Please ensure Javascript is enabled for purposes of website accessibility

Detainee can’t reargue rejected challenge

Virginia Lawyers Weekly//June 23, 2022

Detainee can’t reargue rejected challenge

Virginia Lawyers Weekly//June 23, 2022

Where a federal district court already rejected a detainee’s challenge to his sentence under 28 U.S.C. § 2255, his reassertion of that same argument in a habeas petition under 28 U.S.C. § 2241 was properly dismissed.


After the Supreme Court held the residual clause of the Armed Career Criminal Act, unconstitutional in Johnson v. United States, 576 U.S. 591 (2015), Larry Slusser, a federal detainee, received authorization to file a second 28 U.S.C. § 2255 motion challenging his sentence. The district court for the Eastern District of Tennessee denied Slusser’s motion on the merits. The Sixth Circuit declined to reach the merits and instead affirmed based on the collateral-attack waiver in Slusser’s plea agreement.

A year later, in a different case, the Sixth Circuit revisited the question whether a collateral-attack waiver is enforceable when a prisoner challenges his sentence as exceeding the statutory maximum based on a subsequent change in the law. The court concluded that such waivers are not enforceable under those circumstances and specifically identified Slusser as wrongly decided.

Now, Slusser seeks to bring the same Johnson claim again, this time as a habeas petition under 28 U.S.C. § 2241. The district court for the District of South Carolina rejected Slusser’s petition for lack of jurisdiction.


A federal prisoner may pursue habeas relief by way of a § 2241 petition only if it “appears that the [§ 2255] remedy by motion is inadequate or ineffective to test the legality of his detention.” This court has repeatedly acknowledged that this so-called “savings clause” must be interpreted “narrowly,” as a contrary rule “‘would effectively nullify’ § 2255’s specific limitations.”

Whether § 2255 is inadequate or ineffective to test the legality of Slusser’s detention is a jurisdictional question the court reviews de novo. Slusser bears the burden, and has failed to carry it. Quite simply, the court knows that § 2255 is up to the task of testing the legality of Slusser’s detention because he has already pursued his argument in a § 2255 motion and received a judgment on it.

The district court for the Eastern District of Tennessee adjudicated Slusser’s second § 2255 motion on the merits; it considered his Johnson challenge and found that his sentence remained legal after Johnson. Section 2255’s remedy by motion is not only adequate to test the legality of Slusser’s detention, it was in fact used to test (and approve) his detention after Johnson.

In response Slusser says he cannot satisfy the requirements for filing a successive § 2255 motion because he already proceeded on this exact constitutional claim in his second § 2255 motion. That is correct, but it is not a reason to permit resort to § 2241 via the savings clause.

Second, Slusser asserts that Johnson became “unavailable” to him when, after the district court for the Eastern District of Tennessee denied his second § 2255 motion on the merits, the Sixth Circuit enforced his plea waiver and refused to consider his Johnson argument on appeal. As an initial matter, if this were true, it would not help Slusser with his § 2241 petition because § 2255 authorizes successive motions based on a “previously unavailable” new rule of constitutional law. But of course, Slusser’s assertion is not true. “Previously unavailable” in § 2255(h)(2) refers to the existence of the “new rule of constitutional law,” not to a particular prisoner’s ability to utilize or prevail on it.

And Slusser’s argument overlooks the fact that the district court addressed the merits of his Johnson challenge. Slusser appears to insist that one round of merits review is inadequate, but that contention cannot be squared with the fact that Congress did not create an appeal as of right from a district court’s ruling on a § 2255 motion. Under Slusser’s approach, a constitutional claim adjudicated on the merits in district court would become “unavailable” to a prisoner any time a court denies a certificate of appealability. That is plainly not the scheme Congress created. The Sixth Circuit’s later confession of error does not change the savings clause analysis.


Dissenting opinion

King, J., dissenting:

The unique circumstances of Slusser’s case should allow him to pursue his Johnson claim in the district court by way of a § 2241 petition, if he can satisfy Wheeler’s final prong. The majority’s erroneous disposition of this appeal, however, has forced Slusser to bear the severe consequences resulting from the Sixth Circuit’s acknowledged error. I respectfully dissent.

Slusser v. Vereen, Case No. 19-7482, June 10, 2022. 4th Cir. (Rushing), from DSC at Rock Hill (Coggins). Reedy Charles Swanson for Appellant. Leesa Washington for Appellee. VLW 022-2-143. 19 pp.

VLW 022-2-143

Virginia Lawyers Weekly

Verdicts & Settlements

See All Verdicts & Settlements

Opinion Digests

See All Digests