PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-6719
PATRICK MARLOWE,
Petitioner - Appellant,
v.
WARDEN, FCI HAZELTON,
Respondent - Appellee.
Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:17-cv-0011-JPB)
Argued: March 10, 2021 Decided: July 27, 2021
Before NIEMEYER, MOTZ, and RUSHING, Circuit Judges.
Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Niemeyer and Judge Motz joined.
ARGUED: Jeremy Brian Gordon, JEREMY GORDON, PLLC, Mansfield, Texas, for Appellant. Jason Lee, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: William J. Powell, United States Attorney, Martinsburg, West Virginia, Tara N. Tighe, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee. RUSHING, Circuit Judge:
Patrick Marlowe appeals the district court’s dismissal of his 28 U.S.C. § 2241
habeas petition. Section 2241 is not available to Marlowe, a federal prisoner, unless a 28
U.S.C. § 2255 motion would be “inadequate or ineffective” to test the legality of his
detention. 28 U.S.C. § 2255(e). Relevant here, under this Court’s precedent a Section
2255 motion can prove inadequate or ineffective only if, when Marlowe was convicted, the
settled law of the Supreme Court or the circuit in which he was convicted established the
legality of his conviction. Our cases and an examination of the habeas remedy demonstrate
that, to satisfy this requirement, a prisoner must show that binding precedent previously
foreclosed the argument he later presses to collaterally attack his conviction. Because
Marlowe cannot so demonstrate, the district court lacked jurisdiction to entertain his
petition.
I.
A.
Marlowe supervised corrections officers working the second shift at the county jail
in Wilson County, Tennessee. United States v. Conatser, 514 F.3d 508, 514 (6th Cir.
2008). Marlowe, in his own words, ran “a different kind of shift.” Id. (internal quotation
marks omitted). He and his officers “would strike and kick inmates who were loud,
obnoxious, or uncooperative and would conceal their unjustified use of force through the
denial of medical care and the falsification of incident reports.” Id.
2 This appeal concerns Marlowe’s complicity in the death of detainee Walter Kuntz.
We briefly summarize the relevant facts as recounted by the Sixth Circuit when it affirmed
Marlowe’s resulting prison sentence. Id. at 516–518.
On January 13, 2003, authorities booked Kuntz into Marlowe’s jail after he left the
scene of a minor automobile accident. His blood alcohol level registered approximately
.26. Kuntz soon began causing a ruckus in his cell. When Kuntz ignored commands to
stop, Marlowe “punched Kuntz in the left side of his head, threw him toward the wall, and
kicked, punched, and kneed Kuntz in the rib area.” Id. at 516. Kuntz calmed down briefly
before again banging on his cell door. Marlowe reentered Kuntz’s cell and “struck Kuntz
in the left temple area, knocking him down, and then punched and kicked Kuntz some
more.” Id. Another officer sprayed Kuntz with a chemical agent as the officers left the
cell.
Kuntz was quiet for a time before again yelling and kicking the cell door. Marlowe
instructed one of his subordinates to “take care of the situation.” Id. (internal quotation
marks omitted). The subordinate returned to Kuntz’s cell with other officers. As Kuntz
backed away, an officer “pushed him onto the bench next to the wall,” with the right side
of Kuntz’s head facing the officer and the left side four or five inches from the wall. Id.
The officer delivered “three or four ‘full power’ punches to the right side of Kuntz’s head.
Each time, the left side of Kuntz’s head bounced off the wall and made a ‘cracking sound.’
The officers left Kuntz holding his head and moaning. [The officer] told Marlowe he had
‘taken care of it.’” Id. at 516–517.
3 Over the following hours, the officers observed Kuntz lying unconscious in his own
vomit and learned that he had undergone brain surgery a year or two earlier. Though Kuntz
was unresponsive, Marlowe did not request medical attention. Instead, Marlowe and a
subordinate “tried to rouse him by shaking him, patting him, and pouring a bucket of ice
water over him.” Id. at 517. Kuntz did not respond. The officers used ammonia smelling
salts to no avail, noticing instead “that Kuntz would stop breathing until the salts were
taken away.” Id. Yet medical care went unsolicited. Another check on Kuntz found him
lying down with his eyes open and unresponsive “to being shaken or having a light shone
in his eyes.” Id. A subordinate alerted Marlowe; he took no action.
