                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-6851


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

RAYMOND ROGER SURRATT, JR.,

                Defendant – Appellant.

--------------------------

STEVEN HARRIS GOLDBLATT,

                Court-Assigned Amicus Counsel,

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; DOUGLAS A.
BERMAN, Professor,

                Amici Supporting Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., District Judge. (3:04−cr−00250−RJC−19; 3:12−cv−00513−RJC)


Argued:   January 27, 2015                    Decided:     July 31, 2015


Before TRAXLER,   Chief    Judge,   and    GREGORY   and   AGEE,   Circuit
Judges.


Affirmed by published opinion. Judge Agee wrote the majority
opinion, in which Chief Judge Traxler joined.  Judge Gregory
wrote a dissenting opinion.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.    Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.     Erika L. Maley, SIDLEY AUSTIN
LLP, Washington, D.C., for Amici Curiae.          Steven Harris
Goldblatt, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C.,
as Court-Assigned Amicus Counsel.         ON BRIEF: Ross Hall
Richardson, Executive Director, Joshua B. Carpenter, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant.      Anne M. Tompkins, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.    Douglas A. Berman, Professor of Law,
THE OHIO STATE UNIVERSITY, Columbus, Ohio; Jeffrey T. Green,
Kimberly A. Leaman, SIDLEY AUSTIN LLP, Washington, D.C., for
Amici Curiae.   Ruthanne M. Deutsch, Supervising Attorney, Utsav
Gupta, Student Counsel, William Hornbeck, Student Counsel,
Meredith Wood, Student Counsel, Appellate Litigation Program,
GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Court-
Assigned Amicus Counsel.




                               2
AGEE, Circuit Judge:

        In 2005, after pleading guilty to conspiracy to distribute

cocaine, Raymond Surratt was sentenced to life imprisonment.                      We

affirmed his conviction and sentence on appeal, and Surratt’s

motion to vacate his conviction and sentence under 28 U.S.C.

§ 2255 was likewise denied.          Neither Surratt’s direct appeal nor

his § 2255 motion questioned the legality of his mandatory life

sentence.

        Several years later, Surratt returned to this Court and

asked    for    permission   to   file    a    second    or    successive   §   2255

motion.        Surratt’s   request   was      premised    on    United   States   v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), which in turn

overruled our prior decision in United States v. Harp, 406 F.3d

242 (4th Cir. 2005).         Had Surratt been sentenced after Simmons,

he would have faced a lower mandatory minimum sentence than the

mandatory      life   term   that    he       actually    received.         Surratt

maintained that this difference entitled him to be resentenced.

But Congress set out certain conditions that must be met before

a successive motion may be permitted, and Surratt did not meet

those    required     conditions.        See    28   U.S.C.      § 2255(h).       We

therefore denied him permission to file a successive motion.

See In re Surratt, No. 12-283 (4th Cir. Sept. 13, 2012), ECF No.

6.



                                          3
      In the district court, Surratt had simultaneously filed a

petition for a writ of habeas corpus under 28 U.S.C. § 2241

seeking the same Simmons-based relief.                      As a federal prisoner,

however, Surratt cannot challenge his conviction and sentence

under § 2241 unless 28 U.S.C. § 2255(e) -- also called the

“savings clause” -- applies.              The district court concluded that

§   2255(e)   did    not   in     fact    confer         jurisdiction       to    consider

Surratt’s claim in a § 2241 petition, so it denied Surratt’s

petition.

      Surratt   now      appeals       from       the   judgment    of     the    district

court.   We are not unsympathetic to his claim; like the dissent,

we recognize the gravity of a life sentence.                        However, Congress

has the power to define the scope of the writ of habeas corpus,

and Congress has exercised that power here to narrowly limit the

circumstances       in   which     a     § 2241         petition    may     be    brought.

Surratt’s     petition     does    not        present      one     of     the    permitted

circumstances.        Accordingly, we agree that the district court

lacked jurisdiction under § 2255(e) to consider Surratt’s § 2241

petition and affirm the judgment below.



                                           I.

      In 2004, a grand jury indicted Surratt on several drug-

related counts, including conspiracy to possess with intent to

distribute cocaine and cocaine base in violation of 21 U.S.C.

                                              4
§§ 841(b)(1)(A) and 846.                The Government then filed a timely

information      indicating         that     it    would       seek     enhanced      penalties

based     on     Surratt’s          criminal          history.           The     Government’s

information identified four previous drug-related convictions,

each    in     North    Carolina:       (1)       a    1996     conviction        for   felony

possession       of    cocaine;        (2)     a       1997     conviction        for   felony

possession       of    cocaine;        (3)     a       1997     conviction       for    felony

possession of cocaine and maintaining a place for storage or

sale;    and    (4)     a    1998    conviction          for     sale    and     delivery   of

cocaine.        If     two    or    more     of       these    convictions        constituted

“felony drug offense[s],” then Surratt faced a mandatory term of

life      imprisonment             without        release.               See     21     U.S.C.

§ 841(b)(1)(A).

        Four months after his indictment, and despite the prospect

of a life sentence, Surratt pleaded guilty to the conspiracy

count.       He acknowledged in his written plea agreement that the

district court could not impose a sentence below any statutory

minimum      unless     the        United     States          sought     a     reduction    for

substantial assistance.               He also waived any rights to further

appeals, save in a few narrow circumstances.                                 Surratt did not

stipulate, however, to any prior felony drug convictions.

        After Surratt’s plea, but before his sentencing, we decided

United States v. Harp, 406 F.3d 242 (4th Cir. 2005), which held

that a North Carolina drug conviction qualified as a “felony

                                               5
drug    offense”     if    “the     maximum       aggravated      sentence        that   [the

state     court]     could    [have]        imposed       for     that    crime      upon    a

defendant with the worst possible criminal history” exceeded one

year.     Id. at 246.        Under Harp, all Surratt’s prior convictions

constituted       felony     drug    offenses.            Therefore,     unless      Surratt

offered substantial assistance to the Government, Surratt faced

a mandatory life sentence.

        The district court sentenced Surratt to life imprisonment

in October 2005.           Initially, the court expressed some misgivings

about     a   life    sentence       and     questioned         whether       a    different

sentence would apply had it been free to consider the factors

listed in 18 U.S.C. § 3553(a).                    But the Government had declined

to move for any substantial-assistance reduction, as it regarded

Surratt’s cooperation as “halfhearted . . . at best.”                              J.A. 223.

Consequently,        the     district       court         determined      that      it      was

“required” to impose the life sentence “because of [Surratt’s]

prior     criminal        history     and     his     engagement         in       this   drug

trafficking and, for whatever reasons, his inability to render

substantial       assistance.”         J.A.        222.      We    affirmed        Surratt’s

sentence on appeal.          United States v. Surratt, 215 F. App’x 222,

224 (4th Cir. 2007).              Surratt did not raise any claim in his

direct appeal as to his mandatory life sentence.

        Surratt    then     moved    for    post-conviction          relief        under    28

U.S.C. § 2255 in April 2008.                  In that motion, Surratt claimed

                                              6
that he had received ineffective assistance of counsel during

his initial plea and sentence, and further sought a sentence

reduction based on an amended Sentencing Guideline.                      He did not

challenge his mandatory minimum sentence.                  The district court

denied and dismissed the motion.            Surratt v. United States, Nos.

3:08cv181, 3:04cr250, 2011 WL 815714 (W.D.N.C. Feb. 25, 2011).

We denied Surratt’s request for a certificate of appealability.

United States v. Surratt, 445 F. App’x 640, 640 (4th Cir. 2011).

     More than three years after Surratt filed his first § 2255

motion, we decided Simmons.             Overruling Harp, the Simmons en

banc majority held that a prior North Carolina conviction will

constitute a felony for purposes of an enhanced punishment only

if the prior conviction was actually punishable for more than

one year of imprisonment as to that defendant.                 649 F.3d at 241.

Surratt    and   the    Government    agree    that   only    one   of    Surratt’s

prior convictions would qualify as a “felony drug offense” under

Simmons.

     Seeking to take advantage of Simmons, Surratt sought relief

in both this Court and the district court in August 2012.                         He

first   asked    this    Court   to   permit    him   to     file   a    second   or

successive § 2225 motion.         Because Surratt’s motion fell outside

the statutorily enumerated exceptions permitting that type of

motion, see 28 U.S.C. § 2255(h), we denied him permission to

file.     See In re Surratt, No. 12-283 (4th Cir. Sept. 13, 2012),

                                        7
ECF No. 6.          On the same day that he filed that request, Surratt

also moved in the district court to vacate his sentence under

§§ 2241       and    2255,    or    for     writ    of     coram        nobis.         Surratt

maintained that, in light of Simmons, he was “innocent” of the

career    offender      enhancement         and    was    a    victim      of    fundamental

error.     In particular, Surratt argued that he should not have

been subject to a mandatory life sentence.                          The Government did

not oppose Surratt’s § 2241 request.

       Despite the parties’ agreement, the district court denied

Surratt’s motion.            Surratt v. United States, Nos. 3:04–CR–250–

19,    3:12–CV–513,       2014      WL    2013328        (W.D.N.C.        May    16,    2014).

Although it again expressed misgivings about Surratt’s mandatory

life sentence, the court determined that a federal prisoner may

use § 2241 to seek relief that § 2225(h) would otherwise bar

only   when     a    substantive         change    in    the    law     coming     after       an

initial § 2255 petition rendered the prisoner’s original offense

conduct “non-criminal.”             Id. at *1.           Because Surratt challenged

only    his    sentence,      the    court        concluded        that    he     could       not

establish       that    Simmons      rendered       any       of   his     conduct          “non-

criminal.”      Therefore, he could not obtain relief under § 2241.

       Surratt appealed, arguing that the district court should

have permitted him to proceed under § 2241.                                The Government

agreed and also elected not to enforce the appeal waiver in

Surratt’s       plea     agreement.           Therefore,           in     light        of     the

                                             8
Government’s position, we appointed amicus curiae to defend the

district court’s judgment.



                                          II.

     In the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Congress circumscribed the ability of federal

prisoners    to    request    post-conviction          relief.     See   Rhines    v.

Weber, 544 U.S. 269, 274 (2005).                   Section 2555 provides the

ordinary     means      for   a   federal       prisoner     to    challenge      his

conviction    or    sentence.       But    in    AEDPA,   Congress      limited   the

jurisdiction       of   federal   courts      to   hear   second   or    successive

requests under § 2255.            See, e.g., In re Weathersby, 717 F.3d

1108, 1110 (10th Cir. 2013) (“Congress placed strict limitations

on second or successive motions under § 2255[.]”). ∗

     Specifically,         courts    may        hear    second     or    successive

petitions only if they pertain to (1) “newly discovered evidence

. . . [clearly and convincingly establishing] that no reasonable

factfinder would have found the movant guilty of the offense” or

(2) “a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was previously

unavailable.”        28 U.S.C. § 2255(h).           We have already held that


     ∗ Throughout our opinion, we have omitted any internal
marks, citations, emphasis, or footnotes from quotations unless
otherwise noted.


                                          9
Surratt’s claim does not fall into either of these categories,

so § 2255(h) does not permit him to file a second or successive

motion under § 2255.

       If a federal prisoner cannot meet § 2255(h)’s requirements,

then he may seek to file a traditional petition for writ of

habeas corpus under 28 U.S.C. § 2241.               But that right carries

significant limits as well.           Specifically, a prisoner “may file

a habeas petition under § 2241 only if the collateral relief

typically available under § 2255 ‘is inadequate or ineffective

to test the legality of his detention.’”                 Prousalis v. Moore,

751 F.3d 272, 275 (4th Cir. 2014) (quoting 28 U.S.C. § 2255(e)).

If a federal prisoner brings a § 2241 petition that does not

fall   within     the    scope   of   this    “savings   clause,”    then   the

district court must dismiss the “unauthorized habeas motion . .

. for lack of jurisdiction,” Rice v. Rivera, 617 F.3d 802, 807

(4th Cir. 2010), even if the Government supports the prisoner’s

position.

       Surratt is a federal prisoner who means to file a § 2241

petition for post-conviction relief.              Therefore, we must assess

whether   §     2255    is   “inadequate     or   ineffective   to   test   the

legality of his detention.”           28 U.S.C. § 2255(e).       We consider

that question de novo.           See Yi v. Fed. Bureau of Prisons, 412

F.3d 526, 530 (4th Cir. 2005).              We have jurisdiction over this

appeal under 28 U.S.C. § 1291.

                                       10
                                         III.

                                          A.

       We    have     determined      that       § 2255   was     inadequate       or

ineffective      in    only     one   prior      instance.       In     that    case,

petitioner Byron Jones argued that Bailey v. United States, 516

U.S. 137 (1995), rendered his convictions for “use” of a firearm

during a drug offense invalid.               In re Jones, 226 F.3d 328, 329

(4th     Cir.    2000).         Bailey     had     overruled     this     circuit’s

understanding of what it meant to “use” a firearm, id. at 330

(citing Bailey, 516 U.S. at 143), and Jones contended that his

conduct therefore did not amount to “use” under Bailey’s reading

of the term, id. at 334.              Jones, however, had already filed a

§ 2255      motion    before    Bailey,   and     § 2255(h)     barred    him   from

filing another one.            Id. at 330.       We decided to award relief,

deeming § 2255 “inadequate or 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 § 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 § 2255 because the new rule is not one
       of constitutional law.

Jones, 226 F.3d at 333-34.

       In short, Jones opened a narrow gateway to § 2241 relief

for certain prisoners found actually innocent of their offenses

                                          11
of conviction, allowing relief only where the acts for which the

defendant was convicted are not a crime.                    Since then, we have

focused    on   this     aspect   of   Jones      --   actual      innocence      of   a

criminal act -- when characterizing the decision.                          See, e.g.,

Farrow v. Revell, 541 F. App’x 327, 328-29 (4th Cir. 2013);

Darden v. Stephens, 426 F. App’x 173, 174 (4th Cir. 2011); Rice,

617 F.3d at 807; United States v. Poole, 531 F.3d 263, 267 n.7

(4th Cir. 2008).         Other circuits also give substantial attention

to   the   actual    innocence    aspect     of    Jones    when    discussing     it.

See, e.g., Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253,

1280 (11th Cir. 2013); Abernathy v. Wandes, 713 F.3d 538, 546

n.7 (10th Cir. 2013); Stephens v. Herrera, 464 F.3d 895, 898

(9th Cir. 2006); Abdullah v. Hedrick, 392 F.3d 957, 962 (8th

Cir. 2004); Cephas v. Nash, 328 F.3d 98, 104 n.6 (2d Cir. 2003);

Reyes-Requena       v.   United   States,    243    F.3d    893,    904    (5th   Cir.

