35. The Unnecessary Cruelty of Jones v. Hendrix

A 6-3 majority says there's "nothing incongruous" about a ruling that will leave thousands of federal prisoners with no remedy for challenging convictions or sentences that have become unlawful

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already):

Now that we’re into the Court’s summer recess, the newsletter is going to shift a bit (barring breaking news) toward two different focuses over the next 2.5 months: In-depth reactions to decisions the justices handed down this Term; and broader historical discussions to put those rulings (and what’s on tap for next Term) into context.

To that end, today’s installment focuses on the Court’s June 22 ruling in Jones v. Hendrix; Thursday’s bonus content will provide a more in-depth critique of the standing holding in Biden v. Nebraska (one of the student loan cases); and so on.

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On the Docket

Nothing is expected from the Court this week. The federal government’s request for a stay of Judge Doughty’s widely noted July 4 ruling restricting government contacts with social media companies may eventually precipitate an emergency application to the Supreme Court, but that’s unlikely to get to the justices until after both Doughty and the Fifth Circuit have ruled. That should take at least a little bit of time.

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The One First Long Read: Jones v. Hendrix

The Supreme Court’s June 22 ruling in Jones v. Hendrix is a big deal, but it takes a bit of work to explain why. (Full disclosure: I was one of the signatories of the “Habeas Scholars” amicus brief in support of Jones.) Today’s “long read” thus proceeds in three parts: It starts with a brief background of post-conviction review for federal prisoners (up to 1996). It then explains the significance of the Antiterrorism and Effective Death Penalty Act of 1996, before turning to the conflict that the Supreme Court resolved (incorrectly, in my view) in Jones.

Just to jump to the bottom line, though: The upshot of Jones is that, going forward, there could be countless thousands of federal prisoners whose convictions or sentences become unlawful because (1) the statute of conviction is repealed; (2) the statute no longer authorizes the sentence; or (3) an intervening court decision removes that petitioner’s case from the permissible scope of the substantive offense or sentence (that’s Jones), but who will have no legal mechanism for challenging those unlawful convictions or sentences. In other words, these federal prisoners will be legally innocent (of either their crime or their sentence), but will have no legal remedy in any court to secure their release from ongoing custody that, by all rights, is no longer legal.

That result would be bad enough if it was compelled by the relevant statutes, but it isn’t. And even if the statutes require it, it raises serious constitutional concerns to which the majority gives short shrift. And even if the Supreme Court really was hapless to do anything about it, it’s striking that none of the justices in the majority seem remotely troubled by the cruelty of the result the decision produces—or impelled to call upon Congress to fix it. The best they can muster is that there’s “nothing incongruous” about it.

Suffice it to say, I disagree.

Part I: Post-Conviction Review for Federal Prisoners

The writ of habeas corpus ad subjiciendum has historically served as an indispensable tool for protecting against arbitrary and unlawful detention by guaranteeing at least some form of judicial review in at least some set of cases. The U.S. Constitution enshrines the “Great Writ” in the Suspension Clause, which provides that “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.” In other words, absent a valid suspension, prisoners should be entitled to “the privilege of the writ of habeas corpus,” whatever that is.

There’s a longstanding and deeply divided debate over whether the “privilege” enshrined in the Constitution includes the right to challenge criminal convictions and sentences imposed by courts of record. But there’s little debate that Congress, first in the Judiciary Act of 1789 and then in the Habeas Corpus Act of 1867, opened federal courthouse doors by statute to post-conviction challenges, first by federal prisoners, and then by anyone “in custody in violation of the Constitution or laws or treaties of the United States” (indeed, the big innovation of the 1867 act was to open federal courts to challenges by state prisoners to state-court convictions).

Thus, by 1942, the Supreme Court had recognized that federal courts could issue post-conviction relief in cases in which prisoners could show that their conviction or sentence was in violation of federal law. For state prisoners, that almost always meant constitutional violations; virtually no federal statutes say anything about state criminal trials. But federal prisoners could—and did—challenge their convictions and sentences on both constitutional and statutory grounds.