Approximately six hours after Kuntz’s last beating, the officers called an
ambulance. The responding EMTs determined that Kuntz “was a level three on the level
of consciousness scale—the same level as a deceased person.” Id. The EMTs believed
they were responding to a case of possible alcohol poisoning, and no one disabused them
of that notion. Rather than being airlifted to a trauma center for a possible head injury,
Kuntz went to a local medical center. Only following a brain scan was Kuntz flown to a
trauma center. His condition was beyond repair:
A neurosurgeon evaluated Kuntz, who was on a ventilator and had no brain stem reflexes. The doctor concluded that Kuntz had a very large subdural hematoma that had caused irreversible brain damage. He added that Kuntz’s low body temperature had exacerbated his condition because it interfered with normal clotting. Kuntz died when he was removed from the ventilator two days later.
Several doctors testified at trial that Kuntz’s head injuries were consistent with blunt force trauma, and that such injuries are generally treatable if medical attention is sought in the first hours after a brain injury. It was also explained that within an hour of injury a person with a subdural hematoma
4 would start to experience a progression of symptoms such as dizziness, headache, nausea, vomiting, sleepiness, lethargy, and eventually unresponsiveness.
Id. at 517–518 (footnote omitted).
B.
A federal grand jury indicted Marlowe and other officers for depriving detainees
and prisoners of their rights secured by the Constitution or laws of the United States in
violation of 18 U.S.C. § 242 and conspiring to do so in violation of 18 U.S.C. § 241.
Counts Two and Three charged Marlowe in Kuntz’s death. Count Two encompassed the
assault, while Count Three faulted Marlowe for depriving Kuntz of necessary medical care.
Both arose under 18 U.S.C. § 242, which authorizes escalating penalties depending on the
resulting harm: “if bodily injury results from the acts committed in violation of” the statute,
the maximum sentence is 10 years’ imprisonment, but “if death results from the acts,” the
defendant may be sentenced to life imprisonment. 1 Counts Two and Three each alleged
that Marlowe’s actions resulted in both Kuntz’s bodily injury and his death.
1 In full, 18 U.S.C. § 242 provides:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both;
5 While some of his codefendants pleaded guilty (and testified against him), Marlowe
opted for trial. At the close of evidence, the district court instructed the jury on the “death
results” element in Counts Two and Three:
For Counts Two and Three, you also must decide whether the government has proved beyond a reasonable doubt that Walter Kuntz’s death resulted from the conduct of Defendant Marlowe.
The government need only prove that bodily injury or death was a natural and foreseeable result of the defendant’s conduct. The government does not need to prove that a defendant intended to cause bodily injury or death or that a defendant’s acts were the direct, immediate or sole cause of bodily injury or death.
J.A. 46–47. The jury convicted Marlowe of seven of the eight counts charged. On Count
Two, the jury found Marlowe guilty and that bodily injury—but not death—resulted from
the assault on Kuntz. On Count Three, the jury found Marlowe guilty and that both bodily
injury and death resulted from withholding medical care. The court sentenced Marlowe to
life imprisonment on Count Three and concurrent sentences of 10 years on the other counts.
Without challenging his convictions, Marlowe appealed only the life sentence, which the
Sixth Circuit affirmed. Conatser, 514 F.3d at 528.
In 2009, Marlowe moved to vacate, set aside, or correct his conviction and sentence
under 28 U.S.C. § 2255. He claimed that his trial counsel rendered constitutionally
ineffective representation by failing to correctly calculate and advise him of his sentencing
and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
6 exposure and to recommend that he accept the Government’s plea offer. The district court
denied the motion and declined to issue a certificate of appealability, as did the Sixth
Circuit.
C.
In July 2017, Marlowe filed the 28 U.S.C. § 2241 habeas petition underlying this
appeal. 2 In support, Marlowe invokes the Supreme Court’s 2014 decision in Burrage v.
