Tag Archives: Section 2255

Federal Habeas Corpus: How to Raise an Actual Innocence Claim

Believe it or not, someone proving they`re “actually innocent” of their criminal offense is not enough to win federal habeas corpus relief. That`s because actual innocence, by itself, is not a constitutional violation to allow for federal habeas relief. Instead, it`s only the first step toward relief, and there must also be an underlying constitutional claim. Here`s how to raise a successful actual-innocence habeas claim.

What is Actual Innocence?

Typically, actual innocence arises after the discovery of new evidence that would create a “sufficient probability” that there`s reasonable doubt as to a habeas petitioner`s guilt. Schlup v. Delo, 513 U.S. 298 (1995). The Supreme Court has also made clear that actual innocence means “factual innocence,” as opposed to mere legal innocence. Bousley v. United States, 523 U.S. 614 (1998).

The different between factual and legal innocence is sometimes not very clear, but two cases provide some guidance. In Waucaush v. United States, 380 F.3d 251 (6th Cir. 2004), the court granted habeas relief where an offense that was purely intra-state, and thus not a federal offense, was a valid factual innocence claim. And in Beavers v. Saffle, 216 F.3d 918 (10th Cir. 2000), the court held that a self-defense argument claim was more of a “legal innocence” claim than factual innocence. What petitioners need to know is that courts rarely grant habeas relief for legal innocence claims.

What counts as “new evidence” is also not entirely settled. “Admittedly, courts have struggled to define what qualifies as new evidence. Some courts treat all evidence as new so long as it was not presented at trial. Other courts maintain that evidence is new only if it was unavailable at the time of trial.” Lowery v. Parris, 819 Fed. Appx. 420 (6th Cir. 2020) (collecting cases for each type of evidence).

But the new evidence isn`t evaluated in a vacuum. The Supreme Court says that “all the evidence” in a case must be considered, both old and new, when weighing an actual innocence claim. House v. Bell, 547 U.S. 518 (2006). And the habeas court isn`t “barred by the rules of admissibility that would govern at trial,” the Court has said. Schlup. However, once the actual innocence claim opens the habeas door for the underlying constitutional claim, any evidence subsequently considered by the court must be admissible under the rules of evidence. Bousley.

The Standard for Proving Actual Innocence

There are two different standards for showing actual innocence in federal habeas corpus. The standard for a first-in-time motion, or one that`s not considered “second or successive” (SOS), is whether “it is more likely than not that no reasonable juror would have convicted” the petitioner. Bousley. This was called the “probable innocence” standard in Schlup.

The actual innocence standard for SOS petitions, however, is much steeper. For a state petitioner, the law requires:

(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence, and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the [habeas] applicant guilty of the underlying offense.

28 U.S.C. sec 2244(b)(2)(B)

For a federal petitioner, the bar is just as high:

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 guilt of the offense[.]

28 U.S.C. sec 2255(h)(1)

The bar for SOS petitioners is high because a showing by “clear and convincing evidence” is more onerous than the more-likely-than-not standard for a first petition. Clear and convincing evidence is like a two-thirds majority in Congress, whereas more-likely-than-not is like a simple majority or just over 50%. And the Supreme Court noted in Schlup that Congress` use of the word “would,” instead of “could,” in determining that “no reasonable factfinder would have found the applicant guilty,” points to the “likely behavior” of the factfinder (juror or judge), where the word “could” points to the “power” of the factfinder to find someone is innocent. This was an important distinction, the Court said.

It`s also not just the offense of conviction that matter for actual innocence, but also any charges that were dropped as part of the plea deal. “In cases where the government has forgone more serious charges in the course of the plea bargaining, petitioner`s showing of actual innocence must also extend to those charges,” the Court said in Bousley. Congress has since codified this requirement in 18 U.S.C. sec 3296.

What Constitutes an Actual Innocence Habeas Claim?

As I eluded to in the beginning, actual innocence is not a valid habeas claim — at least, not by itself. There must be some underlying constitutional violation related to the actual innocence claim that would allow for federal habeas relief. As the Court said in Schlup: “Schlup`s claim of innocence does not by itself provide a basis for relief. Instead, his claim for relief depends critically on the validity of his [underlying constitutional] claims.”

