Jermaine Lenard Moss v. Kenny Atkinson, Warden

Federal prisoners generally may challenge their convictions and sentences only by filing a direct appeal and, if unsuccessful there, one petition for collateral review in the sentencing court under 28 U.S.C. § 2255. Indeed, § 2255(h) expressly bars “second or successive” petitions unless the prisoner can point to “newly discovered evidence” or a “new” retroactive “rule of constitutional law” recognized by this Court. But what if, after a prisoner loses both her direct appeal and § 2255 petition, the statutory rule under which she was convicted or sentenced changes in her favor with retroactive effect? Section 2255(h) would appear to block further collateral review, as no explicit exception for new statutory rules appears there. That would be an injustice, as the prisoner would remain incarcerated with no procedural mechanism to test whether her detention is now unlawful. The saving clause of § 2255(e) fills that gap. It says a federal prisoner may seek an additional round of collateral review under 28 U.S.C. § 2241 if it “appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of his [or her] detention.” Interpreting this clause, nine circuits have held that § 2255 is “inadequate or ineffective” in the circumstance described above, while two circuits have held that it is not. The question presented is whether a federal prisoner may proceed through § 2255(e)’s saving clause to seek collateral review under § 2241 when that prisoner has demonstrated a favorable, retroactive change in the statutory rule that originally established the legality of his or her conviction or sentence.