United States, 571 U.S. 204 (2014). There, the Supreme Court interpreted a statute
imposing a 20-year mandatory minimum sentence for drug offenses where “death or
serious bodily injury results from the use of [the illegal] substance.” 21 U.S.C.
§ 841(b)(1)(C); see also Burrage, 571 U.S. at 208–210. The Court held that the “death
results” element requires a showing of but-for causation. Burrage, 571 U.S. at 218–219.
The Court embraced the traditional understanding reflected in the Model Penal Code that
“when a crime is defined in terms of conduct causing a particular result,” it at a minimum
requires that the conduct be “an antecedent but for which the result in question would not
have occurred.” Id. at 211 (quoting ALI, Model Penal Code § 2.03(1)(a) & Explanatory
Note (1985)).
Marlowe contends that the jury instructions in his case ran afoul of Burrage because
the jury was not asked to decide whether Kuntz would have lived but for Marlowe’s
2 Though Marlowe was convicted in the Middle District of Tennessee, he is serving his sentence at Federal Correctional Institution, Hazelton in West Virginia. Because Section 2241 habeas petitions “must be filed in the jurisdiction where the federal petitioner is detained,” Marlowe’s appeal is properly before this Court. Hahn v. Moseley, 931 F.3d 295, 300 (4th Cir. 2019); see also 28 U.S.C. § 2241(a). 7 conduct but rather was instructed that Marlowe’s acts need not have been “the direct . . .
cause” of Kuntz’s death. The Government moved to dismiss the petition for lack of
jurisdiction, arguing that Marlowe was not entitled to invoke Section 2241 because he had
not shown, pursuant to the so-called “savings clause” of 28 U.S.C. § 2255(e), that a Section
2255 motion would be “inadequate or ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e); see also In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc) (federal
prisoners “are required to bring collateral attacks challenging the validity of their judgment
and sentence by filing a motion to vacate sentence pursuant to [Section] 2255”).
The district court granted the motion to dismiss. Marlowe v. Warden, FCI Hazelton,
No. 5:17-CV-111, 2020 WL 2043807 (N.D. W. Va. Apr. 28, 2020). The court recognized
that, when evaluating claims under the savings clause, it must apply the procedural law of
this Circuit and the substantive law of the circuit where the petitioner was convicted.
Looking to the law of the Sixth Circuit, the district court observed that the circuit has
applied Burrage retroactively on collateral review. Id. at *3–4. The court also observed
that the Sixth Circuit’s savings-clause jurisprudence requires a prisoner to prove he is
“actually innocent,” meaning that applying the retroactive rule “make[s] it more likely than
not that no reasonable juror would have convicted him.” Id. at *5 (citing Harrington v.
Ormond, 900 F.3d 246, 249 (6th Cir. 2018)). Thinking it would be incongruous for
Marlowe to escape this requirement by virtue of being confined in the Fourth Circuit, the
district court determined that Marlowe “should be required to show the actual innocence
standard of the Sixth Circuit.” Id. Marlowe failed to make that showing, the district court
reasoned, because (1) even extending Burrage to 18 U.S.C. § 242, the jury instructions
8 were correct and (2) the evidence and verdict demonstrated that Marlowe’s withholding of
medical care was the sole proximate cause of Kuntz’s death. Id. at *6–7.
Marlowe timely appealed. He contends that after Burrage the causation jury
instruction in his case was fatally flawed and the district court further erred by requiring
him to satisfy the Sixth Circuit’s actual-innocence standard. The Government urges us to
affirm the district court’s reasoning but also emphasizes that no binding precedent from the
Sixth Circuit or the Supreme Court foreclosed Marlowe—at trial, on direct appeal, or in
his initial Section 2255 motion—from making the argument he now attempts to advance.
II.
Marlowe bears the burden to establish the inadequacy or ineffectiveness of 28
U.S.C. § 2255 so that he may proceed with his Section 2241 habeas petition. Farkas v.
Butner, 972 F.3d 548, 553 (4th Cir. 2020). Whether he has done so is a jurisdictional
question we review de novo. Ham v. Breckon, 994 F.3d 682, 688 (4th Cir. 2021).