But that was dicta and the Supreme Court has skated around the question of whether a “freestanding” actual-innocence claim could ever form the basis for habeas relief. One case, again in language that was not the holding of the Court, provided a clear suggestion that it would not. In Herrera v. Collins, 506 U.S. 390 (1993), the Court agreed that a petitioner`s actual innocence claim was enough to avoid a procedural bar to habeas relief for his underlying constitutional claim, but rejected any notion that it could be a valid claim itself.

Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. [That is because] this rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution, not to correct errors of fact.

The Court further reasoned that a federal habeas court deciding a factual issue, such as an actual innocence claim, and undoing a state-court decision “would be more disruptive to our federal system than to provide for federal habeas review of freestanding claims of actual innocence.” The Court`s reasoning has not gone without much criticism by scholars and advocates of those wrongfully imprisoned, however.

Instead of habeas relief, the Court said that the “traditional remedy” for actual innocence claims has been “executive clemency.”

Actual Innocence is a Gateway Through a Procedural Bar

The way an actual innocence claim works in federal habeas corpus is that it “serves as a gateway through which a petitioner may pass” to have his otherwise-barred constitutional claims heard. McQuiggin v. Perkins, 569 U.S. 383 (2013). The Court cited several habeas procedural bars that it has excused because of actual innocence, including procedural-default for failing to raise a claim earlier, the bar on SOS petitions, the bar on federal evidentiary hearings, and state procedural bars.

The Court established the standard required to avoid a procedural bar with an actual innocence claim: “A petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” The Court also added that an “unjustified delay” is a factor the habeas court must consider with an actual innocence claim, but didn`t define what that meant.

Where to File an Actual innocence Claim

As with most habeas claims, the starting point is almost always in the federal district court. See secs 2255(a), 2254(a). However, an actual innocence claim in a SOS petition must be authorized by the court of appeals, and must meet the harsher “clear and convincing” standard. secs 2244(b)(2)(B), 2255(h)(1). But don`t forget about the Supreme Court. Both state and federal petitioners may file an original petition for habeas relief in the Supreme Court. For example, in In re Davis, 557 U.S. 952 (2009), the Court agreed that the petitioner`s claim of actual innocence was compelling enough that it “transferred” the habeas petition to the district court for a hearing on the actual innocence claim based on newly discovered evidence. While the opinion was just one short paragraph, the Court reaffirmed what it said in Schlup:

Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of the criminal justice system.

IN CONCLUSION, the bar for actual innocence habeas claims is rather high. The key is to understand that an actual innocence claim is the trailblazer for the underlying constitutional claim. Put the proper emphasis on each claim and you`ll succeed with an actual innocence habeas claim in federal court.

Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. Follow his blog at www.zenlawguy.com and on Twitter at @zenlawguy.

Federal Habeas Corpus: How to Raise a Fourth Amendment Claim

The slam dunk for federal habeas claims, if there exists such a thing, would be a claim that successfully challenges the evidence in a criminal case. By tossing the illegally-obtained evidence, not only would the conviction be overturned but the prosecution wouldn`t have a case for a new trial. The prisoner walks free.

But reality is that successful Fourth Amendment claims are hard to come by. Even with a solid Fourth Amendment claim, pursuing federal habeas corpus relief is not easy. Here`s a look at some successful cases, but first some background.

The Purpose of The Fourth Amendment

The Fourth Amendment to the U.S. Constitution protects people from “unreasonable searches and seizures” by the government. The key word here is unreasonable, which the courts have stressed is the measuring stick for Fourth Amendment violations. See Davis v. United States, 564 U.S. 229 (2011). Unless a search is unreasonable, the courts usually let it stand.

The remedy for a Fourth Amendment violation is what`s called the “exclusionary rule,” a judge-made rule that allows a court to suppress evidence obtained in violation of the Fourth Amendment. However, the remedy isn`t aimed at righting the wrong against the defendant prosecuted by that evidence. Instead, the rule`s sole purpose is “to deter future Fourth Amendment violations.” Davis. In other words, the exclusionary rule is designed to punish law enforcement so they won`t do it again. Any windfall for the defendant is merely coincidental. This line of reasoning is important when it comes to Fourth Amendment habeas claims.

Bars to Fourth Amendment Challenges in Federal Habeas Corpus

The Supreme has created a formidable barrier to Fourth Amendment habeas claims:

Where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was intended at his trial.