2001).

      The dissent mistakenly tries to read the actual innocence

requirement     out      of   Jones.    That       course    ignores       the    clear

limitation in Jones that, before the case can be used to invoke

§ 2255(e), the law must have changed “such that the conduct of

which the prisoner was convicted is deemed not to be criminal.”

226 F.3d at 334.          The caveat wasn’t accidental, but drew from

the fundamental recognition that actual innocence of a crime is

different    from     other    circumstances.          Indeed,     Jones    “agree[d]

                                        12
with the rationale” of other courts that made this principle

even more explicit.                   Id. at 333; see, e.g., Triestman v. United

States, 124 F.3d 361, 378-79 (2d Cir. 1997) (permitting a Bailey

claim       to     be    brought           via    §    2241   in     part      because    of     the

constitutional issues that would arise from refusing to hear an

actual-innocence claim); see also Jones, 226 F.3d at 333 n.3

(“[T]hese courts have focused on the more fundamental defect

presented by a situation in which an individual is incarcerated

for   conduct           that    is     not       criminal[.]”).           Were    the    dissent’s

approach right, Jones would permit any federal prisoner to bring

any non-constitutional claim via § 2241 in any instance where

the law relevant to that claim changed in the petitioner’s favor

at    any    time.             That    hardly         describes      “a    limited      number    of

circumstances” in which § 2255(e) would apply.                                   Jones, 226 F.3d

at 333.

                                                      B.

       Jones       simply        does       not       apply   here,       as   Surratt     is    not

innocent of anything.                      All parties agree that Simmons did not

decriminalize any part of Surratt’s underlying conduct.                                   Surratt

admits that he conspired to distribute drugs, the offense for

which he was convicted.

       He        nevertheless          argues         that    his     predicate      convictions

constitute         elements           of     a    separate,         aggravated      offense      for

recidivists.            If that proved true, we might say that Surratt was

                                                      13
not    guilty    of     the    prior      conviction      “element,”   and   therefore

innocent of the recidivist offense.                   Yet we do not treat a prior

conviction “as an element of [the] offense.”                        Almendarez-Torres

v. United States, 523 U.S. 224, 247 (1998); see also Alleyne v.

United States, 133 S. Ct. 2151, 2160 & n.1 (2013).                       Indeed, “the

[Supreme] Court has consistently held that recidivism is not an

element of the triggering crime[.]”                   Appleby v. Warden, N. Reg’l

Jail & Corr. Facility, 595 F.3d 532, 539 (4th Cir. 2010).                           Many

good     reasons       justify       this    principle:       recidivism     does     not

directly relate to the underlying charged conduct, courts may

judicially notice convictions, prior convictions could prejudice

the defendant if the Government put them before the jury, and

courts have treated recidivism as a sentencing factor for over

200 years.         See United States v. Cheek, 415 F.3d 349, 353-54

(4th Cir. 2005); see also Jones v. United States, 526 U.S. 227,

248-49 (1999).

       Surratt         insists      that     his     sentence       enhancements      are

different.         They       are   not.      We     have    treated   the   predicate

convictions described in § 841 as sentencing enhancements, not

elements    of     a    separate     crime.        See,     e.g.,   United   States    v.

Smith,    451    F.3d     209,      224    (4th    Cir.   2006);    accord   Jeanty    v.

Warden, FCI-Miami, 757 F.3d 1283, 1286 (11th Cir. 2014); United

States v. Ramirez, 714 F.3d 1134, 1141 (9th Cir. 2013).                               The

Government did not charge the predicate convictions here in the

                                              14
indictment.        And, had the case gone to trial, it would not have

put   them   before       a    jury    and       proven   them     beyond    a    reasonable

doubt.

      We     also       do     not     believe          that     Alleyne     altered       the

longstanding            rule      treating             predicate       convictions          as

enhancements, not elements.                  Alleyne held only that a jury must

find certain facts that increase a mandatory minimum sentence.

133   S.   Ct.     at    2155.        How    Alleyne      would    apply     here    remains

something     of    a    mystery,      as    the       parties    do   not   identify      any

authority indicating that the case could apply retroactively on

collateral review.              Quite the contrary: courts have held that

Alleyne    does     not      apply    retroactively.             See   United     States    v.

Olvera, 775 F.3d 726, 730 (5th Cir. 2015) (“We reiterate that

Alleyne does not apply retroactively.                            This decision accords

with that of every circuit to have examined the issue, none of

which has decided that Alleyne is retroactive.”).

      Regardless,         Alleyne      held       that    facts    other     than   a   prior

conviction       that         increase       a     mandatory       minimum       amount    to

“elements” of the crime.                 133 S. Ct. at 2160-63.                  The Supreme

Court has specifically refused to apply this reasoning to prior

convictions.        Id. at 2160 & n.1.                So, “Almendarez-Torres remains

good law,” even after Alleyne.                        United States v. McDowell, 745

F.3d 115, 124 (4th Cir. 2014).



                                                 15
     To say “that a petitioner can be ‘actually innocent’ of a

sentencing enhancement,” rather than an element of the actual

crime, “would require a great deal of both verbal and logical

gymnastics.”       Turner v. Warden Coleman FCI (Medium), 709 F.3d

1328, 1334 n.3 (11th Cir. 2013); see also, e.g., Marrero v.

Ives, 682 F.3d 1190, 1193 (9th Cir. 2012) (“[For purposes of the

savings    clause,]       a    petitioner       generally    cannot     assert   a

cognizable claim of actual innocence of a noncapital sentencing

enhancement.”); In re Davenport, 147 F.3d 605, 609 (7th Cir.

1998) (explaining that “it would make an arbitrary hole in the

Antiterrorism      Act”   if    the   court     were   to    accept    an   actual-

innocence argument about “a sentence-enhancement statute”); cf.

In re Bradford, 660 F.3d 226, 230 (5th Cir. 2011) (“[A] claim of

actual innocence of a career offender enhancement is not a claim

of actual innocence of the crime of conviction and, thus, not

the type of claim that warrants review under § 2241.”).

     The traditional view of actual innocence focuses on the

elements   of   the    crime     of   conviction,      see   United     States   v.

Mikalajunas, 186 F.3d 490, 494 (4th Cir. 1999), and nothing in

Jones   deviates      from    that    settled    approach.       Cf.    Sawyer   v.

Whitley, 505 U.S. 333, 341 (1992) (remarking that, “[i]n the

context of a noncapital case, the concept of ‘actual innocence’

is easy to grasp,” as it means the defendant did not commit the

charged crime).         Jones, after all, concerned “conduct . . .

                                        16
deemed not to be criminal,” not conduct that remains criminal

but subject to a lesser penalty.                   Jones, 226 F.3d at 334; see

also United States v. Jones, 758 F.3d 579, 586 (4th Cir. 2014)

(“Innocence of conviction implicates the notion that a person

has been incarcerated for a crime he did not commit, whereas a

sentencing     error    does    not      at    all   implicate       guilt.”).           The

Supreme    Court,     too,   has       not    said   that     conduct       is    rendered

“lawful” merely because the penalty for it is reduced.                             Schriro

v. Summerlin, 542 U.S. 348, 354 (2004), for example, found that

Ring v. Arizona, 536 U.S. 584 (2002), did not “render[] some

formerly unlawful conduct lawful or vice versa,” even though

Ring affected the length of sentences for some prisoners.                                So

too here: Surratt remains as guilty today as he was in 2005.

                                              C.

     We    recognize    that       we    have      applied    broader       concepts     of

actual    innocence     in     other      contexts.          In    United    States      v.

Pettiford,     612   F.3d    270       (4th   Cir.   2010),       drawing    on    earlier

cases,    we   said    that        a    defendant      might       establish       “actual

innocence” sufficient to excuse his procedural default if “the

defendant clearly showed that he had not committed the crime on

which the calculation of his [recidivist] sentence was based.”

Id. at 283-84; see also Mikalajunas, 186 F.3d at 494-95; United

States v. Maybeck, 23 F.3d 888, 892 (4th Cir. 1994).                              In other

words,    Pettiford    and     its      predecessors     suggested      that,       as   to

                                              17
procedural      default,       a    defendant     might    be     “actually        innocent”

even if he is only innocent of a predicate conviction, not just

the offense of conviction.                  But we have also explained that

Pettiford’s view of actual innocence should be confined to its

original context.            Pettiford developed in the judge-made realm

of procedural default, where we enjoy more latitude to shape our

own   rules     and      doctrines.          We    deal    here,        however,     with    a

congressionally          imposed     statutory      constraint          that    is   not    so

amenable to ad hoc, judge-made exceptions.                        See Jones, 758 F.3d

at 586 (holding that movant could not evade the § 2255(f)(4)

statute    of   limitations          by    claiming     “actual     innocence        of    his

sentence”).        We are especially reluctant to blaze broad pathways

to § 2255(e) relief given that the provision constitutes only a

“narrow exception.”            Cleaver v. Maye, 773 F.3d 230, 232 (10th

Cir. 2014); accord Bryant, 738 F.3d at 1283; Hill v. Werlinger,

695 F.3d 644, 647-48 (7th Cir. 2012); Trenkler v. United States,

536 F.3d 85, 98 (1st Cir. 2008).

      Even    if    we    apply     Pettiford’s         broader    view,       however,     we

still     cannot      call     Surratt      “actually      innocent.”              “[A]ctual

innocence,”        the    Supreme     Court       has    told     us,    “means      factual

innocence, not mere legal insufficiency.”                          Bousley v. United

States, 523 U.S. 614, 623 (1998); see also United States v.

Tyler,    732      F.3d      241,    246    (3d    Cir.     2013)       (“While      Bousley

addressed the standard that a petitioner must meet for claims

                                             18
brought under § 2255, this standard applies equally to actual

innocence claims brought under § 2241.”).                 So, “actual innocence

applies   in   the   context      of    habitual     offender    provisions     only

where the challenge to eligibility stems from factual innocence

of the predicate crimes, and not from the legal classification

of the predicate crimes.”              Pettiford, 612 F.3d at 284; accord

Damon v. United States, 732 F.3d 1, 5-6 (1st Cir. 2013); McKay

v. United States, 657 F.3d 1190, 1199 (11th Cir. 2011).                    Surratt

does not suggest that he did not commit the crimes listed in the

Government’s original information.              He only says Simmons changed

the relevance of those crimes in determining his later sentence.

Surratt’s argument constitutes the sort of argument about “legal

classification” that we have deemed insufficient.



                                         IV.

      Although   Jones     does    not    present     a   portal   through      which

Surratt may pass to obtain post-conviction relief, Jones is not

the exclusive route to § 2255(e) relief in all situations.                        As

the   Government     observes,     we    “had   no    occasion”    in   Jones     “to

consider whether sentencing errors” like the one claimed here

“are redressable under the savings clause.”                  Gov’t Br. 23; see

also Illinois v. Lidster, 540 U.S. 419, 424 (2004) (explaining

that “general language in judicial opinions” must be read “as

referring   in   context    to     circumstances       similar     to   those   then

                                         19
before the Court”).          We must examine the text of the savings

clause to      decide     whether      the    statute       can    afford       Surratt    any

relief.       See United States v. Neuhauser, 745 F.3d 125, 128 (4th

Cir. 2014) (starting with the text in a question of statutory

interpretation).

       The    parties     principally         discuss       whether       Surratt’s       case

presents a “fundamental miscarriage of justice” and then assume

that   this     characterization        could       trigger       the    savings    clause.

Certainly, in deciding whether to provide relief in an initial

§ 2255 motion, we have considered whether a non-constitutional

error “involves a fundamental defect which inherently results in

a complete miscarriage of justice.”                        Mikalajunas, 186 F.3d at

495; see also, e.g., United States v. Martinez, 139 F.3d 412,

417    n.*    (4th    Cir.   1998).           But     we    have        never    tied     this

“miscarriage”        standard     to   the     entirely       separate          question    of

relief via the savings clause.

       Such     an      approach       would        confuse        the      question        of

cognizability (that is, what motions may be brought via § 2241

generally) with the separate question that we address here (that

is,    what    § 2241    claims     are      barred    by    § 2255(e)).            And    the

“miscarriage” standard addresses a different question in still

another way.         In particular, the Court adopted the “fundamental

defect” and “miscarriage” standard as a way of identifying those

cases where a petitioner’s failure to bring his claim in his

                                             20
initial direct appeal could be excused.                      See Reed v. Farley, 512

U.S.    339,       354    (1994).        In    contrast,          § 2255(e)         applies   to

prisoners      who       failed   to   bring       their    claims         twice    before:   on

direct appeal and in their initial § 2255 motion.                                     Thus, an

interpretation           of    § 2255(e)      focusing       on        a    “miscarriage       of

justice” “is less an argument for interpreting § 2255 than it is

one for amending § 2255.”                Prost v. Anderson, 636 F.3d 578, 597

(10th   Cir.       2011);     accord     Williams      v.    Warden,         Fed.    Bureau   of

Prisons,      713    F.3d      1332,   1346    (11th        Cir.    2013)         (calling    the

“miscarriage of justice standard” “plainly inapplicable” to the

question      of    whether       § 2255(e)    forecloses          a       particular    § 2241

petition); Perez v. Stephens, 593 F. App’x 402, 403 (5th Cir.

2015)       (“Perez’s         argument      that     the      actual          innocence       and

miscarriage of justice standards provide an exception to the

§ 2255 savings clause requirement fails[.]”).

       As    an    appellate       court,     we    are     not    in       the    business   of

amending statutes.             See Dodd v. United States, 545 U.S. 353, 359

(2005) (indicating that the court was “not free to rewrite the

statute that Congress has enacted” even though the restrictions

on § 2255 petitions created “the potential for harsh results in

some cases”).             And holding that the “miscarriage of justice”

standard opens the § 2255(e) portal would not just ignore the

text of that section -- it would also erase the limitations on



                                              21
initial    motions    and   “second    or        successive”    motions     found   in

§§ 2255(f) and (h).

     We hold that § 2255(e)’s text does not permit Surratt to

raise his claim under § 2241.              And although the dissent insists

that we act “without any textual basis,” dissenting op. at 73,

we observe at least four separate textual factors -- in addition

to   the   relevant     provisions’         context      and    purpose     --   that

establish that Surratt’s claim is foreclosed.

                                           A.

     The savings clause first tells us that “the remedy by [a

§ 2255] motion [must be] inadequate or ineffective to test the

legality of [Surratt’s] detention” before he can proceed under

§ 2241.       28   U.S.C.    § 2255(e)          (emphasis      added).      We   find

Congress’s deliberate use of the word “test,” rather than a more

expansive term like “guarantee” or “ensure,” very meaningful.

