Kaleidoscopic Chaos: Understanding the Circuit Courts’ Various Interpretations of § 2255's Savings Clause

57 Pages Posted: 8 Jan 2014 Last revised: 24 Dec 2014

See all articles by Jennifer Case

Jennifer Case

University of Georgia School of Law

Date Written: January 7, 2014


More than 65 years ago, Congress enacted a short statute (codified at 28 U.S.C. § 2255) to even the habeas corpus workload among the federal courts. That statute included a “Savings Clause,” which allows prisoners to challenge their convictions and sentences in a federal habeas petition when § 2255 is “inadequate or ineffective” for the task. Since that time — and with increasing frequency — the U.S. Courts of Appeals have developed wildly varying tests to determine when and how § 2255’s Savings Clause applies to prisoners’ attempts to bring federal habeas petitions under 28 U.S.C. § 2241.

In their attempts to understand the Savings Clause’s scope and meaning, the circuit courts have found a myriad ways to navigate the gap between § 2255 and § 2241 and find a path for a petitioner to bring her § 2241 petition. However, in undertaking their task, the circuit courts have created kaleidoscopic chaos that impairs the ability of prisoners, counsel, and the federal courts themselves to understand when and how a federal prisoner can pass through the Savings Clause and challenge his conviction and sentence in a § 2241 petition.

This article reveals the patchwork of Savings Clause jurisprudence created by the circuit courts. Then, using several realistic hypotheticals, the article explores how geography, circuit precedent, and the nature and timing of intervening interpretations of criminal statutes determine whether and when prisoners who are serving sentences for acts that the law did not criminalize can bring a federal habeas petition and get out of prison. Through the use of these hypotheticals, the reader learns how the fates of federal prisoners (who appear to be similarly-situated) vary wildly depending on such things as where they were sentenced, where they are presently confined, and how and when the court system’s understanding of the underlying criminal statute changed.

Keywords: Savings Clause, habeas, habeas corpus, 2255, 2255(e), 2241, petition, circuit split, federal courts, post-conviction, postconviction, collateral attack, inadequate or ineffective

Suggested Citation

Case, Jennifer, Kaleidoscopic Chaos: Understanding the Circuit Courts’ Various Interpretations of § 2255's Savings Clause (January 7, 2014). University of Memphis Law Review, Vol. 45, Issue 1, 2014 (45 U. Mem. L. Rev. 1). Available at SSRN: https://ssrn.com/abstract=2375960 or http://dx.doi.org/10.2139/ssrn.2375960

Jennifer Case (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

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