Federal prisoners generally must use the remedy-by-motion mechanism provided in
28 U.S.C. § 2255 to challenge their convictions or sentences. Farkas, 972 F.3d at 554; In
re Vial, 115 F.3d at 1194. Section 2255 “afford[s] every federal prisoner the opportunity
to launch at least one collateral attack to any aspect of his conviction or sentence.” Prost
v. Anderson, 636 F.3d 578, 583 (10th Cir. 2011) (Gorsuch, J.). But after a prisoner, like
Marlowe, has filed one unsuccessful Section 2255 motion, “he may not file another except
under very limited circumstances.” Lester v. Flournoy, 909 F.3d 708, 710 (4th Cir. 2018).
Specifically, before filing a “second or successive motion,” the prisoner must receive
9 permission from the court of appeals by making a prima facie showing that either
(1) “newly discovered evidence” proves he was not guilty of his offense or (2) a
“previously unavailable” “new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court,” entitles him to relief. 28 U.S.C. § 2255(h); see
also id. § 2244(b). These restrictions do not permit a second petition for a new statutory
construction, like Marlowe advances here. See Lester, 909 F.3d at 711.
Congress has provided one exception to this general rule. Section 2255(e)’s savings
clause permits a prisoner to file a traditional Section 2241 habeas petition if it “appears that
the [Section 2255] remedy by motion is inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e). The Section 2255 remedy “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 filing a [Section] 2255
motion.” In re Vial, 115 F.3d at 1194 n.5 (internal citations omitted). Nevertheless, our
Court has held that, in “limited circumstances,” a prisoner otherwise unable to file a second
or successive Section 2255 petition may invoke the savings clause to seek relief under
Section 2241. In re Jones, 226 F.3d 328, 333 (4th Cir. 2000). “[T]o prevent the exception
from swallowing the rule” and “‘effectively nullify[ing]’” Section 2255’s limitations, “we
have interpreted the ‘savings clause’ narrowly.” Farkas, 972 F.3d at 556 (quoting In re
Jones, 226 F.3d at 333).
10 Our Circuit has crafted a three-part test for determining whether a Section 2255
motion challenging a prisoner’s conviction would prove “inadequate or ineffective.” 3 That
test provides that Section 2255 is inadequate and ineffective to test the legality of a
conviction when:
(1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner’s direct appeal and first [Section] 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of [Section] 2255 because the new rule is not one of constitutional law.
In re Jones, 226 F.3d at 333–334. To resolve Marlowe’s appeal, we need undertake only
the first inquiry. Before doing so, however, we must define its substance.
We have not previously had occasion to squarely address the meaning of our
requirement that the “settled law of this circuit or the Supreme Court established the
legality of the [prisoner’s] conviction.” Id. After reviewing Jones, cases applying its
standard, and the statutory scheme governing habeas proceedings, we conclude that the
first step of the Jones test requires a prisoner invoking Section 2255(e)’s savings clause to
demonstrate that, at the time of his conviction, binding precedent from the Supreme Court
or the circuit of conviction foreclosed the argument he contends entitles him to habeas
relief.
Our Court has created a similar pathway for relief under the savings clause for 3
prisoners who challenge the legality of their sentences. See United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018). Jones controls here because Marlowe disputes the validity of his conviction, not “the length of a criminal sentence for an otherwise valid conviction.” Farkas, 972 F.3d at 559–560. 11 1.
We begin with Jones. Byron Jones had been convicted of violating 18 U.S.C.
§ 924(c)(1). At the time of his conviction, our cases allowed the Government to establish
“use” of a firearm under Section 924(c)(1) “by proving that ‘the firearm was present for
protection and to facilitate the likelihood of success [of a drug trafficking offense], whether
or not it was actually used.’” In re Jones, 226 F.3d at 330 (alterations omitted) (quoting
United States v. Paz, 927 F.2d 176, 179 (4th Cir. 1991)). Roughly two years later, the
Supreme Court in Bailey v. United States, 516 U.S. 137 (1995), held that the Government
“must prove active employment of a firearm in order to convict under the ‘use’ prong of
[Section] 924(c)(1).” In re Jones, 226 F.3d at 330. As we explained, “[t]his holding
overruled the prior law of this circuit,” under which Jones had been convicted. Id.
