2241, is

DISMISSED WITHOUT PREJUDICE for lack of

jurisdiction. The Clerk shall STRIKE this action from the

active docket of the court.

The Clerk is directed to send copies of this order and

the accompanying memorandum opinion to all counsel of

record.

Entered: February 3, 2022.

Elizabeth K. Dillon

United States District Judge

(60a)

APPENDIX D

[FILED: OCTOBER 28, 2025]

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

—————————

No. 22-6189

(7:21-cv-00094-EKD-JCH)

—————————

JASON TYWANN BELL

Petitioner - Appellant

J. C. STREEVAL, Warden of USP Lee

Respondent - Appellee

—————————

PROFESSOR BRANDON HASBROUCK

Amicus Supporting Appellant

—————————

ORDER

—————————

The petition for rehearing en banc was circulated to

the full court. No judge requested a poll under Fed. R.

App. P. 40. The court denies the petition for rehearing en

banc.

For the Court

/s/ Nwamaka Anowi, Clerk

(61a)

APPENDIX E

28 U.S.C. § 2241. 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

(62a)

63a

(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.

APPENDIX F

Section 2255 of Title 28 of the United States Code

provides, in relevant part:

(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.

(64a)

APPENDIX G

[FILED: JULY 11, 2025]

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

NORTH CAROLINA

UNITED STATES OF

AMERICA,

JASON TYWANN

BELL,

Defendant.

)

1:03-CR-46-1

)

ORDER

In 2003, the defendant, Jason Bell, pled guilty to one

count of conspiracy to commit bank robbery and one count

of carrying and using a firearm during an in relation to a

crime of violence. See Minute Entry 6/06/2003; Doc. 51. He

was sentenced to 274 months of imprisonment, to be

followed by five years of supervised release. Doc. 71. His

sentence was later reduced to 190 months imprisonment

to be followed by three years of supervised release. Doc.

147. Mr. Bell’s term of supervised release began on June

25, 2024, with a projected expiration date of June 24, 2028.

Doc. 154 at 1. Mr. Bell filed the present motion for early

termination on June 4, 2025. Doc. 153.

The district court may “terminate a term of

supervised release and discharge the defendant” only

“after the expiration of one year of supervised release . . .

if it is satisfied that such action is warranted by the

conduct of the defendant released and the interest of

justice.” 18 U.S.C. § 3583(e) (1); see United States v.

(65a)

66a

Pregent, 190 F.3d 279, 282-83 (4th Cir. 1999). In

considering whether to terminate supervised release,

courts consider the factors set forth in § 3553(a)(1),

(a)(2)(B), (a)(2)(C), (a)(2)(D), and (a)(4) to (a)(7) before

terminating supervised release. § 3583(e). “[C]ompliance

with the terms of probation or supervised release is what

is expected of probationers, and without more, is

insufficient to justify early termination.” United States v.

Caruso, 241 F. Supp. 2d 466, 469 (D.N.J. 2003); see also

Folks v. United States, 733 F. Supp. 2d 649, 652 (M.D.N.C.

2010).

Mr. Bell has been on supervised release for over a

year and is eligible for early termination. He obtained fulltime employment in 2024 at Atlantic Contracting

Company where he is still works. He also is working parttime providing valet trash collection at apartment

complexes and has completed a forklift class at Guilford

Tech. Doc 154 at 2.

Mr. Bell resides with his girlfriend and her daughter.

Doc. 154 at 2. He has had two positive drug screens but

has also had seven negative tests since his release, most

recently on June 11, 2025. In May 2025, he travelled

outside the district without permission, receiving a traffic

citation while in South Carolina. Otherwise, he has

adjusted well to supervision and the probation office

reports that he is open to learning new decision-making

and problem-solving skills. Id. at 2-3.

There are several factors tending to indicate that

early termination might be appropriate, such as Mr. Bell’s

full-time employment, secondary employment, and stable

living situation. He is now 49 years old and his last arrest

was over 20 years ago. On the other hand, there are

factors that counsel against early termination, such as the

positive drug tests and leaving the district without

permission.

67a

A key fact here is that because of the vacated

conviction and reduction in his sentence, he overserved

2,422 days in the BOP. Doc. 154 at 3. It appears that if he

violated his supervised release, an active sentence is not

available as a sanction should he commit a breach of trust

by violating his supervised release terms. Neither

probation nor the Government object to early

termination. Docs. 154, 156.

Mr. Bell served a long sentence and the transition to

freedom can be bumpy, as his situation shows. He has not

identified any problems with his employment or otherwise

caused by supervision; indeed, the only fact he identifies

in support of his motion is that he overserved his sentence.

But sanctions other than incarceration are available for

supervised release violations and supervised release

serves many purposes, one of which is to support the

defendant in his rehabilitation. Given the unique

circumstance of Mr. Bell’s case and his positive progress,

but in light of his not-quite-straight path, the Court will

grant his motion in part.

It is ORDERED that the defendant’s motion for

early termination of supervised release, Doc. 153, is

GRANTED in part and Mr. Bell’s term of supervised

release is reduced to eighteen months.

This the 11th day of July, 2025.

UNITED STATES DISTRICT JUDGE

APPENDIX H

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF NORTH CAROLINA

PROBATION OFFICE

Melissa A. Alexander

Chief U.S. Probation

Officer

Reply to:

101 South Edgeworth

Street, Suite 312

Greensboro, NC

27401-2219

Phone: 336-358-4200

Fax: 336-358-4229

December 24, 2025

Mr. Jason Tywann Bell

616 Marsh Street

Greensboro, NC 27406

Dear Mr. Bell:

It is a source of satisfaction that you have completed your

supervision period.

When you were convicted of a felony, you lost certain

rights* on the State level (such as the right to hold public

office), and on the Federal level (such as the right to own

or possess firearms).

State rights can be restored by presenting to the Clerk of

the Superior Court, in the county wherein you reside, the

enclosed Certificate of Discharge from Federal

Probation/Parole. This will be docketed as a Civil Action

and you will be required to pay a recording fee. The Clerk

of Court thereafter issues a certificate restoring State

rights which you lost. In the event the Clerk is not familiar

with this procedure, please advise the Clerk that the civil

(68a)

69a

action is completed on the form entitled, Certificate of

Restoration of Citizenship (Form AOC-CR-919M). If the

Clerk of Court has any questions about this procedure,

ask the Clerk to review GS 7A-308(a)(11).

Restoration of your State rights does not apply to your

loss of the Federal right to own or possess a firearm. If

you wish to pursue this course of action to get the right

restored, the Probation Officer will advise you of the

procedure.

If you have any further questions, feel free to contact the

undersigned.

Sincerely,

F. J. Carney

U.S. Probation Officer Specialist

336-358-4209

FJC/FJC

Enclosure

APPENDIX I

Probation Form No. 34

(12/00)

Report and Order

Terminating Probation /

Supervised Release

UNITED STATES DISTRICT COURT

for the

MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA

vs.

Crim. No. 1:03CR46-1

JASON TYWANN BELL

The above-named has complied with the conditions of

Supervised Release imposed by the order of the court on

September 15, 2003. Therefore, the period of Supervised

Release expired on December 24, 2025, and the individual

under supervision is now unconditionally discharged by

this agency.

12/24/25

Date

F. J. Carney

U.S. Probation Officer

Specialist

(70a)

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.