PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-6347
LEE BENTLEY FARKAS,
Petitioner – Appellant,
v.
WARDEN, FCI BUTNER II,
Respondent – Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (5:18-hc-02046-BO)
Submitted: May 22, 2020 Decided: August 26, 2020
Before AGEE, KEENAN, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Agee and Judge Keenan joined.
Elliot S. Abrams, CHESHIRE PARKER SCHNEIDER, PLLC, Raleigh, North Carolina; Samuel B. Hartzell, WOMBLE BOND DICKINSON (US) LLP, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Joshua B. Royster, Assistant United States Attorney, John E. Harris, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. RICHARDSON, Circuit Judge:
Congress requires every federal prisoner who collaterally attacks his conviction to
employ the motion mechanism provided in 28 U.S.C. § 2255. There is one exception: If
§ 2255 appears “inadequate or ineffective,” then § 2255(e) provides that a federal prisoner
may apply for a writ of habeas corpus under § 2241. In this appeal, we consider whether
the petitioner’s claims trigger this so-called “savings clause” exception.
In 2010, federal agents arrested Lee Bentley Farkas for fraud. On the government’s
motion, the district court froze Farkas’s assets—at first preventing him from retaining his
counsel of choice. Eventually, the court released enough resources for Farkas to hire a
team of lawyers and pay his court-appointed attorney. Farkas was convicted, and he lost
his direct appeal. In 2014, he filed a § 2255 motion for habeas relief, which the district
court denied and Farkas asked us to dismiss on appeal.
Two years later, the Supreme Court determined that the pretrial restraint of a
defendant’s “untainted” assets, if needed to retain counsel, violates the Sixth Amendment.
Luis v. United States, 136 S. Ct. 1083, 1087 (2016) (plurality). After Luis, we reconsidered
our Circuit precedent that permitted the pretrial restraint of a defendant’s “substitute” assets
without directly connecting those assets to the alleged wrongdoing. See In re Billman, 915
F.2d 916, 917 (4th Cir. 1990), overruled by United States v. Chamberlain, 868 F.3d 290,
295 (4th Cir. 2017) (en banc). And in Chamberlain, we held that the criminal forfeiture
statute permits freezing only those assets traceable to the charged offense. 868 F.3d at 297
(construing 21 U.S.C. § 853(e)). Based on this change in statutory interpretation, Farkas
filed the instant § 2241 habeas application. The application attacks Farkas’s conviction,
2 asserting that he is entitled to habeas relief based on Chamberlain and the Sixth
Amendment.
We disagree. Farkas fails to show that § 2255 would be “inadequate or ineffective
to test the legality of his detention”—a jurisdictional prerequisite to his § 2241 application.
First, as our existing “savings clause” jurisprudence makes abundantly clear, a § 2255
motion is fully adequate to address alleged Sixth Amendment violations. Second, his
statutory claim still fails our “savings clause” tests. For these reasons, the district court
properly dismissed Farkas’s § 2241 application for lack of jurisdiction.
I. Background
A. Farkas’s fraud convictions
Between 2002 and 2009, Farkas and his co-conspirators engaged in a multi-stage
fraud scheme centered on a mortgage company in Ocala, Florida. Farkas served as the
chairman and principal owner of that company. In brief, Farkas’s company papered over
a $100-million funding deficit, sold over $500 million in sham mortgage loans, inflated the
value of collateral to the tune of some $1.5 billion, and sought to defraud the federal
government’s 2008-financial-crisis-era Troubled Asset Relief Program of $553 million.
See generally United States v. Farkas, 474 F. App’x 349, 351–52 (4th Cir. 2012).
In June 2010, a federal grand jury indicted Farkas on several fraud charges. The
next day, the district court entered a restraining order freezing Farkas’s assets under 21
U.S.C. § 853(e)(1)(A). At his arraignment, Farkas appeared with two attorneys, Gerald
Houlihan and Jeffrey Harris. The district court allowed the lawyers to enter a limited
appearance, where they explained that, “but for the restraining order, [they] . . . would have
3 been on board” with Farkas’s defense. J.A. 9 (internal quotations omitted). Farkas was
unable to pay for their representation, and the district court appointed an attorney for Farkas
in August 2010. See 18 U.S.C. § 3006(A). In September 2010, the district court granted
a consent motion to release one of Farkas’s real properties—allowing him to hire a three-
lawyer team from out of state and pay his court-appointed attorney. 1
Seven months later, Farkas’s trial began. And in 2011, the jury convicted Farkas of
six counts of bank fraud, 18 U.S.C. § 1344; four counts of wire fraud, § 1343; three counts
of securities fraud, § 1348; and conspiracy to commit bank fraud, wire fraud, and securities
fraud, § 1349. The district court sentenced Farkas to thirty years’ imprisonment followed
by three years’ supervised release. The court also ordered Farkas to forfeit $38,541,209
and held him liable for over $3.5 billion in restitution. We affirmed on direct appeal,
rejecting Farkas’s argument that the district court violated his Sixth Amendment right to
counsel (among other claims). See Farkas, 474 F. App’x at 355–56 (“It is clear on the
record before us that Farkas was not denied a fair opportunity to secure counsel.”).