Evaluating the meaning of the savings clause in this circumstance, we examined
similar decisions from other circuits. In each case, “the court . . . noted that the prisoner’s
first [Section] 2255 motion was filed prior to the decision in Bailey, at a time when it would
have been futile to challenge the then-prevailing interpretation of the ‘use’ prong of
[Section] 924(c)(1)” in those circuits. Id. at 333 (emphasis added) (citing In re Davenport,
147 F.3d 605, 610–612 (7th Cir. 1998); Triestman v. United States, 124 F.3d 361, 376–380
(2d Cir. 1997); In re Dorsainvil, 119 F.3d 245, 251–252 (3d Cir. 1997)). 4 This Court
4 In a footnote, the Court also cited Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), overruled by McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017). That decision did not involve a Bailey claim but relied on the reasoning of those cases to fashion a savings-clause test requiring, among other things, that “circuit law squarely foreclosed” the claim “at the time it otherwise should have been raised in the petitioner’s trial, appeal, or first [Section] 2255 motion.” Wofford, 177 F.3d at 1244. 12 “agree[d] with the rationale and holdings of th[o]se courts” and accordingly established the
three-part test we use today. Id. Applying the first requirement of that test, the Jones Court
explained that “[u]nder the settled law of this circuit at the time of Jones’[s] conviction,”
the discovery of four firearms in a locked closet was sufficient to support a conclusion that
Jones “used” the guns for purposes of Section 924(c)(1). Id. at 334. In other words, before
Bailey, circuit precedent foreclosed any argument by Jones that Section 924(c)(1) required
active employment of a firearm.
This context informs our understanding of Jones’s requirement that “settled law” at
the time of the prisoner’s conviction “established the legality of the conviction.” Id. at
333–334. The law was settled and adverse to the prisoners in Jones and the cases on which
it relied because, at the time of their convictions, binding precedent foreclosed the statutory
interpretation they later claimed undercut the legality of their convictions. In view of
circuit precedent definitively interpreting the “use” prong of Section 924(c)(1) at the time
of his conviction, it “would have been futile” for Jones to advance a contrary interpretation
of the statute. Id. at 333. Jones is thus premised on the understanding that binding
precedent previously prevented the prisoner from asserting the argument he later claims a
change in the law has made available to him.
2.
Subsequent cases reinforce this interpretation. For example, in United States v.
Wheeler, 886 F.3d 415 (4th Cir. 2018), this Court relied on Jones to fashion a savings-
clause test for challenges to sentences. Convicted of various drug and firearm offenses,
Wheeler faced an enhanced statutory mandatory minimum of 10 years’ imprisonment
13 based on a prior North Carolina felony drug offense. Wheeler, 886 F.3d at 419. When
Wheeler was sentenced, our precedent held that “to determine whether a conviction is for
a crime punishable by a prison term exceeding one year under North Carolina law, we
consider the maximum aggravated sentence that could be imposed for that crime upon a
defendant with the worst possible criminal history.” Id. at 420 (alterations omitted)
(quoting United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005)). Though Wheeler
himself could have received only 6 to 8 months’ imprisonment for his North Carolina
conviction, the offense carried a maximum aggravated sentence of 15 months. Id. So “any
challenge” arguing that Wheeler’s North Carolina conviction was not a felony drug offense
“would have failed.” Id. (alterations and internal quotation marks omitted). We later
overruled Harp, holding instead that “a sentencing court may only consider the maximum
possible sentence that the particular defendant could have received.” Id. (quoting United
States v. Kerr, 737 F.3d 33, 37 (4th Cir. 2013)).
The Wheeler Court adapted Jones’s first requirement to focus on a prisoner’s
sentence rather than conviction, requiring that “at the time of sentencing, settled law of this
circuit or the Supreme Court established the legality of the sentence.” Id. at 429. And we
found Wheeler satisfied this requirement. It was “undisputed that at the time [Wheeler]
was sentenced in February 2008, his sentence was legal pursuant to Harp.” Id. Just as in
Jones, published circuit precedent at the time foreclosed the argument Wheeler made in his
subsequent habeas proceeding.
