from the United States District Court for the Eastern
District of Kentucky at London. No. 6:18-cv-00176-Danny C.
Reeves, District Judge.
Cathryn R. Armistead, ARMISTEAD LAW GROUP, PLLC, Nashville,
Tennessee, for Appellant.
Charles P. Wisdom, Jr., Kyle M. Melloan, UNITED STATES
ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.
Before: MOORE, KETHLEDGE, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
the founding, Congress has adjusted and readjusted the
important balance between an individual's interest in
correcting a wrongful conviction and society's interest
in stopping perpetual attacks on final criminal judgments. In
the Antiterrorism and Effective Death Penalty Act of 1996,
Congress adjusted this balance again, this time by placing
greater weight on the finality of completed cases. This law
generally gives federal prisoners just one chance to overturn
a final criminal judgment-by alleging any and all errors in a
single motion to vacate under 28 U.S.C. § 2255. The law
permits a second § 2255 motion only if prisoners show
new evidence of their innocence or a new rule of
constitutional law from the Supreme Court. 28 U.S.C.
§ 2255(h)(1)-(2). Since 1996, therefore, prisoners have
not been able to file a second § 2255 motion based on a
new rule of statutory law from the Supreme Court.
to invoke new statutory decisions in a second § 2255
motion, prisoners have turned to a different vehicle: a
petition for a writ of habeas corpus under 28 U.S.C. §
2241. But they have faced a different obstacle: § 2255
has long barred federal prisoners from seeking habeas relief
unless they show that § 2255's remedy is
"inadequate or ineffective to test the legality of
[their] detention." Id. § 2255(e). Courts
disagree over when (if ever) § 2255(h)'s limits on
second § 2255 motions-when combined with a new statutory
decision issued after the denial of a first motion-render
§ 2255 "inadequate or ineffective" so as to
permit a second round of litigation under § 2241.
Compare McCarthan v. Dir. of Goodwill
Industries-Suncoast, Inc., 851 F.3d 1076 (11th Cir.
2017) (en banc), with Brown v. Caraway, 719 F.3d 583
(7th Cir. 2013). Our court has joined those that have made
the broadest inroads into the 1996 limits in § 2255(h).
Unlike some courts, for example, we allow new habeas
petitions even if a later Supreme Court decision affects only
a prisoner's sentence, not just the prisoner's
conviction. Hill v. Masters, 836 F.3d 591 (6th Cir.
Hueso asks us to go further still. He argues that prisoners
barred from filing a second § 2255 motion may seek
habeas relief under § 2241 based on new decisions from
the circuit courts, not just the Supreme
Court. Although the Fourth Circuit has blessed an
identical request, United States v. Wheeler, 886
F.3d 415, 428-29 (4th Cir. 2018), we must respectfully
decline. Among our reasons: Congress allowed prisoners to
file a second § 2255 motion only if the Supreme Court
adopts a new rule of constitutional law. 28 U.S.C. §
2255(h)(2). We would write this limit out of the statute if
we held that new rules from the circuit courts (whether of
statutory or constitutional law) could render § 2255
"inadequate or ineffective" and trigger the right
to a second round of litigation under § 2241. We thus
affirm the denial of Hueso's habeas petition.
Supreme Court long ago recognized that "the power to
award the writ [of habeas corpus] by any of the courts of the
United States, must be given by written law," not common
law. Ex parte Bollman, 8 U.S. 75, 94 (1807). This
case concerns the relationship between two of those written
laws: 28 U.S.C. §§ 2241 and 2255. The history of
these laws-both before and after Congress's 1996
changes-puts this case's complicated statutory question
in its proper context.
2241, which allows courts to grant "[w]rits of habeas
corpus," dates to the Judiciary Act of 1789. 28 U.S.C.
§ 2241(a); McCleskey v. Zant, 499 U.S. 467,
477-78 (1991). The Supreme Court initially interpreted this
statute, like the common-law writ, not to apply to prisoners
who had been convicted by a court of competent jurisdiction.