Farkas then made his first attempt at habeas relief, filing a § 2255 motion that
asserted claims of (1) ineffective assistance of trial counsel, (2) ineffective assistance of
appellate counsel, and (3) discovery violations implicating Brady v. Maryland, 373 U.S.
83 (1963). See United States v. Farkas, Nos. 1:10cr00200 LMB, 1:13cv01191 LMB, 2014
1 And an insurance carrier later advanced a million dollars toward Farkas’s defense costs. Through trial, Farkas appears to have spent more than two million dollars on the lawyers he chose to hire. See Farkas v. Nat’l Union Fire Ins., Co. of Pittsburgh, Pa, 2011 WL 2838167, at *2 (E.D. Va. July 14, 2011).
4 WL 3615851, at *3 (E.D. Va. July 18, 2014). The district court denied the motion, and we
denied a certificate of appealability. United States v. Farkas, 592 F. App’x 211, 212 (4th
Cir. 2015).
B. The Sixth Amendment and the changing law of criminal forfeiture
Five years after his conviction, the Supreme Court decided Luis v. United States,
which presented the question of “whether the pretrial restraint of a criminal defendant’s
legitimate, untainted assets . . . needed to retain counsel of choice violates the Fifth and
Sixth Amendments.” 136 S. Ct. 1083, 1088 (2016) (plurality) (internal quotations and
alterations omitted). The Sixth Amendment guarantees, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the assistance of counsel for his defense.” U.S.
CONST. amend. VI. In Luis, four Justices, highlighting the “fundamental character” of the
Sixth Amendment, 136 S. Ct. at 1088–89, found a constitutional right for a defendant “to
use her own ‘innocent’ property to pay a reasonable fee for the assistance of counsel,” id.
at 1096. Justice Thomas reached the same result, analyzing the “Sixth Amendment’s text
and common-law backdrop” in a separate opinion. Id. (Thomas, J., concurring in the
judgement); see id. at 1102–03 (“When the potential of a conviction is the only basis for
interfering with a defendant’s assets before trial, the [Sixth Amendment] requires the
Government to respect the longstanding common-law protection for a defendant’s
untainted property.”). 2
2 After Luis, Farkas launched a second collateral attack on his conviction in the form of a § 2241 habeas application. There (as here), he asserted that the pretrial restraint of his assets violated the Sixth Amendment right to counsel. The district court dismissed the (Continued) 5 The Supreme Court’s decision in Luis cast doubt on the law of our Circuit, which
had permitted the government to freeze, through a pretrial restraining order, a defendant’s
“substitute” assets in an amount equivalent to that involved in the alleged wrongdoing. See
In re Billman, 915 F.2d at 917. So in Chamberlain, 868 F.3d at 291, the en banc court
reconsidered our interpretation of 21 U.S.C. § 853(e)—the statute under which the
government justified freezing Farkas’s assets. And our full court unanimously held, on
statutory grounds, that this criminal forfeiture statute does not permit the pretrial restraint
of untainted substitute property. Chamberlain, 868 F.3d at 297.
C. The proceedings below
After our decision in Chamberlain, Farkas initiated his third collateral attack on his
conviction, filing the habeas application that would lead to this appeal. Farkas did not seek
this court’s authorization to file a successive § 2255 motion. Instead, Farkas claims that
the § 2255 remedy-by-motion is “inadequate or ineffective” to test the legality of his
detention and filed the instant application under § 2241. Farkas “bases this [application]
on . . . Chamberlain and on the violation of his Sixth Amendment right to counsel of
choice.” J.A. 5.
The district court dismissed Farkas’s § 2241 application for lack of jurisdiction.