So too in other cases. In Lester v. Flournoy, 909 F.3d 708 (4th Cir. 2018), we held
Section 2255 inadequate and ineffective under the Wheeler test, finding that when Lester
14 was sentenced, “settled precedent established that his past conviction for walkaway escape
was a ‘crime of violence’” under the Guidelines’ career-offender provision. 909 F.3d at
712. In Braswell v. Smith, 952 F.3d 441 (4th Cir. 2020), we found that, just as in Wheeler,
settled law established the validity of the prisoner’s sentence because the felony drug
offense enhancement was controlled by “[t]he then-prevailing decision of United States v.
Harp.” 952 F.3d at 447. In Jones v. Zych, 812 Fed. App. 115 (4th Cir. 2020), the first
Wheeler requirement was satisfied because Supreme Court precedent permitting judicial
factfinding as the basis for a statutorily increased mandatory minimum was “the law of the
land at the time of Jones’s sentencing.” 812 Fed. App. at 120–121. And in Hahn v.
Moseley, 931 F.3d 295 (4th Cir. 2019), we found Jones’s “settled law” requirement
fulfilled where, at the time of Hahn’s convictions, Tenth Circuit law held—contrary to later
developments—that multiple charges under Section 924(c) based on a single instance of
firearm possession were permissible if they did not contravene the Double Jeopardy
Clause. 931 F.3d at 301.
Our consistent treatment of Jones’s first requirement and its Wheeler analog evinces
a focus on whether settled law at the time of the original criminal proceedings foreclosed
the argument the prisoner later advances to challenge his conviction or sentence such that
raising it earlier was or would have been futile.
3.
This reading of Jones’s “settled law” requirement is also consonant with Section
2255 and the nature of the habeas remedy. Generally speaking, habeas proceedings are not
the time to raise arguments a prisoner could have made, but did not, in the proceedings
15 culminating in his conviction. Principles of procedural default sharply limit a prisoner’s
ability to raise on collateral review claims not raised in his initial criminal proceeding or
on direct appeal. See Bousley v. United States, 523 U.S. 614, 621–624 (1998); United
States v. Frady, 456 U.S. 152, 167–168 (1982); see also United States v. Harris, 991 F.3d
552, 558 (4th Cir. 2021). And the gatekeeping provisions of Section 2255(h) limit second
or successive Section 2255 motions to “newly discovered evidence” and “new rule[s] of
constitutional law” that were “previously unavailable.” 28 U.S.C. § 2255(h); see also
Lester, 909 F.3d at 710–711. The exclusion of previously available claims from Section
2255’s reach compels a similar approach to the savings clause. See Farkas, 972 F.3d at
556 (explaining that we have interpreted the savings clause “narrowly” in an effort to avoid
“effectively nullify[ing] [Section] 2255’s specific limitations” (internal quotation marks
omitted)).
The text of the savings clause points in the same direction. As we have observed,
“the text juxtapos[es] the terms ‘inadequate or ineffective’ with the phrase ‘to test the
legality of [a prisoner’s] detention.’” Id. at 555 (internal quotation marks omitted). At a
minimum, Section 2255 is not inadequate or ineffective to test an argument on an unsettled
point of law that the prisoner could have asserted in his original criminal proceeding, on
direct appeal, or in his initial Section 2255 motion. Cf. Wheeler, 886 F.3d at 429 (requiring
that retroactive change in law occur after direct appeal and initial Section 2255 motion to
“honor[] the saving clause’s requirement that the [Section] 2255 motion be inadequate or
ineffective”). Section 2255 would not condone a prisoner’s failure to press his argument
earlier, and “[i]t is beyond question that [Section] 2255 is not inadequate or ineffective
16 merely because an individual is unable to obtain relief under that provision.” In re Jones,
226 F.3d at 333; see also Farkas, 972 F.3d at 555–556. The savings clause “provide[s]
only the tightest alleyway to relief.” Lester, 909 F.3d at 716. And in our Circuit, traversing
that alleyway begins with showing that, at the time of the prisoner’s original criminal
proceeding, binding precedent foreclosed the argument he later seeks to advance in his
Section 2241 petition.
