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    • Brief

    Hammoud v. Ma’at

    Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner-Appellant.


    Argument: NACDL’s amicus brief argues that under the savings clause of 28 U.S.C. § 2255(e), a prisoner may seek habeas corpus relief through 28 U.S.C. § 2241 under limited circumstances: when the § 2255 remedy is “inadequate or ineffective to test the legality of [the prisoner’s] detention.”  28 U.S.C. § 2255(e).  For 20 years, the Fifth Circuit has recognized that the § 2255 remedy is “inadequate or ineffective” if a petitioner cannot seek relief despite a retroactively applicable Supreme Court decision establishing that the petitioner may have been convicted of a nonexistent crime.  Although that test leaves the door closed on some actual-innocence claims that should be recognized, it is generally consistent with the savings-clause tests applied in nearly every other federal court of appeals.  Most importantly, that test confirms that the savings clause offers more than a hollow process providing no practical opportunity to end unlawful imprisonment.  The Tenth and Eleventh Circuits, by contrast, have held that the savings clause applies only if the procedure afforded by § 2255 was formally unavailable.  According to those courts, so long as there was some theoretical chance to assert a claim under § 2255—even if the claim was futile or frivolous under existing precedent—the remedy was adequate and effective.  The Fifth Circuit should not modify or overrule its savings-clause jurisprudence to align itself with the Tenth and Eleventh Circuits.  The test applied in those circuits contravenes the text of the savings clause and congressional intent, poses constitutional concerns, and would force petitioners and their counsel to disregard binding precedent, court rules, and ethical obligations that forbid arguments that would be frivolous under settled law.  Moreover, application of the formal-process test would undermine public confidence in the justice system’s treatment of prisoners who contend that retroactive changes in the law mean they are actually innocent.

    • Brief

    Cody v. United States

    Brief of the National Association of Criminal Defense Lawyers and Due Process Institute as Amici Curiae in Support of Petitioner (On Petition for a Writ of Certiorari). 


    Argument: Without addressing the relevant text or history, the Eleventh Circuit held that, for purposes of the COA statute, a “proceeding under section 2255” extends beyond identifying a defect in custody—habeas’s historic outer limit—to also include the process of choosing an appropriate remedy. The court of appeals erred by reading the jurisdictional limits in the Antiterror-ism and Effective Death Penalty Act (“AEDPA”) in isolation from—rather than in pari materia with—the jurisdictional grants that they were enacted to restrain. Read together, sections 2255 and 2253 communicate Congress’s unambiguous intent that a “proceeding under section 2255” has the same scope as a traditional proceeding for habeas corpus. This Court’s habeas precedents, in turn, make clear that the scope of that proceeding does not include selecting a remedy. review is warranted because requiring a Certificate of Appealability prior to appellate review of a choice of remedy under § 2255(b) would be the functional equivalent of abolishing review altogether. COAs are available only for constitutional claims, but the choice of post-conviction remedy is an almost purely statutory procedure, and, as a practical matter, no COA could ever issue to a defendant in petitioner’s position. This Court’s review is needed to resolve that split and correct the Eleventh Circuit’s misinterpretation of the statutes governing federal post-conviction review.