28 USC 2241 and Saving Clause

Since 1789, the writ of habeas corpus has been available to federal prisoners who wish to collaterally attack a federal conviction or sentence.  In 1948, Congress codified the habeas corpus rights of federal prisoners in 28 U.S.C. §2255. This section superseded traditional habeas corpus rights and procedures for federal prisoners, but was meant to "afford federal prisoners a remedy identical in scope to federal habeas corpus."  Davis v. United States, 417 U.S. 333, 343 (1974). This article discusses how the savings clause allows 28 USC 2241 motions in limited circumstances when a §2255 motion would be inadequate or ineffective.Savings Clause, 28 usc 2241

Section 2255 was enacted less for substantive than procedural reasons. Prior to the existence of section 2255, venue for habeas corpus petitions filed by federal prisoners was in the federal district of confinement, not conviction. In practice, this meant that habeas petitions filed by federal prisoners overloaded districts in which a federal prison was located. It also meant that the record, evidence and witnesses all had to be brought from the sentencing court to the court located in the district of confinement.

The Development of the Savings Clause: §2255(e) and 28 USC 2241

The passage of section 2255 eliminated this problem, but it created another. While section 2255 was meant to afford a remedy identical to habeas corpus, Congress recognized that section 2255 could be "inadequate or ineffective" to test the legality of a federal prisoner's detention in certain rare circumstances. In order to ensure that federal prisoners would still have access to all of the privileges afforded by habeas corpus, Congress included a "savings clause," found in §2255(e). This savings clause permits federal prisoners to resort to traditional habeas corpus, codified at 28 USC §2241, when §2255 would be inadequate or ineffective. Section 2255 is wide in breadth. As such, the circumstances where section 2255 is "inadequate or ineffective" are few and far between. Courts have found section 2255 wanting, and permitted 28 USC 2241 review, in the following circumstances.

Circumstances Where The Savings Clause Makes 28 USC 2241 Permissible

  • Challenges  to prison disciplinary actions. See United States v. Harris, 12 F.3d 735 (7th Cir. 1994)(challenging disciplinary segregation); Kingsley v. United States Bur. of Prisons, 937 F.2d 26 (2d Cir. 1991)(challenging denial of right to call witnesses in prison disciplinary hearing).


  • Challenges to prison conditions. See Ilina v. Zickenfoose591 F.Supp.2d 145 (D. Conn. 2008)(28 USC 2241 is the proper vehicle for a challenge to inadequate medical care, regardless of availability of civil Bivens action).


  • Challenges to sentence computation errors made by prison officials. See Setser v. United States, 566 U.S. 231 (2012)(challenge to calculation of credit for time served appropriately brought under 28 USC 2241); Reno v. Koray, 515 U.S. 50 (1995)(same).


  • Challenges to prison transfers and changes in type of detention. See Dunne v. Keohane, 14 F.3d 335 (7th Cir. 1984) (28 USC 2241 is the proper vehicle for a challenge to successive transfers from state to federal custody); United States v. Jalili, 925 F.2d 889 (6th Cir. 1991)(challenge seeking designation to particular facility properly brought under 28 USC 2241).


  • Challenges to parole determinations. See Doganiere v. United  States, 914 F.2d 165 (9th Cir. 1990)(challenge to Parole Commission decisions properly brought under 28 USC 2241); Cox v. Warden, 911 F.2d 1111, 1113-14 (5th Cir. 1990)(28 USC 2241 is the proper vehicle to challenge supervised release conditions because section 2255 "is inadequate or ineffective to test the legality of [these later aspects of] detention").


  • Challenges to extradition to foreign countries. See Ludecke v. United States Marshal 15 F.3d 496 (5th Cir. 1994) (habeas corpus review via 28 USC 2241 is available to review a magistrate judge's extradition order); Spatola v. United States, 925 F.2d 615 (2d Cir. 1997)(same).


  • Challenges to orders of detention in immigration. See Zadvydas v. Davis, 533 U.S. 678 (2001)(challenge to indefinite detention by immigration officials properly brought under 28 USC 2241). Note that the REAL ID Act of 2005 divested courts of habeas corpus jurisdiction for challenges to orders of removal, deportation or exclusion. REAL ID instead provides the circuit courts of appeal jurisdiction to review constitutional claims brought by aliens subject to removal orders. Thus far, REAL ID has survived challenges alleging that it violates the Suspension Clause.