The problem that arose for federal prisoners was where their habeas petitions were filed. By 1948, the Supreme Court had interpreted the federal habeas statute to require petitions to be brought in the district in which the prisoner was confined.¹ But most federal prisoners were imprisoned in only a handful of jurisdictions (think Alcatraz), many of which were hundreds—if not thousands—of miles away from where the criminal trial had taken place. That created enormous practical headaches for post-conviction review, especially in an age before electronic court records that could easily be transmitted across the country.

This led Congress to adopt a special remedy for federal prisoners, codified today at 28 U.S.C. § 2255, which looks and smells like habeas—except that it is supposed to be filed in the district of conviction and sentence, not the district of confinement. In other words, Congress wanted federal prisoners to have access to similar review of their convictions or sentences, but to funnel those claims into the same geographic jurisdiction as the one on which the prisoner was tried and convicted.

Just to make clear that it didn’t mean to in any way narrow the scope of review available to federal prisoners, Congress also included a “saving clause,” specifying that “ordinary” habeas relief (under 28 U.S.C. § 2241) would not be available to anyone who could seek relief under this new remedy (§ 2255) “unless … the [§ 2255 remedy] is inadequate or ineffective to test the legality of his detention.” In other words, the new (§ 2255) remedy would be exclusive of “ordinary” (§ 2241) habeas except when it was “inadequate or ineffective to test the legality of detention.” This provision was adopted, as the Supreme Court would hold in 1952, to obviate any possible constitutional objections with the new remedy. The whole point, as I explained in a 2007 law review article, was to provide an alternative to “ordinary” habeas that would leave classic habeas available in any case in which the alternative was insufficient.

Thus, from 1948 to 1996, federal prisoners could (and regularly did) use § 2255 to challenge their convictions and/or sentences, including claims that subsequent developments (e.g., statutory revisions or intervening Supreme Court decisions) had rendered their conviction and/or sentence unlawful. Critically, this included not just a first § 2255 filing, but also “second-or-successive” filings, as well. (For instance, if a federal prisoner whose initial § 2255 claim was rejected wants to challenge his sentence 10 years later in light of an intervening development, such as a legislative repeal of the statute or a Supreme Court decision narrowing it.)

Indeed, one of the hallmarks of the Warren Court’s post-conviction jurisprudence was its general tolerance for second-or-successive petitions (from state and federal prisoners alike) unless the government could show that the prisoner was “abusing” the writ. A claim like the one in Jones (a second-or-successive claim by a federal prisoner claiming that his sentence has become unlawful because of an intervening Supreme Court decision) would thus have been not just available, but almost certainly meritorious, under the pre-1996 law.

Part II: AEDPA

Enter, Congress (and President Clinton). One of the most significant changes wrought by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA, or “ED-puh”) was to drastically limit when state or federal prisoners could bring second-or-successive claims for post-conviction relief. Congress thus wrote the same constraints into the statutes governing both state prisoner and federal prisoner claims, barring second-or-successive claims unless based upon:

(1) 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; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

Note what’s missing: Even though the same language applies to both state and federal prisoners, Congress in 1996 limited second-or-successive petitions by federal prisoners to new rules of “constitutional law.” New rules of statutory law, which had long provided a basis for post-conviction relief for federal prisoners, were, all of a sudden, no longer a basis for second-or-successive relief under § 2255. In other words, a federal prisoner whose conviction or sentence becomes unlawful (but not unconstitutional) because of some subsequent development cannot raise that claim in a second-or-successive filing under § 2255, even though (1) they have become legally innocent; and (2) they had good reason to not raise their claim earlier (because it didn’t exist).

President Clinton signing AEDPA into law on April 24, 1996. Liliana Segura has a great piece for The Intercept on AEDPA’s problematic background

Enter, the saving clause. A number of federal prisoners turned instead to “ordinary” habeas petitions, arguing that they were allowed to bring a second-or-successive challenge to their federal conviction or sentence based upon new statutory law under § 2241 because, under AEDPA, the § 2255 remedy was “inadequate or ineffective to test the legality of [their] detention.” After all, they argued, this is exactly what the saving clause was designed to “save”—to ensure that § 2255 did not artificially narrow the scope of post-conviction review that was available when it was enacted in 1948. That exact argument is what precipitated the circuit split that the Supreme Court granted certiorari to resolve in Jones²—a split that, among other things, had divided then-Judge Amy Coney Barrett (who thought the saving clause applied) from then-Judge Gorsuch (who wrote one of the leading circuit-level opinions arguing that it didn’t).³

