Can You Use the Savings Clause for a Case Decided During Your 2255 Appeal?

Update (October 2026): The ruling below is no longer good law on this point. In Jones v. Hendrix, 599 U.S. 465 (2023), the Supreme Court held that a federal prisoner cannot use the savings clause in 28 U.S.C. § 2255(e) to bring a § 2241 petition based on a later Supreme Court decision interpreting a criminal statute. The savings clause now applies only in narrow situations, such as when unusual circumstances make it impossible or impracticable to seek relief in the sentencing court.

Say you filed a § 2255 motion, a request asking the court that sentenced you to throw out your conviction or sentence because something went wrong. The judge denied it. While your appeal is pending, the Supreme Court decides a new case that would have helped you. Is it too late to add that claim?

In 2020, the answer depended on where you were. The Second Circuit allowed it. Ching v. US, 298 F.3d 174 (2d Cir. 2002). The Ninth Circuit did not. Balbuena v. Sullivan, 2020 U.S. App. LEXIS 25987 (9th Cir. Aug. 17, 2020).

The savings clause in 2255(e) lets a prisoner file a different kind of petition, under 28 U.S.C. § 2241, when a 2255 motion is "inadequate or ineffective." Before 2023, each circuit had its own rules for when that applied. Some, like the Tenth and Eleventh Circuits, rarely allowed it. Others, like the Fourth and Seventh Circuits, allowed it more often. In 2020, the Sixth Circuit joined that growing list of courts expanding use of the savings clause.

In McCormick v. Butler, 2020 U.S. App. LEXIS 31702 (6th Cir. Oct. 6, 2020), the court held that the savings clause was available when a helpful Supreme Court case came out after the district court denied a 2255 motion, while the case was on appeal.

McCormick's 2255 motion was on appeal when the Supreme Court decided Mathis v. US, 136 S. Ct. 2243 (2016). Mathis interpreted a federal statute in a way that likely would have helped him. The Sixth Circuit told him to raise Mathis in a savings clause petition.

The district court, unsurprisingly, denied that petition, and McCormick appealed. The government argued he could have raised Mathis in his pending 2255 appeal. The Sixth Circuit disagreed: "The government's position overlooks a critical point." It said prisoners must show the new case "could not have been raised in the initial 2255 motion," and McCormick's motion had already been denied when Mathis came out.

The court sent the case back for another look, noting McCormick could be released right away if Mathis applied.

As the update above explains, Jones v. Hendrix has since shut this door for claims based on new statutory interpretations.

What This Means Now

Because the savings clause is now so narrow, the § 2255 motion itself carries more weight than ever. It generally must be filed within one year of the latest of several dates, most often the date the conviction became final (28 U.S.C. § 2255(f)). A second or successive motion is allowed only in limited cases, such as one based on a new rule of constitutional law that the Supreme Court has made retroactive (§ 2255(h)). If a new decision might help, raise it promptly, and get advice before you file anything on your own.

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