Split Created: Does 2255(e)'s Savings Clause Apply To Past Misapplications of the Guidelines?

Per Brown v. Caraway (7th Cir. May 10, 2013)

Royce Brown always maintained his arson conviction was not a crime of violence.  Turns out, under Begay, he was right.  But Begay came much too late.  Brown was sentenced in 1996 as a career offender (adding several years to his sentence) based in part on his arson conviction.

Ordinarily, after Begay, Brown could have filed a 2255 motion to challenge his sentence.  But Brown had already filed--and lost--a 2255 motion in 2000.  And 2255(h) bars second or successive motions.

Brown nonetheless sought to profit from Begay and filed a 2241 petition for habeas corpus.  But 2255(e) bars consideration of habeas petitions, unless a 2255 motion  "is inadequate or ineffective to test the legality of his detention."  (This quoted text is often referred to as the "savings clause").

In this case, the CA7 creates a circuit split by holding that the savings clause applies, and permits a habeas petition.  The CA 11 (en banc) and CA5 had previously concluded--also in the context of 2241 petitions based on Begay--that the savings clause did not apply.

I am of two minds.  On one hand, equity favors allowing some relief where a sentence is manifestly in error.  On the other, considerations of finality must trump at some point.  I lean slightly to the CA11 and CA5's view that the  savings clause does not apply because 2255 procedures are in fact effective and adequate, but unavailable only because of a previous collateral attack.

I lean that way in part because--unlike the CA7--I do not think this conclusion leaves prisoners without a remedy.  Even if both a 2255 motion and a 2241 habeas petition are unavailable, a prisoner could file a petition for a writ of coram vobis (not nobis, as discussed below).

As this blog has discussed earlier, coram vobis requires:

1. a fundamental error in the prior proceedings
2. reasonableness in not having acted earlier (i.e., though habeas)
3. collateral consequences from the prior proceedings (standing)
4. interests of justice require granting the writ (no alternative remedy)

Here, application of the career enhancement is a fundamental error increasing the sentence.  Brown both preserved the issue by objecting in the initial sentencing and acted reasonably in raising it again soon after Begay was decided.  Brown's lengthened sentence provides standing.  And--if both 2241 and 2255 are not available--there is no alternative remedy.

Thus, I ultimately come out at the same point as the CA7, but would use a different procedural tool to get there.  I feel that this procedural tool does less damage to the "second or successive" bar.  But I am not a criminal lawyer, and there may be something I am missing.

On a total aside, I am surprised that the vast majority of U.S. courts call the writ "coram nobis" (before us) rather than "coram vobis" (before you).  The names do not imply a difference in procedure or remedies.  Rather, the distinction arose in English common law depending on whether a writ petition was filed before the King's Bench--where the King was supposed to preside, and so using the royal "we/us"--or Common Pleas, where the King did not preside, so the writ was only before "you" judges.  As America has no king, it would appear that "coram vobis" is more appropriate.