By Blake Stafford

On July 31, 2015, the Fourth Circuit issued its published opinion in the criminal case United States v. Surratt.  In this case, Raymond Surratt filed a second petition for writ of habeas corpus under 28 U.S.C. § 2241 to reduce his life sentence for his conviction of conspiracy to distribute cocaine.  As a federal prisoner, Surratt could not challenge his sentence under § 2241 unless the challenge fell within the scope of 28 U.S.C. § 2255(e)—the “savings clause”; otherwise, the district court was deprived of jurisdiction.  The district court concluded that his petition did not meet the “savings clause” requirements under § 2255(e) and thus denied his petition.  The Fourth Circuit affirmed, holding that Surratt’s § 2241 petition did not fall within the scope of § 2255(e); thus, the district court appropriately determined that it lacked jurisdiction to consider the petition.

Facts & Procedural Background

In 2005, Surratt was sentenced to life imprisonment after pleading guilty to conspiracy to distribute cocaine.  Prior to this conviction, he had been convicted four times for felony possession of cocaine.  The Government sought a sentencing enhancement given Surratt’s prior convictions under 21 U.S.C. § 841(b)(1)(A), which provided a mandatory term of life imprisonment without release if the defendant had two or more prior convictions that constituted “felony drug offenses.”  At the time of his sentencing, the Fourth Circuit precedent on this sentencing enhancement scheme was set forth in United States v. Harp, in which the Fourth Circuit held that a North Carolina drug conviction qualified as a “felony drug offense” if “the maximum aggravated sentence that the state court could have imposed for that crime upon the defendant with the worst possible criminal history exceeded one year.”  Under Harp, Surratt’s prior convictions constituted felony drug offenses, and he thus faced a mandatory life sentence.  Surratt’s conviction and sentence were affirmed on appeal, and his motion to vacate his conviction under § 2255, based on ineffective counsel, was denied.

Several years later, the Fourth Circuit decided United States v. Simmons, which overruled Harp.  Had Surratt been sentenced after Simmons, he would have faced a lower mandatory minimum sentence than the mandatory life term that he actually received.  In light of this ruling, Surratt filed a successive § 2255 motion to the Fourth Circuit as well as a § 2241 petition for a writ of habeas corpus to the district court, both premised on Simmons-based relief.  The Fourth Circuit denied his successive § 2255 motion, as it fell outside the statutorily enumerated exceptions that permit that type of motion under § 2255(h).  Because he was a federal prisoner, Surratt’s § 2241 petition in the district court had to satisfy § 2255(e)—also called the “savings clause”—in order for the district court to have jurisdiction to consider the § 2241 petition.  The district court concluded that § 2255(e) did not, in this case, confer jurisdiction to consider Surratt’s claim in a § 2241 petition, so it denied the petition.  Surratt appealed.

Statutory Landscape

In the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress circumscribed the ability of federal prisoners to request post-conviction relief.  Normally, § 2255 provides the ordinary means for a federal prisoner to challenge his conviction or sentence.  But, in AEDPA, Congress limited the jurisdiction of federal courts to hear second or successive requests under § 2255.  Specifically, under § 2255(h), courts may hear second or successive motions only if they pertain to (1) newly discovered evidence that clearly and convincingly establishes that no reasonable factfinder would have found the movant guilty of the offense, or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

If a federal prisoner cannot meet these two requirements under § 2255(h), he may file a traditional petition for writ of habeas corpus under § 2241 by way of the § 2255(e) savings clause.  However, under § 2255(e), a prisoner may file a § 2241 habeas petition only if the collateral relief typically available under § 2255 is “inadequate or ineffective to test the legality of his detention.”  If a prisoner brings a § 2241 petition that does not fall within the scope of this savings clause, then the district court must dismiss for lack of jurisdiction.

Court’s Application: Savings Clause Not Applicable

The Court began by noting that § 2255 was deemed inadequate or ineffective in only one prior instance—In re Jones.  In Jones, the court opened a narrow gateway to § 2241 relief for certain prisoners found actually innocent of their offenses of conviction, allowing relief only where the acts for which the defendant was convicted are not a crime.  Thus, the Court has since focused on this aspect of Jones—actual innocence of a criminal act—when characterizing the decision.  Here, Surratt is not innocent of anything, because Simmons did not decriminalize anything.  Thus, the Court held that he was just as guilty today as he was in 2005, and Jones did not apply.

Next, the Court evaluated the text of § 2255(e)—”inadequate or ineffective to test the legality of [Surratt’s] detention”—to determine whether circumstances outside of the Jones “innocence” test permit § 2241 relief.  The Court identified four basic characteristics of the text of § 2255(e) that ultimately left Surratt with no remedy:

  • First, the Court found that the word “test” indicated that the clause is concerned with process, not with substance; thus, Surratt had the opportunity to “test” the legality of his detention in his first § 2255 motion.  While Simmons had not been decided at the time Surratt filed his first § 2255 motion, courts do not permit petitioners special favors because the petitioners misjudged their claims as futile and chose not to present them in the first instance.  Thus, what matters is the ability to make the request—not the ability to win it—and Surratt had the ability to make the claim in the first motion.
  • Second, the Court found that the phrase “inadequacy and ineffectiveness” indicates that § 2255(e) preserves only the chance to request relief, not the ultimate and absolute right to obtain it.  Thus, the chance to argue a claim is the relevant criterion for adequacy and effectiveness, not any particular disposition of the claim.  Here, Surratt never suggested that the § 2255(e) mechanism denied him a chance to make his present argument.
  • Third, the Court found that the savings clause tests the “legality” of the relevant detention.  Courts generally have not recognized an “illegal” detention—one that would trigger the savings clause—where the defendant challenges a sentence within the correct statutory maximum.  Here, Surratt never received a sentence above the statutory maximum; while a life term is no longer mandatory, it is still the statutory maximum even after Simmons.
  • Fourth, the clause’s reference to “detention” speaks to physical restraint of a person’s liberty by the executive branch.  Thus, a § 2241 attack on “detention” through § 2255(e) should entail a challenge to (1) the right and authority of the executive to keep the individual in custody, or (2) the manner in which the executive executes the detention.  Here, Surratt’s petition does not attack any detention by the executive branch.

In addition to these four textual arguments, the Court noted that this narrower reading of the savings clause preserves one of the most important purposes of AEDPA sought to serve: finality.

Finally, the Court rejected potential constitutional issues brought by Surratt, finding that their narrow interpretation did not violate the Suspension Clause, Due Process Clause, Equal Protection Clause, or separation-of-powers principles.

District Court Affirmed

In sum, the Court found that the text and purposes of § 2255(e) indicated that Surratt’s § 2241 claim was not the type covered by the savings clause.  Thus, the Fourth Circuit affirmed the district court’s determination that it lacked jurisdiction over his petition.


In a passionate dissent, Judge Gregory noted that Surratt will die in prison only because the district court thought that this sentence was required to do so pursuant to a mandatory minimum.  Given the complete deprivation of liberty, this sentence constitutes an extraordinary miscarriage of justice of a constitutional magnitude, which should be sufficient to invoke the savings clause.