Stone v. Powell, 428 U.S. 465 (1976)

The court reasoned that its rule in Stone was necessary because the exclusionary rule wouldn`t have much force in deterring law enforcement if it`s invoked years later in a habeas case. The Court also said that the costs of undoing a conviction through habeas corpus are “comparatively great,” when compared to a direct appeal. Withrow v. Williams, 507 U.S. 680 (1993).

Withrow also held that the rule in Stone is not a jurisdictional bar to habeas relief, and the prosecution could waive or forfeit the “defense.” And the Court emphasized that Stone applies to only Fourth Amendment claims, and refused to extend the bar to other constitutional claims.

Since over 95% of convictions in this country are by way of a guilty plea, another bar to a Fourth Amendment challenge is the guilty plea itself. The Supreme Court discussed the reason for this bar in Haring v. Prosise, 462 U.S. 306 (1983):

When a defendant is convicted pursuant to his guilty plea rather than a trial, the validity of that conviction cannot be affected by an alleged Fourth Amendment violation because the conviction does not rest in any way on evidence that may have been improperly seized. (emphasis added)

Exceptions to Bars on Fourth Amendment Habeas Challenges

Fortunately, there are some exceptions to the rules barring Fourth Amendment habeas challenges. One way around the bar in Stone for Fourth Amendment claims is to reframe the claim as an ineffective assistance of counsel (IAC) claim, arguing that counsel failed to challenge the evidence. In Kimmelman v. Morrison, 477 U.S. 365 (1986), the Supreme Court held that an IAC claim regarding counsel`s failure to challenge the evidence was really a Sixth Amendment right-to-counsel claim, and not a “direct” Fourth Amendment claim barred by Stone. Thus, the Court provided a work-around for Fourth Amendment habeas claims using the well-worn path for IAC claims.

Another exception to the Stone Fourth Amendment habeas bar is showing that the state court failed to provide a “full and fair opportunity” to challenge the Fourth Amendment claim, or that there was no opportunity to do so. The Seventh Circuit provided some guidance on what a full and fair opportunity to litigate a Fourth Amendment claim would look like:

A petitioner has had the benefit of such an opportunity [for full and fair litigation of a Fourth Amendment claims] so long as (1) he can clearly apprise the state court of his Fourth Amendment claim along with the factual basis for that claim, (2) the state court carefully and thoroughly analyzed the facts, and (3) the court applied the proper constitutional case law to those facts.

Miranda v. Leibach, 394 F.3d 984 (7th Cir. 2005)

However, the court said the test is whether there was an “adequate opportunity to pursue the claim in the state court system,” not whether the challenge was successful or the court`s decision was wrong.

An example of no full and fair opportunity to litigate a Fourth Amendment claim happens when the state court uses the wrong standard of review for the claim. Herrera v. LeMaster, 301 F.3d 1192 (10th Cir. 2002) (en banc). Another would be when the state court has completely ignored the claim. Agee v. White, 809 F.2d 1487 (11th Cir. 1987). There are lots of ways a state court can prevent a full and fair opportunity to litigate a Fourth Amendment claim.

A work-around also exists for raising Fourth Amendment habeas claims after a guilty plea, and it`s like the one in Kimmelman: You must challenge the knowing and voluntary nature of the guilty plea and show that counsel`s advice to plead guilty, despite the Fourth Amendment violation, affected your decision to plead guilty. Tollett v. Henderson, 411 U.S. 258 (1973).

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in [Supreme Court cases dealing with IAC claims].

While Kimmelman allowed that counsel`s failure to challenge the Fourth Amendment violation created a ground for habeas relief, Tollett also requires a showing that counsel`s advice to plead guilty was wrong because of the Fourth Amendment violation. Both claims come back to a Fourth Amendment violation, and both point the finger at counsel — but not directly at the Fourth Amendment violation.

Successfully Challenging Fourth Amendment Violations for State Petitioners

Here`s an example of a successful Fourth Amendment habeas claim by a state petitioner. In Bostick v. Peters, 3 F.3d 1023 (7th Cir. 1993), the petitioner filed for federal habeas relief, under 28 U.S.C. sec 2254, claiming that the drug evidence was obtained in violation of the Fourth Amendment. While the district court ruled that the claim was barred by Stone, the court of appeals found that the state court had prevented a full and fair opportunity to litigate the claim in state court and reversed the district court.

