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August 3, 2015

Split Fourth Circuit panel finds no means for federal prisoner to challenge collaterally wrongful LWOP

A Fourth Circuit panel on Friday issued a very intricate and thoughtful set of opinions in US v. Surratt, No. 14-6851 (4th Cir. July 31, 2015) (available here). The start of the majority opinion provides this effective overview of the issues in Surratt:

In 2005, after pleading guilty to conspiracy to distribute cocaine, Raymond Surratt was sentenced to life imprisonment.  We affirmed his conviction and sentence on appeal, and Surratt’s motion to vacate his conviction and sentence under 28 U.S.C. § 2255 was likewise denied. Neither Surratt’s direct appeal nor his § 2255 motion questioned the legality of his mandatory life sentence.

Several years later, Surratt returned to this Court and asked for permission to file a second or successive § 2255 motion.  Surratt’s request was premised on United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), which in turn overruled our prior decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005).  Had Surratt been sentenced after Simmons, he would have faced a lower mandatory minimum sentence than the mandatory life term that he actually received.  Surratt maintained that this difference entitled him to be resentenced.  But Congress set out certain conditions that must be met before a successive motion may be permitted, and Surratt did not meet those required conditions.  See 28 U.S.C. § 2255(h). We therefore denied him permission to file a successive motion. See In re Surratt, No. 12-283 (4th Cir. Sept. 13, 2012), ECF No. 6.

In the district court, Surratt had simultaneously filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 seeking the same Simmons-based relief.  As a federal prisoner, however, Surratt cannot challenge his conviction and sentence under § 2241 unless 28 U.S.C. § 2255(e) -- also called the “savings clause” -- applies.  The district court concluded that § 2255(e) did not in fact confer jurisdiction to consider Surratt’s claim in a § 2241 petition, so it denied Surratt’s petition.

Surratt now appeals from the judgment of the district court.  We are not unsympathetic to his claim; like the dissent, we recognize the gravity of a life sentence.  However, Congress has the power to define the scope of the writ of habeas corpus, and Congress has exercised that power here to narrowly limit the circumstances in which a § 2241 petition may be brought. Surratt’s petition does not present one of the permitted circumstances. Accordingly, we agree that the district court lacked jurisdiction under § 2255(e) to consider Surratt’s § 2241 petition and affirm the judgment below.

The end of the dissenting opinion in Surratt provides this alternative perspective on the case and its disposition by the majority:

I do not doubt that the majority is sympathetic to Surratt. In the end, I suppose we just have fundamentally different views on the role of habeas corpus, as well as the role of the judiciary in granting the writ.  I see it as our solemn responsibility to guard against a morbid encroachment upon that which is so precious our Framers ensured its continued vitality in our Constitution.  Instead we guard the Great Writ itself, and so closely that Surratt must spend the rest of his life in prison -- against the will of the government and the district court.  Our abdication of this responsibility begs the question: quis custodiet ipsos custodies?  Who will guard the guards themselves?

It is within our power to do more than simply leave Surratt to the mercy of the executive branch.  To hope for the right outcome in another’s hands perhaps is noble.  But only when we actually do the right thing can we be just.  I lament that today we are not the latter. Neither the plain language of our habeas statutes, our precedent, nor the Constitution demands that Surratt die in prison.  I must dissent.

August 3, 2015 at 09:19 AM | Permalink


With the DP debate, much attention has been lost on LWOP cases,sadly.

Posted by: alex | Aug 4, 2015 12:54:49 AM

All parties agree that Simmons overruled Harp and demonstrated that the mandatory life sentence was wrongfully imposed. All parties agree that if the defendant was sentenced under current precedent he would receive a sentence of less than life. The decision results in a manifest injustice. If a successive § 2255 motion is not permitted, then the savings clause should allow for 2241 relief.

This decision should be revisited and deserves en banc attention.

Posted by: Matt Robinson | Aug 5, 2015 10:59:08 AM

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