Page:Jones v. Hendrix.pdf/47

Rh available claim by filing another §2255 motion—as the majority maintains—Congress has simply never spoken to what is supposed to happen with newly available claims of legal innocence.

To reach today’s conclusion, then, the majority draws a “negative inference” that Congress intended for §2255’s “second or successive” bar to preclude successive filings that contain legal innocence claims. But the majority’s inferential reasoning is highly problematic in at least two respects.

First, negative inferences drawn without proper context can be notoriously unreliable. And, as detailed below, there are myriad reasons for skepticism here. Section 2255(h)’s anti-claim-splitting purpose is one. Another is the likely reason that legal innocence claims do not appear in the text of the statute (spoiler alert: they were inadvertently omitted). Background equitable principles and the practical consequences of preventing the filing of successive petitions in this circumstance are additional key contextual clues that the majority seems to have missed.

Second, I am suspicious of the majority’s choice to resort to inferential reasoning at all, given that this Court has long held that we will not read a statute to displace access to “the great writ” unless Congress has been clear about its intention to accomplish this result. Ex parte Yerger, 8 Wall. 85, 95, 102 (1869). The clear-statement rule is plainly applicable here, and the majority offers the flimsiest of explanations for its decision to deviate from its application at the threshold of today’s interpretation.

In short, as shown below, the initial assumption that Congress necessarily meant for §2255(h) to bar Jones’s successive petition asserting statutory innocence is shaky, at best. I would have held that Jones’s petition can proceed, even without reliance on the saving clause, because §2255(h) does not bar it.