Perhaps believing CA3’s reversal rate in federal post-conviction appeals is too high — in 2013 it was 0.8% — a conservative CA3 panel today contorted to make 2255 relief even harder. It  wrote:

As a collateral challenge, a motion pursuant to 28 U.S.C. § 2255 is reviewed much less favorably than a direct appeal of the sentence.  See, e.g., United States v. Frady, 456 U.S. 152, 167-68 (1982). Indeed, relief under § 2255 is available only when “the claimed error of law was ‘a fundamental defect which inherently results in a complete miscarriage of justice,’  and  . . .  ‘present[s] exceptional circumstances where the need for the remedy afforded by the writ . . . is apparent.’”  Davis v. United States, 417 U.S. 333, 346 (1974) (quoting  Hill v. United States, 368 U.S. 424, 428 (1962)).

And the opinion repeats this “fundamental defect which inherently results in a complete miscarriage of justice” standard in its conclusion. Actually, what Davis held is that 2255 applies to federal statutory claims, not just constitutional claims. The language quoted today was passing dicta offered to show that “ a prior case “did not suggest that any line could be drawn on the basis of whether the claim had its source in the Constitution or in the “laws of the United States.” That’s an odd source for sweeping 2255 standard-of-review language.

The impact of that scare-language should be negated, at least as to ineffective-assistance-of-counsel claims, by the opinion’s later acknowledgment that “if Travillion shows both elements of Strickland, he satisfies the requirements of § 2255.” Time will tell.

The case is US v. Travillion. Opinion by Van Antwerpen, joined by Fisher and Tashima CA9 by designation. Arguing counsel were Louise Arkel for the inmate and Jane Dattilo for the government.