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 conviction."

"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 §2241.