Is Burrage Retroactive? The Santillana Ruling and Jones v. Hendrix

Update (October 2026): The route used in this case is mostly closed now. In Jones v. Hendrix, 599 U.S. 465 (2023), the Supreme Court held that a federal prisoner cannot use a § 2241 petition to raise a new statutory-interpretation claim, like a Burrage claim, just because § 2255 does not allow it. The "savings clause" now covers only rare cases where going back to the sentencing court is impossible or impracticable, such as when that court no longer exists. Read the post below as history, not current law.

In 2017, the Fifth Circuit held that Burrage v. United States applies retroactively, so prisoners whose cases were already final could raise it. Here is what Burrage held, how the Santillana case used it, and where things stand today.

What Burrage held

In Burrage v. United States, 134 S. Ct. 881 (2014), the Supreme Court addressed the "death results" penalty in 21 U.S.C. § 841(b)(1)(C). That penalty raises the sentence when someone dies or is seriously injured from a drug the defendant sold.

The Court held that the drug must be a "but-for" cause of the death or injury. That means the death would not have happened without it, at least where the drug was not enough to cause the death on its own.

In the Court's words: "at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim's death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury."

How Santillana used Burrage

Tiofila Santillana challenged her "death results" conviction in light of Burrage. She filed a petition under 28 U.S.C. § 2241, not a § 2255 motion.

The district court dismissed it. It said § 2255's "savings clause" did not let her use § 2241. The savings clause, in 28 U.S.C. § 2255(e), allows § 2241 only when a § 2255 motion is "inadequate or ineffective" to test the legality of detention.

The Fifth Circuit reversed. It held that Burrage applies retroactively to cases on collateral review, meaning cases already final. The reason: Burrage narrowed what a federal statute covers, so it is a substantive rule.

The court also rejected district court rulings that treated Burrage as a jury-rights case like Apprendi and Alleyne. Those decisions were "simply incorrect," the court said, citing Krieger v. United States, 842 F.3d 490, 499–500 (7th Cir. 2016). As the court put it, the Burrage holding "is not about who decides a given question (judge or jury) or what the burden of proof is (preponderance versus proof beyond a reasonable doubt)—those questions are the province of Apprendi and Alleyne—but 'is rather about what must be proved.'"

Because the evidence suggested Santillana may have been convicted of something that was not a crime, the court let her go forward under § 2241. See Santillana v. Upton, 846 F.3d 779 (5th Cir. 2017).

When it was decided, the original article called this "an extremely important habeas decision." The reason was the tight limits on § 2241. A federal prisoner could use § 2241 only by meeting the savings clause, which meant showing that a § 2255 motion was "inadequate or ineffective" to test the legality of detention. Santillana showed one way to meet that test. Jones v. Hendrix has since closed that path, so this strategy is no longer available.

Where Burrage claims stand now

Santillana is still a useful statement that Burrage is retroactive. But after Jones v. Hendrix, a prisoner who already filed a § 2255 motion generally cannot bring a new Burrage claim through § 2241.

A prisoner who has never filed a § 2255 motion may still have options. The one-year deadline in 28 U.S.C. § 2255(f) applies, and it usually started running long ago for Burrage claims. One trigger runs from the date the Supreme Court recognizes a new right made retroactive, and Burrage was decided in January 2014.

A second § 2255 motion is harder still. Under § 2255(h), it needs permission from the court of appeals, and only newly discovered evidence or a new constitutional rule made retroactive by the Supreme Court qualifies. Burrage is a statutory ruling, not a constitutional one, so it does not fit. For help with a 2255 motion, see 2255motion.com.

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