SUPREME COURT OF THE UNITED STATES
No. 21–857
MARCUS DEANGELO JONES, PETITIONER v. DEWAYNE HENDRIX, WARDEN
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[June 22, 2023]
Justice Sotomayor and Justice Kagan, dissenting.
We respectfully dissent. As Justice Jackson explains, today’s decision yields disturbing results. See post, at 23–25 (dissenting opinion). A prisoner who is actually innocent, imprisoned for conduct that Congress did not criminalize, is forever barred by 28 U. S. C. §2255(h) from raising that claim, merely because he previously sought postconviction relief. It does not matter that an intervening decision of this Court confirms his innocence. By challenging his conviction once before, he forfeited his freedom.
Though we agree with Justice Jackson that this is not the scheme Congress designed, we see the matter as the Solicitor General does. As all agree, Congress enacted §2255 to “afford federal prisoners a remedy identical in scope to federal habeas corpus.” Davis v. United States, 417 U. S. 333, 343 (1974). To ensure that equivalence, Congress built in a saving clause, allowing recourse to habeas when the “remedy by motion” under §2255 is “inadequate or ineffective” compared to the remedy it replaced: an “application for a writ of habeas corpus.” §2255(e). So, as this Court has explained, if §2255 bars a claim cognizable at habeas, such that the remedies are not “commensurate,” the saving clause kicks in, and the prisoner may “proceed in federal habeas corpus.” Sanders v. United States, 373 U. S. 1, 14–15 (1963); see United States v. Hayman, 342 U. S. 205, 223 (1952).
With that understanding in mind, consider a prisoner who, having already filed a motion for postconviction relief, discovers that a new decision of this Court establishes that his statute of conviction did not cover his conduct. He is out of luck under §2255, because §2255(h) will bar his claim. But that claim is cognizable at habeas, where we have long held that federal prisoners can collaterally attack their convictions in successive petitions if they can make a colorable showing that they are innocent under an intervening decision of statutory construction. See Davis, 417 U. S., at 344–347; McCleskey v. Zant, 499 U. S. 467, 493–495 (1991). Congress did not abrogate that principle in §2255(h). Thus, we have precisely the kind of mismatch the saving clause was designed to address.
In this case, the petitioner says he is that prisoner, with that mismatch. But the Court of Appeals never considered that question, laboring under a mistaken view of the saving clause that, like the majority’s, assigns it almost no role. Accordingly, we would remand for the lower courts to consider the petitioner’s claim under the proper framework. See Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005).