With the proper inquiry in mind, we now undertake it in Marlowe’s case. When
evaluating claims under the savings clause, “we look to the substantive law of the circuit
where a defendant was convicted.” Hahn, 931 F.3d at 301. Because Marlowe was
convicted in the Middle District of Tennessee, we assess the “settled law” of the Sixth
Circuit and Supreme Court. See id. at 301–302 (applying Jones and evaluating whether
settled Tenth Circuit law established the legality of the conviction).
In his Section 2241 petition, Marlowe contends that the law in the Sixth Circuit at
the time of his January 2006 conviction did not require a showing of but-for causation to
support a conviction under the “death results” enhancement of 18 U.S.C. § 242, citing
United States v. Martinez, 588 F.3d 301 (6th Cir. 2009). Though Martinez issued after his
conviction and direct appeal—and does not involve a conviction under 18 U.S.C. § 242—
Marlowe nonetheless claims that “the Court in Martinez was clear that since 1994 it has
interpreted a similar statutory provision as only requiring a showing of legal cause.” J.A.
16 n.2. This references Martinez’s discussion of United States v. Wiegand, No. 93-1735,
1994 WL 714347 (6th Cir. Dec. 22, 1994), an unpublished decision that addressed the
17 causation necessary to show that “bodily injury results” from a violation of 42 U.S.C.
§ 3631. Citing approvingly to a Fifth Circuit decision construing 18 U.S.C. § 242, the
Wiegand court upheld the enhanced punishment under 42 U.S.C. § 3631 because the bodily
injury that occurred was the natural and foreseeable result of the defendant’s statutory
violation. Wiegand, 1994 WL 714347, at *2–3.
These cases cannot carry Marlowe’s burden to show that binding precedent at the
time of his conviction foreclosed an argument that the “death results” enhancement of 18
U.S.C. § 242 requires but-for causation. Most fundamentally, Martinez specifically says—
years after Marlowe’s conviction—that the Sixth Circuit “ha[s] not interpreted the ‘results
in death’ language of [Section] 242.” 588 F.3d at 318. The law concerning 18 U.S.C.
§ 242’s causation standard could hardly be “settled” if the Sixth Circuit has never
interpreted it.
Moreover, in addition to interpreting a different statute, Wiegand is an unpublished
opinion. At the time of Marlowe’s trial (as now) it was “well-established law” in the Sixth
Circuit “that unpublished cases are not binding precedent.” Bell v. Johnson, 308 F.3d 594,
611 (6th Cir. 2002). A nonprecedential decision interpreting a different statute cannot
establish “settled law.” Cf. Ham, 994 F.3d at 693 (rejecting the argument that an
“unpublished, non-precedential decision” could “demarcate a change in settled law”).
Marlowe could have raised his current objection to the causation jury instruction at
trial. He has not shown that doing so “would have been futile” under binding Sixth Circuit
precedent. In re Jones, 226 F.3d at 333. He therefore has not satisfied the first requirement
of the Jones test for invoking the savings clause of Section 2255(e).
18 III.
The traditional Section 2241 habeas remedy is available to a federal prisoner only
if a Section 2255 motion is “inadequate or ineffective to test the legality of his detention.”
28 U.S.C. § 2255(e). Under this Court’s precedent, a Section 2255 motion can prove
inadequate or ineffective only if, among other things, at the time of his conviction the
settled law of the Supreme Court or the circuit in which the prisoner was convicted
established the legality of his conviction. To satisfy this requirement, a prisoner must show
that binding precedent foreclosed the argument he later presses to collaterally attack his
conviction. Because Marlowe cannot satisfy this requirement to access Section 2255’s
savings clause, the district court lacked jurisdiction to entertain his Section 2241 habeas
petition. The judgment of the district court dismissing Marlowe’s petition is
AFFIRMED.