The court established a two-step process for determining whether the state court provides a full and fair opportunity to a petitioner: “[1] whether the state procedural mechanism, in the abstract, presents the opportunity to raise a Fourth Amendment claim, and [2] whether the claim in question was in fact frustrated by a failure of that mechanism.”

The state court had a rule that had prevented the petition from developing his Fourth Amendment claim, and this “unanticipated and unforeseeable application of a rule on appeal prevented the state courts from properly considering the merits of the petitioner`s claim,” the court concluded. “Indeed, if Fourth Amendment claims fall on deaf ears in the state courts and defendants are then precluded from raising their claims on collateral review, the efficacy of the exclusionary rule in deterring future Fourth Amendment violations would be undermined.”

Successfully Challenging Fourth Amendment Violations for Federal Petitioners

For federal petitioners, Fourth Amendment habeas claims are even more difficult, since any claim not raised on direct appeal cannot be raised in a motion under 28 U.S.C. sec 2255, unless “cause and prejudice” are shown. Massaro v. United States, 538 U.S. 500 (2003). But Massaro also held that an IAC claim can provide cause and prejudice to avoid this procedural default.

In United States v. Cavitt, 550 F.3d 430 (5th Cir. 2008), a federal petitioner filing for relief under 28 U.S.C. sec 2255 claimed that his guilty plea wasn`t valid due to counsel`s failure to challenge the drug evidence obtained during an illegal search. While the district court denied relief, stating that Stone barred his Fourth Amendment argument, the court of appeals vacated that decision and found that the IAC claim bypassed the Stone bar. On remand, the district court found that counsel was indeed ineffective and allowed the petitioner to withdraw his guilty plea. See Cavitt v. United States, 2009 U.S. Dist. LEXIS 144833 (E.D. Tex. May 29, 2009).

IN CONCLUSION, Fourth Amendment claims in federal habeas corpus are no doubt complex. There`s lots of obstacles but there`s also ways around those obstacles. Plan your route accordingly and you`ll win federal habeas relief on your Fourth Amendment claim.

Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. Follow his blog at www.zenlawguy.com and on Twitter at @zenlawguy.

SCOTUS Holds Attempted Hobbs Act Robbery Not a Categorical Match for 924(c)

The Supreme Court of the United States (SCOTUS) held on June 21, 2022, that an attempted Hobbs Act robbery was not categorically a crime of violence to support a separate conviction for use of a firearm under federal law, despite the fact that someone was shot and killed during the offense. It was yet another in the Court`s line of decisions that have narrowed which offenses qualify under the harsh federal gun laws relating to current and past crimes of violence.

This case happened almost 20 years ago, when Taylor and a codefendant attempted to rob a drug dealer. The dealer fought back and the codefendant shot and killed the dealer. Taylor agreed to plead guilty to attempted Hobbs Act robbery and discharge of a firearm during a crime of violence. At the time, use of a firearm during a crime of violence under 18 U.S.C. sec 924(c) broadly included an offense that “involves a substantial risk that physical force against the person or property of another may be used.” sec 924(c)(3)(B). Even if Taylor`s attempted robbery didn`t involve force, the risk of force was enough to negate any challenge to the sec 924(c) charge. He was sentenced to 30 years in prison, 20 for the robbery (the statutory maximum) and 10 for the firearm. His appeal was barred by a waiver in his plea agreement.

When SCOTUS struck down the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutional in Johnson v. United States, 576 U.S. 591 (2015), the Fourth Circuit granted Taylor permission to file a second of successive (SOS) motion under 28 U.S.C. sec 2255 to challenge his sec 924(c) conviction. The Supreme Court then extended Johnson to the residual clause in sec 924(c), in United States v. Davis, 139 S. Ct. 2319 (2019), but the district court denied Taylor`s motion. The court held that an attempted Hobbs Act robbery still qualified under the elements or “force” clause of sec 924(c). The Fourth Circuit, however, disagreed and vacated Taylor`s sec 924(c) conviction, and SCOTUS agreed to hear the government`s appeal.

A Mismatch of the Elements

In order for a predicate offense, such as Taylor`s attempted Hobbs Act robbery, to qualify as a crime of violence to support a sec 924(c) conviction, the offense must have “as an element, the use, attempted use, or threatened use of physical force against the person or property of another.” sec 924(c)(3)(A).