First, the district court reasoned that “because Farkas’s petition challenges the
petition for lack of jurisdiction, holding that § 2255 was not inadequate or ineffective to test the legality of his detention. See Farkas v. Andrews, No. 5:17-HC-2070-D, 2017 WL 4518684, at *3 (E.D.N.C. Oct. 10, 2017). Although Farkas sought review of the district court’s ruling, he later moved to dismiss his appeal. We allowed the voluntary dismissal. Farkas v. Andrews, No. 17-7409, 2017 WL 8942442 (4th Cir. Dec. 27, 2017).
6 constitutionality of the post-indictment restraining order and purported deprivation of his
Sixth Amendment right to counsel . . . Farkas generally must seek relief under section
2255.” J.A. 107. Next, the district court considered whether a § 2255 motion would be
“inadequate or ineffective” to address Farkas’s statutory argument by applying the “savings
clause tests” that our Circuit set out in In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000)
and United States v. Wheeler, 886 F.3d 415, 426-29 (4th Cir. 2018). Finding neither Jones
nor Wheeler satisfied, the district court dismissed the petition for lack of subject matter
jurisdiction. See Wheeler, 886 F.3d at 426 (“the savings clause requirements are
jurisdictional”). 3 Farkas timely appealed, arguing, as he did below, that § 2255 is
inadequate and ineffective to test the legality of his detention, making his § 2241
application proper.
II. Discussion
Farkas bears the burden of establishing the inadequacy of § 2255 so that he may
proceed with his § 2241 habeas application. See, e.g., Charles v. Chandler, 180 F.3d 753,
756 (6th Cir. 1999). We review this question of law de novo. Lester v. Flournoy, 909 F.3d
708, 710 (4th Cir. 2018).
3 Not all of our sister circuits agree on the jurisdictional nature of the “savings clause.” Compare Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1340 (11th Cir. 2013) (the “savings clause” is jurisdictional), with Harris v. Warden, 425 F.3d 386, 388 (7th Cir. 2005) (the “savings clause” is not jurisdictional).
7 A. The writ of habeas corpus
Habeas corpus, “a writ antecedent to statute, . . . throw[s] its root deep into the
genius of our common law.” Rasul v. Bush, 542 U.S. 466, 473 (2004) (internal quotations
omitted). As “the most celebrated writ in the English law,” 3 William Blackstone,
Commentaries on the Laws of England 129 (1st ed. 1768), habeas corpus ad subicidendum
secured the “natural inherent right” of personal liberty, “which could not be surrendered or
forfeited” save for the commission of a crime, id. at 133; see Magna Carta art. 39 (1215).
English law required (as ours does today) the government to justify “the causes[] and the
extent” of a prisoner’s detention, and so the “Great Writ” permitted a court to examine the
grounds for his confinement. 3 Blackstone, Commentaries 133. By the time of our
independence, the writ had become “an integral part of our common law heritage,” Preiser
v. Rodriguez, 411 U.S. 475, 485 (1973), and would come to “receive[] explicit recognition
in the Constitution, which forbids suspension of ‘[t]he Privilege of the Writ of Habeas
Corpus . . . unless when in Cases of Rebellion or Invasion the public Safety may require
it,’” Rasul, 542 U.S. at 474 (quoting U.S. CONST. art. I, § 9, cl. 2). See also Boumediene
v. Bush, 553 U.S. 723, 739 (2008) (“The Framers viewed freedom from unlawful restraint
as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital
instrument to secure that freedom.”).
Although the Great Writ existed before statute, its contours have been molded by
the legislature over time, first in England and later in the United States. At times,
lawmakers curtailed abuses of the writ: “[T]o avoid vexatious delays by the removal of
frivolous causes,” for instance, Parliament limited the issuance of the writ during
8 proceedings overseen by experienced judges. 3 Blackstone, Commentaries 130 (citing 21
Jac. I. (Jas. 1) c. 23 (1623) (inferior courts law)); compare Banister v. Davis, 140 S.Ct
1698, 1707 (2020) (Modern habeas law “prevent[s] serial challenges to a judgment of
conviction, in the interest of reducing delay, conserving judicial resources, and promoting
finality.”). At other times, legislation expanded the writ in response to abuses by the crown
and courts: After the Star Chamber, the Habeas Corpus Act of 1640 strengthened the writ
and enumerated the grounds for its issuance. See 16 Car. 1 c. 10. Parliament would again
reinforce the writ in the famed Habeas Corpus Act of 1679. 31 Cha. 2 c. 2; see generally
3 Blackstone, Commentaries 134–37 (describing the second of these acts as “another
magna carta of the kingdom”).