Ex parte Watkins, 28 U.S. 193, 202-03 (1830). But
the Court gradually expanded its interpretation of the habeas
statute to permit more and more "collateral"
attacks on final criminal judgments. See McCleskey,
499 U.S. at 478-79.
expansion caused two practical problems. For one, courts
could issue writs only "within their respective
jurisdictions," so prisoners filed habeas petitions in
the court with jurisdiction over the prison detaining them.
See Rumsfeld v. Padilla, 542 U.S. 426, 446-47
(2004). This rule channeled the growing number of petitions
into the few courts with jurisdiction over prisons,
compelling those courts to review cases from faraway
locations. United States v. Hayman, 342 U.S. 205,
213-14, 214 n.18 (1952). For another, "res
judicata" did not apply to common-law petitions.
McCleskey, 499 U.S. at 479. Courts thus read the
habeas statute as allowing prisoners to file multiple
requests. Id. This reading "stimulated the
filing of unmeritorious successive petitions," which
were submitted "with the hope, perhaps, of reaching the
ear of a different judge[.]" Louis E. Goodman, Use
and Abuse of the Writ of Habeas Corpus, 7 F.R.D. 313,
1948, Congress passed legislation with remedies tailored to
each of these two problems. Pub. L. No. 80-773, 62 Stat. 869,
964-68 (1948). First Remedy: The 1948 law eliminated
the need for courts to review distant judgments by creating a
new cause of action in 28 U.S.C. § 2255. 62 Stat. at
967-68. Section 2255 afforded prisoners the same rights
granted by the habeas statute (now moved to § 2241), but
in a "more convenient forum": the sentencing court,
not the court of confinement. Hayman, 342 U.S. at
219. To ensure that prisoners would use this new remedy,
§ 2255 directed courts not to entertain a habeas
petition under § 2241 if a prisoner had not filed (or
had unsuccessfully filed) a § 2255 motion. 62 Stat. at
968; see, e.g., Broadus-Bey v. Diamond, 264
F.2d 242, 242-43 (6th Cir. 1959) (per curiam).
said, § 2255's ban on habeas filings came with an
exception that we have come to call its "saving" or
"savings" clause (now in § 2255(e)). This
clause clarified that prisoners could not file habeas
petitions under § 2241 "unless it also appears that
the remedy by motion [under § 2255] is inadequate or
ineffective to test the legality of [their] detention."
62 Stat. at 968. Before 1996, courts read this clause as
"allow[ing] resort to § 2241 sparingly."
Prost v. Anderson, 636 F.3d 578, 588 (10th Cir.
2011); cf. Cohen v. United States, 593 F.2d 766,
770-71, 771 n.12 (6th Cir. 1979). For example, a
prisoner's "lack of success" on the merits in a
§ 2255 proceeding did not show § 2255's
inadequacy. E.g., Litterio v. Parker, 369
F.2d 395, 396 (3d Cir. 1966) (per curiam).
Remedy: The 1948 law also limited multiple collateral
filings. A (now-superseded) sentence in § 2255 said that
a "sentencing court shall not be required to entertain a
second or successive [§ 2255] motion for similar relief
on behalf of the same prisoner." 62 Stat. at 967. And a
new § 2244 adopted similar language for habeas
petitions. Id. at 965-66. The Supreme Court read
these two provisions to codify the limits on multiple filings
that courts had been developing in common-law fashion before
1948. Sanders v. United States, 373 U.S. 1, 12- 14
(1963). By the 1990s, these judicially developed limits-which
the Court described as a "qualified application of the
doctrine of res judicata"-allowed courts to dismiss
successive petitions (those raising the same issues decided
in a prior petition) or abusive petitions (those raising new
issues that could have been asserted in a prior petition).
Schlup v. Delo, 513 U.S. 298, 318-19, 318 n.34
the 1948 statute allowed courts to exercise discretion when
enforcing its limits on multiple filings, courts developed
various exceptions to these limits. By the 1990s, prisoners
could file a second collateral challenge raising a new claim
if they showed "cause" for the delay in asserting
the claim and "prejudice" from the alleged error.