A completed Hobbs Act robbery requires the government to prove beyond a reasonable doubt that a defendant engaged in the “unlawful taking or obtaining of personal property from the person … of another, against his will, by means of actual or threatened force.” 18 U.S.C. sec 1951(b). However, attempted Hobbs Act robbery only requires two things: (1) that the defendant intended to take property by force, and (2) that he took a “substantial step” toward that. The parties agreed, and the Court accepted in Taylor`s case, that a substantial step means an “unequivocal step” but it “need not be violent.”

SCOTUS said that while the government must show an intention to use force to take property to prove an attempted Hobbs Act robbery, “an intention is just that, no more.” It also found that a substantial step did not require the actual use of force, and that the Model Penal Code`s definition of robbery aligned with this finding.

The government pressed two arguments in an effort to fit attempted Hobbs Act robbery under the elements clause. First, it offered an argument that it had successfully used to convince several other circuits to include attempted Hobbs Act robbery within the elements clause of sec 924(c). It said that since completed Hobbs Act robbery, then an attempt also qualifies. The district court said as much when it denied Taylor`s motion. SCOTUS rejected this because the elements clause “asks whether the defendant did commit a crime of violence,” not whether there was an attempt to do so. Congress could have included attempted crimes of violence in the elements clause if it wanted to, the Court explained.

The government`s second argument got more attention but still failed. It argued that taking a substantial step toward completing Hobbs Act robbery amounted to a “threatened use of force.” The Court cited five sources defining “threat” and found it requires some form of communication. The government`s definition, the Court said, “would vastly expand the statute`s reach” by including threats without communication, such as an incomplete offense like attempted Hobbs Act robbery. The Court warned that expanding the elements clause this far “would only wind up effectively replicating the work formerly performed by the residual clause … and perhaps inviting similar constitutional questions along the way.”

The Elements Matter, Not the Conduct

Whether Taylor`s attempted Hobbs Act robbery could support a sec 924(c) conviction had nothing to do with his conduct in the offense. The Supreme Court applied the “categorical approach” in Davis to analyze predicate offenses under sec 924(c), and reaffirmed here that this approach still applied. A court may not look at the defendant`s conduct under the categorical approach, only the elements of the offense in question, the Court held in that case.

To separate Taylor`s offense conduct from the analysis, the Court presented a hypothetical case of an unfortunate bank robber who wrote a threatening note and laid out his plans, only to be arrested before he could complete the robbery. He would be guilty of attempted robbery, even though he never attempted to communicate a threat, since the note was never delivered. “He never even got to the point of threatening the use of force against anyone or anything,” the Court said. But under the categorical approach, “no element of attempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force,” the Court concluded.

A Defendant Need Not Prove How the Government Prosecutes Similar Crimes

The government faulted Taylor for not providing any cases in which the government had prosecuted someone for an attempted Hobbs Act robbery without a communicated threat, but SCOTUS said it didn`t matter.

The government`s theory cannot be squared with the statute`s terms. To determine whether a federal felony qualifies as a crime of violence, sec 924(c)(3)(A) doesn`t ask whether the crime is sometimes or even usually associated with communicated threats of force (or, for that matter, with he actual or attempted use of force). It asks whether the government must prove, as an element of its case, the use, attempted use, or threatened use of force.

The Court pointed out that this is a “world where most cases end in plea agreements,” and the particulars of what the government proved in a case would not be “easily accessible” to defendants. The government`s proposed rule that defendants must prove how the government prosecutes similar offenses is too much a of “burden,” the Court said.

Accordingly, SCOTUS upheld the Fourth Circuit`s decision vacating Taylor`s sec 924(c) conviction based on an attempted Hobbs Act robbery conviction. See: United States v. Taylor, No. 20-1459 (S. Ct. June 21, 2022).

The Big Question seems to be whether Taylor will open the door for relief under § 2255 for § 924(c) convictions based on attempted Hobbs Act robbery. Yes, Taylor was granted relief under § 2255, but his motion was based on Johnson and Davis.

Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. He is a federal litigation consultant with the Zoukis Consulting Group. Follow his blog at www.zenlawguy.com and on Twitter at @zenlawguy.