The first Congress continued the legislative tradition of sculpting the writ when it
passed the Judiciary Act of 1789. That statute granted the “justices of the supreme court,
as well as justices of the district courts, . . . power to grant writs of habeas corpus” for
prisoners “in custody, under or by colour of the authority of the United States.” 1 Stat. 73
§ 14. And over the next two centuries, Congress would continue “innovat[ing] in the field
of habeas corpus.” Boumediene, 553 U.S. at 795. So in 1800, Congress extended the writ
to state detainees for the first time—permitting the writs’ issue to those imprisoned for
debts already discharged in federal bankruptcy proceedings. See Bankruptcy Act of 1800,
2 Stat. 19 § 38.
After the Civil War, Congress made the writ available in “all cases where any
person may be restrained of his or her liberty in violation of the constitution, or of any
treaty or law of the United States.” Act of Feb. 5, 1867, 14 Stat. 385 (emphasis added).
9 And in 1948, Congress codified the general grant of habeas jurisdiction to the federal courts
at 28 U.S.C. § 2241, established a motion vehicle for federal prisoners to attack their
convictions in § 2255, and provided for a new system to challenge state convictions in
§ 2254. See generally, Richard Fallon, et al., Hart and Weschler’s the Federal Courts and
the Federal System 1197 (7th ed. 2015) (discussing the Habeas Corpus Act of 1948, 62
Stat. 967).
Recognizing this history, the Supreme Court has affirmed that “judgments about the
proper scope of the writ are ‘normally for Congress to make.’” Felker v. Turpin, 518 U.S.
651, 664 (1996) (quoting Lonchar v. Thomas, 517 U.S. 314, 323 (1996)). But although
“the power to award the writ by any of the courts of the United States must be given by
written law,” Ex parte Bollman, 8 U.S. 75, 94 (1807), the Constitution requires Congress
to affirmatively provide for the writ (or a writ substitute), unless it follows the requirements
of the Suspension Clause, see Boumediene, 553 U.S. at 771.
B. The Antiterrorism and Effective Death Penalty Act of 1996
Congress’ latest pronouncement on the writ of habeas corpus comes to us in the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214. See Felker, 518 U.S. at 664 (explaining that AEDPA is “well within the
compass of this evolutionary process”). For this appeal, we note three core properties of
AEDPA.
First, all convicted federal prisoners must generally use the remedy-by-motion
mechanism provided in § 2255 to challenge their convictions or sentences. In re Vial, 115
F.3d 1192, 1194 (4th Cir. 1997) (en banc); Lester, 909 F.3d at 710. In § 2255, Congress
10 guarantees “every federal prisoner the opportunity to launch at least one collateral attack”
on his detention. Prost v. Anderson, 636 F.3d 578, 583 (10th Cir. 2011) (Gorsuch, J.); cf.
Banister v. Davis, 140 S. Ct. 1698, 1704 (2020) (describing a “state prisoner[’s] . . . one
[guaranteed] chance to bring a federal habeas challenge” under § 2254). But not more than
one. If a prisoner has attacked his conviction or sentence by filing a § 2255 motion (as
Farkas has), “he may not file another except under very limited circumstances.” Lester,
909 F.3d at 710.
Second, § 2255(h) delineates those “limited circumstances,” Lester, 909 F.3d at 710,
providing “two narrow paths” that may allow a successive § 2255 motion. See In re
Stevens, 956 F.3d 229, 232 (4th Cir. 2020) (discussing the § 2244(b) successive petition
requirements referenced by § 2255(h)). Before filing a successive motion in the district
court, § 2255(h) requires a federal prisoner to make a prima facie showing in the Court of
Appeals that (1) “‘newly discovered evidence’ prov[es] he was not guilty of his offense”
or (2) a “previously unavailable rule of constitutional law made retroactive on collateral
review by the Supreme Court entitles him to relief.” Lester, 909 F.3d at 710–11 (discussing
§ 2255(h)(1)–(2)); see also In re Vial, 115 F.3d at 1194–95. We will authorize a petitioner
to file his successive § 2255 motion in the district court only if one of these gatekeeping
requirements is satisfied.
