ARGUMENT ANALYSIS
In habeas case, the liberal justices try to untangle a complex statute
on Nov 2, 2022 at 8:48 pm
On Tuesday, the court heard argument in Jones v. Hendrix, a case that exemplifies the Gordian knot that is the federal habeas corpus statute.
As I discussed in my case preview, the underlying problem the case presents is weighty: The petitioner, Marcus DeAngelo Jones, was convicted at trial of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and sentenced to more than 27 yearsâ incarceration. Two decades into his prison term, the Supreme Court decided in Rehaif v. United States that Section 922(g) requires the government to prove that the defendant knew he was prohibited from possessing a firearm. The government presented no such evidence at Jonesâs trial â under the law at the time, it didnât have to in order to sustain a conviction â and although he had 11 prior felony convictions, Jones testified that he believed his record had been expunged. Thus, Jones argues, he is serving a prison term for conduct that is not a crime.
Given that Jones long ago exhausted his appeals, the question before the justices is what procedural vehicle, if any, allows him to challenge his detention. And here is where things get complicated. The traditional route for such a challenge was a writ of habeas corpus. In 1948, Congress passed 28 U.S.C. § 2255, which funneled challenges to federal convictions and sentences into a âmotion to vacateâ before the sentencing court. Section 2255(e) â the statuteâs âsavings clauseâ â allowed prisoners to pursue a traditional habeas corpus petition in the judicial district of their imprisonment if the motion to vacate was âinadequate or ineffective to test the legalityâ of their detention.
In 1996, however, Congress passed the Anti-Terrorism and Effective Death Penalty Act, known as AEDPA, which amended the federal habeas statute, including Section 2255, to put strict limits on second or successive petitions â an attempt to bolster efficiency and finality by giving prisoners one shot to collaterally attack their conviction or sentence. Under Section 2255(h), a prisoner can bring a second or successive petition based only on facts that clearly demonstrate actual innocence or a new rule of constitutional law that the Supreme Court has made retroactive. There is no provision for new rules of statutory interpretation. The U.S. Court of Appeals for the 8th Circuit ruled that Jones couldnât overcome the bar on successive petitions because Section 2255 was not inadequate or ineffective to test the legality of his detention, even though at the time he brought his first motion to vacate, a Rehaif-type claim was foreclosed by the law of that (and every other) circuit.
Arguing for Jones, Professor Daniel Ortiz of the University of Virginia School of Law led off by cataloging the various ways the 8th Circuit went wrong, including contravening the plain language of the savings clause by holding that having a âpurely formal opportunityâ to challenge oneâs detention is sufficient to test its legality âwhether the law applied is correct or wrong.â Chief Justice John Roberts began the questioning by acknowledging that both sides had a âconundrumâ â the problem with Jonesâs argument was that it was attempting to revise âthe sort of claims that AEDPA wanted to preclude,â while the alternate view meant the statute has a savings clause that âdoesnât save anything.â Justice Sonia Sotomayor interjected to question why âthe chief makes it an either/or.â She agreed that the savings clause âcannot be invoked every time [Section 2255(h)] applies without blowing it up,â but suggested that the courts of appeals had all embraced the âlimiting principleâ advanced by the government, which is that the savings clause is triggered when necessary to avoid a miscarriage of justice.
Justice Neil Gorusch â after a lengthy back-and-forth about a challenge to a court martial, which dissolves after it reaches a decision â noted that in the context of ineffective-assistance-of-counsel claims, courts frequently say âcounsel was effective even if he lost.â âSo why,â he asked, âshould a victory be equivalent to effectiveness?â Ortiz responded that an effective and adequate remedy need not guarantee victory, but must guarantee âthat the correct law be applied.â
Justice Ketanji Brown Jacksonâs questioning proposed a way of reading the statute that relies on its overall structure, directing a court to go down a list of provisions like a roadmap of decision. âIf we think about it in that way,â she noted, âthen itâs sort of like [section] (e) is not really interacting with (h) and … saying anything about whether habeas rights would still exist for the purpose of this case.â Ortiz endorsed Jacksonâs approach to reading the statute in this holistic, structural way.