  • Challenges to detention of alleged "enemy combatants." See Hamdi Rumsfeld, 542 U.S. 507 (2004)(28 USC 2241 remains available to foreign nationals captured abroad and detained at the Guantanamo Bay Naval Base, Cuba).


  • Challenges to court martial See Monk v. Zelez, 901 F.2d 885 (10th Cir. 1990)(Scope of review is limited, but 28 USC 2241 is available to mount constitutional challenge to court martial).

The Interplay Between the Savings Clause and 28 USC 2241

Review of the kinds of claims for which section 2255 is "inadequate or ineffective" reveals a theme: these claims almost entirely involve the execution of a federal sentence. As such, it is useful to think of section 2255 as the proper vehicle for attacking the validity of a conviction, while 28 USC 2241 remains available for challenges to the execution of a sentence.

Problems with Statutes of Limitations and Second or Successive 2255 Motions: How to Think about the Savings Clause and 28 USC 2241

Many litigants have attempted to use 28 USC 2241 when the section 2255 statute of limitations (L) or prohibition on second or successive motions (L) would bar a section 2255 attack on a conviction. A federal prisoner might say, "I cannot comply with the §2255(f) statute of limitations [or] the §2255(h) requirements for a second or successive motion, therefore 2255 is 'inadequate or ineffective,' and I can resort to a 28 USC 2241 motion in order to collaterally attack my conviction."

This argument will fail in almost all cases. Section 2255 is not inadequate or ineffective simply because §2255 relief has been denied before, the movant is procedurally barred from pursuing relief under §2255, or the movant has been denied permission to file a second or successive motion. Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012).

There are very limited circumstances where a court may find section 2255 inadequate or ineffective due to the §2255(f) statute of limitations or the §2255(h) prohibition of second or successive motions. These are narrow exceptions, and all involve some form of actual innocence.

Experienced Habeas Corpus Attorneys Focused on Savings Clause Issues and 28 USC 2241

The interplay between 28 USC 2255 and 28 USC 2241 is complex. At the Law Offices of Brandon Sample, we know when to file a section 2255 motion, and when to resort to a 28 USC 2241. If you or a loved one hope to obtain habeas corpus relief from a federal court, contact us now for a consultation. Our competent and professional staff will ensure that your habeas petition is filed correctly, the first time, and will give you the best possible chance at success.


§2255(e) Savings Clause: Use 28 USC 2241 When §2255 is Inadequate or Ineffective FAQs


Q: What is the §2255(e) savings clause for?

A: Section 2255 is meant to provide federal prisoners with a vehicle to address a comprehensive set of habeas corpus claims. But due to the AEDPA and other statutory and procedural restrictions, sometimes a federal prisoner will find herself barred from bringing a claim under section 2255. The savings clause of section 2255(e) allows the prisoner to resort to 28 USC 2241 when section 2255 would be "inadequate or ineffective" to test the legality of the confinement.

Q: What kinds of claims should be brought under 28 USC 2241 instead of §2255?

A: 28 USC 2241 should be used for challenges related to the execution of the sentence, while section 2255 should be used to attack the validity of the conviction. Any challenge to conditions of confinement is properly brought under 28 USC 2241. Challenges to parole and supervised release issues should also be brought under 28 USC 2241, as opposed to §2255.

Q: If my section 2255 motion fails, should I file a 28 USC 2241 motion?

A: In most cases, when a section 2255 motion is denied, it is not proper to file a 28 USC 2241 motion. The section 2255(e) savings clause only permits resort to 28 USC 2241 when §2255 would be "inadequate or ineffective. The mere fact that a section 2255 claim failed does not render §2255 inadequate or ineffective. Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012).

Q: My section 2255 motion was denied, but I am actually innocent of the crime, and I have proof. Can I file a motion under 28 USC 2241?

A: If you are actually innocent but have lost your §2255 motion, or you are barred from filing a section 2255 motion for procedural reasons, you may be permitted to pursue traditional habeas corpus under 28 USC 2241. In cases such as these, section 2255 truly is "inadequate or ineffective," and §2255(e)'s savings clause permits resort to 28 USC 2241. Contact us right away if you are innocent of your crime of conviction, and have proof of your innocence.  One of our experienced savings clause and 28 USC 2241 attorneys will discuss the situation with you, and let you know whether you have a valid claim.


Related Content

The History of Habeas Corpus

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

Extraordinary Remedies and Recharacterization