Third, Congress provides one exception to the general rule that convicted federal
prisoners must proceed under § 2255. Section 2255(e)’s so-called “savings clause” permits
a prisoner to sidestep § 2255 and instead file a traditional § 2241 habeas application if it
“appears that the [§ 2255] remedy by motion is inadequate or ineffective to test the legality
11 of his detention.” § 2255(e); Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (“It is only
when ‘§ 2255 proves inadequate or ineffective to test the legality of detention,’ that a
federal prisoner may pursue habeas relief under § 2241.”). Section 2241 applications,
unlike those filed under § 2254 or § 2255, are not subject to successive petition
requirements. Lester, 909 F.3d at 711 & n.2. But see McCarthan v. Dir. of Goodwill
Indus.-Suncoast, Inc., 851 F.3d 1076, 1090–91 (11th Cir. 2017) (en banc).
Farkas claims that this “savings clause” permits his § 2241 application (and so his
claims circumvent the gatekeeping requirements that otherwise bar a § 2255 motion). But
the government insists that § 2255 is adequate to test Farkas’s detention (even if that test
would not succeed), so the “savings clause” cannot apply.
C. The Fourth Circuit’s “savings clause” jurisprudence
This appeal turns on the scope of § 2255(e)’s “savings clause.” It provides:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained . . . unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
§ 2255(e) (emphasis added).
To begin, two features of this clause must be noted. First, the text “juxtapose[es]
the terms ‘inadequate or ineffective’ with the phrase ‘to test the legality of [a prisoner’s]
detention.’” Prost, 636 F.3d at 584. From this, we think it beyond question that “§ 2255
is not rendered inadequate or ineffective merely because an individual has been unable to
obtain relief under that provision, . . . or because an individual is procedurally barred from
12 filing a § 2255 motion.” In re Vial, 115 F.3d at 1194 n.5 (internal citations omitted); Lester,
909 F.3d at 716. In other words, a test is not “inadequate” just because someone fails it.
Second, the “savings clause” is structured as an exception to AEDPA’s
comprehensive limitations on the scope of habeas review. Thus, to prevent the exception
from swallowing the rule, we have interpreted the “savings clause” narrowly, reasoning
that it must encompass only “limited circumstances.” In re Jones, 226 F.3d at 333. “A
contrary rule,” we have explained “would effectively nullify” § 2255’s specific limitations.
Id.; Lester, 909 F.3d at 716.
We are not the first panel to confront the “limited circumstances” that may justify
resort to § 2241. In re Jones, 226 F.3d at 333. Recognizing that § 2255(e) “provides only
the tightest alleyway” to relief, Lester, 909 F.3d at 716, our Circuit has applied two tests—
one to convictions, another to sentences—to assess whether the “savings clause” is
satisfied. 4
4 The government objects to our entire line of “savings clause” cases, arguing that our precedents deviate from the text and structure of § 2255. Appellee Br. 17–19. Under the government’s theory, the “savings clause” bars attacks on criminal judgements under § 2241. See McCarthan, 851 F.3d 1076; Prost, 636 F.3d 578. Under this reading, the “savings clause” is reserved for distinct circumstances—such as imprisonment without a criminal judgement. Cf. Boumediene, 553 U.S. at 739 (discussing the availability of § 2241 relief to aliens detained as enemy combatants). But as the government acknowledges, this is an argument for our en banc court (or the Supreme Court). This panel is powerless to overturn our precedents—no matter the force of a litigant’s contentions. See McMellon v. United States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc).
13 1. The two “savings clause” tests
We first considered the kinds of collateral attacks that may trigger the “savings
clause” in In re Jones, 226 F.3d at 329. In that case, petitioner Byron Jones was convicted
of using a firearm during a drug offense in violation of 18 U.S.C. § 924(c)(1). After Bailey
v. United States, 516 U.S. 137 (1995) overruled our Circuit precedent on the “use” of
firearm during a drug offense, Jones sought habeas relief claiming Bailey invalidated his
convictions. See In re Jones, 226 F.3d at 329–30. Jones, however, had already filed an
initial § 2255 motion. And since Bailey was not a constitutional decision and Jones lacked
newly discovered evidence, he could not satisfy § 2255(h)’s successive petition
requirements. Thus, Jones found himself imprisoned for conduct that, after Bailey, was
noncriminal, but § 2255(h) barred habeas relief. See also Hahn v. Moseley, 931 F.3d 295,
301–04 (4th Cir. 2019); Rice, 617 F.3d at 807.
Given Jones’s predicament, we asked whether the “savings clause” permitted him
to proceed under § 2241. On one hand, we explained that § 2255 cannot be “inadequate or
ineffective merely because an individual is unable to obtain relief.” In re Jones, 226 F.3d
at 333 (citing Charles, 190 F.3d at 756, and In re Vial, 115 F.3d at 1194 n.5). But on the
other, we suggested that “there must exist some circumstance in which resort to § 2241
would be permissible; otherwise, the savings clause itself would be meaningless.” In re
Jones, 226 F.3d at 333.
