The Volokh Conspiracy

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Due Process

A Troubling Supreme Court Habeas Decision

The Supreme Court was wrong to deny relief to a man imprisoned for activity that Court's own rulings indicate was not illegal - one who never had an opportunity to challenge his incarceration on that basis.


There aren't very many cases where the Supreme Court splits 6-3 along left-right ideological lines, and I think the liberal dissenters got it right. But today's important habeas corpus decision, Jones v. Hendrix, is one of those times.

The issue in Jones is whether a man incarcerated in a federal prison has the right to file a habeas petition challenging his imprisonment in a situation where an intervening Supreme Court decision—issued many years after his original conviction and appeal—ruled that the activity he was convicted and imprisoned for wasn't actually a crime.  Here is the Court's summary of what happened in the case of Marcus Jones:

In 2000, the U. S. District Court for the Western District of Missouri convicted petitioner Marcus DeAngelo Jones of two counts of unlawful possession of a firearm by a felon, in violation of 18 U. S. C. §922(g)(1), and one count of making false statements to acquire a firearm, in violation of §922(a)(6). The Court of Appeals for the Eighth Circuit affirmed his convictions and sentence of 327 months' imprisonment. See United States v. Jones, 266 F. 3d 804 (2001). After losing his appeal, Jones filed a timely §2255 motion to vacate, set aside, or correct his sentence, which resulted in the vacatur of one of his concurrent §922(g) sentences but no other relief. See United States v. Jones, 403 F. 3d 604 (CA8 2005); United States v. Jones, 185 Fed. Appx. 541 (CA8 2006) (per curiam). Years later, in Rehaif v. United States, 588 U. S. ___ (2019), this Court held that a defendant's knowledge of the status that disqualifies him from owning a firearm is an element of a §922(g) conviction. In doing so, it abrogated the Eighth Circuit's contrary precedent, which the Western District of Missouri and the Eighth Circuit had applied in Jones' trial and direct appeal….

After Rehaif, Jones hoped to leverage its holding into a new collateral attack on his remaining §922(g) conviction.

Jones apparently did not know he he was considered a felon under the relevant statute, because (relying on conversations with prosecutors) he thought his previous felony conviction had been expunged (see his counsel's Supreme Court brief, pp. 5-7, for a summary of these facts).

The majority, in an opinion by Justice Clarence Thomas, ruled that such challenges are barred by the Antiterrorism and Effective Death Penalty Act (AEDPA), in cases where the prisoner had filed a previous habeas petition challenging his conviction—even if there was no way for him to bring up the Supreme Court's later ruling (which reversed the lower-court precedent under which Jones was convicted). The majority also rejected various constitutional challenges to a rule that effectively allows continued imprisonment of legally innocent people who never had a chance to raise the relevant legal issue.

I won't try to assess the purely statutory issues in this case. I think both sides have some plausible arguments as to that, and I am not nearly enough of an AEDPA expert to have a strong view on who's right. But Justice Ketanji Brown Jackson's thorough dissent raises crucial constitutional points that the majority flubbed:

I am also deeply troubled by the constitutional implications of the nothing-to-see-here approach that the majority takes with respect to the incarceration of potential legal innocents… Apparently, legally innocent or not, Jones must just carry on in prison regardless, since (as the majority reads §2255) no path exists for him to ask a federal judge to consider his innocence assertion. But forever slamming the courtroom doors to a possibly innocent person who has never had a meaningful opportunity to get a new and retroactively applicable claim for release reviewed on the merits raises serious constitutional concerns…..

[the majority rules] a person in prison for noncriminal conduct cannot ask a federal court to review the legality of his detention if he has previously filed a §2255 petition. This position is stunning in a country where liberty is a constitutional guarantee and the courts are supposed to be dispensing justice. It also raises hackles under at least two provisions of our founding charter [Suspension Clause and 8th Amendment].

