Brief filed: 08/22/2016
McCarthan v. Warden
11th Circuit Court of Appeals; Case No. 12-14989-C
On Appeal from the U.S. District Court for the Middle District of Florida, No. 5:09-cv-00110-WTH-PRL, 11th Cir. Panel decision available at 811 F.3d 1237 (11th Cir. Jan. 20, 2016)
Section 2255 relief is "inadequate or ineffective" if the petitioner does not have a "genuine opportunity" to challenge his sentence. The weight of appellate authority suggests that a section 2255 proceeding is "inadequate or ineffective" if the petitioner lacks a "genuine opportunity" to challenge his sentence. The Savings Clause’s text, structure, and history confirm the majority view. An opportunity to challenge a sentence is not genuine if the challenge would have been futile. McCarthan never had a "genuine opportunity" to challenge his sentence. The Savings Clause opens the door to sentencing challenges, not just challenges to the execution of a sentence or when the sentencing court no longer exists. NACDL’s proposed test would not raise policy concerns.
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David C. Frederick and Jeffrey A. Love, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, DC; H. Eugene Lindsey III, NACDL, Miami, FL.