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 Eighth Circuit erred in its interpretation of Section 2255. The Solicitor General contends that the saving clause, written in the present tense, is triggered if Section 2255’s remedy is inadequate or ineffective at the time a prisoner seeks habeas relief under Section 2241, not at the time the prisoner first moved under Section 2255, as the Eighth Circuit held. The saving clause thus allows consideration of second or successive habeas petitions raising a limited set of statutory claims of actual innocence based on intervening decisions of the Supreme Court. The Solicitor General also argues, however, that this interpretation cannot help Jones because the record reflects that he actually knew he had a prohibited status at the time of his arrest. Thus, under the Supreme Court’s decision in Rehaif, Jones’s conviction would have to be affirmed even if he were permitted to seek habeas relief under Section 2241.

Third, and arguing in support of the Eighth Circuit’s decision, is Court-appointed amicus counsel. Amicus counsel argues that the parameters of the saving clause are tied to the original purpose for which Congress enacted Section 2255 in general; to allow a petitioner to seek habeas relief in the court of confinement if the sentencing court is unavailable. Only in such a scenario, amicus counsel argues, is Section 2255 inadequate or ineffective.

Takeaways in Advance of the Supreme Court’s Decision
When the United States joined Jones in challenging the Eighth Circuit’s statutory interpretation, the focus of this case shifted from one prisoner’s efforts to obtain post-conviction relief to the scope of the saving clause in a post-AEDPA world. On one hand, the saving clause predates AEDPA by half a century and AEDPA left the saving clause untouched. On the other, Congress passed AEDPA with language that imposes time frames and other conditions on prisoners’ access to second or successive petitions. Congress might revisit this issue to determine whether the law reflects its intent.

The Supreme Court’s decision in Jones could resolve a split among the federal courts of appeals involving disparate interpretations of the saving clause as it is currently drafted. Along with the Eighth Circuit, the Tenth Circuit, in an opinion written by then-Judge Gorsuch, and the Eleventh Circuit also hold that a change in case law on a matter of statutory interpretation does not trigger the saving clause. Most of the other federal appellate courts hold to the contrary.

Whether or not Jones prevails before the Supreme Court, this case reveals differing interpretations of Section 2255. Congress could consider whether to clarify the bounds of the saving clause. In the alternative, Congress could modify the limitations on second or successive petitions in Section 2255(h)(1) and (2) to clarify whether a prisoner may seek Section 2255 relief on the basis of a change in statutory interpretation.

Author Information
Michael D. Contino Legislative Attorney