Preview: Prost v. Anderson and the Enigmatic Savings Clause of § 2255: When is a Remedy by Motion “Inadequate or Ineffective?”

Bryan Florendo[1]

As a convicted man sits imprisoned, his appeals exhausted, the Supreme Court issues a decision that casts doubt over the man’s culpability. Has Congress granted that man an adequate remedy by which to challenge his detainment? Is he rightfully due a second collateral appeal in light of the newly issued statutory interpretation?

The Tenth Circuit faced these issues in Prost v. Anderson. There, the court analyzed 28 U.S.C. § 2255, a statute providing habeas corpus-equivalent, post-conviction relief. The court was asked to delineate the circumstances under which the § 2255 remedial mechanism is inadequate or ineffective.  In a 2-1 decision, the court held that the remedy afforded by § 2255 is “inadequate or ineffective,” and petitioners are thereby due a second or subsequent collateral challenge, only when the argument brought in a subsequent motion could not have been raised in the initial § 2255 motion.

Prost v. Anderson stemmed from the appellant’s 1998 conviction for conspiring to distribute methamphetamine and conspiring to launder proceeds derived from a drug dealing operation. A decade after Prost was convicted and his initial § 2255 motion denied, the Supreme Court interpreted “proceeds” in a way potentially favorable to him.  Relying on this new interpretation, Prost sought to have his money laundering conviction overturned. Because § 2255 allows second and successive petitions only when they pertain to newly discovered evidence or new rules of constitutional law, and his appeal contained neither, Prost filed for habeas corpus relief under 28 U.S.C. § 2241.

Federal prisoners have two principle mechanisms by which to collaterally challenge their imprisonment. Petitioners seeking to challenge the validity of their sentences may bring suit under § 2255, whereas § 2241 is the proper procedural vehicle for petitioners seeking to challenge the execution of their sentences.  As an alternative pathway to § 2241, the Savings Clause of § 2255 provides that petitioners may bring suit under § 2241 when the remedy afforded by § 2255 is “inadequate or ineffective to test the legality of [the prisoner’s] detention.” It was by this Savings Clause that Prost sought to collaterally challenge, for a second time, his imprisonment.

The Tenth Circuit rejected Prost’s claim, holding that he was free to bring a statutory interpretation argument in his initial  § 2255 motion. Therefore, the court explained, Prost was barred from accessing § 2241 via the Savings Clause despite the Supreme Court’s recent, and potentially favorable, interpretation of “proceeds.” The court found support for its holding in the context and history of § 2255.  Most obviously, the court noted the statute’s explicit limitations on second and successive collateral petitions, with exceptions for newly discovered evidence and new rules of constitutional law but no such exception for new statutory interpretations. Furthermore, the court explained, the statute contains a repeated “emphasis on providing a single opportunity to test arguments[.]” So long as petitioners are given an adequate opportunity to test their convictions and sentences, the narrowly constructed Savings Clause of § 2255 does not apply.

In holding that the proper test of the Savings Clause’s applicability to successive collateral petitions involves whether the argument could have been brought in a prior motion, the Tenth Circuit rejected two alternative tests adopted by other circuits. The court first rejected the Ninth Circuit’s “novelty test,” which allows successive petitions when the initial § 2255 proceeding ends prior to the Supreme Court handing down a new and relevant statutory interpretation. The court then rejected the so-called “unobstructed procedural shot test.” That test, adopted by multiple circuits, allows for successive petitions when the substance of those petitions was erroneously foreclosed under circuit law at the time of the prior § 2255 proceedings.

The Tenth Circuit’s decision in Prost conforms to the spirit and purpose of § 2255 as drafted and revised by Congress. For half a century, the statute contained no explicit restrictions on second and successive collateral challenges. Indeed, courts heard successive petitions whenever justice so required. The explicit restrictions enacted in 1996 leave little doubt that Congress intended to rescind the deference it had historically lent to the courts. Right or wrong, Congress chose to elevate the certainty of exculpatory evidence and supremacy of constitutional arguments above the  amorphous arena of statutory interpretation.

The language and structure of the statute contain further evidence that Congress did not intend to make new statutory interpretations the basis of successive collateral petitions. The subsection in which the Savings Clause resides is prefaced with the qualification that it applies only to those “who [are] authorized to apply for relief” pursuant to § 2255. By the statute’s own restrictions, prisoners bringing forth successive petitions not containing newly discovered evidence or new rules of constitutional law are not authorized to apply for § 2255 relief. Furthermore, the Savings Clause is located in subsection (e) of § 2255, while the explicit restriction on successive petitions is located in subsection (h). It would be illogical to provide the exception before stating the rule. More likely, the Tenth Circuit’s interpretation is the one Congress intended: the Savings Clause does not apply to new statutory interpretations.

For further explanation and analysis, see Bryan Florendo, Prost v. Anderson and the Enigmatic Savings Clause of § 2255: When is a Remedy by Motion “Inadequate or Ineffective?,” 89 Denv. U. L. Rev. ____ (forthcoming 2012).

[1] J.D. Candidate, 2013, University of Denver Sturm College of Law.