To   “test”   means    to    “put     to        the   proof.”      Oxford    English

Dictionary (2d ed. 1989).           In other words, the statutory text

anticipates the opportunity to raise a challenge or argument.

See, e.g., Wag More Dogs, Ltd. Liab. Corp. v. Cozart, 680 F.3d

359, 365 n.3 (4th Cir. 2012) (equating the government’s ability

“to test the plausibility of the claim” with its ability to

raise the relevant argument and offer particular evidence); NLRB

v. Inter-City Advertising Co., 154 F.2d 244, 246 (4th Cir. 1946)

(saying that an employer had no way “to test” an administrative

                                           22
determination         where     it     had     no     legal       avenue     to     object).

Therefore, “the clause is concerned with process -- ensuring the

petitioner      an    opportunity      to     bring    his    argument       --    not    with

substance      --    guaranteeing       nothing       about    what    the    opportunity

promised will ultimately yield in terms of relief.”                               Prost, 636

F.3d at 584; see also Taylor v. Gilkey, 314 F.3d 832, 835 (7th

Cir. 2002) (agreeing that § 2255(e)’s use of the term “test”

“implies a focus on procedures rather than outcomes”).                               We too

have focused on the “opportunity” or “unobstructed procedural

shot” afforded by § 2255, not on the ultimate result of a motion

under that section, in defining the scope of the savings clause.

Rice, 617 F.3d at 807.           We have stressed that § 2255(e) will not

permit    an    individual’s         § 2241    petition       “merely      because        [the]

individual has been unable to obtain relief under [§ 2255] or

because    an       individual    is    procedurally          barred    from       filing    a

§ 2255 motion.”          In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir.

1997).      In § 2255, Congress meant to provide a chance to be

heard, not a right to prevail on any particular argument.                                 See,

e.g.,     Cleaver,      773     F.3d     at    233     (offering       an     example       of

permissible         savings     clause       relief     in     which       “the     original

sentencing      court     has    been        abolished       or    dissolved        and    the

petitioner has nowhere to file a § 2255 petition”).

     Surratt clearly could have “test[ed]” the legality of his

detention in his initial § 2255 motion.                       Surratt also chose to

                                              23
forego any challenge to his mandatory sentence on direct appeal.

At both steps, then, he had the opportunity to claim that a

lower mandatory sentence should have applied because he did not

qualify as a two-time drug felon.                         His choice to focus his

§ 2255 motion on claims of ineffective assistance of counsel

proves    most        important    here,       as    he    cannot       complain      of    his

inability        to     “test”     his     detention         in     a     post-conviction

proceeding when § 2255 offered him that chance and he declined

to take it.           “A prisoner cannot be permitted to lever his way

into     section        2241      by     making      his     section        2255       remedy

inadequate[.]”          Morales v. Bezy, 499 F.3d 668, 672 (7th Cir.

2007).

       But Surratt protests that “the basis for [his] claim was

foreclosed by circuit precedent at the time[.]”                          Opening Br. 20.

That argument fails for at least two reasons.

       As a factual matter, we cannot know whether Surratt’s claim

might have led to relief because he never made it.                               We do know

that     “many    defendants           . . .    filed     suits     prior       to    Simmons

asserting the exact same substantive claim that [Surratt] now

raises, including, of course, Simmons himself.”                             Whiteside v.

United    States,       775    F.3d     180,   186    (4th    Cir.      2014)    (en       banc)

(collecting       cases).         And    indeed,     “[t]he       nature    of       statutory

interpretation requires that someone present the argument before

the courts can define the law” or, as in Simmons, change it.

                                               24
Bryan   Florendo,   Prost    v.    Anderson   and    the   Enigmatic    Savings

Clause of § 2555: When Is A Remedy By Motion “Inadequate or

Ineffective”?, 89 Denv. U.L. Rev. 435, 454 (2012).

     As a legal matter, courts do not permit petitioners special

favors because the petitioners misjudged their claims as futile

and chose not to present them in the first instance.                   In fact,

the Supreme Court has held a “dismissive” attitude toward “the

contention that an argument’s legal futility is the same as a

court’s    inability    to   entertain     the   argument[.]”      Brown     v.

Caraway, 719 F.3d 583, 598 (7th Cir. 2013) (Easterbrook, J.,

statement concerning the circulation under Circuit Rule 40(e)).

In   the   procedural    default    context,     for   instance,   “futility

cannot constitute cause if it means simply that a claim was

unacceptable to that particular court at that particular time.”

Bousley, 523 U.S. at 623.           Futility also provides no basis to

toll § 2255’s statute of limitations.               See Whiteside, 775 F.3d

at 185; Minter v. Beck, 230 F.3d 663, 666-67 (4th Cir. 2000)

(same).    The same principle applies here: “[t]he § 2255 remedial

vehicle was fully available and amply sufficient to test the

argument, whether or not [Surratt] thought to raise it.”                 Prost,

636 F.3d at 589.        Admittedly, through Simmons, “a shift in the

law . . . has given increased relevance to a point made at the

trial but not pursued on appeal.”          Sunal v. Large, 332 U.S. 174,

182 (1947).    But to permit this shift to open the gate to habeas

                                      25
relief would render “litigation in these criminal cases . . .

interminable.”        Id.; cf. Whiteside, 775 F.3d at 186 (noting that

the “myriad of substantive changes in law past the point of

finality” would cause “a tectonic shift of resources” if courts

treated them as enough to evade procedural bars).

       Section 2255(e) means to preserve a prisoner’s “remedy,”

not his “relief.”            See, e.g., Tolliver v. Dobre, 211 F.3d 876,

878 (5th Cir. 2000) (“We join our sister circuits that have held

that a prior unsuccessful § 2255 motion . . . do[es] not make

§ 2255    inadequate         or   ineffective.”).            This       distinction        is

reflected      in    other    portions       of     the   habeas        statutes,    where

“remedy” similarly means an avenue or mechanism for relief, not

the relief itself.           See § 2254(b)(1)(A) (referring to exhaustion

of   state     “remedies”);       see    also     Vial,     115    F.3d    at    1194     n.5

(referring to § 2255’s “remedy” as separate from its “relief”).

That   distinction        likewise      implies      that    what       matters     is    the

ability to make the request, not the ability to win it.

       These    reasons      aside,     we   note    that    substantial         practical

difficulties could follow if we held that a prisoner could not

“test”   his     detention        because    adverse      circuit        precedent       once

“foreclosed”        his   claim.        Neither     Surratt       nor    the    Government

informs us, for instance, how clear circuit precedent must be

before it “forecloses” the prisoner’s claim.                       Perhaps, under the

parties’ approach, analogous precedent might do; perhaps not.

                                             26
Nor do they tell us why our precedent alone “forecloses” an

argument   even    though      Supreme   Court    review     remains     available.

And they do not explain when the foreclosure must arise.                              We

find it better to avoid these questions by adhering to a more

direct understanding of “test.”

       As Jones reflects, our interpretation of “test” yields in

cases involving actual innocence of the crime of conviction.

“[A]   thorny    constitutional      issue”      could   result     if    “no   other

avenue   of   judicial    review    [were]       available    for   a     party      who

claims that s/he is factually or legally innocent as a result of

a   previously    unavailable     statutory      interpretation[.]”             In    re

Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997); accord Triestman,

124 F.3d at 378-79; cf. Davis v. United States, 417 U.S. 333,

346-47   (1974).       “For     under    our   federal     system    it    is     only

Congress, and not the courts, which can make conduct criminal.”

Bousley, 523 U.S. at 620-21.             Generally, “courts will construe

[a]    statute    to   avoid    [constitutional]         problems    unless       such

construction is plainly contrary to the intent of Congress.”

United States v. Hamilton, 699 F.3d 356, 367 (4th Cir. 2012).

Therefore, we read Jones as an outgrowth of this constitutional

avoidance doctrine.           But because Surratt presents no genuine

claim of actual innocence of the crime of conviction, no “thorny

constitutional issues” arise here.



                                         27
                                                   B.

        In much the same way as “test,” the statute’s references to

inadequacy and ineffectiveness tell us that § 2255(e) preserves

only the chance to request relief, not the ultimate and absolute

right to obtain it.

       We     see      this    notion        in    cases     evaluating          whether     other

“substitute” habeas remedies are adequate and effective.                                          In

Swain    v.    Pressley,         430       U.S.     372    (1977),    the        Supreme      Court

examined      a     provision        of    the     District      of   Columbia        Code       that

channeled collateral review of convictions in the Superior Court

of the District of Columbia back into that court (rather than

through     federal       courts          via     habeas   review).         In       finding      the

provision         adequate      and       effective,       the    Court     focused         on    the

opportunity that the statute afforded, including the relief that

the prisoner could request and the manner in which the court

would    consider        his    request.            Id.    at    381-84.         Similarly,        in

Boumediene        v.    Bush,    553       U.S.     723    (2008),    the       Court      analyzed

whether combatant status review tribunals afforded an adequate

and effective substitute to habeas corpus for enemy combatants

held at Guantanamo Bay, Cuba.                       The Court again concentrated on

the    “opportunity”          that     the      substitute       offered        --   not    on    the

outcome, id. at 779, asking whether the “sum total of procedural

protections” sufficed, id. at 783.                          These cases both make the

same    fundamental           point:      the     chance    to    argue     a    claim      is    the

                                                   28
relevant       criterion      for   adequacy       and    effectiveness,       not     any

particular disposition of that claim.

       When    discussing       “effectiveness”          and    “adequacy”    in     other

areas of the law, we likewise focus on processes, not outcomes.

We do not declare that counsel rendered “ineffective” assistance

any time his particular argument fails and the client loses.

Similarly, a state’s appellate procedures satisfy the Fourteenth

Amendment’s guarantee to an “adequate and effective” appeal so

long   as     those    procedures       provide    certain       minimum   safeguards.

See    Smith    v.     Robbins,     528    U.S.    259,    276-84     (2000).         When

deciding whether we can enjoin a state criminal prosecution, we

also   must     pass    on    whether     the    party    seeking    relief     “has    an

adequate remedy at law.”                Trainor v. Hernandez, 431 U.S. 434,

440 (1977).       In doing so, we consider whether the movant has an

“opportunity to raise and have timely decided . . . the federal

issues involved.”            Id. at 441.        These and other examples suggest

that we should not assess § 2255’s effectiveness by weighing the

historic outcome under that motion against the outcome we would

reach today in an initial appeal from trial.                       We should instead

ask only whether the procedures in § 2255 provided a genuine

opportunity for the petitioner to raise his present claim.

       Surratt never suggests that the § 2255 mechanism denied him

a chance to make his present argument.                         At best, he says only

that our pre-Simmons reading of § 841(b)(1)(A) did.                          See Prost,

                                            29
636 F.3d at 590 (“[W]henever legal error occurs it may very well

mean circuit law is inadequate or deficient. But that does not

mean the § 2255 remedial vehicle is inadequate or ineffective to

the task of testing the argument.”).                          We understand Surratt’s

reluctance to attack § 2255 head-on, as courts have upheld the

statute as       an       adequate      and    effective      means       to    challenge           the

detention    of       a    federal      prisoner       for    some       60   years.           United

States v. Hayman, 342 U.S. 205, 219 (1952).                                    But the point

remains: no deficiency in § 2255 itself precluded Surratt from

lodging    his    sentencing            challenge,       so    we    cannot       call         § 2255

“inadequate” or “ineffective” here.

                                                C.

     The savings clause also focuses on the “legality” of the

relevant detention.              Especially in the post-conviction context,

courts have recognized “unlawful” or “illegal” sentences in a

narrow    subset          of   cases.         Actual    innocence         of    the       crime      of

conviction may present that sort of a case, as courts have long

understood    that         “[a]n     imprisonment        under       a    judgment”        becomes

“unlawful” if “that judgment be an absolute nullity.”                                     Ex parte

Watkins, 28 U.S. (3 Pet.) 193, 203 (1830).                                     And a sentence

imposed above the proper statutory maximum might present another

instance    of    an       unlawful      sentence,       as    “the       power       .    .    .   to

prescribe the punishments to be imposed upon those found guilty

of [federal crimes] resides wholly with the Congress.”                                         Whalen

                                                30
v. United States, 445 U.S. 684, 689 (1980); see also United

States v. Addonizio, 442 U.S. 178, 186 (1979); accord Sun Bear

v.   United        States,       644       F.3d    700,    705       (8th     Cir.    2011)      (“An

unlawful      or     illegal      sentence          is    one    imposed       without,         or   in

excess of, statutory authority.”); United States v. Gonzalez-

Huerta, 403 F.3d 727, 739 n.10 (10th Cir. 2005) (“[T]he term

‘illegal sentence’ is reserved for those instances where the

term of incarceration exceeds the statutory maximum[.]”).

        As   we     explained         in     another      context,        though,        “not   every

[proceeding]         alleging         a    legal       error    in    sentencing         challenges

that sentence as ‘illegal.’”                       United States v. Thornsbury, 670

F.3d 532, 539 (4th Cir. 2012).                            We have said that “illegal”

sentences “involve[] much more fundamental issues -- such as

challenges         claiming       a    district         court    exceeded       its      authority,

claiming          that     a    sentence       was       based       on   a   constitutionally

impermissible            factor       such    as       race,    or    claiming       a    post-plea

violation of the right to counsel.”                             Id.       In like manner, the

Supreme Court explained that a sentence was “not illegal” where,

among    other       things,      “[t]he          punishment         meted    out     was   not      in

excess       of     that       prescribed         by     the     relevant      statutes         [and]

multiple terms were not imposed for the same offense.”                                      Hill v.

United States, 368 U.S. 424, 430 (1962); accord United States v.

Pavlico, 961 F.2d 440, 443 (4th Cir. 1992).



                                                   31
     In   accordance        with       this   view,        courts    largely       have   not

recognized an “illegal” detention -- one that would trigger the

savings   clause      --    where       the   defendant        challenges      a   sentence

within the correct statutory maximum.                       See, e.g., United States

v.   Powell,    691    F.3d          554,   563     (4th    Cir.     2012)     (King,     J.,

dissenting in part and concurring in part) (indicating that a

sentence would be “lawful” if it “falls within the unenhanced

statutory maximum”).            The Sixth Circuit noted this general rule,

for example, in holding that the defendants’ sentence-focused

claims did not “fall within any arguable construction” of the

savings clause.        United States v. Peterman, 249 F.3d 458, 462

(6th Cir. 2001).            The Eleventh Circuit likewise held that a

federal prisoner could not bring a claim that “would otherwise

be barred by § 2255(h)” in a § 2241 petition where the asserted

error “resulted in a longer sentence not exceeding the statutory

maximum.”      Gilbert v. United States, 640 F.3d 1293, 1323 (11th

Cir. 2011) (en banc); see also Bryant, 738 F.3d at 1288 (“[A]ny

§ 2241    challenge        to    a    sentence       that    is     already    below      the

authorized     statutory         maximum      could      not      open   the   §    2255(e)

portal.”);      accord          Trenkler,          536     F.3d     at    99       (labeling

petitioner’s claim “incompatible with engagement of the savings

clause” where he did “not charge that [his] life sentence [wa]s

beyond the statutory maximum for the crimes of conviction”).

