The Saving Clause as a Jurisdictional Bar: Seventh Circuit Realigns with National Consensus in Shannon Wayne Agofsky v. Baysore

I. Introduction

This commentary examines the Seventh Circuit’s decision in Shannon Wayne Agofsky v. Baysore, No. 24‑1067 (7th Cir. Nov. 26, 2025), an opinion authored by Judge Sykes and joined by Judges Rovner and Kirsch. The case is doctrinally important not because of its grisly factual background, but because it resolves a long‑standing intra‑circuit conflict over the nature of the so‑called “saving clause” in 28 U.S.C. § 2255(e).

The court holds that § 2255(e) is a jurisdictional limitation on the ability of federal courts to entertain habeas corpus petitions under 28 U.S.C. § 2241 brought by federal prisoners attacking the validity of their convictions or sentences. In doing so, the court:

• Explicitly aligns the Seventh Circuit with the unanimous view of other circuits that § 2255(e) is jurisdictional; and
• Overrules its own contrary precedent, most notably Harris v. Warden, 425 F.3d 386 (7th Cir. 2005).

The practical consequence is that federal prisoners in the Seventh Circuit cannot evade the limits on successive § 2255 motions by:

• Reframing their claims under § 2241, and
• Arguing that the government has “waived” § 2255(e) by failing to invoke it.

If § 2255(e) is not satisfied, the district court lacks subject‑matter jurisdiction and must dismiss, regardless of the parties’ litigation choices. This decision cements the force of the Supreme Court’s reasoning in Jones v. Hendrix, 599 U.S. 465 (2023), within the Seventh Circuit and marks the end of a distinctive, more flexible Seventh Circuit approach that had briefly prevailed under Harris and, earlier, In re Davenport.

II. Factual and Procedural Background

A. Underlying Crimes and Convictions

1. The Missouri bank robbery and murder (1989–1994)

• In 1989, Shannon Agofsky and his brother robbed a rural bank in southwest Missouri.
• They kidnapped the bank president, Dan Short, at gunpoint, transported him across state lines into Oklahoma, and drowned him in a lake while bound to a chair with a concrete block and chain.
• A federal grand jury in the Western District of Missouri indicted Agofsky for:
  • Aggravated armed bank robbery resulting in death, 18 U.S.C. § 2113(a), (d), (e);
  • Use of a firearm during a “crime of violence,” 18 U.S.C. § 924(c)(1)(A); and
  • Conspiracy, 18 U.S.C. § 371.
• A jury convicted him on all counts and he was sentenced to life plus 60 months.
• The Eighth Circuit affirmed. See United States v. Agofsky, 20 F.3d 866 (8th Cir. 1994).

After his direct appeal, Agofsky filed a § 2255 motion in the Western District of Missouri, which was denied in 1997. He subsequently sought authorization from the Eighth Circuit for three separate second or successive § 2255 motions; all were denied.

2. The Texas prison murder and federal death sentence (2001–2008)

• In 2001, while serving his life sentence at a federal prison in Texas, Agofsky brutally murdered a fellow inmate.
• He was prosecuted in the Eastern District of Texas for capital murder under federal law.
• During the penalty phase, the jury found several aggravating factors, including his prior firearm conviction from the Missouri case under § 924(c).
• The district court imposed the death penalty. The Fifth Circuit affirmed in a pair of decisions. See:
  • United States v. Agofsky, 458 F.3d 369 (5th Cir. 2006);
  • United States v. Agofsky, 516 F.3d 280 (5th Cir. 2008).

B. The § 2241 Petition and the Borden Theory

In 2022, while confined at the federal death‑row facility in the Southern District of Indiana, Agofsky filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241. His ultimate goal was to undermine his Texas death sentence (then still in place) by attacking the validity of the Missouri judgment that had supplied one of the statutory aggravating factors.

The petition relied on the Supreme Court’s decision in Borden v. United States, 593 U.S. 420 (2021), a statutory interpretation decision concerning the Armed Career Criminal Act (ACCA) provision for “violent felonies” in 18 U.S.C. § 924(e). Borden held, in essence, that offenses committed with a reckless mens rea do not qualify as “violent felonies” under ACCA’s elements clause because they do not involve the “use of physical force” against another person in the way the statute requires.