Justice Jackson makes a compelling argument that Suspension Clause bars imprisonment of a person who is legally innocent and never had a chance to raise the relevant legal issue [pp. 29-36 of her dissent]. The majority contends that habeas does not protect mere "statutory" claims of legal innocence in cases like this one (as opposed to constitutional claims). Jackson has a powerful answer:

[T]he majority conspicuously downplays the stakes in this case. Not once does its opinion make direct mention of the fact that the claim the majority says §2255(h) silently precludes is one that implicates core values because it involves legal innocence. Instead, the majority repeatedly describes Jones's bid for access to the postconviction review process as bringing a mere "statutory" claim…. But statutory claims that suggest a person's innocence are different in kind from more run-of-the-mill statutory claims, such as a technical, nonprejudicial violation of a criminal procedure rule….

Even if the majority was right with respect to its assumption that founding-era practices bear on whether the clear-statement rule [requiring a clear statement for abrogations of habeas corpus] applies here, historical practice plainly undermines its assertion that legal innocence claims are of recent vintage. Supreme Court Justices riding circuit in the early 19th century repeatedly considered the merits of habeas petitions filed by individuals who argued they were being wrongfully incarcerated because the laws that had been invoked to justify their confinement, properly construed, did not reach their conduct.

As Jackson notes, the majority's approach also creates ridiculous inconsistencies in treatment of prisoners with virtually identical habeas claims:

Consider two individuals who have been convicted of the same federal crime—perhaps two codefendants who were tried and sentenced together. Both complete their direct appeals, but only one files a §2255 motion within AEDPA's statute of limitations, while the other one decides not to or misses the deadline. If §2255(h) bars a successive petition raising a legal innocence claim, then when Rehaif is handed down—altering the elements of the crime of conviction such that both prisoners have a colorable claim of legal innocence—only the one who did not previously file a §2255 petition can raise this retroactive statutory innocence claim.

To my mind, keeping a legally innocent person in prison also violates the Due Process Clause of the Fifth Amendment. The clause bars the government from depriving a person of "life, liberty, or property, without due process of law." Keeping a man in prison when the activity he was convicted of was not actually illegal seems an obvious deprivation of "liberty" without any basis in "law." And, because Jones never had a chance to raise the relevant issue, this practice can't be justified on the basis of efficiency or procedural finality.

Jones' lawyers raised the Due Process Clause argument in their brief (pp. 43-45). As they note the Supreme Court has previously held (albeit before the passage of AEDPA) that  "conviction and punishment for an act that the law does not make criminal inherently results in a complete miscarriage of justice and present(s) exceptional circumstances that justify collateral relief under § 2255." But the majority disposes of the due process issue in a cursory footnote, and the dissenting justices ignore it entirely.  The issue at least deserved more serious consideration.

At the very least, there are plausible serious constitutional problems here. And, as Justice Jackson goes on to point out, this triggers the Supreme Court's longstanding rule requiring it to interpret federal laws in ways that avoid constitutional problems, if at all possible. In his well-known controlling opinion in NFIB v. Sebelius (2012), Chief Justice John Roberts ruled that courts must avoid constitutionally problematic interpretations of statutes  in "any case where it is "fairly possible" to do so – even if "the most natural interpretation" of the law supports a different outcome.

Some legal scholars reject the avoidance canon, and I myself think Roberts took it too far in NFIB. But the canon remains on the books, backed by a long line of precedent. If the Court wants to narrow the canon's scope or even abolish it entirely, it is free to do so. But the majority should at least indicate they are doing so and explain why. In this case, Justice Thomas doesn't even try to address it.

I don't agree with every point Justice Jackson makes in her dissent. But her position is much stronger than that of the majority. The Court made a grave error today, that will likely have the effect of consigning a substantial number of legally innocent people to long prison terms.

Congress could potentially fix the problem by passing a legislative fix, allowing prisoners in situations like Jones' to file habeas claims. But I am not optimistic it will happen anytime soon, if ever.

NOTE: In addition to Jackson' dissent, there is also a brief joint dissent by Justices Kagan and Sotomayor, which I won't try to cover here. They indicate agreement with much of Jackson's position. It isn't clear to me why they didn't just join her dissent, as well as writing their own much less detailed one.