For a time, at least, even the Government agreed that a federal

                                              32
prisoner    could       not   attack     a    sub-maximum       sentence        through   a

§ 2241 petition.         See Wilson v. Wilson, No. 1:11cv645 (TSE/TCB),

2012 WL 1245671, at *3 n.2 (E.D. Va. Apr. 12, 2012) (quoting the

“position of the United States” that “savings clause relief is

foreclosed        for   an    erroneous        sentence       within     the     statutory

maximum”).        That view also comports with § 2255’s scope, which

provides sentencing relief only in cases involving “violations

of statutes establishing maximum sentences.”                       United States v.

Pregent, 190 F.3d 279, 284 (4th Cir. 1999).

     This     widely       held   view        of   “legality”      should        foreclose

Surratt’s claim.         He never suggests that he received a sentence

above the applicable statutory maximum.                      He cannot.        All parties

agree   that       Surratt      has     at     least     one     prior    felony      drug

conviction, regardless of Simmons.                  A defendant like Surratt who

violates     21     U.S.C.     §§ 841        and   846    after    a     single     “prior

conviction for a felony drug offense has become final . . .

shall be sentenced to a term of imprisonment which may not be

less than 20 years and no more than life imprisonment[.]”                                 21

U.S.C. § 841(b)(1)(A).

     Surratt       often      emphasizes       that    his     sentence    is     “without

parole,” but that does not create any special issue.                               In the

present federal system, life imprisonment is equivalent to life

without parole in every case.                  See Richmond v. Polk, 375 F.3d

309, 316 (4th Cir. 2004) (“[T]he Sentencing Reform Act of 1984

                                              33
abolished parole for federal offenses committed after November

1,   1984[.]”);    see    also    18    U.S.C.   §   3624(b)    (stating    that

prisoners serving life sentences are not entitled to a deduction

for good time credits).          When Congress abolished parole in 1984,

it   essentially   “translate[d]         every   life   sentence    into    life

without possibility of parole.”              United States v. Gonzalez, 922

F.2d 1044, 1051 (2d Cir. 1991).              Thus, Surratt’s life sentence

does not exceed the maximum that the district court could have

imposed had Simmons been issued before Surratt’s sentencing.                   In

other words, Surratt’s sentence does not offend the limits of

punishment,    such      that    we     could    question    his   detention’s

“legality.”

     Tacitly recognizing the weakness of his position under the

majority view, Surratt urges us to adopt a distinct minority

view that he considers “persuasive.”                 Opening Br. 22 (citing

Brown, 719 F.3d 583).

     But   even    under    this       outlier   decision,     Surratt     cannot

prevail.    In Brown, the Seventh Circuit permitted a prisoner to

challenge the length of his sentence through a § 2241 petition

even though that sentence fell below the statutory maximum.                  Id.

at 588.    But Brown concerned a pre-Booker sentence imposed under

the formerly mandatory Guidelines regime.                See id. (stressing

that the defendant was sentenced in “the pre-Booker era” (citing

United States v. Booker, 543 U.S. 220 (2005)).                 For the Seventh

                                        34
Circuit, this historical fact made all the difference, as it

believed that -- at least when courts treated the Guidelines as

mandatory    --    “the     only    lawful         sentence    was     a    [G]uidelines

sentence.”        Id.      Regardless        of    whether     the    Seventh    Circuit

correctly    characterized         the   former       Guidelines       regime    (and    we

need not say here whether it did, see Gilbert, 640 F.3d at 1306-

07), its view on the savings-clause issue exists in harmony with

the   approach     taken    by   all     other      courts.         Quite    simply,    the

Seventh Circuit believed that it could permit a § 2241 petition

because,    at    least    pre-Booker,        an    unjustified       above-Guidelines

sentence equated to a sentence above the statutory maximum.                             The

top   of   the    Guidelines       range      provided        the    relevant    maximum

sentence, and Brown’s sentence exceeded the pre-Booker maximum

Guidelines sentence.          In contrast, in cases involving the post-

Booker advisory Guidelines, even the Seventh Circuit recognizes

that courts cannot correct sentencing errors in post-conviction

proceedings,      under    § 2241      or    otherwise,       if     the    sentence    “is

below the statutory maximum.”                     Hawkins v. United States, 706

F.3d 820, 823 (7th Cir. 2013).

      Here, the district court sentenced Surratt under the post-

Booker,    advisory       Guidelines        scheme.      As    a     result,    his    life

sentence does not exceed the statutory maximum sentence, and

even Brown would afford him no relief.                  Thus, we cannot deem his

detention “illegal.”

                                             35
                                             D.

      Pointing to the savings clause’s reference to “detention,”

Surratt suggests Congress meant to permit claims like his.                                But

Congress used the term “sentence” in some portions of § 2255,

see 28 U.S.C. § 2255(a)-(b), and “conviction” or “offense” in

other parts, id. §§ 2255(f)(1), (h)(1).                      It chose not to use

those terms in the savings clause, id. § 2255(e), and we “are

obligated to give effect to Congress’s decision to use different

language in proximate subsections of the same statute.”                               United

States v. Brandon, 247 F.3d 186, 190 (4th Cir. 2001).                               We think

the statutory term “detention” is yet another textual indication

that § 2255(e)      bars    Surratt’s         petition;     it     draws       a   line   not

between    conviction       and    sentencing            challenges,         but     between

permissible   challenges          to     executive        acts    and        impermissible

challenges to the acts of other branches of government.

      “Detention”    concerns          the   act    of    physically         confining     or

restraining an individual.              See, e.g., Oxford English Dictionary

(2d ed. 1989) (“Keeping in custody or confinement.”); Black’s

Law   Dictionary    (10th    ed.       2014)      (“The   act     or    an     instance    of

holding a person in custody; confinement or compulsory delay.”).

Physical    confinement       stands         separate       and        apart       from   the

sentence, and some detentions that may give rise to a habeas

petition do not follow criminal sentences at all.                                  Pre-trial

detentions provide one common example, see 18 U.S.C. § 3142(e),

                                             36
but   other      instances     come      to    mind,    including          detentions         in

instances     of     civil    contempt,        detentions          in    connection         with

immigration      proceedings,       detentions         of    material         witnesses,     or

civil detention of sexually dangerous persons, see Neuhauser,

745 F.3d at 125-31.           Rather than being tied in all cases to a

sentence as criminal punishment, then, § 2255(e)’s reference to

“detention” speaks to physical restraint of a person’s liberty.

      In contrast to the rendering of a criminal sentence by the

judiciary, the physical holding of a federal prisoner represents

an executive function, a “keeping back or withholding” by the

executive branch.           See Samak v. Warden, FCC Coleman-Medium, 766

F.3d 1271, 1280 (11th Cir. 2014) (Pryor, J., concurring).                                   The

Attorney General, acting through the Bureau of Prisons, acts as

the “detainer,” and the sentencing court does not involve itself

in keeping the prisoner restrained.                     See 18 U.S.C. § 3621(a)

(explaining that the Bureau of Prisons has the responsibility to

detain    a   person        “who    has       been    sentenced          to     a    term    of

imprisonment . . . until the expiration of the term imposed, or

until earlier released for satisfactory behavior”); see also,

e.g.,    Janko     v.   Gates,     741    F.3d       136,     141       (D.C.   Cir.    2014)

(agreeing     with      a   party’s    concession           that    “courts         ordinarily

don’t detain people”).             We see this concept in action in those

instances     where     Congress      precluded       the     sentencing        court       from

involving itself too much in the ongoing aspects of a detention.

                                              37
See United States v. Wilson, 503 U.S. 329, 334 (1992) (holding

that   a   sentencing         court       may   not     calculate        credit     for   time

already spent in custody, as that task belongs to the Attorney

General); see also, e.g., United States v. Ceballos, 671 F.3d

852,   855    (9th     Cir.       2011)    (“[T]he      [sentencing]           court   has    no

jurisdiction      to    select      the     place      where   the       sentence      will   be

served.      Authority to determine place of confinement resides in

the executive branch of government[.]”).

       Even the venue provisions of §§ 2241 and 2255 reflect an

executive     versus     non-executive           dichotomy.          A    petitioner      must

bring his § 2241 petition in the district of confinement, where

the court can summon the warden to defend his actions.                                        In

contrast, a petitioner must move for § 2255 relief before the

district court that sentenced him, where the sentencing court

and the original prosecuting United States Attorney may bring

their expertise to bear.

       A   challenge         to     “detention”         through      § 2255(e)          should

therefore focus on acts of the executive branch, rather than the

judicial branch.         See Munaf v. Geren, 553 U.S. 674, 693 (2008)

(“Habeas     is   at     its       core     a    remedy    for     unlawful         executive

detention.”); INS v. St. Cyr, 533 U.S. 289, 301 (2001) (same);

accord     Samak,      766     F.3d       at    1291     (Pryor,         J.,    concurring);

Trenkler, 536 F.3d at 96.                 Hence, a § 2241 attack on “detention”

lodged through § 2255(e) should entail a challenge to (1) the

                                                38
right and authority of the executive to keep the individual in

custody; or (2) the manner in which the executive executes the

detention.           That reading serves the historic purposes of the

writ as well.             Boumediene, 553 U.S. at 745 (“The [Suspension]

Clause protects the rights of the detained by affirming the duty

and authority of the Judiciary to call the jailer to account.”).

          Focusing    on    the    executive’s      power       of    restraint     draws    a

clear line -- a line consistent with long-accepted petitions

under § 2241.          For example, we have previously noted that § 2241

petitioners can challenge the Bureau of Prison’s calculation of

good time credits.            See Yi, 412 F.3d at 530.                 That makes sense:

if    a    prisoner       deserves   good-time      credits          but   the   Bureau     of

Prisons denies them, then an error by the executive may cause

the warden to hold the prisoner without authority -- that is,

beyond the time prescribed by Congress and the sentencing court.

See Preiser v. Rodriguez, 411 U.S. 475, 487 (1973) (finding that

prisoners’ petition concerning good-time credits “fell squarely

within th[e] traditional scope of habeas corpus” because “[t]hey

alleged that the deprivation of their good-conduct-time credits

was       causing    or    would    cause   them    to     be    in    illegal     physical

confinement”          (emphasis      added)).            Similarly,         when    federal

sentencing      allowed       for    parole,      § 2241    provided        a    vehicle    to

challenge parole revocation.                See Vial, 115 F.3d at 1194 n.5.                  A

pre-trial detainee might also invoke § 2241 if he is not timely

                                             39
arraigned    or    tried;    in   that    situation,     the   warden’s          acts   of

continuing to detain the prisoner could render the detention

improper    under     the   Fifth   and    Sixth      Amendments.          See    United

States v. Tootle, 65 F.3d 381, 383 (4th Cir. 1995).                              And the

same principle may explain our decision in Jones: if a change in

law   renders      the   prisoner’s      conduct      “non-criminal,”       then        the

warden     would    have     no   authority      to     hold   the     now-innocent

defendant.

      Contrast      these    commonly     accepted      claims      with    Surratt’s

present one, which has little to do with any executive-branch

action.     By all accounts, the warden is holding Surratt under a

validly entered sentencing order.               Surratt does not suggest that

the warden is violating his statutory or constitutional rights.

And the warden is detaining Surratt pursuant to a sentence that

Congress empowered the district court to impose -- that is, a

sentence within the statutory limits.                  Surratt’s petition does

not   therefore     attack    any   act    of    detention     by    the    executive

branch.       Thus,      Congress     would     not     have   expected          federal

prisoners to bring this type of a claim in a § 2241 petition via

the savings clause.

                                          E.

      The broader context of § 2255 further convinces us that

Surratt cannot invoke § 2241.               “[S]tatutory construction is a

holistic endeavor, and we therefore must evaluate the statutory

                                          40
language itself, the specific context in which such statutory

language is used, and the broader context of the statute as a

whole.”       R.H. Donnelley Corp. v. United States, 641 F.3d 70, 76

(4th Cir. 2011).              Particularly in post-conviction proceedings

like    this    one,    context      often     proves         decisive.      See,    e.g.,

Taylor, 314 F.3d at 836 (relying in part on the “history” of

§ 2255(e) to reject a putative § 2241 petition).

       If Surratt were permitted to raise his sentencing challenge

in a § 2241 petition, we would thwart almost every one of the

careful       limits     that       Congress        placed       on     post-conviction

challenges to a federal prisoner’s sentence.                         And we would do so

in a broad class of cases.                  Quite simply, “Congress would have

accomplished nothing at all in its attempts -- through statutes

like AEDPA -- to place limits on federal collateral review.”

Triestman, 124 F.3d at 376.                 This comprehensive conflict between

Surratt’s      view     and    so    many    different        parts    of   the   statute

convinces us that we are not “pick[ing] and choos[ing]” some

parts    of    the    statute       over    others,      as    the    dissent     alleges.

Instead, we are simply “constru[ing] all parts to have meaning.”

United States v. Briley, 770 F.3d 267, 273 (4th Cir. 2014).

       If we embraced Surratt’s position, then the limits found in

§   2255(h)     would    first      fall.         That   section      provides      that   a

prisoner may bring a second or successive § 2255 motion only if

the prisoner (1) produces newly discovered evidence of actual

                                             41
innocence; or (2) relies upon “a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable.”                      28 U.S.C. § 2255(h).

The prisoner cannot bring his second or successive motion until

we grant him a certificate of authorization indicating that the

motion satisfies one of these two conditions.                             Id.       “When

Congress     adopted       § 2255(h),     it    was     undoubtedly        aware     that

prisoners might wish to press other sorts of arguments,” that

is,    arguments    other     than   actual      innocence      or       constitutional

error, “in second or successive motions.”                      Prost, 636 F.3d at

585.      Nevertheless,       Congress     decided       to    bar       those    “other”

arguments outright.          Surratt, however, means to bring one of the

very claims that Congress foreclosed, albeit under a different

caption.     That course would produce an illogical, if not absurd,

result:    § 2255(h)’s       restrictions       would    continue         to     apply   to

prisoners    bringing       Congressionally      preferred          claims,      while   no

restrictions       would    apply    to   prisoners       bringing         claims    that

Congress    did    not     contemplate    at    all.      Surratt’s         version      of

§ 2255(e) would then return us, at least in part, to the pre-

AEDPA world, where “prisoners [could] file as many collateral

attacks as they please[d], provided that they [did]n’t abuse the

writ.”     Taylor, 314 F.3d at 836.

