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January 8, 2014

Unwrapping the Eleventh Circuit's final 2013 holiday present to prisoners challenging sentencing errors

Late last year, a helpful reader alerted me to an important (and very lengthy) new Eleventh Circuit panel decision in Bryant v. Warden, FCC Coleman, No. 12-11212 (11th Cir. Dec. 24, 2013) (available here). I have waited to blog about it until now because (1) I did not want this important Christmas Eve decision to be overlooked during the holiday weeks, and (2) federal public defender Amy Baron-Evans said I could use her new summary of the 110-page ruling to highlight why Bryant is the first must-read of 2014.  Here is the heart of Amy's summary of Bryant:

Eleventh Circuit Holds Savings Clause Opens the Door to a 2241 Petition Raising an Error Resulting in a Sentence Exceeding the Statutory Maximum

In Bryant v. Warden, __ F.3d __, 2013 WL 6768086 (11th Cir. Dec. 24, 2013), the Eleventh Circuit reversed the district court’s dismissal of Bryant’s 28 USC § 2241 habeas petition brought pursuant to the savings clause, 28 USC 2255(e), which permits a prisoner to file a 28 USC § 2241 petition when a § 2255 motion is “inadequate or ineffective to test the legality of his detention.”

This is an important decision for successive petitions raising claims under DesCamps or any other claim that the sentence exceeds the lawful statutory maximum. If you file a successive petition under 28 USC § 2255, and it is dismissed because it doesn’t meet the successor standard under § 2255(h), a § 2255 motion is “inadequate or ineffective to test the legality of [the prisoner’s] detention” under § 2255(e), and you can file a habeas petition under § 2241.

Leland Kynes of Holland & Knight was appointed to represent Bryant.

Savings Clause

Bryant proved that his prior § 2255 motion was “inadequate or ineffective to test the legality of his detention” and so his 2241 petition could now proceed under § 2255(e) because: (1) throughout his sentencing, direct appeal, and first § 2255 proceeding, binding circuit precedent held that a Florida concealed-firearm offense was a “violent felony” and squarely foreclosed his 924(e) claim that he was erroneously sentenced above the 10–year statutory maximum in 924(a); (2) subsequent to Bryant’s first § 2255, the Supreme Court’s decision in Begay, as interpreted by the circuit, “busted” circuit precedent holding that the Florida concealed-firearm offense was a “violent felony”; (3) Begay’s new rule applies retroactively on collateral review; (4) as a result, Bryant’s 235–month guideline sentence exceeds the 10–year statutory maximum authorized by § 924(a); (5) the savings clause in § 2255(e) reaches his claim of illegal detention above the statutory maximum.

The government raised no objection to Bryant’s attempt to proceed under the savings clause, so the court appointed amicus counsel to argue that it does not apply even when the sentence exceeds the statutory maximum. The court rejected amicus counsel’s arguments.

Procedural Default

The Eleventh also held that procedural default (by not raising the issue on direct appeal or in his first § 2255) did not bar the claim. While futility does not constitute cause to excuse procedural default, the procedural default rule is not jurisdictional but is an affirmative defense that the government can waive, and the government waived it. In addition, the savings clause under § 2255(e) applies regardless of whether the prisoner “has failed to apply” for § 2255 relief or the sentencing court “has denied him” § 2255 relief. Whether the savings clause may open the door to a § 2241 petition is jurisdictional, and so the court had to decide it.

Government’s Position

As noted, the government waived procedural default and any objection to Bryant proceeding under the savings clause.  The docket notes that the government has conceded the savings clause issue in other cases, and I’m told the government has not raised procedural default in other cases in other districts.  So this appears to be coming from the Solicitor General’s office, and its position is apparently that ACCA cases are different because a sentence above the statutory maximum is per se illegal.

The government did argue that a 1988 burglary conviction could be substituted for the concealed weapons conviction as the third ACCA predicate.  The court of appeals rejected that argument because the government did not object at sentencing to the district court’s finding that there were only three predicates or suggest at sentencing that the burglary conviction could be a predicate.

Other Circuits

The court of appeals describes a “deep and mature circuit split” on the reach of the savings clause at pages 24-26 of its decision. This part of the decision is not entirely clear and you should check your circuit caselaw.  Other circuits may adopt the Eleventh Circuit's approach, and if not, file a cert petition.

January 8, 2014 at 12:56 PM | Permalink


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Coming from the 4th Cir. (which reached the opposite conclusion in In re Jones), I tend to think of the important holding as "there is such a thing as actual innocence of a sentencing enhancement." The Seventh is the only circuit to agree with the 11th as far as I can tell, with the issue still open in many places. The Seventh went so far as to allow a 2241 challenge to a pre-Booker guidelines calculation rather than a sentence in excess of the statutory max.

For those interested, Judge Easterbrook wrote a very insightful comment accompanying his vote against rehearing Brown v. Caraway, 719 F.3d 583, 588 (7th Cir. 2013).

Posted by: Gray Proctor | Jan 8, 2014 5:57:13 PM

The basis for the decision is not that the defendant may proceed on a claim of actual innocence of a sentencing enhancement. It's that he may proceed on his claim that the erroneous designation of his prior conviction as a "violent felony" resulted in a sentence exceeding the lawful statutory maximum.

I believe the latter is still an open question in the Fourth Circuit.

Posted by: ABE | Jan 9, 2014 5:28:19 PM


Being allowed to proceed on a claim of actual innocence of a sentencing enhancement though is a much more inclusive sweep than requiring that the sentence exceed the statutory maximum. So I would agree with Gray Proctor that at least as described the 7th agrees with the 4th though the 4th may not go so far as the 7th (assuming of course that either the 7th has already decided the statutory max question or that any court willing to grant leave to challenge such enhancement applications could not help but allow similar challenges to claims that a statutory maximum was exceeded). I suppose it's possible that a different panel of the 7th could reach an opposite result when faced with the statutory max question but leaving that uncorrected (in either direction really) would be logically incoherent.

Posted by: Soronel Haetir | Jan 11, 2014 10:46:56 AM

It's true that Jones has not addressed the question squarely; my post was misleading. The district courts have not extended the savings clause to sentencing claims, however, and IIRC there are unpublished (or unprecedential) 4th Cir. decisions that settle the issue by merely remarking "we have never extended Jones to claims based on sentencing error" or some such. Personally, I think the "innocence" issue is misleading - it's code for a set of value judgments that lead one to conclude it's not worth creating an exception to 2255's procedural requirements unless the conviction itself is now suspect.
And Soronel, the 7th has actually gone farther than the 11th, holding that Guidelines issues can be raised in 2241, at least if the sentence was pre-Booker.

Posted by: Gray proctor | Jan 11, 2014 11:16:29 AM

Maybe Soronel meant that the 11th agrees with the 7th?

Posted by: Gray proctor | Jan 11, 2014 11:18:58 AM

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