Federal Habeas Corpus: Seventh Circuit Says AEDPA Time Limit Opens Door for Savings Clause Relief

Expanding the savings clause yet again, the U.S. Court of Appeals for the Seventh Circuit held on April 4, 2022, that the one-year time limit for filing a motion under 28 U.S.C. sec 2255 rendered the remedy “inadequate or ineffective” to invoke the savings clause, and vacated an illegal sentence.

At the time of sentencing, Nino Franklin had at least six prior convictions that qualifies as violent felonies under the Armed Career Criminal Act (ACCA): Two Illinois burglaries, three Minnesota burglaries, and a conviction for kidnapping/armed robbery. The penalty for his federal offense of being a felon in possession of a firearm, under 18 U.S.C. sec 922(g), was a maximum of 10 years. But the ACCA increased that to 15 to life, and he was given just under 17 years in federal prison in 2014. He never appealed.

The Change in Law Came Too Late

Two years after Franklin was sentenced, the Supreme Court decided Mathis v. United States, 136 S. Ct. 2243 (2016), which clarified how a federal sentencing court must determine whether a prior conviction meets the ACCA criteria. That criteria at the time of Mathis for a violent felony under the ACCA included any offense that carried a prison term exceeding a year and (1) “has as an element the use, attempted use, or threatened used of physical force against the person of another” (the elements clause), or (2) “is burglary, arson, or extortion” (the enumerated offenses clause). 18 U.S.C. sec 924(e)(2)(B).

Mathis narrowed which prior offenses met these criteria, and the Eighth Circuit, where Franklin was sentenced, declared Minnesota burglary non-qualifying for the ACCA after Mathis. This was because it was broader than “generic” burglary, as defined by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), and because it did not meet the elements clause. See Van Cannon v. United States, 890 F.3d 656 (7th Cir. 2018) (discussing these changes).

But when Franklin filed for sec 2255 relief based on Mathis, the government argued that he was beyond the one-year time limit, and he voluntarily withdrew his motion. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposed strict time limits on such motions. sec 2255(f). It also forbids another motion after a first one is denied in nearly all situations. sec 2255(h).

Three days later, however, Franklin filed a habeas petition, under 28 U.S.C. sec 2241, pursuant to the “savings clause” of sec 2255(e), which allows a federal prisoner to resort to classic habeas corpus if the sec 2255 remedy is “inadequate or ineffective.” This is known as the “savings clause.” The Seventh Circuit has held that the savings clause is available if a prisoner “had no reasonable opportunity to obtain earlier judicial correction of a fundamental defect in his conviction or sentence because the law changed after his first sec 2255 motion,” and meets all of the following:

(1) the claim relies on a statutory interpretation case, not a constitutional case, and thus could not have been invoked by a successive sec 2255 motion,

(2) the petitioner could not have invoked the decision in his first sec 2255 motion and the decision applies retroactively, and

(3) the error is grave enough to be deemed a miscarriage of justice.

Chazen v. Marske, 938 F.3d 851 (7th Cir. 2019)

Meeting the Savings Clause

Franklin`s case presented this question before the court of appeals: Whether a petitioner who has never filed a sec 2255 motion, and is now time-barred under the AEDPA, may resort to the savings clause if the law changes and makes his conviction or sentence a fundamental defect. The Seventh Circuit acknowledged that the savings clause test “has its complexities and raises some difficult questions,” but determined that the AEDPA`s time bar rendered the 2255 remedy in adequate or ineffective in this situation.

But first Franklin had to meet the savings clause criteria. As for the first prong, the court found that Mathis “injected much-needed clarity and direction into the law” and, as a statutory-interpretation case, wasn`t available as a constitutional decision to allow a second or successive (SOS) 2255 motion.

The second prong was easily met because the government conceded that Mathis was a retroactive Supreme Court decision, and the court found that any attempt for Franklin to raise the challenge “would have been futile until after Mathis.”

The third prong was also conceded by the government, because the Seventh Circuit has repeatedly held that an erroneous ACCA sentence is a miscarriage of justice. See Guenther v. Marske, 997 F.3d 735 (7th Cir. 2021).

