Struggling for Federal Judicial Review of Successive Claims of Innocence: A Study of How Federal Courts Wrestled with the AEDPA to Provide Individuals Convicted of Non-existent Crimes with Habeas Corpus Review

In 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) dramatically changed the law governing federal habeas review in the United States. The changes brought about by the AEDPA include greater restrictions on successive habeas or collateral review, and one of the clear effects of these changes is much greater restriction on habeas or collateral review of prisoner claims, including meritorious claims and claims of actual innocence. This article examines one aspect of the AEDPA's limitations on successive review of claims brought under 28 U.S.C. - 2255, how the AEDPA may preclude or greatly limit an innocent prisoner's claim for collateral or habeas relief, and how federal courts have turned to the savings clause of - 2255 to allow habeas hearings for certain individuals serving prison time for non-criminal conduct. Specifically, this article considers the AEDPA's obstacles to federal prisoners convicted of conduct that the Supreme Court in Bailey v. United States, 516 U.S. 137 (1995), declared non-criminal. Three years later, the Court held the decision in Bailey applied retroactively. Bousley v. United States, 523 U.S. 614 (1998). One of the results of these Supreme Court decisions is that certain federal prisoners were now serving prison time for non-criminal conduct. To obtain relief from their prison sentences, these federal prisoners often had to seek collateral review of their conviction and sentence, and a number of these prisoners were required to file a successive - 2255 motion to obtain such review. Unfortunately, as the article points out, "the current federal habeas corpus system is not unlike a maze filled with wrong turns, fun house mirrors, and dead ends that one must try to navigate before attaining the evermore elusive goal of meaningful federal habeas review." In considering these issues and the course the prisoner must traverse to obtain review of his Bailey claim, the article explores the history and methods of habeas and collateral review available to federal prisoners and discusses the difference between using 28 U.S.C. - 2241 and 28 U.S.C. - 2255 to pursue collateral challenges to federal convictions. Included in this discussion is the role of the savings clause of - 2255, which allows - 2241 review where the remedy under - 2255 is found "inadequate or ineffective to test the legality of [the] detention." The article then studies the effect of the AEDPA on federal collateral and habeas review, particularly second or successive review and the savings clause of - 2255. The article closely considers successive collateral review of Bailey claims, examines the way in which the AEDPA obstructs successive review of these claims of actual innocence, and explores the federal court's response to an unjust application of the AEDPA. The broader implications and problems created by the AEDPA and the role of the federal court in interpreting these provisions are examined in the context of those federal prisoners who have potentially meritorious Bailey claims, but who are nonetheless unable to obtain meaningful review of their claims.