       Moreover,    Surratt     premises       his    claim    on    a    circuit-level

decision, even though § 2255(h) specifically states that only a

                                          42
retroactive     Supreme      Court    decision       should       open    the    door   to

successive relief.          No court has permitted a petitioner to bring

a claim via the savings clause premised only on a change in

circuit-level authority.             Instead, the available authority all

requires Supreme Court precedent.                See Tyler, 732 F.3d at 246

(listing   an   “intervening         Supreme    Court       decision”       as   one    of

several facts required to bring a claim via the savings clause);

Kenemore v. Roy, 690 F.3d 639, 641 (5th Cir. 2012) (stating that

a claim brought via the savings clause must be “based on a

retroactively    applicable       Supreme      Court       decision”);      Davenport,

147 F.3d at 611 (noting an “obvious” “qualification[]” that a

“change of law” could not qualify a prisoner to seek § 2241

relief unless “the change of law [w]as . . . made retroactive by

the Supreme Court”); Wofford v. Scott, 177 F.3d 1236, 1245 (11th

Cir. 1999) (“[T]he only sentencing claims that may conceivably

be   covered    by    the    savings    clause       are    those        based   upon    a

retroactively        applicable      Supreme    Court       decision       overturning

circuit precedent.”).

     Holding otherwise would elevate circuit court precedent to

the level of retroactive Supreme Court precedent without any

congressional        authority    to    do     so.          The     Government      once

recognized this point, too.              See Brief for the Respondent in

Opposition at 14, Williams v. Hastings, 135 S. Ct. 52 (2014)

(No. 13-1221), 2014 WL 3749512 (arguing that the savings clause

                                         43
applies to petitions raising certain sentencing errors “when the

error is revealed by a retroactively applicable decision of [the

Supreme] Court”).         In pressing a contrary position, the best

case the dissent can summon is one in which another circuit

court permitted a § 2241 petition to be brought based on an

assumedly    retroactive       Supreme     Court       decision.          See   Light      v.

Caraway,    761    F.3d     809,    814    (7th       Cir.    2014).        Given       that

Surratt’s case involves no Supreme Court decision at all, that

case strikes us as irrelevant.

     Surratt’s concept of retroactivity produces other anomalous

results.      Under     his    approach,        a    petitioner      invoking       a    new

statutory    interpretation         from     the     Fourth    Circuit       could      file

immediately    for    § 2241       relief,      with    no    need   to     wait     for    a

declaration of retroactivity.              Meanwhile, a petitioner invoking

a new constitutional rule promulgated by the Supreme Court would

have to wait for an explicit statement from that court rendering

the rule retroactive.              See Tyler v. Cain, 533 U.S. 656, 663

(2001) (“The new rule becomes retroactive, not by the decisions

of the lower court or by the combined action of the Supreme

Court and the lower courts, but simply by the action of the

Supreme     Court.”).         We    “resist         attributing      to    Congress        an

intention     to   render     a    statute      so     internally         inconsistent.”

Greenlaw v. United States, 554 U.S. 237, 251 (2008).



                                           44
     Movants        under    §    2255     must    also    comply   with   a   one-year

statute of limitations, 28 U.S.C. § 2255(f), and this provision

would also fall victim to Surratt’s view.                     A prisoner hamstrung

by § 2255(f) could file a § 2241 petition, as § 2241 contains no

statute of limitations.              We only recently held, en banc, that

the supposed futility of raising a Simmons-like claim before we

decided   Simmons         would     not    permit    an    untimely    § 2255     motion

raising that sort of claim.                 See Whiteside, 775 F.3d at 184-87.

But if Surratt proved correct, then that decision would mean

next to nothing.             A different caption on his otherwise time-

barred petition would permit the federal prisoner to go forward.

     Were      we    to     adopt    Surratt’s       view,    the   differing     venue

provisions in § 2241 and § 2255 would also invite mischief in

circumstances like these.                 A prisoner sentenced in this circuit

would   file    his       initial    § 2255       motion   here.      If   that   motion

failed, and the prisoner happened to be held in a different

circuit (as so often happens in the federal prison system), then

the prisoner could seek relief via § 2241 in that circuit.                           One

of two unusual things would then happen: the § 2241 court would

either apply the law of a different circuit to assess where the

prisoner’s petition stands, see, e.g., Samak, 766 F.3d at 1275

n.3, or it would apply its own law, see, e.g., United States v.

Wyatt, 672 F.3d 519, 523 (7th Cir. 2012).                           Either way, any

number of inconsistent results could flow from this disjointed

                                             45
approach.           By    contrast,         if     challenges       like          Surratt’s     are

confined to the § 2255 motions, then only the sentencing court

will    consider         them,    and      the     motion    will   only          implicate      our

circuit’s law.

       Surratt’s interpretation of the savings clause would also

have strange implications for appeal rights.                             “Congress has the

power to preclude any appeal from an order dismissing a writ of

habeas corpus, since a party to a suit has no vested right to an

appeal.”       United States v. Brooks, 245 F.3d 291, 293 (3d Cir.

2001).        And    Congress         exercised       that    power:         a    § 2255      movant

cannot appeal the district court’s decision on his motion unless

the    district      or    circuit         court    first     grants      a      certificate     of

appealability.           See 28 U.S.C. § 2253(c)(1)(B).                       That certificate

only issues when the movant has “made a substantial showing of

the denial of a constitutional right.”                            See id. § 2253(c)(2);

see    also    Jennings         v.    Stephens,       135    S.    Ct.       793,    807      (2015)

(Thomas, J., dissenting) (“One of the key ways in which AEDPA

encourages finality is to narrow the scope of appellate review

by    requiring      habeas          petitioners       to     obtain         [certificates       of

appealability].”).               So, a § 2255 movant who raises a Simmons-

claim    might      be    unable      to    appeal      because     his          claim   does    not

present constitutional issues.                     See United States v. Hadden, 475

F.3d    652,   665       (4th    Cir.      2007)      (“[B]ecause        a    [certificate       of

appealability]            will       not     issue      for       allegations            of     non-

                                                 46
constitutional error, he would not be able to obtain appellate

review of any purely statutory errors at his sentencing[.]”);

accord   Young     v.   United      States,    523    F.3d    717,    718    (7th      Cir.

2008); United States v. Christensen, 456 F.3d 1205, 1206 (10th

Cir. 2006); Mateo v. United States, 310 F.3d 39, 41-42 (1st Cir.

2002);   United     States     v.    Brooks,    230    F.3d    643,    646       (3d   Cir.

2000).       But    § 2241       contains      no     such    limits        on    appeal.

Therefore, applying Surratt’s reading of the savings clause, a

petitioner    could       evade      Congress’s       conscious       constraint        on

appellate review just by filing a § 2241 petition, losing, and

then exercising his automatic entitlement to appellate review.

      We should not allow the savings clause to “create a detour”

around § 2255’s restrictions, as those restrictions would then

be “rendered a nullity.”             Reyes-Requena, 243 F.3d at 901 n.19;

cf. Trenkler, 536 F.3d at 97 (“The strictures of section 2255

cannot be sidestepped by the simple expedient of resorting to

some more exotic writ.”).             Accordingly, we decline to dismantle

the   protections       that   Congress     created     in    §   2255   by      adopting

Surratt’s expansive reading of the savings clause.

                                          F.

      Lastly, we must take account of Congress’ general purpose

in enacting the various provisions at issue.                      See Broughman v.

Carver, 624 F.3d 670, 677 (4th Cir. 2010); accord McCreary Cnty.

v. ACLU, 545 U.S. 844, 861 (2005) (“Examination of purpose is a

                                          47
staple of statutory interpretation that makes up the daily fare

of    every   appellate     court    in   the     country.”).          Congressional

purpose confirms that § 2255(e) does not apply to cases like

this one.

       Our narrower reading of the savings clause preserves one of

the    most    important      purposes     that     AEDPA       sought    to     serve:

finality.      Although AEDPA serves multiple objectives, including

“comity, finality, and federalism,” Williams v. Taylor, 529 U.S.

420, 436 (2000), the foremost AEDPA goal -- the act’s “central

concern” -- is Congress’ intent that “the merits of concluded

criminal proceedings not be revisited in the absence of a strong

showing of actual innocence,” Calderon v. Thompson, 523 U.S.

538, 558 (1998).        Surratt and the dissent both seek to untether

§ 2255(e) from any actual innocence requirement.                       Instead, they

would have us create a new rule contradicting Congress’ chief

goal in enacting AEDPA -- one that would apply to most any

imaginable sentencing enhancement that we later believe could

have erroneously increased a petitioner’s sentence.                       We see few

limiting      principles     in   that    kind    of    rule,    and     take    little

comfort in Surratt’s assurances that it would apply in only a

few cases (so long as he receives relief here).

       Further,      even   before   AEDPA,      “the   concern     with       finality

served   by    the    limitation     on   collateral      attack       ha[d]    special

force with respect to convictions,” like Surratt’s, “based on

                                          48
guilty pleas.”            United States v. Timmreck, 441 U.S. 780, 784

(1979); see also United States v. Fugit, 703 F.3d 248, 252-53

(4th    Cir.        2012)    (discussing       the      historical        importance       of

finality, especially as to guilty pleas).                        Plea agreements work

“only    if    dispositions        by    guilty      plea    are    accorded       a     great

measure of finality.”              Blackledge v. Allison, 431 U.S. 63, 71

(1977).       Thus, “a voluntary and intelligent plea of guilty made

by an accused person, who has been advised by competent counsel,

[usually] may not be collaterally attacked.”                        Mabry v. Johnson,

467 U.S. 504, 508 (1984).                 This rule holds even when the law

later changes in the petitioner’s favor, as “the possibility of

a favorable change in the law occurring after a plea is one of

the normal risks that accompan[y] a guilty plea.”                          United States

v. Archie, 771 F.3d 217, 222 (4th Cir. 2014).

       Undeniably,          “the   Federal     Government,         no     less    than    the

States,       has    an     interest     in    the      finality     of    its     criminal

judgments.”          United States v. Frady, 456 U.S. 152, 166 (1982).

For “[w]thout finality, the criminal law is deprived of much of

its    deterrent       effect.”         Teague     v.    Lane,     489    U.S.    288,    309

(1989).         “A     procedural        system      which       permits     an    endless

repetition of inquiry into facts and law . . . implies a lack of

confidence about the possibilities of justice that cannot but

war with the effectiveness of underlying substantive commands.”

McCleskey v. Zant, 499 U.S. 467, 492 (1991); accord Custis v.

                                              49
United    States,       511    U.S.    485,     497     (1994)     (“[I]nroads      on    the

concept       of     finality     tend     to      undermine       confidence       in    the

integrity of our procedures [.]”); see also Henry J. Friendly,

Is    Innocence         Irrelevant?        Collateral          Attack      on      Criminal

Judgments, 38 U. Chi. L. Rev. 142, 145 (1970) (“The proverbial

man from Mars would surely think we must consider our system of

criminal justice terribly bad if we are willing to tolerate such

efforts    at      undoing    judgments       of    conviction.”).          A    waning    of

confidence would follow if we revisited convictions repeatedly,

especially when the defendant conceded his guilt.                          It seems even

odder    to    revisit       convictions        where,    as   here,      the    petitioner

accepted an appeal waiver in his plea agreement.                                Even though

the   Government        has     chosen    not      to    enforce    that    waiver,       its

presence means that Surratt expected to have no later chance for

any kind of review when he first agreed to plea guilty.

      Although        one     might    find      it     tempting     to    put     finality

concerns      aside     for      the     sake      of    self-designed          notions    of

fairness,       we    have     recognized        that     “there     are    dangers”      in

“subordinat[ing] [finality] to the equities of the individual

case,” “especially if so vague a term as ‘fairness’ is to be the

touchstone.”          In re Under Seal, 749 F.3d 276, 289 (4th Cir.

2014).     Courts also have “never . . . defined the scope of the

writ [of habeas corpus] simply by reference to a perceived need

to assure that an individual accused of crime is afforded a

                                              50
trial   free       of   constitutional,”        let    alone    statutory,          “error.”

Teague, 489 U.S. at 308.               No doubt, if we put finality aside

when it suited us, we would invite a disquieting indeterminacy

into our judicial system.                And it’s hard to see where this

“fairness”     exception       would    end.        So,    “[w]e    do   not    pause    to

consider     whether      a   statute    differently          conceived     and      framed

would yield results more consonant with fairness and reason.                             We

take the statute as we find it.”                    Anderson v. Wilson, 289 U.S.

20, 27 (1933).

       Finality offers tangible benefits for the judicial system.

At the very least, it ensures that court resources focus on the

initial      trial      and   appeal   stage.         In    contrast,      “[i]f      every

favorable precedential decision could become . . . a ticket to

being resentenced, the criminal justice system would need to

continually        marshal     resources       in     order    to   keep       in    prison

defendants whose trials and appeals and sentences conformed to

then-existing           constitutional          and        statutory       standards.”

Whiteside, 775 F.3d at 186.              Finality also provides closure to

victims      and    the   defendant:     it     assures       the   victim      that    his

assailant will be punished, while it directs the defendant to

move    on    with      his   life.      And        finality    provides        important

incentives to litigants.               If defendants know that they cannot

raise arguments more than once, then they will exercise greater



                                           51
diligence and invoke whatever rights they may have early on.

See Wainright v. Sykes, 433 U.S. 72, 90 (1977).

       We decline to dispense with these many benefits -- deriving

from    AEDPA’s      central        objective        of       finality    --    by     accepting

Surratt’s view of § 2255(e).



                                                V.

       Invoking      the      canon     of    constitutional           avoidance,       Surratt

suggests that we must permit his petition because a failure to

do     so   would        present        substantial            constitutional          concerns.

Specifically, he argues that denying him relief under § 2255(e)

would raise questions related to due process, equal protection,

separation-of-powers principles, and the Suspension Clause.                                    We

disagree.

       The canon of constitutional avoidance is an ill fit to this

case.       “The    canon      is   a    tool    for      choosing       between       competing

plausible interpretations of a provision.”                             Warger v. Shauers,

135 S. Ct. 521, 529 (2014).                      “It has no application in the

absence     of     ambiguity.”          Id.      As       we    have   already       explained,

though,     we     see   no    ambiguity        in    §    2255(e)       when   it     comes   to

Surratt’s sentence.             Further, Surratt’s attacks read like back-

door    constitutional         challenges        to       §    2255    itself.         But   here

again, “[t]he canon of constitutional avoidance is not a method

of     adjudicating        constitutional            questions         by      other     means.”