To resolve this tension, the Jones Court devised a three-part test defining the
“limited circumstances” under which § 2255 will be “inadequate to test the legality of the
prisoner’s detention.” Id. First, at the time of conviction, the settled law of this Circuit or
14 the Supreme Court must have established the conviction’s legality. Second, after the
prisoner’s direct appeal and previous § 2255 motion(s), the substantive law must have
changed so that the conduct of which the prisoner was convicted is no longer criminal.
And third, the prisoner cannot satisfy the gatekeeping provisions of § 2255(h) because the
new rule is not of constitutional law. Applying this “savings clause” test, we found that
Jones satisfied these requirements. We accordingly permitted his petition to proceed in the
form of a § 2241 application.
Eighteen years later, we revisited the “savings clause” in Wheeler, 886 F.3d 415. In
that case, Gerald Wheeler filed a § 2241 application to challenge his sentence after our en
banc court decided United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). Simmons held
that a prior drug conviction should be classified as a “felony drug offense” only if the
defendant’s sentence exceeded a year. Id. at 243–47. This overruled the prior law of our
Circuit, which determined whether a prior drug conviction was a felony based on the
maximum aggravated sentence for that offense.
Wheeler’s prior drug conviction had a potential sentence of more than one year, but
his actual sentence was for less than a year. Because he was sentenced under the pre-
Simmons rule, Wheeler’s prior drug conviction was classified as a “felony drug offense”
and triggered a ten-year-mandatory minimum. Wheeler, 886 F.3d at 420. Had Wheeler
been sentenced after Simmons, his prior offense would not have been considered a “felony
drug conviction,” he would have faced no mandatory minimum, and the bottom of his
Sentencing Guidelines’ range “would have been five years – half of the sentence to which
he was subjected.” Id. at 430. Wheeler moved to challenge his sentence given our decision
15 in Simmons, but he had already filed an initial § 2255 motion. And like Jones, Wheeler
could not satisfy the successive petition requirements of § 2255(h).
Our Court then asked whether the “savings clause” required us to extend the Jones
test—governing convictions—to Wheeler’s collateral attack on his sentence. In so asking,
our analysis centered on § 2255(e)’s purpose and text, as well as the history of the Great
Writ. The Wheeler court explained that language of the savings clause encompassed
attacks on sentences. Because the “savings clause” relates to “‘detention,’” and Congress
“did not use the word[s] ‘conviction’ or ‘offense,’ as it did elsewhere in § 2255(e),” we
reasoned that § 2255(e) “‘does not limit its scope to testing the legality of the underlying
criminal conviction.’” Id. at 427-28 (quoting Brown v. Caraway, 719 F.3d 583, 588 (7th
Cir. 2013)). But see Hueso v. Barnhart, 948 F.3d 324, 338 (6th Cir. 2020) (rejecting
Wheeler’s textual interpretation). We also reasoned that “the Supreme Court has long
recognized a right to traditional habeas corpus relief based on an illegally extended
sentence.” Wheeler, 886 F.3d at 428. And since § 2255 was designed to streamline—not
to limit—the writ of habeas corpus, we explained that our interpretation of the “savings
clause” should respect the traditional scope of habeas relief. Id. at 427 (quoting In re Jones,
226 F.3d at 332).
For these reasons, Wheeler announced, “The New Savings Clause Test for
Erroneous Sentences.” 886 F.3d at 428. That test has four parts. First, “at the time of
sentencing, settled law of this circuit or the Supreme Court established the legality of a
sentence.” Id. at 429. Second, after the prisoner’s direct appeal and previous § 2255
motion(s), “the aforementioned settled substantive law changed and was deemed to apply
16 retroactively on collateral review.” Id. Third, “the prisoner is unable to meet the
gatekeeping provisions of § 2255(h)(2) for second or successive motions” because the rule
is not one of constitutional law. Id. And fourth, based on the retroactive change in the
substantive law, “the sentence now presents an error sufficiently grave to be deemed a
fundamental defect.” Id.
Based on the “savings clause” and these precedents, Farkas asserts that he may
challenge his conviction under § 2241. We disagree.