Expanding the Savings Clause

While the savings clause has applied to cases where the AEDPA barred another sec 2255 motion, no court had so far allowed the savings clause where the AEDPA`s time limit would bar a first motion. Because Franklin was denied the opportunity to properly challenge his ACCA sentence after Mathis, and “through no fault of his own,” the only avenue to fix his illegal ACCA sentence was the savings clause, the court concluded, offering this reasoning:

Accepting the government`s position [that the savings clause only applied where another sec 2255 motion was barred] would create arbitrary distinctions between prisoners with essentially identical claims. Franklin would be barred from using sec 2241 — even though he satisfies all three [savings clause] requirements — simply because he refrained from filing a timely sec 2255 motion that would have been frivolous under then-existing Eighth Circuit law. Yet he would be permitted to access sec 2241 if he had filed a doomed sec 2255 motion within a year of when his judgment became final. The same result would follow if he had filed multiple frivolous sec 2255 motions thereafter, even though under earlier law repetitive filings would have been considered possible abuse of the habeas writ. Our precedent neither requires nor supports creating such perverse incentives. A prisoner need not file a futile sec 2255 motion and clog the judicial pipes merely to preserve the possibility of invoking new statutory rules in the future.

The Seventh Circuit therefore reversed the denial of Franklin`s savings clause petition and remanded to the district court to grant him “appropriate habeas relief.” See Franklin v. Keyes, 2022 U.S. App. LEXIS 8952 (7th Cir. Apr. 4, 2022).


Fifth Circuit Holds New, Retroactive Supreme Court Decision Not a New Claim to Avoid Procedural-Default Bar

In a decision that further narrows the federal habeas corpus remedy, a divided panel of the U.S. Court of Appeals for the Fifth Circuit held on June 2, 2022, that a claim under a new, retroactive Supreme Court ruling to allow a second or successive (SOS) habeas petition was not a new enough claim to avoid the procedural-default bar.

When the Supreme Court declared the “residual clause” of the Armed Career Criminal Act (ACCA) unconstitutional in Johnson v. United States, 576 U.S. 591 (2015), Jose Vargas-Soto requested authorization to file a SOS motion under 28 U.S.C. sec 2255 to vacate his enhanced sentence based on a prior “crime of violence” that he claimed fell under the similar residual clause of the illegal re-entry statute, as defined in 18 U.S.C. sec 16(b). That request was denied, but when the Supreme Court later extended Johnson to the residual clause in the illegal re-entry statute, in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), his second request was granted. He then filed his approved sec 2255 motion in the district court.

That motion, however, was eventually denied, the court holding that Vargas-Soto`s prior conviction for manslaughter during an “intoxicated assault” qualified under the elements clause, and not the unconstitutional residual clause, so his 15-year sentence was legally sound. While Vargas-Soto`s appeal of that denial was pending, the Supreme Court held that a prior conviction that has only a mens rea of recklessness, which Vargas-Soto`s manslaughter conviction had, it wasn`t a valid predicate under the elements clause. Borden v. United States, 141 S. Ct. 1817 (2021). That left Vargas-Soto`s manslaughter prior under the defunct residual clause.

The Claim Wasn`t Barred by the AEDPA

The Antiterrorism and Effective Death Penalty Act (AEDPA) added a res judicata bar to federal habeas corpus in 1996: “A Claim presented in a [SOS] habeas application under sec 2254 that was presented in a prior application shall be dismissed.” 28 U.S.C. sec 2244(b)(1). The Fifth Circuit reiterated that it routinely applies this rule to federal prisoners under sec 2255, and that the bar is jurisdictional.

The Court found that Vargas-Soto`s claim in his second request for authorization was the same kind of claim as his first: a void-for-vagueness claim. Whether the claim cited Johnson, Dimaya, or United States v. Davis, 139 S. Ct. 2319 (2019), it was all the same kind of claim.

However, the res judicata bar only applies to claims filed in a SOS “motion,” the Court said, and a request for authorization to file a SOS habeas motion is only a request and not itself a motion. Vargas-Soto filed the same claim in his failed request for authorization, the Court noted, and “that means he never actually filed the underlying motion.” He was not barred by the res judicata bar.

Dimaya was a New, Retroactive Supreme Court Ruling for a SOS Motion

For a court of appeals to authorize a SOS habeas petition or motion, based on a new Supreme Court decision, some narrow criteria must be met: “A new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” sec 2255(h)(2). The Court found Dimaya met these criteria. First, Dimaya was “new” because it wasn`t dictated by precedent, the Court said. “Vargas-Soto`s conviction became final in 2011. At that point, neither Johnson nor Dimaya had been decided. If Dimaya wasn`t dictated by precedent after Johnson it certainly wasn`t when Vargas-Soto`s conviction became final. In short, Dimaya announced a new rule of constitutional law.”