Because § 924(e)’s “violent felony” definition is materially similar to § 924(c)’s definition of “crime of violence,” defense counsel argued that, after Borden, the Missouri bank robbery could no longer serve as a valid § 924(c) predicate “crime of violence.” If that were so, his § 924(c) conviction would be invalid, depriving the Texas jury of one aggravating factor used to justify the death penalty.

Critically, Borden is a statutory, not constitutional, decision. Therefore, it cannot satisfy § 2255(h)’s requirements for a second or successive § 2255 motion (which require either newly discovered evidence of factual innocence or a new rule of constitutional law made retroactive by the Supreme Court). Pre‑Jones, the Seventh Circuit’s decision in In re Davenport, 147 F.3d 605 (7th Cir. 1998), had allowed such statutory claims to proceed under § 2241 via § 2255(e)’s saving clause.

C. The Intervening Supreme Court Decision in Jones v. Hendrix

While Agofsky’s § 2241 petition was pending, the Supreme Court decided Jones v. Hendrix, 599 U.S. 465 (2023). Jones directly confronted and overruled the Seventh Circuit’s approach in Davenport (and similar decisions in other circuits), holding that § 2255(h) states the exclusive circumstances under which second or successive collateral attacks may be brought.

“Section 2255(h) specifies the two limited conditions in which Congress has permitted federal prisoners to bring second or successive collateral attacks on their sentences. The inability of a prisoner with a statutory claim to satisfy those conditions does not mean that he can bring his claim in a habeas petition under the saving clause. It means that he cannot bring it at all. Congress has chosen finality over error correction in his case.”
—Jones, 599 U.S. at 480 (emphasis added)

Jones also clarified that § 2255(e)’s saving clause applies only in “unusual circumstances” rendering it “impossible or impracticable” to seek relief from the sentencing court—e.g., when the sentencing court has been dissolved or similar structural problems exist.

In light of Jones, the Southern District of Indiana ordered Agofsky to show cause why his § 2241 petition should not be dismissed for lack of jurisdiction under § 2255(e).

D. The Eighth Amendment Argument and Presidential Commutation

Initially, on appeal, Agofsky argued that Jones should not apply in capital cases, asserting that the Eighth Amendment’s heightened reliability requirement for death sentences necessitated an exception to Jones.

However, on December 23, 2024 (shortly after oral argument), President Biden commuted his federal death sentence to life imprisonment. Attempts by Agofsky, acting pro se, to challenge the commutation were rejected. When the time to appeal that denial expired, his defense team formally withdrew the Eighth Amendment argument.

The appeal thus narrowed to a single, important procedural question:

Is § 2255(e)’s saving clause a jurisdictional limit (which cannot be waived) or merely a venue or claim‑processing rule (which can be waived or forfeited by the government)?

E. The Waiver Theory

With the Eighth Amendment theory gone, Agofsky advanced a fallback position:

• He characterized § 2255(e) as a non‑jurisdictional provision, akin to a venue rule;
• He claimed the government had waived its reliance on § 2255(e)’s bar in the district court; and
• He invoked the Seventh Circuit’s earlier decision in Harris v. Warden, which had stated that §§ 2241 and 2255 are remedial, not jurisdictional, statutes.

The government responded that:

• § 2255(e) is jurisdictional and cannot be waived; and
• In any event, the government had, in fact, preserved its § 2255(e) argument in the district court.

The Seventh Circuit resolved this clash by squarely deciding that § 2255(e) is jurisdictional, and that earlier precedent to the contrary must be overruled.

III. Summary of the Opinion

A. The Holding

The Seventh Circuit holds:

1. Section 2255(e)’s saving clause is a jurisdictional limitation on the federal courts’ authority to entertain § 2241 habeas petitions brought by federal prisoners challenging the validity of their convictions or sentences in circumstances where § 2255 is available or has already been used.
2. The statutory text—particularly the command that a habeas application “shall not be entertained” unless the saving clause is satisfied—operates as a direct restriction on courts, not on litigants, and thus speaks to adjudicatory power.
3. Earlier Seventh Circuit precedent to the contrary—most notably Harris v. Warden, 425 F.3d 386 (7th Cir. 2005)—is expressly overruled.
4. Because § 2255(e) is jurisdictional, it cannot be waived or forfeited, and courts must raise and apply it sua sponte when applicable.
5. Under Jones, § 2255(e)’s saving clause does not authorize a § 2241 petition like Agofsky’s, which seeks to raise a new statutory‑interpretation claim that fails to satisfy § 2255(h).
6. Therefore, the district court correctly dismissed the § 2241 petition for lack of jurisdiction.