See McCleskey, 499 U.S. at 493- 94; United
States v. Flores, 981 F.2d 231, 234-35, 234 n.4 (5th
Cir. 1993). They also could file a second collateral
challenge if they made "a proper showing of actual
innocence." See Herrera v. Collins, 506 U.S.
390, 404-05 (1993). Changes in the Supreme Court's
interpretation of a criminal statute implicated both of these
judicial exceptions. See United States v. Richards,
5 F.3d 1369, 1370-72 (10th Cir. 1993). A new interpretation
that was "novel" could prove cause. Reed v.
Ross, 468 U.S. 1, 15 (1984). And a new interpretation
that limited a statute's scope could show that a prisoner
was innocent of the offense under the statute's narrowed
reach. Bousley v. United States, 523 U.S. 614,
1996, Congress replaced these judicially developed limits on
multiple § 2255 motions with a categorical limit (now in
§ 2255(h)) that generally prohibits second § 2255
motions. See Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.
1214, 1220. Yet Congress adopted two statutory exceptions to
this new statutory limit that codified narrower versions of
the prior judicially developed exceptions. A new
change-in-law exception allows a second motion based only on
a "new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable." 28 U.S.C. § 2255(h)(2).
And a new actual-innocence exception allows a second motion
based only on "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[.]" Id. § 2255(h)(1).
case mixes a rule that Congress revised with one it left
alone. Start with the revision: Congress did not include
changes in statutory interpretation as a ground for a second
§ 2255 motion. Section 2255(h) instead requires either a
new constitutional rule by the Supreme Court or new evidence
of innocence. Now for what remained: Congress did not touch
§ 2255(e)'s text allowing a habeas petition under
§ 2241 if § 2255's "remedy by motion is
inadequate or ineffective to test the legality of [a
prisoner's] detention." Putting the two together,
prisoners have argued that Congress-in imposing §
2255(h)'s new limits-meant to impliedly keep the old
exception for changes in statutory interpretation by
rendering § 2255 inadequate under § 2255(e) when
those changes occur. Under this view, prisoners may seek
relief based on a new statutory interpretation, but they now
must do so with a § 2241 petition (not a § 2255
motion) in their court of confinement (not their sentencing
courts fall along a spectrum in addressing this argument.
Some reject it outright because Congress did not include a
statutory-changes exception in § 2255(h). E.g.,
Prost, 636 F.3d at 585-86. Many others hold that
§ 2255(h)'s limits render § 2255 inadequate in
"unusual" situations. In re Dorsainvil,
119 F.3d 245, 251 (3d Cir. 1997). These courts permit new
habeas petitions if prisoners show both that a Supreme Court
decision adopting a new statutory interpretation proves their
"actual innocence," and that they "had no
earlier opportunity" to assert that new interpretation
in their initial § 2255 motion. Id. at 251-52;
Triestman v. United States, 124 F.3d 361, 377 (2d
Cir. 1997). Still others allow § 2241 petitions for new
statutory cases that affect a prisoner's sentence, even
if the case does not prove the prisoner's innocence of
the offense. Wheeler, 886 F.3d at 427-28; Brown
v. Caraway, 719 F.3d 583, 586-88 (7th Cir. 2013).
1996, our court has moved from near one end of this spectrum
to the other. Early cases reserved whether §
2255(h)'s limits on successive filings could render
§ 2255 inadequate even if a new statutory decision
proved a prisoner's innocence. Charles v.
Chandler, 180 F.3d 753, 756-58 (6th Cir. 1999) (per
curiam). Eventually, though, we found that §
2255(h)'s limits could render § 2255 inadequate if
the Supreme Court changed its interpretation of an offense
and prisoners lacked a reasonable opportunity to advocate for
that interpretation in their initial § 2255 motion.
See Wright v. Spaulding, 939 F.3d 695, 702-03 (6th
Cir. 2019) (discussing Martin v. Perez, 319 F.3d 799
(6th Cir. 2003)). We cautioned that this rule applied only
when prisoners made "a claim of actual innocence,"
Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir.
