The § 2241 Savings Clause After § 2255

If you want to challenge your federal conviction or sentence itself, you almost always must use a § 2255 motion. A § 2241 habeas petition — filed in the district where you are held — is mainly for problems with how your sentence is being carried out, like credit for time served or prison discipline.

The “savings clause” in 28 U.S.C. § 2255(e) allows a § 2241 petition only when § 2255 is “inadequate or ineffective to test the legality of [your] detention.” Since Jones v. Hendrix, 599 U.S. 465 (2023), that door is very narrow.

Why does § 2255 exist alongside habeas corpus?

Federal courts have been able to issue habeas corpus since 1789. In 1948, Congress created 28 U.S.C. § 2255 for federal prisoners. It 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).

The main reason was practical. Before 1948, a federal prisoner filed habeas in the district where he was held, not where he was convicted. That flooded the few districts with big federal prisons. It also meant the record, evidence, and witnesses had to be moved from the sentencing court. Section 2255 sends these cases back to the sentencing court.

What is the savings clause?

Congress knew § 2255 might not cover every situation. So it added a “savings clause,” now in § 2255(e). It says a habeas petition “shall not be entertained” if the prisoner has not used § 2255, or § 2255 relief was denied, “unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).

When that exception applies, a prisoner may file a traditional habeas petition under 28 U.S.C. § 2241.

What did Jones v. Hendrix change?

For years, many appeals courts let prisoners use § 2241 when a later Supreme Court decision changed how a criminal statute is read and showed they may be innocent, but § 2255(h) blocked a second § 2255 motion.

In 2023, the Supreme Court ended that practice. It held that § 2255(e) does not let a prisoner bring a claim based on a new reading of a criminal statute in a § 2241 petition to get around § 2255(h)’s limits on second or successive motions. Jones v. Hendrix, 599 U.S. 465 (2023). Section 2255(h) lists the only two conditions for a second or successive motion. A prisoner with a statutory claim who cannot meet them may not use § 2241 instead; as the Court put it, “[i]t means that he cannot bring it at all.” Id.

The Court described the savings clause as covering unusual cases, such as when the sentencing court no longer exists, or when it is otherwise impossible or impracticable to seek relief from the sentencing court. It also covers challenges to detention other than attacks on the sentence itself. Id.

Older appeals-court cases that allowed statutory-innocence claims under § 2241, and the circuit tests they used to decide when § 2255 was “inadequate or ineffective” for that purpose, no longer govern after Jones.

What kinds of claims have courts heard under § 2241?

These examples mostly involve how a sentence is carried out, not whether the conviction is valid. Section 2255 does not cover these claims, so they go under § 2241.

• 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. Zickefoose, 591 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). Circuits disagree on whether conditions claims belong in habeas at all.

• Challenges to how prison officials computed the sentence or credit for time served. See Reno v. Koray, 515 U.S. 50 (1995)(credit for time served; case brought under 28 USC 2241); Setser v. United States, 566 U.S. 231 (2012)(noting that Bureau of Prisons sentence-calculation decisions can be challenged under 28 USC 2241).

• Challenges to prison transfers and changes in type of detention. See Dunne v. Keohane, 14 F.3d 335 (7th Cir. 1994) (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).

• 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. 1991)(same).

• Challenges to immigration detention. See Zadvydas v. Davis, 533 U.S. 678 (2001)(challenge to indefinite detention by immigration officials properly brought under 28 USC 2241). The REAL ID Act of 2005 removed habeas jurisdiction over challenges to orders of removal and sends those claims to the courts of appeals by petition for review. 8 U.S.C. § 1252(a)(5). Thus far, REAL ID has survived challenges alleging that it violates the Suspension Clause.

• Challenges to detention of alleged “enemy combatants.” See Rasul v. Bush, 542 U.S. 466 (2004)(28 USC 2241 reaches foreign nationals detained at the Guantanamo Bay Naval Base, Cuba); Hamdi v. Rumsfeld, 542 U.S. 507 (2004)(U.S. citizen held as an enemy combatant could challenge detention through habeas corpus).

• Challenges to a 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).

Outcomes vary. A past result does not predict or guarantee the outcome of any other case.

Where do you file a § 2241 petition, and whom do you name?

A § 2241 petition that challenges your present physical custody goes to the federal district court for the district where you are held, and the respondent is your immediate custodian, usually the warden of your prison. “Whenever a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement.” Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004). The default rule is that the proper respondent is the warden, “not the Attorney General or some other remote supervisory official.” Id. at 435.

This is the opposite of a § 2255 motion, which goes to the court that sentenced you. Filing in the wrong place, or naming the wrong official, can get a petition dismissed. In Day v. Trump, 860 F.3d 686 (D.C. Cir. 2017), a federal prisoner held in Indiana filed in Washington, D.C., naming the President instead of his warden. The D.C. Circuit held that the district court had no jurisdiction over the petition, because the prisoner’s immediate custodian was the warden in Indiana, not the President.

If you are transferred after filing, ask the court how the transfer affects the case; do not simply refile in the new district.

What can you still use § 2241 for?

After Jones, the main use of 28 U.S.C. § 2241 for federal prisoners is to challenge how the Bureau of Prisons (BOP) is carrying out the sentence, rather than the sentence itself. Common examples:

• Sentence computation and jail credit. The BOP, acting for the Attorney General, computes credit for time spent in custody before sentencing. Prisoners can seek administrative review and then judicial review after exhausting administrative remedies. United States v. Wilson, 503 U.S. 329, 335 (1992). If the BOP’s administrative remedy process does not resolve a computation dispute, the prisoner “may seek a writ of habeas corpus. See 28 U.S.C. § 2241.” Setser v. United States, 566 U.S. 231, 244 (2012).
• Time credits. Disputes about how the BOP applies earned time credits, including First Step Act credits, are generally raised through the BOP’s administrative remedy program and then, if needed, a § 2241 petition in the district of confinement.
• Prison discipline that affects release. For example, the loss of good-conduct time.

Most courts expect you to use the BOP’s administrative remedy program (28 C.F.R. § 542.10 et seq.) before filing.

How should you think about § 2255 versus § 2241?

A simple rule of thumb: use § 2255 to attack the validity of the conviction or sentence. Use § 2241 to challenge how the sentence is being carried out.

Can you use § 2241 if you missed the § 2255 deadline or already filed a § 2255?

Almost never. Many prisoners have argued, “I can’t meet the § 2255(f) deadline or the § 2255(h) rules for a second motion, so § 2255 is inadequate or ineffective, and I can use § 2241.”

That argument fails. Under Jones v. Hendrix, the limits in § 2255(h) do not make § 2255 “inadequate or ineffective”; a prisoner who cannot meet them generally cannot bring the claim at all. The same is true when relief was denied before or the court of appeals refused permission for a second motion. A new reading of a criminal statute does not open the § 2241 door either.

If you have strong new evidence of innocence, the path is usually § 2255(h)(1): ask the court of appeals for permission to file a second § 2255 motion.

Common questions

Related pages

The History of Habeas Corpus

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

Extraordinary Remedies and Recharacterization

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