B. Significance of the Procedural Resolution

The court does not reach the merits of:

• Whether bank robbery under 18 U.S.C. § 2113 qualifies as a “crime of violence” under § 924(c) after Borden; or
• Whether any defect in the Missouri § 924(c) conviction would affect the lawfulness of the Texas life sentence (post‑commutation).

Instead, the decision is a pure jurisdictional ruling: federal courts in the Seventh Circuit lack subject‑matter jurisdiction to entertain § 2241 petitions by federal prisoners seeking to evade the structure and limits of § 2255, unless the narrow, structural circumstances of the saving clause—as narrowed by Jones—are met.

IV. Analysis

A. The Statutory Framework and Historical Context

1. Habeas corpus under § 2241

28 U.S.C. § 2241 is the general habeas corpus statute. It authorizes federal courts to grant writs of habeas corpus “within their respective jurisdictions.” This traditionally means:

• Petitions are filed in the district where the prisoner is confined;
• The proper respondent is typically the warden or custodian; and
• Habeas challenges historically extended to the legality of custody, including both detention conditions and underlying criminal judgments.

In 1867, Congress expanded federal habeas to encompass collateral attacks on convictions and sentences, making habeas the principal vehicle for post‑conviction review for most of the nation’s history.

2. Section 2255: Channeling collateral review to the sentencing court

By 1948, Congress recognized serious administrative problems with post‑conviction review under § 2241:

• Prisoners could be held far from the sentencing court, where records and evidence were located;
• Habeas workloads were unevenly distributed, burdening districts with large prisons; and
• Collateral review was procedurally diffuse and difficult to manage.

To address these concerns, Congress enacted 28 U.S.C. § 2255, creating a specialized motion procedure in the sentencing court:

• Prisoners “may” file a motion in the sentencing court “to vacate, set aside or correct” a federal sentence;
• The sentencing court, with ready access to the trial record and familiarity with the case, reviews the challenge; and
• Review under § 2255 was intended to replace habeas corpus for attacks on federal convictions and sentences, not merely supplement it.

To make § 2255 the exclusive remedy for federal prisoners attacking their convictions or sentences, Congress added § 2255(e):

“An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.”
—28 U.S.C. § 2255(e) (emphasis added)

This provision both:

• Channeled federal prisoners to § 2255 as their exclusive route for post‑conviction review; and
• Preserved a narrow habeas “backstop” via the “saving clause” (sometimes called the “savings clause”) when § 2255 is “inadequate or ineffective” in a structural sense.

3. AEDPA and successive § 2255 motions

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) further tightened collateral review:

• It imposed strict limits on “second or successive” § 2255 motions.
• Under § 2255(h), a second or successive motion is allowed only if:
  • It relies on newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would clearly establish actual innocence; or
  • It relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.
• It coupled the substantive limits with a procedural gatekeeping requirement: a panel of the court of appeals must certify that one of those conditions is met before the motion can proceed. See § 2255(h); § 2244.

Together, § 2255(e) and (h) create a system in which:

• § 2255 is the exclusive vehicle for collateral attacks on federal convictions and sentences; and
• Prisoners are generally limited to one collateral attack, except in the two narrowly defined circumstances of § 2255(h).

4. The Seventh Circuit’s earlier opening: In re Davenport

In In re Davenport, 147 F.3d 605 (7th Cir. 1998), the Seventh Circuit held that § 2255 is “inadequate” within the meaning of the saving clause when:

• A new statutory interpretation decision (not constitutional) shows that the prisoner is legally innocent; and
• § 2255(h) would otherwise bar a successive motion.

This interpretation allowed prisoners to circumvent AEDPA’s strictures on second or successive motions by using § 2241 as a fallback for certain statutory‑interpretation claims. Over time, this had several effects:

• It made § 2241 a vehicle for claims that could not be brought in successive § 2255 motions;
• It eliminated the procedural constraints (one‑year statute of limitations, certificate of appealability, etc.) that apply to § 2255; and
• It reintroduced the administrative inefficiencies Congress had sought to avoid by consolidating review in the sentencing court.

It is this Davenport framework that the Supreme Court rejected in Jones, and that is the backdrop for Agofsky’s attempt to use § 2241.