2003), not when they merely "challenge[d] their
sentences," United States v. Peterman, 249 F.3d
458, 462 (6th Cir. 2001). That actual-innocence limit gave
way in 2016. In Hill, we held that a new Supreme
Court decision as to sentencing could render §
2255(h)'s limits inadequate (and permit a habeas
petition) if the decision showed a sentencing error that was
"sufficiently grave to be deemed a miscarriage of
justice or a fundamental defect." 836 F.3d at 595. Yet
Hill still requires prisoners to show that their
first § 2255 motion did not give them a "reasonable
opportunity" to advocate for the interpretation that the
Supreme Court later accepted. Wright, 939 F.3d at
case, Ramon Hueso asks us to take a step beyond Hill
by further contracting § 2255(h)'s limits on second
motions and expanding § 2255(e)'s allowance for
Criminal Case & § 2255 Motion. In October 2009,
a district court in Alaska convicted Hueso of conspiring to
distribute and possess with intent to distribute illegal
drugs, in violation of 21 U.S.C. §§ 846 and 841(a).
The default sentencing range for Hueso's offense fell
between 10 years and life imprisonment. 21 U.S.C. §
841(b)(1)(A) (2006). If, however, Hueso had "a prior
conviction for a felony drug offense," his
mandatory-minimum sentence jumped from 10 years to 20 years.
Id. Federal law defines "felony drug
offense" as "an offense that is punishable by
imprisonment for more than one year under any law of the
United States or of a State or foreign country that prohibits
or restricts conduct relating to" certain controlled
substances. Id. § 802(44).
Hueso's January 2010 sentencing, the government asked for
the 20-year mandatory minimum because the State of Washington
had twice convicted Hueso of possessing illegal drugs. Wash.
Rev. Code § 69.50.4013(1) (2004). Under the state
statute, these offenses carried a maximum penalty of five
years, which exceeded the one-year requirement in the federal
definition of felony drug offense. See id. §
69.50.4013(2) (2004); id. § 9A.20.021(1)(c)
(2004). Under the state sentencing guidelines, however, Hueso
faced a maximum six-month term. Id. §
9.94A.505(2)(a)(i) (2002); 2002 Wash. Legis. Serv. Ch. 290,
§ 8 (S.S.H.B. 2338) (West). And he in fact received
concurrent 40-day sentences. When the district court
sentenced Hueso, Ninth Circuit precedent held that state
convictions like Hueso's were felony drug offenses so
long as "the state's statutory maximum
sentence" exceeded one year, even if "the maximum
sentence available under the state sentencing
guidelines" did not. United States v. Rosales,
516 F.3d 749, 758 (9th Cir. 2008). Hueso did not contest this
point, and the district court sentenced him to the longer
20-year mandatory minimum. The Ninth Circuit affirmed.
United States v. Hueso, 420 Fed.Appx. 776, 776 (9th
moved to vacate his sentence under § 2255 in the Alaska
court that sentenced him. He again did not challenge his
20-year mandatory-minimum sentence. The court denied his
motion, and the Ninth Circuit denied a certificate of
appealability. United States v. Hueso, No. 11-35855,
2013 U.S. App. LEXIS 16488 (9th Cir. May 15, 2013).
§ 2241 Petitions. In 2013, Hueso filed his first
habeas petition under § 2241 in the Eastern District of
Kentucky, the district in which he is confined. This petition
challenged his 20-year sentence on the ground that his state
convictions were not "felony drug offenses" and
that his mandatory minimum should have been 10 years, not 20
years. Hueso relied on two statutory decisions. The first was
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010).