                                                52
United States v. Apel, 134 S. Ct. 1144, 1153 (2014).                Nor does

avoidance grant a permission slip to “‘interpret’ statutes by

gerrymandering them with a list of exceptions that happen to

describe a party’s case,” id., which strikes us as just the sort

of thing that Surratt means us to do.

     Ultimately,    though,     “if    the    statute   does      not   raise

constitutional concerns, then there is no basis for employing

the canon of constitutional avoidance.”           Rodriguez v. Robbins,

715 F.3d 1127, 1140 (9th Cir. 2013); accord United States v.

Dwinells, 508 F.3d 63, 70-71 (1st Cir. 2007); United States ex

rel. Long v. SCS Bus. & Tech. Instit., Inc., 173 F.3d 870, 886

(D.C. Cir. 1999).      With no need for avoidance, we can rest

assured that we have given § 2255(e) the correct reading.

                                      A.

     We   first   conclude    that    our   interpretation   of    § 2255(e)

presents no colorable issue under the Suspension Clause.                 That

provision of the Constitution states that “[t]he Privilege of

the Writ of Habeas Corpus shall not be suspended, unless when in

Cases of Rebellion or Invasion the public Safety may require

it.” U.S. Const. art. I, § 9, cl. 2.              The Suspension Clause

“ensures that, except during periods of formal suspension, the

Judiciary will have a time-tested device, the writ, to maintain

the delicate balance of governance that is itself the surest

safeguard of liberty.”       Boumediene, 553 U.S. at 745.

                                      53
       As the Government observes, the Suspension Clause may not

apply here at all.          Neither the Supreme Court nor this Court has

decided whether the Suspension Clause protects the writ as it

existed in 1789 or the writ as it exists today.                 See Boumediene,

53 U.S. at 746 (reserving the issue); St. Cyr, 533 U.S. at 300-

01 (same).         Sitting en banc, we hinted that the Clause might

very well protect only the former and not the latter.                  See Vial,

115 F.3d at 1197 n.11.            If that proves to be the case (that is,

if the Suspension Clause protects only the 1789 version), then

Surratt’s Suspension Clause argument fails.                   See Morales, 499

F.3d at 670; Lindh v. Murphy, 96 F.3d 856, 867 (7th Cir. 1996)

(en banc), rev’d on other grounds, 521 U.S. 320 (1997); United

States    v.   Anselmi,     207   F.2d   312,    314   (3d   Cir.   1953).   The

original 1789 form of the writ did not afford post-conviction

relief of the type sought here.               See Ex Parte Yerger, 75 U.S. (8

Wall.) 85, 101 (1868); accord Brown v. Allen, 344 U.S. 443, 533

(1953) (Jackson, J., concurring in result); LaGuerre v. Reno,

164 F.3d 1035, 1038 (7th Cir. 1998).

       In the end, we need not settle the particular question of

whether the Suspension Clause protects the writ in its 18th or

21st     Century    form.      Our   reading      of   § 2255(e)    sufficiently

respects the writ in either event.                 “[T]he substitution of a

collateral remedy which is neither inadequate nor ineffective to

test the legality of a person’s detention does not constitute a

                                         54
suspension of the writ of habeas corpus.”                  Swain, 430 U.S. at

381.    Here, § 2255 itself serves as the relevant “substitute.”

And by holding that § 2255 presents an adequate and effective

substitute means to test Surratt’s detention, we have likewise

ensured that no Suspension Clause issue exists.                 See Hayman, 342

U.S. at 223 (refusing to consider any constitutional attack on

§ 2255 because the presence of the savings clause avoids those

issues); see also Medberry v. Crosby, 351 F.3d 1049, 1057 (11th

Cir.    2003)    (“[Section     2255(e)]    avoided    any    serious     question

about whether the replacement of the writ of habeas corpus for a

federal prisoner with the new § 2255 caused an unconstitutional

suspension of the writ.”); Reyes-Requena, 243 F.3d at 901 n.19

(noting      that     § 2255(e)    ameliorates       any     Suspension    Clause

issues).        As our preceding discussion should have made plain,

Surratt had a full opportunity under § 2255 to make the claim

that he makes here, but simply chose not to do so.

       Perhaps Surratt means to attack our reading of § 2255(e)

together with other limits found in § 2255, such as § 2255(h)’s

limits on second or successive petitions.                    But that sort of

attack would fare no better.               Stressing that “judgments about

the proper scope of the writ are normally for Congress to make,”

the Supreme Court has held that § 2254’s analogous restrictions

“do    not   amount    to   a   ‘suspension’    of   the   writ.”       Felker   v.

Turpin, 518 U.S. 651, 664 (1996).              “[R]estrictions on successive

                                       55
petitions constitute a modified res judicata rule, a restraint

on   what   is    called    in   habeas    corpus     practice   ‘abuse       of   the

writ.’”     Id.      In short, restrictions on multiple motions for

post-conviction relief “amount[] to an entirely proper exercise

of Congress’ judgment regarding the proper scope of the writ.”

Vial, 115 F.3d at 1197.            And “the reasoning of the [Supreme]

Court   with      respect   to   limitations     on     second   and    successive

habeas petitions pursuant to § 2254 applies with equal force to

the identical language in § 2255.”             Id. at 1198; accord Gilbert,

640 F.3d at 1317; United States v. Barrett, 178 F.3d 34, 53 (1st

Cir. 1999); see also Justin F. Marceau, Challenging the Habeas

Process Rather Than the Result, 69 Wash. & Lee L. Rev. 85, 144

n.207 (2012) (“[T]he Suspension Clause is much less directly

implicated by efforts to file multiple habeas petitions[.]”).

      Nor does a Suspension Clause problem develop whenever a

prisoner is unable to take advantage of a later, favorable case.

“Congress can, without offending the Suspension Clause, . . .

narrow the source of law cognizable on habeas review.”                       Green v.

French, 143 F.3d 865, 876 (4th Cir. 1998), abrogated on other

grounds, Williams v. Taylor, 529 U.S. 362, 376-77 (2000).                          And

the narrowing here flows from an oft-made distinction in the law

“between    actions     previously    taken      and    those    yet    to     come.”

Armour v. City of Indianapolis, Ind., 132 S. Ct. 2073, 2082

(2012);     cf.    Solem    v.    Stumes,      465     U.S.   638,     642     (1984)

                                          56
(“[R]etroactive application is not compelled, constitutionally

or otherwise.”); Wainwright v. Stone, 414 U.S. 21, 23-24 (1973)

(holding that state prisoner was not constitutionally entitled

to   the   benefit      of   a   new   interpretation        of     a    state   criminal

statute).     Therefore, the Suspension Clause is not offended in

this case.

                                            B.

       The approach we take to the savings clause also does not

give rise to the sort of due process concerns identified in

Hicks v. Oklahoma, 447 U.S. 343 (1980).                    In Hicks, a state court

jury   was   erroneously         required    to    impose    a    sentence       of   forty

years once they found the defendant guilty.                       Id. at 344-45.        On

direct appeal, the state appellate court deemed the mandatory

prison     term     unconstitutional         but      declined          to   vacate    the

sentence.         Id.   at   345.      The       Supreme    Court       determined    that

decision to be a due process violation, as the state court’s

unwillingness to correct the error deprived Hicks of a state-

provided liberty interest in a jury determination.                           Id. at 346.

Given the somewhat unusual circumstances of the case, courts

have read it to provide “a rather narrow rule.”                              Simpson v.

Norris, 490 F.3d 1029, 1034 (8th Cir. 2007).

       Several     factors       indicate    that    the    due     process      concerns

addressed in Hicks do not arise here.



                                            57
       First, Hicks involved sentencing by a jury; this case does

not.     Courts aggressively protect the jury’s “historic role” as

“an    intermediary        between      the    State   and   criminal      defendants.”

Alleyne, 133 S. Ct. at 2161; see also Blakely v. Washington, 542

U.S. 296, 306 (2004) (“Just as suffrage ensures the people’s

ultimate control in the legislative and executive branches, jury

trial    is      meant    to   ensure    their     control   in    the    judiciary.”);

Jones, 526 U.S. at 244-48 (describing the historic development

of    the   jury     as    a   check     on   overly    severe     sentences).      The

Framers, too, chose to emphasize the importance of the jury by

separately enshrining its role in the Sixth Amendment.                         In other

words, we show a special solicitousness towards claims that a

mistake has tread upon the jury’s crucial role.                          Hicks reflects

that concept.            It would not therefore apply in cases, like this

one, that do not implicate the jury right.                       Indeed, the Supreme

Court has narrowly read Hicks to hold “only that where state law

creates for the defendant a liberty interest in having the jury

make particular findings, the Due Process Clause implies that

appellate findings do not suffice to protect that entitlement.”

Cabana      v.    Bullock,      474    U.S.    376,    387   n.4   (1986)     (emphasis

added), abrogated on other grounds by Pope v. Illinois, 481 U.S.

497, 503 n.7 (1987); accord People v. Gonzales, 296 P.3d 945,

967     (Cal.      2013)       (“Hicks    is       limited   to    the     jury   trial

context[.]”).

                                              58
      Hicks     also     involved        two      distinguishable      types        of

constitutional     error.        The    Supreme    Court     intervened     where    a

lower   court    identified       constitutional      error    at    the    time    of

sentencing but refused to do anything about it.                       Thus, Hicks

presented     problems     at    both   sentencing     and    on    appeal.        The

separate, unrectified error at sentencing might have been what

compelled the Court to act.             See Johnson v. Rosemeyer, 117 F.3d

104, 112 (3d Cir. 1997); see also Hicks, 447 U.S. at 350-51

(Rehnquist, J., dissenting) (concluding that the Court should

not   have    intervened      because    the   defendant      had   not     actually

established constitutional error at trial).                    Yet here, no one

suggests that Surratt’s sentence was unconstitutional, now or

then.   There is no “separate” error.               In fact, no one suggests

that his sentence was unlawful at the time that the district

court imposed it in any way.

      But     perhaps    as     importantly,      Hicks    concerned       an   error

identified on direct review.              It is one thing to say that an

appellate court violates due process when it refuses to correct

an error in a non-final sentence.                 In that sort of case, the

appellate court’s unwillingness to act renders appellate review

a meaningless exercise.          But it is quite another to say that due

process requires us to reach back and “correct” a sentence that

is in every sense final and was proper at the time imposed

because we now believe that the district court misconceived the

                                         59
extent of its discretion.                     Cf. Dist. Atty’s Office for Third

Judicial Dist. v. Osborne, 557 U.S. 52, 68 (2009) (“A criminal

defendant proved guilty after a fair trial does not have the

same liberty interests as a free man.”).                           That result implies a

right to collateral review and relief that we do not believe

exists.      See         United      States    v.    MacCollom,        426    U.S.    317,    323

(1976) (plurality opinion) (“The Due Process Clause of the Fifth

Amendment       .    .    .    certainly      does       not   establish       any    right   to

collaterally attack a final judgment of conviction.”); Herrera

v.   Collins,        506      U.S.     390,    399       (1993);   cf.       Pennsylvania      v.

Finley, 481 U.S. 551, 557 (1987).                         And, in prior cases, courts

have   not      assumed         that    due    process         mandates       post-conviction

relief    whenever            the    sentencing      judge       might       have    failed   to

recognize the full scope of his discretion.                              See United States

v. Fox, 889 F.2d 357, 360 (1st Cir. 1989) (“[T]here is no due

process    right         to    individualized        sentencing.”).             The    enormous

body of cases refusing to award post-conviction relief premised

on Booker -- which held that district courts have discretion to

sentence outside the Sentencing Guidelines, see 543 U.S. at 245

-- provides perhaps the most compelling testimony to that fact.

See United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005)

(holding     that        Booker        “is    not    available         for    post-conviction

relief    for       federal      prisoners      .    .    .    whose    convictions      became

final before Booker . . . was decided”).

                                                60
      Hicks, then, gives us no reason for pause, and we find

Surratt’s due process argument to be without merit.

                                          C.

      Our reading of the savings clause also does not give rise

to   separation-of-powers        concerns.         Surratt       contends     that   we

tread   upon   Congress’       right     to    define     the    relevant     criminal

punishment by denying him habeas relief; the dissent agrees.

Yet neither Surratt nor the dissent provides us with a case in

which a court has identified a separation-of-powers problem in

connection     with     a     sentence        levied    within     the     applicable

statutory range, as was Surratt’s sentence.                     “[A] person who has

been so convicted is eligible for, and the court may impose,

whatever punishment is authorized by statute for his offense.”

Chapman v. United States, 500 U.S. 453, 465 (1991).                            Surratt

received that sentence.

      If we were to embrace Surratt’s contrary position, we would

transform      every        alleged       error        related      to      statutory

interpretation         into      a       separation-of-powers             issue      of

constitutional dimension.            The writ would become a catchall for

perceived    errors    big     and    small.       Such    an    outcome    would    be

plainly     inconsistent       with    the      remedy’s        traditional    scope.

“While the [habeas] remedy is in this comprehensive, it does not

encompass    all   claimed      errors     in    conviction       and    sentencing.”

Addonizio, 442 U.S. at 185.              All the more so when the district

                                          61
court endeavored to comply with Congress’ wishes by applying a

then-correct understanding of Congressionally imposed mandatory

minimums.        See United States v. Jackson, 863 F.2d 1168, 1171

(1989) (explaining Congress appropriately exercises its power to

fix penalties when it imposes mandatory minimums).

     We must also remain aware of competing separation-of-powers

concerns:     fundamental      principles      of   separation     of   powers

preclude us from ignoring the plain terms of the savings clause.

In every case, “[t]he function of the judiciary is to apply the

law, not to rewrite it to conform with the policy positions of

litigants.”       Mort Ranta v. Gorman, 721 F.3d 241, 253 (4th Cir.

2013).     And we must act with a special sensitivity to that role

while grappling with post-conviction statutes, as they “reflect

a balancing of objectives (sometimes controversial), which is

normally for Congress to make[.]”           Lonchar v. Thomas, 517 U.S.

314, 322 (1996).        We find no benefit to trampling on Congress’

power to define the scope of the writ because of an unjustified

fear of violating separation-of-powers principles.

                                       D.

     Finally,      no   equal-protection       problems   result    from   our

decision.     “The [Fourteenth Amendment’s] Equal Protection Clause

protects    an    individual    from   being    treated   differently,     not

simply wrongly, by the government.”             Sansotta v. Town of Nags

Head, 724 F.3d 533, 543 n.15 (4th Cir. 2013).                Although that

                                       62
particular    clause    does      not    apply        directly       to   the   federal

government, the “approach to Fifth Amendment equal protection

claims has always been precisely the same as to equal protection

claims under the Fourteenth[.]”                Weinberger v. Wiesenfeld, 420

U.S. 636, 638 n.2 (1975).