B. Precedents Cited and Their Influence

1. Supreme Court decisions

• Jones v. Hendrix, 599 U.S. 465 (2023)
  • Central to the opinion; the Court:
    • Overruled Davenport and similar approaches that had allowed statutory‑interpretation claims through the saving clause;
    • Held that § 2255(h) states the exclusive conditions for second or successive collateral attacks;
    • Clarified that inability to satisfy § 2255(h) means a prisoner has no collateral remedy, not that habeas under § 2241 is available; and
    • Described the saving clause as covering “unusual circumstances” where it is impossible or impracticable to seek relief from the sentencing court, not where the prisoner simply fails AEDPA’s gatekeeping criteria.
  • Importantly for this case, the Supreme Court affirmed an Eighth Circuit judgment that had dismissed the § 2241 petition for lack of subject‑matter jurisdiction under § 2255(e), “consistent with the Eighth Circuit’s reasoning.”
• Borden v. United States, 593 U.S. 420 (2021)
  • Provided the substantive statutory‑interpretation hook for Agofsky’s challenge.
  • Held that offenses committed with a reckless mental state do not qualify as “violent felonies” under ACCA’s elements clause.
  • The opinion notes that § 924(e)’s “violent felony” definition is materially similar to § 924(c)’s “crime of violence,” providing a basis for the argument that the Missouri bank robbery conviction was not a valid § 924(c) predicate.
  • Nevertheless, because the Seventh Circuit disposes of the case on jurisdictional grounds, it does not reach the merits of the Borden-based argument.
• Rumsfeld v. Padilla, 542 U.S. 426 (2004)
  • Cited for the basic habeas venue/custodian rule: § 2241 petitions must generally be filed in the district of confinement and name the immediate custodian (usually the warden) as respondent.
  • Reinforces the structural orientation of § 2241 as a confinement‑based remedy, not primarily a sentencing‑court remedy.
• United States v. Hayman, 342 U.S. 205 (1952)
  • Provides historical background on why Congress enacted § 2255—primarily to address logistical and administrative problems with habeas review in districts of confinement.
  • Supports the court’s explanation that § 2255 was intended to channel post‑conviction review to the sentencing court and to displace § 2241 for challenges to federal convictions and sentences.
• Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022)
  • Provides the modern analytical framework for distinguishing between jurisdictional requirements and nonjurisdictional claim‑processing rules.
  • Key principles:
    • Jurisdictional requirements mark the bounds of a court’s authority and cannot be waived or equitably excused.
    • Nonjurisdictional rules regulate the orderly processing of claims but do not affect the court’s power.
    • A rule is treated as jurisdictional “only if Congress clearly states that it is,” using the traditional tools of statutory interpretation.
  • The Seventh Circuit applies this framework to § 2255(e) and concludes the statute “clearly” imposes a jurisdictional limit by instructing courts that certain habeas applications “shall not be entertained.”
• Miller‑El v. Cockrell, 537 U.S. 322 (2003)
  • Held that the certificate‑of‑appealability requirement in 28 U.S.C. § 2253(c)(1) is a jurisdictional prerequisite to appellate review in habeas and § 2255 cases.
  • The court analogizes § 2253(c)(1)’s language (“an appeal may not be taken”) to § 2255(e)’s (“shall not be entertained”) to support treating § 2255(e) as jurisdictional as well.

2. Seventh Circuit precedents

• In re Davenport, 147 F.3d 605 (7th Cir. 1998)
  • Previously allowed statutory‑interpretation claims via § 2241 when § 2255 was deemed “inadequate or ineffective.”
  • Opened a broad “saving clause” gateway that was later repudiated by Jones.
  • The current opinion acknowledges that Jones overruled Davenport, eliminating the doctrinal basis for using § 2241 to raise new statutory claims outside § 2255(h)’s conditions.
• Harris v. Warden, 425 F.3d 386 (7th Cir. 2005) (now overruled)
  • Held that §§ 2241 and 2255 “deal with remedies; neither one is a jurisdictional clause.”
  • Suggested that a § 2241 petition inconsistent with § 2255(e) might be barred “had the United States Attorney resisted,” implying the bar was waivable.
  • Grounded appellate jurisdiction on 28 U.S.C. § 1331 (federal question) and characterized § 2255(e) as nonjurisdictional.
  • Relied upon by Agofsky to argue that § 2255(e) is only a waivable claim‑processing or venue‑like rule.
  • The court now explicitly overrules Harris and “similar cases to the contrary.”
• Earlier cases treating § 2255(e) as jurisdictional
  • Domer v. Smith, 422 F.2d 831 (7th Cir. 1969) (per curiam)
  • Atehortua v. Kindt, 951 F.2d 126 (7th Cir. 1991)
  • Garza v. Lappin, 253 F.3d 918 (7th Cir. 2001)
  • Kramer v. Olson, 347 F.3d 214 (7th Cir. 2003) (per curiam)

  These decisions described § 2255(e) as a jurisdictional limitation and routinely affirmed jurisdictional dismissals of § 2241 petitions that did not satisfy the saving clause. The court notes that Harris never addressed or reconciled this jurisdictional line of authority.