That case asked whether a lawful permanent resident who had
pleaded no contest to a state's misdemeanor
drug-possession offense (after having pleaded guilty to an
earlier drug-possession offense) had "been convicted of
an 'aggravated felony'" under the immigration
laws. Id. at 566-70. Those laws define
"aggravated felony," among other ways, as
incorporating the felonies in the Controlled Substances Act
(or state equivalents). Id. at 567. That act, in
turn, allows the government to treat drug possession as a
federal "felony" if a defendant has a prior
possession conviction. Id. at 567-68. The government
argued that Carachuri-Rosendo's misdemeanor offense was
an "aggravated felony" because he had a prior
possession conviction and could have been charged with a
federal felony. The Court disagreed, holding that the statute
did not cover those whose conduct "hypothetically"
"could have received felony treatment under federal
law." Id. at 576.
second (more relevant) decision came after the Supreme Court
remanded a circuit case interpreting "felony drug
offense" for reconsideration in light of
Carachuri-Rosendo. United States v.
Simmons, 649 F.3d 237, 239 (4th Cir. 2011) (en banc).
Like the Ninth Circuit, the Fourth Circuit had read
"felony drug offense" to cover a state crime with a
statutory maximum exceeding one year, even if the defendant
could not have been sentenced to more than a year under the
sentencing guidelines. Id. at 241. But a divided en
banc court relied on Carachuri-Rosendo to overrule
its precedent. Id. Simmons held that courts must
focus on the maximum penalties that a specific defendant
faces (under the sentencing guidelines), not the maximum
penalties that any defendant could face (under the statutory
maximum). See id. at 243-50.
district court denied Hueso's first habeas petition.
Because of our then-existing cases interpreting §
2255(e) in 2013, Hueso could not challenge sentencing errors
in a habeas petition. Hueso v. Sepanek, No.
13-cv-19, 2013 WL 4017117, at *5 (E.D. Ky. Aug. 6, 2013).
2018, after our Hill decision expanded our
interpretation of § 2255(e), Hueso filed a second habeas
petition in the Eastern District of Kentucky. He again relied
on Carachuri-Rosendo and Simmons. The
district court again denied relief. It held (procedurally)
that Hueso may not file a habeas petition to challenge this
alleged sentencing error even after Hill and
(substantively) that Hueso's state convictions still
qualified as felony drug offenses under Ninth Circuit
Ninth Circuit case from 2019 has since undercut the
substantive portion of the district court's opinion.
United States v. Valencia-Mendoza, 912 F.3d 1215,
1219-24 (9th Cir. 2019). When considering a definition of
"felony" like the definition of "felony drug
offense," Valencia-Mendoza agreed with the
Fourth Circuit's Simmons decision and overruled
earlier Ninth Circuit cases as irreconcilable with
Carachuri-Rosendo. Id. Valencia-Mendoza
held that courts "must consider both a crime's
statutory elements and sentencing factors when determining
whether an offense is 'punishable'" by a term
exceeding a year. Id. at 1224 (emphasis omitted).
challenges his 20-year minimum sentence based on the Supreme
Court's Carachuri-Rosendo decision, the Fourth
Circuit's Simmons decision, and the Ninth
Circuit's Valencia-Mendoza decision.
Understandably so. Simmons and
Valencia-Mendoza both cite
Carachuri-Rosendo to hold that statutory definitions
like the definition of "felony drug offense"
require courts to consider the maximum prison term that a
specific defendant may receive under a state's sentencing
guidelines. But Hueso has already litigated one § 2255
motion, and Hueso's cited cases do not permit him to file
a second § 2255 motion because they do not contain new
evidence of innocence or new constitutional rules. 28 U.S.C.
§ 2255(h)(1)-(2). Hueso instead argues that these cases
make § 2255's remedy "inadequate or
ineffective" within the meaning of § 2255(e),
which, he says, allows him to pursue this sentencing claim in
a § 2241 habeas petition.
outset, we clarify what we do and do not decide. We do not
opine on the merits of Hueso's claim that his state
convictions are not "felony drug offenses."
"[D]iverse viewpoints" exist on this
"difficult question." See United States v.
Recinos-Hernandez, 772 Fed.Appx. 115, 117 (5th Cir.