The governmentâs position â supporting affirmance of the 8th Circuitâs decision but disagreeing with its reasoning â was presented by Deputy Solicitor General Eric Feigin. He argued that the savings clause does allow successive petitions where there has been a change in statutory law, but only where the defendant can demonstrate actual innocence based on all the facts in the record â not merely those presented at a trial where the prosecutor had no idea how the law might change 20 years later. Gorsuch questioned him about why the government had shifted its position about how best to read the statute, noting âthe governmentâs position before 1998 appeared to be that of the petitionerâs,â âthen, from 1998 to 2017, … the government took the opposite view,â and ânow, for the first time, the governmentâs coming up with a completely new theory that no circuit courtâs adopted and neither side in this litigation pursues.â Feigin responded, âI think your chronology, in candor, weâve shifted around a little bit more,â prompting Gorsuch to quip, âIâve been generous.â Feigin explained that the governmentâs current reading comports best with the statute and with the Supreme Courtâs precedents. Justices Samuel Alito, Amy Coney Barrett, and Jackson all peppered him with questions about how the governmentâs reading would work in practice and how a district court would apply it to a variety of scenarios beyond a Rehaif claim.
The end of Feiginâs argument focused on what Congress intended when it created the exceptions to 2255(h)âs bar on successive petitions and did not include statutory claims, in response to questions from Sotomayor and Justice Elena Kagan. Feigin argued that Congress simply hadnât made a judgment about such claims and the savings clause is there specifically to preserve âwhatever the federal habeas remedy would allow,â including statutory claims. Kagan pointed out the anomaly that, by not being specifically covered by 2255(h), statutory claims would âface fewer procedural obstacles than … constitutional and factual claims.â Feigin responded that the governmentâs argument simply derives from the text of the statute, to which Kagan replied, âthe question in the text I think is what the negative implication of 2255 is, and thatâs the kind of critical issue.â
Morgan Ratner, who was appointed by the court to defend the 8th Circuitâs decision, picked up on this theme of the statuteâs negative implication in her argument. She argued Congress was clear about what kinds of claims it wanted to allow in successive petitions: âCongress thought about when to allow new claims after intervening decisions of this court. It chose constitutional decisions and not statutory ones.â Both Jackson and Kagan pushed back on the notion that Congress was thinking about statutory claims at all. Kagan asked, âWhy wouldnât Congress have just said, âAnd these statutory claims are precludedâ?â Ratner replied, âI think they would think itâs pretty obvious. When I tell my kids they can have a second snack but only if itâs fruits or vegetables, I donât usually feel the need to say, but definitely not ice cream.â Sotomayor jumped in, âYeah, a different situation,â and Jackson asked, âWhat if they had ice cream before?â
Sotomayor countered Ratnerâs reading of the statuteâs negative implication, saying âIâm reading the positive implications,â and arguing that the statute does not preclude traditional habeas relief which was always historically available to correct miscarriages of justice. Sotomayor later noted that thatâs essentially what the savings clause says Congress was trying to do. Ratner responded that the procedural restrictions that AEDPA put in place â such as a one-year statute of limitations on filing a 2255 motion â would not make sense if a prisoner could get around them simply by petitioning for habeas relief once 2255 had become inadequate or ineffective because more than a year had passed. She acknowledged the justicesâ concern about the harshness of AEDPA, but cited its prior precedents holding its provisions âare harsh, but they are not absurdâ and so must be applied as written. She added that executive clemency serves as a âbackstopâ to that harshness.
Notably, throughout the argument, the liberal justices â Sotomayor, Kagan, and Jackson â asked the lionâs share of the questions and appeared to be doing the most work to untangle the Gordian knot. The courtâs conservative majority was, by comparison, relatively muted (Alito and Barrettâs questions were narrowly focused, Justice Clarence Thomas asked just one brief question, and Justice Brett Kavanaugh asked none). Their lack of struggle may suggest that these justices are perfectly comfortable with a rigid application of AEDPAâs bar on successive petitions, even if that means prisoners like Jones have no meaningful vehicle to challenge their detention, and, as Roberts put it, the savings clause has ânothing to save.â