• Post‑Harris cases reflecting doctrinal tension
  • Bourgeois v. Watson, 977 F.3d 620 (7th Cir. 2020) (acknowledging the nonjurisdictional treatment in Harris and noting the government had not asked to revisit it).
  • Beason v. Marske, 926 F.3d 932 (7th Cir. 2019) (accepting the government’s concession that §§ 2241 and 2255 are remedial, not jurisdictional).
  • Shepherd v. Krueger, 911 F.3d 861 (7th Cir. 2018) (bypassing § 2255(e) and other procedural issues to reach merits).
  • Prevatte v. Merlak, 865 F.3d 894 (7th Cir. 2017) (affirming dismissal of a § 2241 petition, but remanding to modify the judgment to reflect a merits dismissal rather than a jurisdictional one, citing Harris).
  • Hogsett v. Lillard, 72 F.4th 819 (7th Cir. 2023) (post‑Jones, characterizing the ruling as: “Jones holds that federal courts lack jurisdiction to consider habeas petitions filed by prisoners in Hogsett’s position.”).
  • Fields v. Gilley, 121 F.4th 598 (7th Cir. 2024) (same approach).
  • Horton v. Lovett, 72 F.4th 825 (7th Cir. 2023), and Sanders v. Joseph, 72 F.4th 822 (7th Cir. 2023) (implicitly treating § 2255(e) as a merits bar rather than jurisdictional, affirming denials on that basis).

  These post‑Harris cases show the intracircuit conflict that the present opinion is designed to resolve.

• Certification provisions treated as jurisdictional
  • Nunez v. United States, 96 F.3d 990 (7th Cir. 1996); Adams v. United States, 911 F.3d 397 (7th Cir. 2018); Blitch v. United States, 39 F.4th 827 (7th Cir. 2022)

  These cases held that:

  • The gatekeeping requirement for successive § 2255 motions in § 2255(h) is jurisdictional;
  • The courts of appeals lack authority to hear uncertified successive motions.

  This forms part of the analogical foundation for treating § 2255(e) as jurisdictional.

• Moore v. Olson, 368 F.3d 757 (7th Cir. 2004)
  • Interpreted § 2241(a)’s “within their respective jurisdictions” clause as a venue provision, not a limit on subject‑matter jurisdiction.
  • Held that transferring a prisoner to a different district did not destroy the original court’s jurisdiction over a pending § 2241 petition, as long as the custodian could waive venue.
  • Agofsky relied on Moore to argue by analogy that § 2255(e) is also a venue provision.
  • The court rejects this analogy as misplaced because:
    • Moore addressed § 2241(a), not § 2255(e); and
    • § 2255(e) contains materially different language, directed to whether a habeas application “shall … be entertained” at all.

3. Other circuits’ decisions

The opinion collects decisions from other circuits to demonstrate that every other circuit that has addressed the question treats § 2255(e) as jurisdictional. Examples include:

• Second Circuit: Dhinsa v. Krueger, 917 F.3d 70 (2d Cir. 2019);
• Third Circuit: Cordaro v. United States, 933 F.3d 232 (3d Cir. 2019); Voneida v. Johnson, 88 F.4th 233 (3d Cir. 2023);
• Fourth Circuit: United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018);
• Fifth Circuit (en banc): Hammoud v. Ma’at, 49 F.4th 874 (5th Cir. 2022);
• Sixth Circuit: Taylor v. Owens, 990 F.3d 493 (6th Cir. 2021);
• Eighth Circuit: Jones v. Hendrix, 8 F.4th 683 (8th Cir. 2021), aff’d, 599 U.S. 465 (2023);
• Ninth Circuit: Marrero v. Ives, 682 F.3d 1190 (9th Cir. 2012);
• Tenth Circuit: Abernathy v. Wandes, 713 F.3d 538 (10th Cir. 2013);
• Eleventh Circuit: Amodeo v. FCC Coleman‑Low Warden, 984 F.3d 992 (11th Cir. 2021).