Finally, before turning to Jones, it’s worth stressing two more contextual points: First, there is precisely zero evidence that AEDPA deliberately foreclosed second-or-successive claims by federal prisoners based upon new rules of statutory law. By virtually every account, Congress was just sloppy—using the same language for state and federal prisoners without accounting for (indeed, without realizing) the broader scope of federal post-conviction review that had previously been available to the latter. In other words, the “problem” AEDPA created by using the same language for second-or-successive claims by federal prisoners was almost certainly an accident.

Second, AEDPA’s similarly worded constraints on second-or-successive claims cash out very differently with regard to their effects on federal prisoners versus state prisoners. A state prisoner shut out of federal court can still bring claims in state court. Indeed, the Supreme Court’s 2016 ruling in Montgomery v. Louisiana holds that state prisoners will usually have a federal constitutional right to benefit from a new rule of federal constitutional law, even in state court, and even on a second-or-successive claim. But federal prisoners aren’t currently allowed to challenge their convictions or sentences in state court. That’s because of an 1872 Supreme Court decision, Tarble’s Case, that holds (or at least appears to hold) that state courts are constitutionally powerless to issue writs of habeas corpus to federal jailers. In other words, for federal prisoners, it’s federal courts or bust. (That’s why, in a 2017 article in the Virginia Law Review, Professor Carlos Vázquez and I argued that Montgomery calls AEDPA’s constraints on second-or-successive relief for federal prisoners into serious constitutional question.)

Part III: Jones

Against that backdrop, what is perhaps most striking about the Supreme Court’s decision in Jones is how completely indifferent it appears to be to the massive unfairness it endorses. For a 6-3 majority, Justice Thomas held that the saving clause does not protect second-or-successive claims based on new statutory law:

In § 2255(h), Congress enumerated two—and only two—conditions in which a second or successive § 2255 motion may proceed. Because § 2255 is the ordinary vehicle for a collateral attack on a federal sentence, the straightforward negative inference from § 2255(h) is that a second or successive collateral attack on a federal sentence is not authorized unless one of those two conditions is satisfied.

As for the saving clause, Thomas concluded that “Basic principles of statutory interpretation require that we construe the saving clause and § 2255(h) in harmony, not set them at cross-purposes.” (Note how this assumes that they are at cross-purposes.) Instead, “the saving clause preserves recourse to § 2241 in cases where unusual circumstances make it impossible or impracticable to seek relief in the sentencing court, as well as for challenges to detention other than collateral attacks on a sentence.” (The majority offers very little textual or contextual evidence for its “impossible or impracticable” standard, rather than the capacious view of the safety valve that the Court appeared to endorse in 1952.) Thus, for federal prisoners seeking to mount second-or-successive collateral attacks on their sentences based upon new statutory developments, they’re shit out of luck.

Along the way, the Jones majority rejected a number of other arguments, including Jones’s contention that the Suspension Clause guarantees him a right to collaterally attack a criminal judgment based upon a change in statutory law. (To my knowledge, this is the first time that the Supreme Court has ever held a particular class of post-conviction claims to be categorically un-protected by the Suspension Clause.)

Justice Jackson’s dissent offers a number of (to my mind, persuasive) rejoinders to the majority opinion, both in its interpretation of the relevant statutes and in its interpretation of the Suspension Clause. As she closes:

Nothing in the text of § 2255, background principles concerning habeas relief, or AEDPA’s enactment history compels (or even supports) the conclusion that Congress intended to completely foreclose claims like Jones’s. And it is especially perverse to read the statute to lead to that result when doing so gives rise to legally dissonant, arbitrary, and untenable outcomes. So, the majority’s “straightforward” determination that this statute does preclude a prisoner in Jones’s position from filing a successive petition to assert a legal innocence claim (which it reaches by refusing to follow the procedural norm that would have correctly framed the issue as a matter of congressional intent relative to clear-statement principles) appears to stem from the Court’s own views concerning finality, not the will of Congress.