2019) (per curiam); Simmons, 649 F.3d at 250-58
(Agee, J., dissenting).
likewise do not opine on whether Hueso's sentencing
challenge alleges the type of statutory error that can be
asserted on collateral review at all (even in a timely filed
first § 2255 motion). The Supreme Court has held that,
unlike constitutional or jurisdictional errors, statutory
errors do "not provide a basis for collateral attack
unless the claimed error constituted 'a fundamental
defect which inherently results in a complete miscarriage of
justice.'" United States v. Addonizio, 442
U.S. 178, 185 (1979) (quoting Hill v. United States,
368 U.S. 424, 428 (1962)). The circuit courts have reached
different conclusions about the types of sentencing errors
that rise to this fundamental-defect level. See Snider v.
United States, 908 F.3d 183, 192 n.5 (6th Cir. 2018).
All agree that prisoners may challenge statutory errors
resulting in a sentence that "was in excess of the
maximum authorized by law." 28 U.S.C. § 2255(a);
see, e.g., Snider, 908 F.3d at 189. And we
have held that the relevant "law" includes the
once-mandatory sentencing guidelines, which "had the
force and effect of law." Hill, 836 F.3d at 599
(citation omitted). We thus allowed a prisoner to challenge
an unlawful career-offender enhancement that resulted in a
sentence (300 months) exceeding the mandatory guidelines
range that would apply without the enhancement (235 to 293
months). Id. at 593, 599. Yet we have since held
that this logic does not extend to the now-advisory
guidelines. Bullard v. United States, 937 F.3d 654,
658-61 (6th Cir. 2019). Here, Hueso was sentenced under the
advisory guidelines. And while he argues that his
mandatory-minimum sentence was wrongly increased, his 20-year
sentence still fell below what would have been the maximum
allowed by law (life imprisonment) even without the
challenged enhancement. This type of challenge to a
mandatory-minimum enhancement thus may or may not be
cognizable in a properly filed first motion under §
2255. We need not decide this issue.
we decide only that Hueso cannot pursue this type of claim in
habeas under § 2241 because his cited cases do not
render a § 2255 motion "inadequate or
ineffective" within the meaning of § 2255(e). We
reach that result for two reasons. His two circuit
decisions cannot, as a matter of law, establish §
2255's inadequacy. And his lone Supreme Court
decision issued when his direct appeal was pending, so he
could have cited it in the ordinary course.
adopted a "reasonable-opportunity standard" for
prisoners seeking to prove § 2255's inadequacy under
§ 2255(e). Wright, 939 F.3d at 703. Under this
standard, prisoners must show "that binding adverse
precedent (or some greater obstacle) left [them] with 'no
reasonable opportunity' to" assert their legal claim
on the front end-in their initial § 2255 motion.
Id. (quoting In re Davenport, 147 F.3d 605,
610 (7th Cir. 1998)). But we have yet to identify the kind of
statutory changes required on the back end-when §
2255(h) bars another motion. Does a new statutory decision
from a circuit court suffice to show § 2255's
cases suggest not. They have all involved a new Supreme Court
decision. In Hill, we "reiterate[d]" that
we "addresse[d] only a narrow subset of § 2241
petitions"-those involving a "a subsequent,
retroactive change in statutory interpretation by the Supreme
Court[.]" 836 F.3d at 599-600. And our
"actual-innocence" cases likewise have all been
"based upon Supreme Court decisions announcing new rules
of statutory construction unavailable for attack under
section 2255." Hayes v. Holland, 473 Fed.Appx.
501, 501-02 (6th Cir. 2012) (per curiam); see, e.g.,
Harrington v. Ormond, 900 F.3d 246, 248-50 (6th Cir.
2018); Wooten v. Cauley, 677 F.3d 303, 306 (6th Cir.
2012); Martin, 319 F.3d at 804-05. We now turn the
facts of our prior cases into a holding. In addition to
whatever else our reasonable-opportunity standard demands, it
requires a Supreme Court decision that adopts a new
interpretation of a statute after the completion of the
initial § 2255 proceedings. This requirement follows
both from § 2255's text and structure and from the
backdrop against which Congress enacted § 2255(h)'s
limits in 1996.