The Third Circuit had even remarked that “only the Seventh Circuit” had adopted the contrary position that § 2255(e) is nonjurisdictional. Cordaro, 933 F.3d at 240 n.2. This isolation, combined with Jones and the Seventh Circuit’s own internal inconsistencies, led the court to conclude that Harris could no longer stand.

C. The Court’s Legal Reasoning

1. Why reconsider circuit precedent? The Glaser criteria

The court acknowledges that overruling circuit precedent is not done lightly, and references Glaser v. Wound Care Consultants, Inc., 570 F.3d 907 (7th Cir. 2009), which identifies circumstances justifying reconsideration. Here, three compelling reasons are identified:

1. Outlier status – The Seventh Circuit stood alone in treating § 2255(e) as nonjurisdictional.
2. Supreme Court signal – Jones affirmed a jurisdictional dismissal under § 2255(e) without questioning that characterization, strongly implying that Harris was incorrect.
3. Intracircuit inconsistency – Post‑Harris decisions oscillated between jurisdictional and nonjurisdictional treatments of § 2255(e), creating doctrinal confusion.

These factors together justified a “fresh look” at § 2255(e).

2. Applying the Boechler jurisdictional test to § 2255(e)

Under the Supreme Court’s current approach, a requirement is jurisdictional only if Congress “clearly states” that it is, evaluated through normal tools of statutory interpretation. The Seventh Circuit focuses on:

• The text of § 2255(e); and
• The context of related jurisdictional provisions in the same statutory scheme (AEDPA/§ 2255).

a. The operative words: “shall not be entertained”

The key textual phrase of § 2255(e) is:

“An application for a writ of habeas corpus … shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless … [saving clause].”

The court reasons as follows:

• The command is directed to the court (“shall not be entertained”), not to the litigants.
• To “entertain” a claim is to:
  • Accept it for adjudication,
  • Declare and apply the law to the facts, and
  • Issue a judgment.
• Consequently, a prohibition on “entertaining” certain petitions is a prohibition on exercising judicial power in those cases—i.e., a limit on jurisdiction.

As the Sixth Circuit had earlier put it in Taylor v. Owens, “Entertaining a legal claim … is exactly what it means to exercise jurisdiction.” The Seventh Circuit adopts that understanding.

b. Analogies to other jurisdictional provisions

The opinion bolsters its conclusion by comparing § 2255(e) with other, already‑recognized jurisdictional provisions:

• Section 2255(h) – This subsection prevents a district court from considering a second or successive § 2255 motion unless a court of appeals certifies that one of the statutory conditions is met.
  • Seventh Circuit precedent (Nunez, Adams, Blitch) holds that this gatekeeping mechanism is jurisdictional: no certification, no power to adjudicate.
• Section 2253(c)(1) – This requires a certificate of appealability (COA) for appeals in § 2255 and habeas cases, stating that “an appeal may not be taken” without such a certificate.
  • Miller‑El held that this is a jurisdictional requirement for appellate review.
  • The language (“may not be taken”) parallels the prohibition language in § 2255(e) (“shall not be entertained”).

The similarity of these provisions, coupled with their common role in regulating the availability and channeling of collateral review, makes it difficult to treat § 2255(e) as anything other than jurisdictional.

c. Distinguishing venue provisions like § 2241(a)

The court distinguishes § 2255(e) from § 2241(a)’s “within their respective jurisdictions” clause, which Moore had treated as a waivable venue rule. Key differences:

• § 2241(a) concerns geographical jurisdiction (where a petition may be brought);
• § 2255(e) concerns the availability of habeas at all for certain types of claims by certain prisoners;
• Most importantly, § 2255(e) instructs courts not to “entertain” specific categories of applications, directly targeting adjudicative authority rather than location.

Thus, Moore is not controlling for the § 2255(e) inquiry.

3. Disposition: No jurisdiction, no waiver, no merits

Given its conclusion that § 2255(e) is jurisdictional:

• The court holds that the government could not have waived § 2255(e), even if it had wished to do so.
• Although the opinion notes that the government preserved § 2255(e) in its district court response, this is essentially superfluous once the jurisdictional nature of the statute is confirmed.
• The district court’s dismissal “for lack of jurisdiction” is affirmed as the only correct disposition.

