Jones v. Hendrix

• Citation: 8 F.4th 683
• Decision Date: 06 August 2021
• Docket Number: No. 20-1286,20-1286
• Parties: Marcus Deangelo JONES, Plaintiff - Appellant v. Dewayne HENDRIX, Warden, Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

8 F.4th 683

Marcus Deangelo JONES, Plaintiff - Appellant

v.Dewayne HENDRIX, Warden, Defendant - Appellee

No. 20-1286

United States Court of Appeals, Eighth Circuit.

Submitted: April 16, 2021

Filed: August 6, 2021

Marcus Deangelo Jones, U.S. Medical Center for Federal Prisoners, Fort Worth, TX, Pro Se.

Jeremy B. Lowrey, Law Office of Jeremy B. Lowrey, Sheridan, AR, for Plaintiff-Appellant.

Jamie Goss Dempsey, Stephanie Mazzanti, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Arkansas, Little Rock, AR,

Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.

GRUENDER, Circuit Judge.

Marcus DeAngelo Jones filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, challenging his 2000 felon-in-possession conviction under Rehaif v. United States , 588 U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). The district court¹ dismissed Jones's petition, concluding that Jones had not shown that 28 U.S.C. § 2255 ’s remedy was ineffective or inadequate to test the legality of his detention—a prerequisite in his case to habeas relief. See § 2255(e). Jones appeals; we affirm.

I.

A jury convicted Jones of one count of making false statements to acquire a firearm and two counts of possessing a firearm as a felon. See 18 U.S.C. § 922(a)(6), (g)(1). Jones appealed; we affirmed. United States v. Jones , 266 F.3d 804, 807 (8th Cir. 2001).

Jones later filed a motion to vacate his sentence under § 2255. The district court denied his motion, but we reversed, concluding that his counsel was ineffective for not objecting to Jones's two felon-in-possession counts as duplicative. United States v. Jones , 403 F.3d 604, 605 (8th Cir. 2005). On remand, the district court vacated one of Jones's felon-in-possession convictions and resentenced Jones. But the court denied his requests for a new sentencing hearing, for appointed counsel, and to let him appear in court. Jones appealed; we affirmed. United States v. Jones , 185 F. App'x 541, 542 (8th Cir. 2006) (per curiam).

Jones has since flooded the federal dockets with unsuccessful postconviction challenges, including numerous § 2255 motions and repeated petitions to the Supreme Court for review. See , e.g. , Jones v. Castillo , 569 U.S. 991, 133 S.Ct. 2387, 185 L.Ed.2d 1101 (2013) (mem.), denying rehearing, 568 U.S. 1258, 133 S.Ct. 1632, 185 L.Ed.2d 633 (2013) (mem.), denying cert., 489 F. App'x 864 (6th Cir. 2012) (per curiam). Indeed, Jones's two-decade campaign has led courts to restrict his ability to make further filings. See, e.g. , In re Jones , 572 U.S. 1086, 1086, 134 S.Ct. 1958, 188 L.Ed.2d 977 (2014) (mem.) (noting that "[Jones] has repeatedly abused this Court's process").

Then, in 2019, the Supreme Court held that, to convict someone under § 922(g), the government must prove that the defendant knew both that he had a prohibited status and that he possessed a firearm. Rehaif , 139 S. Ct. at 2194. Rehaif overturned our prior approach, which had not required the government to prove that the defendant knew he had a prohibited status. United States v. Coleman , 961 F.3d 1024, 1027 (8th Cir. 2020) ; see also Jones , 266 F.3d at 810 n.5.

Seizing on this change, Jones sought to challenge his conviction under Rehaif . The problem is that § 2255 is the preferred mechanism for Jones to do so. But Jones can file a "second or successive motion" under § 2255 only if it contains (i) certain "newly discovered evidence" or (ii) "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." § 2255(h)(1)-(2). Jones concedes that Rehaif —a new rule of statutory interpretation—does not qualify for either exception, so he cannot raise his Rehaif argument in a § 2255 motion. Instead, Jones filed a habeas petition under § 2241. The district court dismissed Jones's petition. Jones appeals.

II.

We review de novo a district court's decision dismissing a habeas petition filed under § 2241. Hill v. Morrison , 349 F.3d 1089, 1091 (8th Cir. 2003).

Typically, a federal inmate "must challenge a conviction or sentence through a § 2255 motion" to vacate. Lopez-Lopez v. Sanders , 590 F.3d 905, 907 (8th Cir. 2010). But § 2255 ’s saving clause creates "a narrowly-circumscribed ‘safety valve.’ " United States ex rel. Perez v. Warden, FMC Rochester , 286 F.3d 1059, 1061 (8th Cir. 2002) ; see generally "Saving Clause," Garner's Dictionary of Legal Usage 797 (3d ed. 2011) (noting that "saving" clause is better than "savings" clause). Under the saving clause, an inmate may file a habeas petition if he shows that "the remedy by [ § 2255 ] motion is inadequate or ineffective to test the legality of his detention." § 2255(e). If he fails to carry this burden, a court must dismiss his habeas petition for lack of subject-matter jurisdiction. Lee v. Sanders , 943 F.3d 1145, 1147 (8th Cir. 2019). Jones argues that he can use the saving clause and, if not, Congress has unconstitutionally suspended the writ of habeas corpus. Jones is wrong on both counts.

