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JONES v. HENDRIX

Jackson, J., dissenting

§§2255(h)(1) and (2). Congress has expressly overridden operation of the saving clause with respect to those two provisions, because it has clearly expressed its intent to narrow the scope of postconviction relief where a federal prisoner brings a successive petition raising a claim of new evidence or new constitutional law.^[1] “A legislature may adopt a policy different from that embodied in the general saving statute.” M. Ruud, The Savings Clause—Some Problems in Construction and Drafting, 33 Texas L. Rev. 285, 299 (1955). And here, no one questions that, with §§2255(h)(1) and (2), Congress clearly did so. Brief for Respondent 26–28. But the majority now reasons that, merely by omitting statutory innocence claims from that authorized-filings list, Congress should be deemed to have exhibited a narrowing intent with respect to those claims as well. See ante, at 1–2, 12.

I disagree. Indeed, in my view, it is precisely because the text of §§2255(h)(1) and (2) speaks unequivocally to the narrowing Congress wished to effect with respect to new-evidence and new-constitutional claims that we should not ascertain that Congress meant for the second or successive bar to have the same effect with respect to legal innocence

↑ Prior to AEDPA, an individual who wished to file a successive petition claiming factual innocence on the basis of new evidence needed only to show that it was “more likely than not” that the jury would have acquitted him. Schlup v. Delo, 513 U. S. 298, 327 (1995). But, with AEDPA, Congress narrowed the scope of available relief for factual innocence claims by requiring prisoners to make their showing by the more stringent “clear and convincing evidence” standard. §2255(h)(1); see also §2244(b)(2)(B)(ii); 141 Cong. Rec. 15040, 15042 (1995) (statement of Sen. Levin). Similarly, before AEDPA, an intervening change of circuit precedent arguably could warrant a successive petition raising a new constitutional argument. See Davis, 417 U. S., at 339–341, 346–347; Sanders v. United States, 373 U. S. 1, 17 (1963); United States v. Nolan, 571 F. 2d 528, 530 (CA10 1978); see also Hertz & Liebman §28.3[c][ii], at 1709–1710, and n. 108. Yet AEDPA permits successive petitions raising new constitutional claims only when premised on retroactive Supreme Court opinions. §§2255(h)(2), 2244(b)(2)(A).

[1] Prior to AEDPA, an individual who wished to file a successive petition claiming factual innocence on the basis of new evidence needed only to show that it was “more likely than not” that the jury would have acquitted him. Schlup v. Delo, 513 U. S. 298, 327 (1995). But, with AEDPA, Congress narrowed the scope of available relief for factual innocence claims by requiring prisoners to make their showing by the more stringent “clear and convincing evidence” standard. §2255(h)(1); see also §2244(b)(2)(B)(ii); 141 Cong. Rec. 15040, 15042 (1995) (statement of Sen. Levin). Similarly, before AEDPA, an intervening change of circuit precedent arguably could warrant a successive petition raising a new constitutional argument. See Davis, 417 U. S., at 339–341, 346–347; Sanders v. United States, 373 U. S. 1, 17 (1963); United States v. Nolan, 571 F. 2d 528, 530 (CA10 1978); see also Hertz & Liebman §28.3[c][ii], at 1709–1710, and n. 108. Yet AEDPA permits successive petitions raising new constitutional claims only when premised on retroactive Supreme Court opinions. §§2255(h)(2), 2244(b)(2)(A).

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