The court adds that § 2255(e), as interpreted in Jones, forecloses statutory‑interpretation claims like Agofsky’s when they fail to meet § 2255(h)’s conditions:

“The inability of a prisoner with a statutory claim to satisfy those conditions does not mean that he can bring his claim in a habeas petition under the saving clause. It means that he cannot bring it at all. Congress has chosen finality over error correction in his case.”
—Jones, 599 U.S. at 480

Therefore, whether or not bank robbery under § 2113 is a “crime of violence” after Borden, the federal courts lack jurisdiction to decide the question in this procedural posture.

D. Impact on Future Cases and the Law of Federal Collateral Review

1. For federal prisoners in the Seventh Circuit

The decision dramatically tightens the pathway for federal prisoners in the Seventh Circuit who seek collateral relief:

• No more reliance on waiver: Prisoners can no longer argue that § 2255(e)’s restriction has been waived or forfeited if the government fails to raise it. Courts must apply it sua sponte.
• No § 2241 workaround for statutory claims: After Jones and now reinforced by this decision, prisoners who:
  • Have already filed a § 2255 motion; and
  • Do not meet § 2255(h)’s strict requirements;

  cannot use § 2241 as a vehicle for raising new statutory‑interpretation arguments, even when those arguments might show that the underlying conduct is not criminal or the sentence is unlawful.

• Finality prioritized over error correction: Some prisoners will remain incarcerated under convictions or sentences that, if reconsidered under current law, might be deemed invalid—but Congress has decided that collateral review must end somewhere.

For many post‑conviction litigants, this opinion will function as the definitive barrier to further federal review of statutory claims that arise after their first § 2255 motion.

2. For district courts in the Seventh Circuit

District courts now have clear guidance:

• When a federal prisoner files a § 2241 petition attacking the validity of a conviction or sentence:
  • The court must examine whether the petition implicates § 2255(e);
  • If § 2255 could have been, or has been, used—and the saving clause, as narrowly construed in Jones, is not satisfied—the court lacks jurisdiction and must dismiss.
• Merits rulings in such cases are improper; jurisdictional dismissals are required.
• Procedural shortcuts that “bypass” the saving clause (as in Shepherd) are no longer permissible.

3. For circuit law and intracircuit consistency

This decision:

• Resolves the tension between cases like Hogsett/Fields (jurisdictional) and Horton/Sanders (nonjurisdictional treatment of Jones‑based dismissals);
• Aligns the Seventh Circuit’s doctrinal approach with all other circuits;
• Clarifies that any contrary statements in earlier Seventh Circuit decisions—primarily Harris, and any that followed its reasoning—are overruled.

The court also notes that, because the decision overrules circuit precedent and resolves a conflict, it was circulated to all active judges under Circuit Rule 40(e); no judge asked for rehearing en banc, confirming institutional consensus.

4. For the broader law of federal post‑conviction review

In a broader sense, Agofsky v. Baysore is a significant step in the steady trend toward:

• Rigorous enforcement of AEDPA’s restrictions on collateral review;
• Narrowing of judicially‑created exceptions (such as Davenport’s version of the saving clause);
• Conceptual clarity in distinguishing between jurisdictional and nonjurisdictional rules in federal post‑conviction practice.

It reinforces the Supreme Court’s message in Jones: where Congress has carefully spelled out limited circumstances for successive collateral attacks, courts are not free to create additional avenues under the guise of interpreting “inadequate or ineffective” in § 2255(e).

V. Complex Concepts Simplified

A. What is the § 2255(e) “saving clause”?

The “saving clause” (also called the “savings clause”) is the part of § 2255(e) that allows a federal prisoner to use a habeas petition under § 2241 in rare situations:

“… unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.”

Originally, some courts (including the Seventh Circuit under Davenport) interpreted “inadequate or ineffective” broadly to allow:

• Statutory‑interpretation claims that could not satisfy § 2255(h).

After Jones and this decision, “inadequate or ineffective” is understood in a much narrower, structural sense, for example:

• The sentencing court no longer exists or has been reorganized;
• The prisoner cannot, in a practical or legal sense, appear before the sentencing court;
• Other unique impediments exist to accessing the § 2255 mechanism at all, not just to prevailing under its rules.

Inability to satisfy AEDPA’s rules (statute of limitations, successive‑motion limits) is not enough.

