Sixth Circuit Says Savings Clause OK to Raise Case Decided While 2255 on Appeal

Let’s say you filed your 28 U.S.C. 2255 motion attacking your federal sentence and it was denied. While you’re appealing that motion, the Supreme Court decides a retroactive case that you would’ve raised in your motion. Is it too late to supplement your motion with a new claim based on that case?

 It all depends on where you are. In some circuits, like the Second Circuit, you could. Ching v. US, 298 F.3d 174 (2d Cir. 2002). In some others you can’t. Balbuena v. Sullivan, 2020 U.S. App. LEXIS 25987 (9th Cir. Aug. 17, 2020).

 As you may be aware, every circuit has its own rules for using the savings clause under 2255(e), when a typical 2255 motion isn’t available. The Tenth and Eleventh Circuit have all but shut the door on savings clause petitions, but other like the Fourth and Seventh Circuits have allowed liberal use of it. You can now add the Sixth Circuit to 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 recognized the dilemma prisoners face when a Supreme Court case that applies to them is decided after their 2255 motion is denied but on appeal, holding that the savings clause is available for that situation.

 McCormick had his 2255 motion on appeal when the Supreme Court decided Mathis v. US, 136 S. Ct. 2243 (2016), a statutory interpretation case that would’ve likely provided relief in his 2255 motion. But Mathis wasn’t decided until after the district court denied McCormick’s motion and while he was on appeal. The Sixth Circuit told him to file a savings clause petition raising Mathis.

 The district court, unsurprisingly, denied McCormick’s petition and he appealed. The government argued that he couldn’t use the savings clause because he could have raised the Mathis claim in his 2255 motion that was on appeal. The Sixth Circuit disagreed. “The government’s position overlooks a critical point: Petitioners must show that the intervening case could not have been raised in the initial 2255 motion,” it said. McCormick’s 2255 motion was already denied by the district court by the time his Mathis claim came to life.

 The Court remanded to the district court to take another look at McCormick’s savings clause petition, noting that he could be granted immediate release if Mathis indeed applied to him.