A.

We first consider Jones's saving-clause argument. We have explained that it is "difficult" for a petitioner to show that § 2255 ’s remedy is inadequate or ineffective. Lee , 943 F.3d at 1147 ; see also Perez , 286 F.3d at 1061-62. For example, the saving clause is unavailable "where a petitioner had any opportunity to present his claim beforehand." Lee , 943 F.3d at 1147. Further, a petitioner must show "more than a procedural barrier to bringing a § 2255 petition." Hill , 349 F.3d at 1091.

When Jones filed his first § 2255 motion, our precedent had already rejected a Rehaif -type argument. Now, although Rehaif might vindicate such an argument,² he cannot file a successive § 2255 motion in which to raise it. Caught in this Catch-22, Jones argues that § 2255 ’s remedy is inadequate or ineffective.

At the outset, we have already held that being precluded from filing a successive § 2255 motion—along with other procedural barriers—does not make § 2255 ’s remedy inadequate or ineffective. See Hill , 349 F.3d at 1091. Thus, without more, Jones's inability to raise his Rehaif argument via § 2255 now does not trigger the saving clause. The question is whether the change in caselaw, combined with the successive-motions bar, makes § 2255 ’s remedy inadequate or ineffective.

The circuits have split over this question. Most circuits would allow a petitioner to invoke the saving clause in a case like Jones's. See, e.g. , Bourgeois v. Watson , 977 F.3d 620, 637 (7th Cir. 2020) ; Hueso v. Barnhart , 948 F.3d 324, 332-33 (6th Cir. 2020) ; Harrison v. Ollison , 519 F.3d 952, 959 (9th Cir. 2008) ; In re Smith , 285 F.3d 6, 8 (D.C. Cir. 2002) ; Jiminian v. Nash , 245 F.3d 144, 147 (2d Cir. 2001) ; Reyes-Requena v. United States , 243 F.3d 893, 903-04 (5th Cir. 2001) ; In re Jones , 226 F.3d 328, 333-34 (4th Cir. 2000) ; In re Dorsainvil , 119 F.3d 245, 251 (3d Cir. 1997). The Tenth Circuit and Eleventh Circuit would not. McCarthan v. Dir. of Goodwill Industries-Suncoast, Inc. , 851 F.3d 1076, 1080 (11th Cir. 2017) (en banc); Prost v. Anderson , 636 F.3d 578, 580 (10th Cir. 2011) (Gorsuch, J.). As the parties agree, we have yet to weigh in.³ Reviewing the statutory text and our precedent, we agree with the Tenth and Eleventh Circuits.

First, " § 2255 is not inadequate or ineffective where a petitioner had any opportunity to present his claim beforehand." Lee , 943 F.3d at 1147. This is because the saving clause asks whether § 2255 ’s remedy is "inadequate or ineffective to test the legality of [a prisoner's] detention." § 2255(e) (emphasis added). And "to test" means "to try." McCarthan , 851 F.3d at 1086 (quoting 11 Oxford English Dictionary 220 (1st ed. 1933)). Simply, the saving clause is interested in opportunity, not outcome. See id. at 1086-87 ; Prost , 636 F.3d at 584.

Here, Jones could have raised his Rehaif -type argument either on direct appeal or in his initial § 2255 motion. Although our precedent was at that time against him, he nonetheless could have succeeded before the en banc court or before the Supreme Court. And, regardless, the question is whether Jones could have raised the argument, not whether he would have succeeded. Cf. Bousley v. United States , 523 U.S. 614, 621-23, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (holding that adverse circuit precedent did not excuse a movant's obligation to raise a challenge to his guilty plea's knowingness and voluntariness on direct appeal in order to raise it under § 2255 and noting that "futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time" (internal quotation marks omitted)).

For example, in Hill , a petitioner filed a § 2241 petition in the Eighth Circuit challenging a conviction from within the Tenth Circuit. 349 F.3d at 1090-91. A district court in the Tenth Circuit had considered drugs Hill had possessed for personal consumption when sentencing him in a drug distribution case. Id. at 1090. Hill did not challenge this in his appeal or initial § 2255 motion. Id. Subsequently, in United States v. Asch , 207 F.3d 1238 (10th Cir. 2000), the Tenth Circuit decided for the first time that courts could not consider such drugs when determining the statutory sentencing range. Hill , 349 F.3d at 1092. Citing to circuits who have adopted the majority approach, Hill argued that this subsequent change in caselaw triggered the saving clause. Brief at 9-16, Hill v. Morrison , 349 F.3d 1089 (8th Cir. 2003) (No. 02-2128). We "squarely reject[ed] Hill's argument," concluding that Hill could have made his claim in his first § 2255 motion and thus § 2255 ’s remedy was not inadequate or ineffective.

Hill , 349 F.3d at 1092. This was true even though, presumably, Hill's argument was less likely to succeed pre- Asch than post- Asch . So too here, Jones could have made his argument in his first § 2255 motion, even though it was less likely to succeed pre- Rehaif than post- Rehaif .

...