     Surratt evidently thinks that an equal-protection problem

arises because some district courts in different Simmons-related

cases have granted § 2255 relief to some petitioners.                           But the

difference    alone    does     not     give    rise    to     an    equal-protection

issue.   The Supreme Court has said “time and again that the

[Fifth and] Fourteenth Amendment[s] do[] not assure uniformity

of judicial decisions or immunity from judicial error.”                         Beck v.

Washington,    369    U.S.     541,     554-55       (1962).         “A   disagreement

between [the courts] on the interpretation of a statute is a

matter   which    either       the    Supreme        Court    or     Congress     should

resolve; it does not violate the equal protection rights of the

person   subjected      to      the     more     burdensome          interpretation.”

Hawkins v. Agric. Mktg. Serv., 10 F.3d 1125, 1131-32 (5th Cir.

1993).    Besides      that,    “[b]oth        the    Fifth    and    the   Fourteenth

Amendments       address       legislative           discrimination         and      not

discrimination on the basis of particular opinions issued by the

federal judiciary.”        United States v. Brown, 74 F. Supp. 2d 648,

651 (N.D.W. Va. 1998).           So, Surratt has given us no reason to

believe that equal protection concepts even apply here.

                                          63
       Surratt also observes that defendants have obtained relief

in    cases   in    which    “they   had   not    previously      filed   a    §    2255

motion.”      Opening Br. 34.         The difference in outcomes between

these two groups of defendants does not stem from our present

decision.      In fact, this Court’s precedents suggest that the

“other” defendants should not obtain relief from their untimely

motions.      See Whiteside, 775 F.3d at 187.                 The Government has

waived the otherwise applicable statute-of-limitations in some

of those cases, as it can do, and this intermittent waiver has

produced disparate outcomes in somewhat similar cases.                         But the

difference     in     treatment      stems      from    the   executive       branch’s

actions, not those of the judicial branch.                    We do not mean to

imply that the Government’s actions create any equal protections

problems of their own -- in all likelihood, they do not.                             See

United States v. Venable, 666 F.3d 893, 900 (4th Cir. 2012)

(explaining that the government “ordinarily has wide latitude in

deciding whether to prosecute” as long as it does not “bas[e]

the    decision      on     an   unjustifiable         standard   such    as       race,

religion,     or    other    arbitrary       classification”).        But      we   can

confidently conclude that our reading of § 2255(e) has nothing

to do with equal protection.




                                           64
                                          VI.

        For    the    reasons    described      above,    we    conclude    that    the

district court lacked jurisdiction under § 2255(e) to consider

Surratt’s § 2241 petition.

     Congress holds the power to define the scope of the writ of

habeas    corpus.        It     also   holds    an   attendant    power    to    define

exceptions to the normal rule of finality of convictions and

sentences that were lawfully imposed at the time that they were

entered.         We    are    firmly     convinced       that   Congress     did    not

contemplate any exception for a case like this one.                        Certainly,

Surratt’s mandatory minimum sentence was higher than the one he

would have faced after Simmons.                 But Surratt had the opportunity

to test the legality of that sentence in his direct appeal and

initial § 2255 motion, and he chose not to take it.                        He also is

not actually innocent of his offense of conviction, or even the

predicate offenses that dictated his enhanced sentence.                         And his

sentence does not exceed the statutory maximum that Congress set

for his offense of conviction.

     We cannot alter Congress’ decision to deny jurisdiction.

Nor can we rewrite habeas law for the sake of a sympathetic

case.         “[T]he guidance of the Supreme Court and Congress is

clear and, in this situation, ties our hands.”                    United States v.

Foote, 784 F.3d 931, 944 (4th Cir. 2015).                         And by the same

token, the Government’s support of the petitioner also cannot

                                           65
change the words of the statute.                     See Young v. United States,

315 U.S. 257, 258-59 (1942) (“[A] confession [of error from the

Government] does not relieve this Court of the performance of

the judicial function. . . . [O]ur judicial obligations compel

us to examine independently the errors confessed.”).

       Still, the hands of Congress and the executive branch are

not    constrained      in     the    same    way   as    those   of      the   judiciary.

Congress may amend § 2255 and permit us to hear cases like this

one, if it so chooses.               And the Government, which initiated this

criminal    prosecution         and     filed      the   information       that    led   to

Surratt’s enhanced sentence, can assist Surratt in seeking a

commutation from the President.                    See U.S. Const. art. II, § 2,

cl. 1.     Indeed, the President has shown a recent willingness to

grant frequent commutations in other drugs cases.                               See, e.g.,

Sari Horwitz and Juliet Eilperin, Obama Cuts Sentences of 46

Inmates, Wash. Post., July 14, 2015, at A03; Juliet Eilperin,

Obama Commutes Sentences of 22 Drug Offenders, Wash. Post, Mar.

31, 2015, at A01; Katie Zezima, Obama Commutes Prison Sentence

of Eight Federal Drug Offenders, Wash. Post, Dec. 18, 2014, at

A09;    David       Nakamura,    Obama       Commutes    8   ‘Unduly      Harsh’    Terms,

Wash. Post, Dec. 20, 2013, at A02.

       We also stress that our decision today is limited to the

particular facts of this case.                     We do not decide whether, for

instance,       a    federal    prisoner       might     bring    a   §   2241    petition

                                              66
claiming that the district court unlawfully sentenced him to a

term of imprisonment exceeding the statutory maximum.                   Nor do we

mean to say anything about the types of claims that prisoners

might   bring   in   an   initial      § 2255    motion.      And   we    do   not

determine whether a change in law stemming from a retroactively

applicable Supreme Court decision might offer relief beyond the

circumstances already identified in Jones.                Needless to say, we

therefore   disagree      with   the     dissent’s    suggestion        that   our

limited   determination     renders     the     savings    clause   a   “complete

nullity.”   See Dissenting Op. at 68.

     Given our disposition, we also need not decide whether an

appeal waiver like the one found in Surratt’s plea agreement

could foreclose relief via the savings clause, as the court-

appointed amicus alternatively argued.               We leave those issues

for another day.

     The district court’s judgment is therefore

                                                                        AFFIRMED.




                                       67
GREGORY, Circuit Judge, dissenting:

       Raymond Surratt will die in prison because of a sentence

that the government and the district court agree is undeserved

and unjust.         The district court sentenced Surratt to life in

prison only because it thought it was required to do so pursuant

to a statutory mandatory minimum.               As it turns out, the correct

statutory      range   for    Surratt’s    crime     was   a   minimum   of   twenty

years, and a maximum of life.

       The   majority    thinks    its    hands      are   tied   because     Surratt

received “only” a life sentence, and not more than the statutory

maximum.       But the only option beyond a life sentence is death.

By     foreclosing     any    avenue     for    post-conviction      relief,      the

majority essentially punishes Surratt for not having received

the death penalty.           It leaves him to spend the rest of his life

in prison; a death sentence of a different kind.                     In doing so,

the majority renders the savings clause a complete nullity in

violation of the Suspension Clause.

       It is not just a sentence above the statutory maximum that

presents a fundamental defect.                 Life is not always so neat.

When a punishment involves a complete deprivation of liberty,

then    even    a    sentence    exactly       at,   but    not   exceeding,      the

statutory maximum can constitute an extraordinary miscarriage of

justice of constitutional magnitude.                   In such cases, we must

allow a prisoner to invoke the savings clause if the Great Writ,

                                          68
which   has      always     been      “a   bulwark    against       convictions         that

violate ‘fundamental fairness,’” Engle v. Isaac, 456 U.S. 107,

126 (1982), is to mean anything at all.                   I dissent.



                                             I.

     Surratt        was    31   years       old    when     he    pleaded      guilty     to

conspiracy to distribute cocaine.                   The Guidelines recommended a

maximum penalty of 19.6 years, yet the court imposed a life

sentence.          It did so while stating that it believed a life

sentence    to      be    undeserved       and    unjust.        J.A.   276.      As    the

district court also remarked, it thought it had no other option

pursuant      to    the     statutory,       mandatory-minimum          lifetime        term

prescribed by the Controlled Substances Act (CSA) for anyone

with two or more predicate felony drug offenses.                         See J.A. 276;

21 U.S.C. § 841(b)(1)(A).

     A few years after Surratt’s first § 2255 motion, in a case

remanded to us from the Supreme Court, we corrected our mistaken

understanding of just what constitutes a qualifying felony for

federal sentencing purposes in United States v. Simmons, 649

F.3d 237 (4th Cir. 2011) (en banc).                       Both parties agree that

under our retroactively-applicable Simmons decision, see Miller

v. United States, 735 F.3d 141, 147 (4th Cir. 2013), Surratt

possesses      only       one   CSA     predicate      felony.          The     statutory

mandatory minimum for someone with one qualifying offense is not

                                             69
a life term, but twenty years.               21 U.S.C. § 841(b)(1)(A).         Life

is actually the statutory maximum.              Id. § 841(b)(1)(A).

       Given the difference between twenty years and life, Surratt

asks to be resentenced.           Remarkably, the government agrees with

Surratt.       Both parties agree that Surratt is legally ineligible

to spend the rest of his life in prison.                     Given this mistake

that    the    parties    agree   is    of    constitutional      magnitude,   the

parties further agree that Surratt is entitled to relief from

the very sentence that the district court unambiguously stated

it     would    not    have   imposed    absent      the    erroneous   statutory

mandatory minimum.            They agree the mechanism to do so is by

§ 2241 motion via the savings clause of § 2255(e).



                                        II.

       “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.”

Boumediene v. Bush, 553 U.S. 723, 739 (2008).                    Accordingly, the

prohibition on suspension of the writ is contained in the very

blueprint of our nation, the Constitution itself.                     U.S. Const.

art. I, § 9, cl. 2.

       The privilege of the writ of habeas corpus has remained

central    to    our   justice    system      even   as    the   statutory   scheme

codifying the writ has undergone several transformations over

                                         70
the years.         Boumediene, 553 U.S. at 740 (explaining that our

Framers recognized a necessity to “secure the writ and ensure

its   place   in     our     legal    system”).        Even   when    Congress    added

§ 2255 to the post-conviction relief statutes in 1948, it did so

in    an    effort      to    improve       administration      of     habeas    corpus

hearings.       United States v. Hayman, 342 U.S. 205, 219 (1952).

The   impetus    for     § 2255      was    that   federal    courts    located       near

prisons had become overwhelmed by petitions from prisoners who,

until that point, were required by § 2241 to apply for writs in

the district of their confinement.                   See Hayman, 342 U.S. at 213-

15.    In this way, § 2255 “replaced traditional habeas corpus for

federal prisoners . . . with a process that allowed the prisoner

to file a motion with the sentencing court.”                         Boumediene, 553

U.S. at 774.         It was also these 1948 amendments that gave birth

to    the   so-called        “savings      clause”    found   in   § 2255(e).          See

Wofford v. Scott, 177 F.3d 1236, 1239, 1241 (11th Cir. 1999).

The savings clause preserves resort to § 2241 when § 2255 is

“inadequate        or    ineffective         to    test   the      legality      of     [a

prisoner’s] detention.”              28 U.S.C. § 2255(e).

       The Supreme Court has been explicit that § 2255 was never

meant to supplant § 2241, but was simply crafted to address the

practical concerns of habeas administration.                         “Nowhere in the

history of Section 2255,” determined the Court, “do we find any

purpose to impinge upon prisoners’ rights of collateral attack

                                             71
upon their convictions.”                    See Hayman, 342 U.S. at 219.                        This

remains true even following Congress’s 1996 amendments to the

statute,       which       created      limitations          on    second     or       successive

petitions       in    § 2255(h).            The    savings        clause,    which       Congress

chose to retain even while creating these so-called “gatekeeping

provisions,”         continues         to    play      a   crucial        role     within       this

scheme.        As the Supreme Court recognizes, the savings clause

ensures that subsequently-enacted limitations in § 2255 do not

run afoul of the Suspension Clause.                        See Boumediene, 553 U.S. at

776.

       History therefore confirms that Congress meant for the writ

of habeas corpus to remain unabridged even in the face of some

limits    on     collateral        review         found      in   § 2255,        and    that     the

savings    clause          plays   a   distinct        and    crucial       role       within    the

statute.        And of course we cannot forget that, ultimately, the

writ of habeas corpus is an equitable remedy.                             See Gomez v. U.S.

District Court, 503 U.S. 653, 653-54 (1992); Duckworth v. Eagan,

492 U.S. 195, 213 (1989) (“[T]he Court has long recognized that

habeas corpus has been traditionally regarded as governed by

equitable       principles[.]”          (internal          quotation       marks       omitted)).

These     are        the     principles,          including         the     “principles           of

fundamental fairness underl[ying] the writ,” that should guide

our resolution of this case.                      Sawyer v. Whitley, 505 U.S. 333,

351 (1992) (Blackmun, J., concurring).

                                                  72
                                         III.

      The majority’s interpretation of the savings clause amounts

to a suspension of the writ.                The majority denies Surratt any

chance to challenge an erroneous life sentence – a fundamental

defect of constitutional proportions – for two reasons.                       First,

because    he     is     challenging     his     sentence       rather    than    the

underlying conviction, and second, because his sentence is at,

but does not exceed, the statutory maximum.                     The result is that

without any textual basis, the majority is punishing Surratt for

not having received the death penalty.                 What a perverse result,

to have suffered a fundamental sentencing defect, and then to be

punished for not having received the death penalty.

     The savings clause extends to more than just attacks on the

underlying conviction.          See Maj. Op. at 13 (relying on the fact

that “Surratt is not innocent of anything”).                    In fact, there is

no textual indication that § 2255(e) precludes a challenge to an

erroneous life sentence.            When evaluating the plain language of

the statute, “Congress’s use of the term ‘detention’ is highly

significant to the scope of the savings clause.”                          Bryant v.

Warden,    FCC    Coleman-Medium,        738    F.3d   1253,     1281    (11th    Cir.

2013).      Congress      declined     to      use   the   terms,     “offense”    or

“conviction,” both of which it wrote into subsequent provisions

of   § 2255.       See    28    U.S.C.      § 2255(f)(1);       id.   § 2255(h)(1).

Instead,    its    choice      of   words    suggests      it   meant    to   broadly

                                          73
preserve   the   types   of    challenges    available   under   § 2255(e),

consistent    with   § 2241.     If,   as   the   majority   says,   “we   are

obligated to give effect to Congress’s decision to use different

language in proximate subsection of the same statute,” then this

obligation actually favors Surratt.          See Maj. Op. at 36 (quoting

United States v. Brandon, 247 F.3d 186, 190 (4th Cir. 2001)).

