Know Thy Enemy
The federal prosecutors' handbook teaches
them how to avoid responding to the merits of a prisoner's issues
in §2255 motions and petitions for habeas corpus under §2241.
This is the strategy a petitioner can expect from the prosecution
on §2241 or §2255:
"The last thing you prosecutors should do, when faced with
a collateral attack on a federal criminal conviction, is to respond
on the merits. That is, you should respond on the merits, but
only after advancing all of the logically prior arguments that
relieve the court from even considering the prisoner's claim.
You should also remember that certain kinds of claims, even if
meritorious, do not justify collateral relief from a criminal
"A final judgment is entitled to great deference, and "an
error that may justify reversal on direct appeal will not necessarily
support a collateral attack." U.S. v. Addonizio,
422 U.S. 178, 184 (1979). Finally, keep in mind the new limits
imposed by the AEDPA, which significantly cuts back on the availability
of collateral review, especially in cases of repeat applications
and older convictions. These three themes - limits on the availability
of collateral relief, limits on cognizable claims, and limits
imposed by the AEDPA - should inform your general approach to
all collateral attacks." (emphasis added)
The handbook's author then tells his prosecutors there are nine
specific questions to ask when responding to a collateral attack:
"First, what collateral remedy is the prisoner seeking,
and where is it properly venued? Second, is the prisoner in custody?
Third, is this a successive motion? Fourth, is the motion timely
filed? Fifth, is the asserted claim cognizable? Sixth, does the
claim rely on a new rule of law? Seventh, does the claim seek
relitigation of an issue previously decided? Eighth, is the claim
procedurally defaulted? Ninth, if relief is denied in the district
court, can the prisoner appeal?"
In discussing the savings clause the handbook's author tells
all prosecutors to contact him immediately if any prisoner or
court attempts to expand the availability of habeas corpus or
the instances when §2255 is "inadequate or ineffective"
to test the legality of detention.
With your enemy's strategy in mind, expect that after you file
a petition under §2241 based on the savings clause, that
you will receive a judge's order to the "respondent"
to file his or her "answer" in 23 (or more) days, pursuant
to 28 U.S.C. §2243. You should also expect that the respondent's
attorney, the prosecutor, will instead file a motion to dismiss
your §2241 petition as a mislabeled successive §2255
motion that merely challenges the legality of your sentence.
Prosecutors want your petition transferred to your trial court
as a §2255 motion, or be dismissed without prejudice. That
scenario happens most of the time, and the §2241 courts
usually grant the prosecutor's motion, right or wrong. Yes, it's
unfair, but that's what petitioners must contend with. The best
way to deal with such mischief is to carefully draft your petition
expecting such a government response. Choose the wording of your
claim to state an issue that is cognizable for a savings clause