B. Jurisdictional rules vs. claim‑processing rules

A jurisdictional rule:

• Defines the scope of a court’s power;
• Cannot be waived or forfeited by the parties;
• Must be raised by the court on its own if overlooked;
• Does not allow equitable exceptions (e.g., no tolling, no “interests of justice” overrides);
• If violated, requires dismissal.

A claim‑processing rule:

• Regulates how and when claims must be presented (e.g., filing deadlines, venue, exhaustion requirements);
• Often can be waived or forfeited by parties who do not timely raise it;
• Does not strip the court of power but may require certain steps or may bar relief in particular cases.

The debate in Agofsky was whether § 2255(e):

• Limits the court’s very ability to act (jurisdictional); or
• Is a procedural rule the government could waive (nonjurisdictional).

The court concludes it is jurisdictional because Congress told courts that such habeas petitions “shall not be entertained.”

C. “Second or successive” § 2255 motions

A “second or successive” § 2255 motion is a later collateral attack filed after a prisoner’s first § 2255 motion has been:

• Adjudicated on the merits; or
• Dismissed with prejudice.

Under AEDPA:

• A prisoner must secure “certification” from a court of appeals panel;
• The panel must find that the motion rests on:
  • New, decisive evidence that strongly establishes actual innocence; or
  • A new rule of constitutional law, made retroactive by the Supreme Court;
• Absent certification, the district court lacks jurisdiction to consider the motion.

Because Borden is a statutory decision, not a new constitutional rule, and Agofsky was not asserting newly discovered evidence of actual innocence, he could not meet § 2255(h). He thus tried to use § 2241 instead—but under Jones and this decision, that route is foreclosed.

D. Statutory vs. constitutional claims in collateral review

A statutory claim asserts that:

• The conviction or sentence violates federal statutes (e.g., the conduct does not satisfy a statutory element); or
• A later judicial interpretation of a statute shows the conviction was legally erroneous.

A constitutional claim asserts that:

• The conviction or sentence violates the U.S. Constitution (e.g., due process, effective assistance of counsel, cruel and unusual punishment).

On collateral review, Congress treats these differently:

• New constitutional rules (made retroactive) can open the door to successive collateral review;
• New statutory rules usually cannot, unless they happen to fit within the narrow saving‑clause exceptions (structural impracticability of § 2255), which is rare.

Agofsky’s claim is statutory (based on Borden); thus, under the current legal framework, he cannot bring it in a successive § 2255 motion or via § 2241.

VI. Conclusion: Key Takeaways and Broader Significance

Shannon Wayne Agofsky v. Baysore is a pivotal decision in the law of federal post‑conviction review in the Seventh Circuit. Although it comes in the context of a notorious and complex criminal history, its core importance lies in a doctrinal clarification: § 2255(e)’s saving clause imposes a jurisdictional limitation on the use of § 2241 by federal prisoners challenging their convictions or sentences.

The holding can be summarized as follows:

• Section 2255 is the exclusive vehicle for federal prisoners to collaterally attack their convictions or sentences, subject to AEDPA’s limits on successive motions.
• The saving clause in § 2255(e) preserves § 2241 habeas only for narrow, structural situations where it is impossible or impracticable to use § 2255—not simply when AEDPA’s substantive rules are unfavorable.
• The language that a habeas application “shall not be entertained” unless the saving clause is met is a direct command to courts and therefore a jurisdictional bar.
• As a jurisdictional rule, § 2255(e) cannot be waived or forfeited; courts must apply it even if the government does not raise it.
• Prior Seventh Circuit precedent treating § 2255(e) as nonjurisdictional, particularly Harris v. Warden, is overruled.
• In light of Jones v. Hendrix, prisoners who cannot meet § 2255(h)’s strict standards for successive motions cannot use § 2241 to relitigate or newly raise statutory challenges such as those based on Borden.

Practically, this decision reinforces Congress’s choice to prioritize finality in federal criminal judgments over unlimited error correction on collateral review. Doctrinally, it brings the Seventh Circuit into harmony with the unanimous view of the other circuits and the Supreme Court’s implicit endorsement in Jones.

For practitioners, the lesson is stark: all challenges to a federal conviction or sentence that can be brought under § 2255 must be raised there, and raised timely. Subsequent statutory developments, standing alone, will rarely, if ever, justify renewed collateral attacks via § 2241. And courts will treat any attempt to circumvent these constraints as an issue of subject‑matter jurisdiction, not waivable procedure.