Jackson concludes that “today’s opinion—which unjustifiably closes off all avenues for certain defendants to secure meaningful consideration of their innocence claims—creates an opening for Congress to step in and fix this problem.” She’s right, of course, although it’s hard to imagine a constituency in any Congress (let alone this one) to make it easier for any group of convicted prisoners to challenge their continuing detention.

But what’s even more revealing is the majority’s response. Rather than agreeing with Jackson that the decision creates (or, at least, cements) a perverse result that Congress can (and must) fix, the majority’s only response is to cite a non-criminal case for the proposition that “there is nothing incongruous about a system in which this kind of error—the application of a since-rejected statutory interpretation—cannot be remedied after final judgment.” In other words, on the majority’s telling, it’s not that this result is unfair and demands correction by the legislature; it’s that it isn’t even unfair in the first place. That might be a defensible response in the case from which the quote derives (which was about the after-the-fact invalidation of a veterans’ benefits regulation that foreclosed a veteran’s benefits claim). But here, we’re talking about individuals who will spend additional years (if not decades) in federal prison based upon convictions or sentences that are no longer valid. That prisoners in those circumstances have no legal recourse sure seems “incongruous” (and quite a bit more) to me.

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SCOTUS Trivia: The Oddity of When the Docket Numbers Reset

This week’s trivia ranks high on the pedantry scale, but it actually has some meaningful practical consequences, too. Every filing in the Supreme Court has a docket number. And except for original jurisdiction cases, those numbers always start with a two-digit year (e.g., 22A1 for an application; 22M1 for a motion; 22-1 for a cert. petition). But when do the leading years reset?

It turns out that it’s neither of the more obvious candidates—January 1 (you know, when the actual year resets—which is how lower federal courts handle docket numbers); or the First Monday of October (when the Court’s “Term” year begins). Instead, the Clerk’s Office changes over docket numbers once the justices rise for their summer recess. That means that the first “23-nn” cases have already been docketed (the justices rose for their recess on Friday, June 30), even though the October 2022 Term doesn’t end until Sunday, October 1.

The reason for this odd choice is historical: As I’ve noted before, until 1980, when the Court rose for its summer recess, it adjourned—formally ending the previous Term. If the justices had to reconvene over the summer, it wasn’t part of the prior year’s Term; it was a “special” Term. Thus, it made at least some sense to no longer use docket numbers from the previous Term once it was over (the counterargument is that the new Term still didn’t start until October). The problem is that, when the Court switched to a “continuous” Term in 1980, it didn’t change its numbering practices. So the Court starts using “23-nn” numbers even while the “October 2022 Term” is still going. (For instance, here’s an “October 2019 Term” opinion of the Court with a “20A” docket number.)

As a result, not only does the Supreme Court use a random, arbitrary, and unpredictable date to switch over its docket numbers, but, as Second Circuit Judge Jon Newman has documented in an article for the Green Bag, the result is that the Court’s annual statistics about its docket are wrong. Instead of tallying all of the applications, motions, and petitions filed during a given Term, the Court is tallying (and reporting) all of the applications, motions, and petitions filed under a particular leading year. So a Court that sits from October to October is reporting statistics from late June/early July to late June/early July. That error may not matter to anyone other than the most fastidious of researchers, but (to me, at least) it’s a revealing example of a(nother) Court tradition that has outgrown its logic.

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Happy Monday, everyone! I hope you have a great week.

1. The decision in Ahrens helped to precipitate the fight over the statutory (and constitutional) availability of habeas to enemy prisoners convicted by overseas military commissions that the Supreme Court resolved in Johnson v. Eisentrager. The Supreme Court reversed Ahrens—and held that a district court need only have jurisdiction over a detainee’s custodian to have jurisdiction over his habeas petition—in 1973.

2. There’s a separate question about the wisdom of counsel for Jones—the UVa Supreme Court Clinic—taking up this case in order to bring it to this Supreme Court in the first place (versus leaving intact the case law in circuits allowing such claims), but I’ll save that for another time.

3. Given her separate opinion in Chazen, it’s a bit odd that Justice Barrett didn’t write separately in Jones to explain why she had changed her mind.