2. Farkas does not satisfy this Court’s “savings clause” tests
(a) Construing Farkas’s claims
To begin with, we must pin down the substance of Farkas’s claim before we can
evaluate whether it passes either test. Because different rules apply to different avenues of
habeas relief, AEDPA “elevate[s] the degree of caution that courts must exercise when
determining how to classify prisoner pleadings.” United States v. Winestock, 340 F.3d 200,
203 (4th Cir. 2003), abrogated in part on other grounds by United States v. McRae, 793
F.3d 392 (4th Cir. 2015); see Trenkler v. United States, 536 F.3d 85, 97 (1st Cir. 2008) (In
habeas cases, “courts must be guided by the precept that substance trumps form.”).
AEDPA’s strict statutory requirements “may not be circumvented through creative
pleading.” United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005).
In his § 2241 application, Farkas seeks habeas relief based on “Chamberlain . . . and
on the violation of his Sixth Amendment right to counsel of choice.” J.A. 5. So at first
glance, Farkas appears to assert two claims: (1) a constitutional violation based on the
Sixth Amendment and (2) a statutory violation based on our new interpretation of 21 U.SC.
17 § 853(e) adopted in Chamberlain. But in his opening brief, Farkas characterizes his claim
as “the erroneous deprivation of his [Sixth Amendment] right to counsel of choice resulting
from a statutorily unauthorized pretrial restraining order.” Appellant Br. 29. This
formulation sounds more squarely in a violation of the Sixth Amendment: government
action allegedly deprived Farkas of his right to counsel of choice.
Seizing on the latter characterization, the government contends that Farkas’s claim
is constitutional and that § 2255 is adequate to address constitutional claims. Indeed,
Farkas’s claim that the restraint of his untainted assets violated his right to counsel of
choice is precisely the Sixth Amendment theory that the Supreme Court endorsed in Luis.
136 S. Ct. at 1088 (“[T]he pretrial restraint of legitimate, untainted assets needed to retain
counsel of choice violates the Sixth Amendment.”).
But in reply, Farkas doubles down on the supposed statutory nature of his § 2241
claim: “Farkas is not bringing a standalone constitutional claim. He is challenging his
conviction on the ground that misapplication of a statute (21 U.S.C. § 853(e)) caused a
fundamental defect in the proceeding and that United States v. Chamberlain . . . exposed
this statutory error.” Appellant Reply Br. 12–13, 14 n.1. Even so, Farkas continues to
assert that this statutory error is fundamental under Wheeler’s fourth prong only because it
violated “‘the right to counsel of choice,’” protected by the Sixth Amendment. Id. at 16
(quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006) (holding that a
18 violation of the Sixth Amendment right to counsel of choice does not require showing
prejudice)). 5
Construing Farkas’s application in the light most favorable to him, we read his
petition to bring both a constitutional claim and a statutory claim. First, we take the petition
to assert that Farkas is entitled to relief based on a Sixth Amendment violation arising when
the government froze untainted assets needed to hire counsel of choice. Second, we take
Farkas to argue that he is entitled to relief because the trial court’s application of 21 U.S.C.
§ 853(e) was erroneous. We consider each claim in turn.
(b) Farkas’s Sixth Amendment claim does not satisfy the “savings clause”
Farkas’s Sixth Amendment claim fails our “savings clause” tests—neither permit
constitutional claims. See In re Jones, 226 F.3d at 334 (factor three); Wheeler, 886 F.3d at
429 (factor three). As Jones and Wheeler respect, § 2255 is not “inadequate or ineffective”
for testing constitutional claims. § 2255(e). An initial § 2255 motion provides relief for
constitutional errors. See § 2255(a), (b); Daniels v. United States, 532 U.S. 374, 377, 379
5 The government argues that Farkas cannot have it both ways: Farkas may assert a constitutional claim, a statutory claim, or both. But according to the government, he cannot bootstrap constitutional significance to a statutory error to avoid § 2255(h)’s successive petition requirements. See Appellee Br. 36–37; cf. Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004) (“Any motion filed in the district court that imposed the sentence, and substantively within the scope of § 2255 ¶ 1, is a motion under § 2255, no matter what title the prisoner plasters on the cover.”). On this theory, the “savings clause” precludes challenges to statutory claims with constitutional significance because § 2255 is fully adequate to address claims with constitutional import. See In re Jones, 226 F.3d at 334 (factor three); Wheeler, 886 F.3d at 429 (factor three). We have no need to address this argument today. Taking Farkas’s claims as he brings them, they fail to satisfy our “savings clause” tests.
