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Hueso v. Barnhart

United States Court of Appeals, Sixth Circuit

January 9, 2020

Ramon Hueso, Petitioner-Appellant,
J.A. Barnhart, Warden, Respondent-Appellee.

          Appeal 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.

         Since 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.

         Unable 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. 2016).

         Ramon 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.


         The 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.


         Section 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.

         This 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, 315 (1948).

         In 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).

         That 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).

         Second 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 (1995).

         Because 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, 623-24 (1998).


         In 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).

         This 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 court).

         Circuit 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).

         Since 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 705.


         In this 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 habeas petitions.

         Hueso's 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).

         At 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 Cir. 2011).

         Hueso 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).

         Hueso's § 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.

         The 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.

         The 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).

         In 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 precedent.

         A new 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).


         Hueso 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.

         At the 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).

         We 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.

         Rather, 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.


         We have 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 inadequacy?

         Our 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.

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