     This reading is consistent with our own case law.               We have

already determined that nothing in § 2255 was “intended to limit

the rights of federal prisoners to collaterally attack their

convictions and sentences.”       In re Jones, 226 F.3d 328, 332 (4th

Cir. 2000) (emphasis added).           Other circuits agree that “[t]he

use of the term ‘detention’ in the savings clause suggests that

Congress intended for at least some species of sentencing claims

(other than actual-innocence claims) to justify savings-clause

relief.”     Bryant, 738 F.3d at 1282; see also Brown v. Caraway,

719 F.3d 583, 588 (7th Cir. 2013) (explaining that “the text of

the [savings] clause . . . does not limit its scope to testing

the legality of the underlying criminal conviction”).

     The majority nevertheless does not think Surratt raises a

sentencing challenge that should be cognizable under the savings

clause.    See Maj. Op. at 33 (“[Surratt] never suggests that he

received a sentence above the applicable statutory maximum.”).

This is a breathtaking position considering the extraordinary

deprivation of liberty at stake.            Surratt raises no “ordinary”

                                       74
sentencing error.       He seeks to advance a claim that he does not

possess the requisite number of qualifying felony offenses on

which his current life sentence is predicated.               A life sentence,

for which there is no longer any possibility of parole, is the

“penultimate” sentence unlike any other except for death.                   Solem

v. Helm, 463 U.S. 277, 303 (1983), overruled on other grounds by

Harmelin v. Michigan, 501 U.S. 957 (1991).             And although second

only to death, the two “share some characteristics . . . that

are shared by no other sentences.”           Graham v. Florida, 560 U.S.

48, 69 (2010).         A life sentence “deprives the convict of the

most basic liberties without giving hope of restoration, except

perhaps by executive clemency - the remote possibility of which

does not mitigate the harshness of the sentence.”               Id. at 69-70.

It also “means denial of hope; it means that good behavior and

character improvement are immaterial; it means that whatever the

future might hold in store for the mind and spirit of [the

convict], he will remain in prison for the rest of his days.”

Id.   at   70   (alteration    in   original).     That     Surratt   is    being

erroneously deprived of his liberty for the rest of his life is

therefore a fundamental sentencing defect.

      There     are   also   fundamental    due   process    concerns      raised

where, like here, a district court imposes a life sentence at

statutory       gunpoint.      An    erroneous     mandatory-minimum         life

sentence is by itself a fundamental defect.                  See Almendarez-

                                       75
Torres v. United States, 523 U.S. 224, 245 (1998) (recognizing

that   mandatory      minimums      can    lead    to    “a    minimum   sentence     of

imprisonment more than twice as severe as the maximum the trial

judge would otherwise have imposed.”).                    When operating under a

wrongful     statutory     mandatory        minimum,       a     district    court    is

completely    foreclosed      from    imposing       a    more    lenient    sentence.

See United States v. Newbold, --- F.3d ---, No. 10-6929, 2015 WL

3960906,    at   *7    n.6.   (4th        Cir.    June   30,     2015)   (finding     an

“erroneously-imposed sentencing floor . . . problematic on its

own”   because   “it     create[s]        the    mistaken      impression    that    the

district court ha[s] no discretion to vary downward from the low

end of [the Guidelines] range”).                  A defendant, however, always

has    a   “substantial       and    legitimate          expectation”       under    the

Fourteenth Amendment to “be deprived of his liberty only to the

extent determined by the [trier of fact] in the exercise of its

statutory discretion.”           Hicks v. Oklahoma, 447 U.S. 343, 346

(1980).      In this case, we know with 100% certainty that the

district court considered a life sentence both the floor and the

ceiling of what it could impose.                  “I was required to impose a

life sentence,” stated the court, “[a]nd I’ll not forget the

frustration I felt in doing that because I did think it was an

unjust sentence[.]”       J.A. 276.

       Continuing to punish Surratt with life imprisonment given

that the district court was completely deprived of any statutory

                                            76
discretion        whatsoever      at   sentencing            also    raises     a    separate,

separation of powers concern.                     Pursuant to the very design of

our    government,        “defining       crimes         and    fixing        penalties       are

legislative, not judicial, functions.”                         United States v. Evans,

333 U.S. 483, 486 (1948).                 “Congress has the power to define

criminal punishments without giving the courts any sentencing

discretion,”        or    to     provide          for    individualized             sentencing.

Chapman v. United States, 500 U.S. 453, 467 (1991).                              For someone

like   Surratt,      with      only    one    qualifying            felony    drug     offense,

Congress     intended       to    permit         a    district       court     to    assign    a

sentence somewhere in the range of twenty years to life.                                It did

not mandate only a life sentence.

       Rather than avoiding a statutory construction that “raises

a multitude of constitutional problems,” Clark v. Martinez, 543

U.S. 371, 380-81 (2005), the majority reads § 2255 to foreclose

any    avenue     for    relief    from      a       fundamental      sentencing       defect.

This is precisely “the failure to allow for collateral review”

that “raise[s] serious constitutional questions.”                               Triestman v.

United States, 124 F.3d 361, 377 (2d Cir. 1997).



                                             IV.

       The    majority         arrives       at       this     constitutionally-suspect

outcome      by    departing       from      the        traditional          savings    clause

analysis.       It ignores that our precedent has already established

                                              77
a framework for determining whether § 2255 is “inadequate or

ineffective.”          28 U.S.C. § 2255(e).            As we have demonstrated in

Jones,    a    savings        clause    inquiry       involves        a    procedural    and

substantive component.             226 F.3d at 333-34.                    Yet the majority

seeks    to    paint    our    Jones     decision      as   something        sui    generis.

Jones    is    not     an   alternative      “portal”       or    “route”      to   savings

clause relief.          See Maj. Op. at 19.             It is the test adopted by

our Circuit.          When applying that test, it is clear that Surratt

satisfies       the     necessary       requirements,         both         procedural    and

substantive.

       Procedurally,        § 2255      is   “inadequate         or   ineffective”      when

the retroactively-applicable change in the law that the prisoner

seeks to take advantage of occurs subsequent to his first § 2255

motion.       This was exactly the case in Jones.                     Although involving

a   different     fundamental          defect     –   being    actually       innocent    of

“using” a firearm within the meaning of 18 U.S.C. § 924(c)(1) –

we should follow here the same procedural inquiry.                              See Jones,

226 F.3d at 329.            “[S]ubsequent to the prisoner’s direct appeal

and first § 2255 motion,” did “the substantive law change[]”

such that the prisoner’s claim is no longer foreclosed by the

“settled law of this circuit or the Supreme Court?”                            Id. at 333-

34.

       Surratt brings his savings clause challenge in precisely

this    posture.        The    majority      protests,        however,       that    Surratt

                                             78
should have brought a § 2255 motion raising his Simmons claim

even before Simmons existed.               To say that the savings clause

preserves an “opportunity” to be heard but that Surratt somehow

squandered his even before we decided Simmons is to interpret

“opportunity” in a literal manner devoid of any meaning.                               See

Boumediene, 553 U.S. at 779 (“[T]he privilege of habeas corpus

entitles the prisoner to a meaningful opportunity to demonstrate

that he is being held pursuant to the erroneous application or

interpretation          of   relevant    law.”    (emphasis      added)       (internal

quotation       marks    omitted)).       We    did   not   fault    Jones       for   not

previously raising his Bailey claim even before that case was

decided.        Instead, the savings clause was crucially important

because “the prisoner’s first § 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 § 924(c)(1).”            Jones, 226 F.3d at 333.           The Seventh and

Eleventh    Circuits         further    agree    that   § 2255      is    procedurally

inadequate when the intervening change in the law takes place

after     the    petitioner’s       previously        foreclosed,        first      § 2255

motion.     See Brown, 719 F.3d at 586 (“[T]he prisoner must show

that he relies on a retroactive decision that he could not have

invoked in his first § 2255 motion.”); In re Davenport, 147 F.3d

605, 610 (7th Cir. 1998) (“[The prisoner] could not use a first



                                          79
motion under the section to obtain relief on a basis not yet

established by law.”); Bryant, 738 F.3d at 1257.

       In   addition     to   this    procedural      component,    § 2255    is

substantively inadequate or ineffective when the asserted error

represents    a   fundamental        defect,    but   “the    prisoner   cannot

satisfy the gatekeeping provisions of § 2255 because [he relies

on a] new rule [that] is not one of constitutional law.”                 Jones,

226 F.3d at 334.        This requirement is necessary in consideration

of § 2255(h), which limits second and successive petitions, in

pertinent part, to those relying on a new rule of constitutional

law.    28 U.S.C. § 2255(h)(2).         The difficulty in Jones was that

the intervening change in the law involved a rule of statutory

interpretation.     Despite the important role played by § 2255(h),

we nevertheless determined that the savings clause must in this

situation afford an opportunity to raise a previously futile,

retroactively-applicable        statutory      claim,    because    “otherwise,

the savings clause itself would be meaningless.”                    Jones, 226

F.3d at 333.      Other circuits have agreed with this substantive

component    of   the    savings     clause    inquiry   in   the   context   of

erroneous sentencing enhancements resulting from interpretation

of the Armed Career Criminal Act.               See Light v. Caraway, 761




                                        80
F.3d 809, 813 (7th Cir. 2014) (Begay 1 claim challenging ACCA

enhancement),        cert    denied,         2015   WL    133008      (Jan.     12,      2015);

Bryant, 738 F.3d at 1257 (same).

       Surratt therefore satisfies our savings clause test because

his    claim       raises    a        fundamental        defect       predicated      on     an

intervening change in the law of statutory interpretation.                                  The

majority,         however,     disagrees       with      this     conclusion        in      part

because      it     believes      I    am    “read[ing]         the    actual      innocence

requirement out of Jones.”                  Maj. Op. 12.         To the contrary, I am

applying the framework set forth in that case, which considered

whether      an    actual    innocence        claim      is     redressable        under    the

savings clause, to our case, which asks whether an erroneously-

imposed,      statutory,         mandatory-minimum            life     sentence       can    be

redressable under the same provision.                     Jones admittedly involved

a different fundamental defect - a claim under Bailey.                              But this

does   not    mean    that     its     reasoning      cannot      extend      to   Surratt’s

claim, which is equally a fundamental defect considering the

extraordinary        deprivation        of    liberty      at    stake.       Interpreting

Jones in this way would not lead to “permit[ing] any federal


       1
       In Begay v. United States, 553 U.S. 137 (2008), the
Supreme Court determined that driving under the influence of
alcohol did not constitute a “violent felony” as defined by the
residual clause of the ACCA.       Id. at 139.     The Court has
subsequently   found  the   statute’s  residual   clause  to   be
unconstitutionally vague.      Johnson v. United States, 576
U.S. ---, No. 13-7120, 2015 WL 2473450, at *4 (June 26, 2015).


                                              81
prisoner to bring any non-constitutional claim via § 2241 in any

instance where the law” changes.                   Maj. Op. at 13.       Far from

opening    the     floodgates,        as   the    majority   suggests,    such   an

approach may provide relief to those who continue to serve life

sentences    despite       not       possessing     the   requisite     number   of

predicate felony offenses under Simmons, which is all of eight

prisoners in the Western District of North Carolina. 2                    See Def.

Br. at 31.

     The majority lastly finds it insufficient that Surratt’s

fundamental sentencing defect finds its roots in Simmons, an en

banc circuit court decision decided upon remand from the Supreme

Court,    rather    than   in    a    Supreme     Court   decision    itself.    Of

course the savings clause itself does not make this distinction.

Nor have we ever insisted, in a world where the Supreme Court

grants certiorari in about 75-80 cases per year, that the new

rule of statutory interpretation be one decreed by the Supreme

Court.    See Jones, 226 F.3d at 334 (requiring that “subsequent

to the prisoner’s direct appeal and first § 2255 motion, the

substantive law changed” (emphasis added)).                    Nonetheless, the

majority writes that “Surratt premises his claim on a circuit-

level decision, even though § 2255(h) specifically states that

     2 I must also note that, when it comes to the “tangible
benefits” of our decision today, Maj. Op. at 51, it is estimated
that Surratt’s lifetime of incarceration will cost taxpayers
approximately $1.2 million. See Def. Br. at 32.


                                           82
only a retroactive Supreme Court decision should open the door

to    successive       relief.”            Maj.      Op.    at     43.         In    actuality,

§ 2255(h) states that application for successive relief must be

based on “a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court.”                                    28 U.S.C.

§ 2255(h)(2)      (emphasis        added).           At    least    one       circuit     court,

however, has found it appropriate to grant relief based on its

own finding that Begay, a new rule of statutory interpretation,

is retroactive.           See Light, 761 F.3d at 814; Welch v. United

States, 604 F.3d 408, 415 (7th Cir. 2010).

       My point is that the majority’s greatest sin is really in

picking    and    choosing      whatever          rules     it     wishes       to    apply     to

§ 2255(e)    from       other   parts      of    our      habeas    jurisprudence.              It

insists    that    the     first     part       of   § 2255(h)(2)             applies    to    the

savings clause, but not the second part.                         It then says the “same

principle”        of     procedural         default         applies           not     just      to

§ 2255(f)(2), but also here.                See Maj. Op. at 25.                  This despite

its    insistence        that      there    is       no     basis        to     “tie[]        th[e]

‘miscarriage’          standard”     from       initial      § 2255       motions        to    the

supposedly “entirely separate question of relief via the savings

clause.”     Maj. Op. at 20.               The majority is really mixing and

matching limitations on post-conviction relief.

       In disregarding our precedent to affirm a life sentence for

Surratt, the majority simultaneously affirms a death sentence

                                             83
for the savings clause.              But make no mistake.                     There already

exists an analytical path obligating us to grant Surratt the

resentencing that he seeks, and that justice requires.



                                               V.

       I do not doubt that the majority is sympathetic to Surratt.

In the end, I suppose we just have fundamentally different views

on   the   role     of    habeas    corpus,         as    well    as    the      role   of    the

judiciary    in     granting       the    writ.           I    see     it   as    our   solemn

responsibility to guard against a morbid encroachment upon that

which is so precious our Framers ensured its continued vitality

in our Constitution.             Instead we guard the Great Writ itself,

and so closely that Surratt must spend the rest of his life in

prison – against the will of the government and the district

court.     Our abdication of this responsibility begs the question:

quis   custodiet         ipsos   custodies?              Who   will     guard     the   guards

themselves?

       It is within our power to do more than simply leave Surratt

to the mercy of the executive branch.                            To hope for the right

outcome in another’s hands perhaps is noble.                            But only when we

actually do the right thing can we be just.                           I lament that today

we are not the latter.             Neither the plain language of our habeas

statutes,     our    precedent,          nor    the       Constitution        demands        that

Surratt die in prison.           I must dissent.

                                               84