Second, the Supreme Court can make its ruling retroactive by expressly saying so, or by the Court`s holdings in multiple cases that together dictate retroactivity. Tyler v. Cain, 533 U.S. 636 (2001). The Supreme Court didn`t say Dimaya was retroactive, but the combined holdings of four Supreme Court cases “necessarily dictate retroactivity” of Dimaya, the Court said.

Third, Dimaya was previously unavailable. “Vargas-Soto`s last proceeding before the instant sec 2255 motion was a request for authorization to file a successive sec 2255 motion after Johnson … but before Dimaya. Because Dimaya announced a new rule even after Johnson, the claim was previously unavailable to Vargas-Soto,” the Court said.

The Claim was Filed on Time

The AEDPA also imposed a strict one-year time limit for a habeas petition or motion. Under sec 2255(f)(3), which governs first and SOS motions, a petitioner has one year from the date of the new decision. Because of Vargas-Soto`s void-for-vagueness claim had its roots in Johnson, the Court clarified Dimaya did not restart the clock. Instead, it`s the “right” recognized by the Supreme Court that matters, and not the case relied upon, and the “right” in Vargas-Soto`s case was recognized in Johnson.

The Court also counted Vargas-Soto`s denied request for authorization as the filing that stopped the AEDPA clock, since it was the Court`s fault in dismissing it which caused him to have to file again.

A Habeas Petitioner Must Also Clear the Procedural-Default Bar

The hurdle to file a SOS petition was just one obstacle for Vargas-Soto. He also had to get around the procedural-default bar, the Court said. A federal habeas claim is “procedurally-defaulted” if it could have been raised earlier but wasn`t. United States v. Frady, 456 U.S. 152 (1982). There are two exceptions to this rule: (1) showing “cause” for the default and resulting prejudice if the claim isn`t heard, or (2) showing actual innocence. Vargas-Soto couldn`t show “actual innocence” of his enhanced sentence, so the focus of the Court was on whether he could show cause to excuse the default.

To show cause, a petitioner “must show that some objective factor external to the defense impeded counsel`s efforts to comply with the relevant procedural rule.” Davila v. Davis, 137 S. Ct. 2058 (2017). The Supreme Court has held that a “novel” constitutional claim can show cause. The Court defined this as a Supreme Court decision that explicitly overrules one of its decisions, overturns a longstanding and widespread practice by the lower courts, or disapproves a practice that the Supreme Court had approved in prior cases. Reed v. Ross, 468 U.S. 1 (1984).

While most circuits have cited Reed and held that void-for-vagueness claims after Johnson were novel to avoid the procedural-default bar, the Fifth Circuit concluded that Reed was no longer good law after the AEDPA. Even if it were still valid, the Court said that Reed`s novel claim criteria were only dicta, or not the holding of the Court and therefore not binding on the lower courts.

The Court also dismissed the argument that futility could provide cause to excuse procedural-default. “Defense counsel routinely raise arguments to preserve them for further review despite binding authority to the contrary. This entire enterprise would be pointless if futility constituted cause. And it would create a system of litigation freeriding under which prisoners who do not make arguments get a free ride from those who do.”

Judge W. Eugene Davis dissented, saying that requiring defendants to raise frivolous claims just to preserve them for a future, retroactive constitutional ruling by the Supreme Court “defies logic.” “When the Supreme Court forecloses a constitutional claim, every court in the nation, including the High Court, is bound to reject it.” He also added this final view:

The majority opinion stands in direct contradiction to Supreme court authority and unanimous circuit authority. In my view, Vargas-Soto has established cause for his procedural default and has demonstrated that he is entitled to sec 2255 relief. The majority avoids this obvious result by obscuring or misreading applicable authority. It achieves an injustice in this case, and many future cases, despite clear Supreme Court guidance. Therefore, I respectfully dissent.

The two-judge panel nevertheless found that Vargas-Soto`s void-for-vagueness claim was procedurally-defaulted and affirmed the denial of habeas relief. See: United States v. Vargas-Soto, No. 20-10705 (5th Cir. June 2, 2022).