June 25, 2021: Compassionate Release at 87, the Savings Clause After Borden, and a Conflicted Lawyer

This June 2021 post covers an 87-year-old client's compassionate release, how the § 2255(e) "savings clause" looked after the Supreme Court's Borden decision, a ruling on a § 2255 lawyer with a conflict of interest, and civil lawsuits by victims in child pornography cases.

Update (October 2026): This post is from June 2021. The savings clause discussion below is now largely outdated. In Jones v. Hendrix, 599 U.S. 465 (2023), the Supreme Court held that the savings clause does not let a federal prisoner use a § 2241 petition to raise a new reading of a criminal statute (like Borden) after a first § 2255 motion. The clause still applies only in narrow cases, such as when it is impossible or impracticable to seek relief in the sentencing court (opinion).

Views on the law

An 87-year-old client wins compassionate release

We were proud to share that Eddie Cox, a longtime friend and client of ours, was granted compassionate release. He had been serving what amounted to a life sentence in federal prison.

Eddie's case first drew attention in 2017. Brandon Sample persuaded a federal court in Illinois, where Eddie was held, to grant savings clause relief and vacate his life sentence under the Armed Career Criminal Act. But Eddie's sentencing court in Missouri resentenced him to more than 80 years in prison. That still amounted to a life sentence, even though his new guidelines range was just 14 to 18 years. In June 2021, the court granted Eddie's motion for compassionate release.

Outcomes vary. A past result does not predict or guarantee the outcome of any other case. Every case is different.

Eddie was 87. In the 1970s, he was known as the only white man to hold a leadership role in the Black Mafia in Kansas City. On the street he was called "Cokey Joe" and "Shotgun Joe." In prison, he became known as "The Legend" for his work as a jailhouse lawyer. After 32 years in prison, Eddie is our symbol of hope: never give up.

The savings clause after Borden

Since the Supreme Court decided Borden, we have had many questions about the savings clause. Borden narrowed the Armed Career Criminal Act (ACCA). That is much like how Begay narrowed the ACCA in 2008 and Bailey narrowed § 924(c) gun charges in 1995. Both of those cases helped define the limits of the savings clause, and courts granted savings clause relief in many cases after them. Studying those decisions will go a long way toward mapping a path to relief under Borden. The following is adapted from a chapter in WinningCites: Habeas Corpus for Federal Prisoners, by Dale Chappell and Brandon Sample.

Federal prisoners must use 28 U.S.C. § 2255 to challenge their convictions and sentences. A § 2255 motion asks the judge who sentenced you to throw out or fix the sentence because something went wrong. Congress created § 2255 in 1948 to move these cases out of the courts near big prisons and back to the sentencing courts. Before that, prisoners used habeas corpus under 28 U.S.C. § 2241.

When Congress drafted § 2255 before adopting it in 1948, the only note on the purpose of the savings clause was this: "It will be noted that there is provided a wide discretion in the use of habeas corpus where, for other reasons, the motion remedy seems not practicable."

Today, a federal prisoner can use § 2241 only if "the remedy by motion is inadequate or ineffective to test the legality of his detention." That is the text of § 2255(e), known as the savings clause. Congress never defined "inadequate or ineffective." The Supreme Court brushed over it, saying that "where the section 2255 procedure is shown to be inadequate or ineffective, the section provides that the habeas corpus remedy shall remain open."

The savings clause did not matter much until the Antiterrorism and Effective Death Penalty Act (AEDPA) limited prisoners to one § 2255 motion in most cases. One of the first courts to address it after AEDPA was Triestman v. United States, 124 F.3d 361 (2d Cir. 1997). The prisoner there may have been convicted of something that was no longer a crime after Bailey. He had already used his one § 2255 motion, and Bailey was not a new constitutional rule that would allow another. What path to relief did such a prisoner have?

The court said the words "inadequate or ineffective" "must mean something or Congress would not have enacted it." It held that the savings clause applies to "a set of cases in which the failure to allow for collateral review would raise serious constitutional questions." As vague as that is, that meaning still applied in 2021. At least it gave some guidance on what Congress may have meant.

Courts did not all agree on when the savings clause allows relief. But nearly all agreed on when it does not: (1) when § 2255 relief is still available, and (2) when AEDPA bars another § 2255 motion or the claim was already denied. In other words, it is not a do-over if you make a mistake in your § 2255 motion or forgot to raise something you could have raised earlier.

When your § 2255 lawyer has a conflict

It is usually wise to have a new lawyer handle your appeal and § 2255 motion. A fresh set of eyes can spot good claims. It also avoids a conflict when it is time to raise ineffective assistance of counsel (IAC), which means a claim that your lawyer's mistakes hurt your case.

That is what went wrong in United States v. Scurry, 992 F.3d 1060 (D.C. Cir. 2021). The lawyer who handled Mr. Scurry's § 2255 motion had been involved in his case earlier and was married to his trial lawyer. The motion was denied. On appeal, the court explained why: the lawyer never raised a strong IAC claim that would have put her own advice, and her husband's, in a bad light.

To attack a guilty plea in a § 2255 motion, you generally must show that your lawyer's advice was deficient. Hill v. Lockhart, 474 U.S. 52 (1985). Instead of making that claim, counsel argued that the evidence "induced" the plea. She never challenged the advice to plead guilty.

In other words, the only way to attack the plea was for counsel to attack her own work. The court concluded:

The record incontrovertibly establishes that the conflict of interest impaired [counsel's] representation of Scurry in the district court and in this court. [She] brought a challenge to Scurry's plea that is squarely foreclosed by precedent and omitted a plausible ineffectiveness claim that courts have allowed in precisely this context. ... [Counsel] seemingly made a choice advancing her own interest at the expense of her client's.

A new lawyer would have had no problem raising the needed IAC claim. So the court sent the case back so a "conflict-free" lawyer could be appointed for the § 2255 motion.

Questions and answers: victims' civil claims

Q: Can victims in my child pornography case sue me for money, even years after my conviction?

A: Yes, they can try. Under 18 U.S.C. § 2255 (a civil law, not the same as a § 2255 motion), victims can sue a person who possessed their images, even if that person did not make them. But the victims do not win automatically. You can raise defenses, if you and your lawyer raise the right challenges.

In Amy v. Curtis, 2021 U.S. Dist. LEXIS 71361 (N.D. Cal. Apr. 13, 2021), 15 victims sued a man for damages years after he pled guilty to possessing child pornography. He raised many defenses, but the key question was whether he actually possessed their images.

The victims argued two things. First, his guilty plea proved he had their images. Second, the file names matched a series known to include their images. The court rejected the first argument. A general admission to possessing child pornography did not show he possessed images of these victims.

The second argument hurt the victims even more. The court said it "struggled" to find any evidence of the victims in the material he had. The judge even ordered the victims to provide a chart of the images that would be found on his computer. But when she looked at the evidence herself, she could not find them. The court said:

To be clear, in the absence of a declaration or deposition testimony from the person who conducted the forensic examination of the defendant's computer ... that each of the images relied on by plaintiffs, rather than just the series by which they are known to be included in the past, none of the plaintiffs establish that defendant possessed [child pornography] depicting them.

The court denied their motion for summary judgment, which is a request to win without a trial.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.