19 (2001). For a successive § 2255 motion, § 2255(h)(2) speaks exactingly to the
circumstances that permit a constitutional claim (as described above). See RadLAX
Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 648 (2012) (specific limitations
control over general rules). And as we have recognized, allowing a § 2241 application for
a constitutional claim that does not fit within the narrow confines of § 2255(h)(2) would
read § 2255(h)(2)’s gatekeeping provisions right out of the statute. In re Jones, 226 F.3d
at 333 (“A contrary rule would effectively nullify the gatekeeping provisions.”) (citing
United States v. Barrett, 178 F.3d 34, 50 (1st Cir. 1999) and In re Davenport, 147 F.3d
605, 608 (7th Cir. 1998)); see also In re Vial, 115 F.3d at 1194 n.5 (“[T]he remedy afforded
by § 2255 is not rendered inadequate or ineffective merely because an individual has been
unable to obtain relief under that provision.”). So Farkas’s Sixth Amendment claim must
be dismissed for lack of jurisdiction.
(c) Farkas’s statutory claim does not satisfy the “savings clause”
Farkas’s statutory claim similarly fails our “savings clause” tests. First, we consider
the Jones test for challenges to convictions. Jones’s second factor requires the substantive
law to change “such that the conduct of which the prisoner was convicted is deemed not to
be criminal.” 226 F.3d at 334. But here, there is no question that Farkas’s illegal conduct—
bank fraud, wire fraud, and securities fraud—remains criminal. See 18 U.S.C. §§ 1344,
1343, 1348; see also Hahn, 931 F.3d at 304-05 (Wynn, J., concurring) (“The plain meaning
of the phrase ‘the conduct of which the prisoner was convicted’ refers to the conduct that
20 a jury found beyond a reasonable doubt supported the prisoner’s conviction.”). As a result,
Farkas’s statutory claim cannot pass the Jones test.
Second, we turn to Wheeler’s “New Savings Clause Test for Erroneous Sentences.”
886 F.3d at 428. But Farkas does not challenge his sentence—he purports to challenge his
convictions. As Farkas explains, he believes his conviction is invalid based on an
erroneous pretrial ruling seizing his assets. The district court properly applied Jones to that
challenge.
Contrary to Farkas’s claims, Wheeler did not displace Jones for § 2241 challenges
to a conviction. In the Fourth Circuit, we have established two separate tests that reflect
the limited circumstances under which a convicted prisoner may invoke § 2255(e). The
Jones test governs challenges to criminal convictions. Jones, 226 F.3d at 333–34; see also
Lester, 909 F.3d at 711 (Jones applies when “the substantive law changed such that the
conduct of which the prisoner was convicted is deemed not to be criminal.”) (internal
quotations omitted); Hahn, 931 F.3d at 300 (Jones “holds that § 2255 is inadequate and
ineffective to test the legality of a conviction” when three requirements are met.) (internal
quotations); Wheeler, 886 F.3d at 428 (“Jones contemplates a change in ‘substantive law’
that renders noncriminal the conduct by which a prisoner was convicted.”). And the
Wheeler test applies for challenges to the length of a criminal sentence for an otherwise
valid conviction. Id.; see also Lester, 909 F.3d at 712 (Wheeler “outlined when the savings
clause may be used to challenge erroneous sentences.”).
Since Wheeler, we have policed the line between Jones and Wheeler, applying the
former to claimed § 2241 challenges to convictions, Hahn, 931 F.3d at 301–04, and the
21 latter to sentences, Lester, 909 F.3d at 712. Contrary to Farkas’s assertions, these tests are
not one in the same: By design, they each provide a limited exception to the general rule
that convicted federal prisoners must challenge their detention through § 2255. Section
2255(e) “provide[s] only the tightest alleyway to relief.” Lester, 909 F.3d at 716. In other
words, Wheeler and Jones are not guideposts marking a broad path yet to be cut—each is
a narrow, well-delineated trail by which certain petitioners may pursue appropriate relief.
A petitioner must meet one of those two exceptions and, because Farkas does not, the
“savings clause” is not available to him.
* * *
The writ of habeas corpus holds a foundational place in our Republic. At heart, it
secures the fundamental right of personal liberty from unlawful government action. When
a prisoner seeks the Great Writ, the federal courts have a key role to play in confirming
that the causes and the extent of his detention are justified. But our review must be
performed as statutorily prescribed. AEDPA requires all convicted federal prisoners
seeking habeas relief to proceed under 28 U.S.C. § 2255. Farkas fails to satisfy the
requirements of § 2255(e)’s “savings clause,” so he must follow this general rule. The
judgement of the district court is
AFFIRMED.