Shannon Wayne Agofsky v. DEANNA BAYSORE, Warden,∗

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 24-1067
S HANNON WAYNE A GOFSKY ,
Petitioner-Appellant,
v.
DEANNA BAYSORE, Warden,∗
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:22-cv-00049-JRS-MKK — James R. Sweeney II, Judge.
____________________
A RGUED DECEMBER 11, 2024 — DECIDED NOVEMBER 26, 2025
____________________
Before R OVNER , S YKES , and K IRSCH , Circuit Judges.
S YKES , Circuit Judge. In 1989 Shannon Agofsky robbed a
bank in southwest Missouri, kidnapped the bank president at
∗ Petitioner Shannon Agofsky was transferred to a different prison while
this appeal has been pending. We have substituted Warden Deanna
Baysore, his current custodian, as the respondent. See F ED . R. A PP. P. 23(a),
43(c). The transfer does not affect the court’s jurisdiction. In re Hall,
988 F.3d 376, 378 (7th Cir. 2021).

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2 No. 24-1067
gunpoint, and drowned him in a lake across the border in
Oklahoma. A federal jury in the Western District of Missouri
convicted him of bank robbery and using a firearm during a
crime of violence; he was sentenced to life in prison. The
Eighth Circuit affirmed, and Agofsky’s several motions for
collateral relief under 28 U.S.C. § 2255 failed.
In 2001, while serving his sentence in a Texas federal
prison, Agofsky killed a fellow inmate. He was convicted in
the Eastern District of Texas of capital murder. The jury found
that several aggravating factors supported the death penalty,
including Agofsky’s firearm conviction in the Missouri case.
The judge imposed a death sentence.
Fast forward to the present: In 2022 Agofsky petitioned for
habeas corpus under 28 U.S.C. § 2241 in the Southern District
of Indiana, where he was confined. Citing Borden v. United
States, 593 U.S. 420 (2021), he challenged his firearm convic-
tion in the decades-old Missouri case, arguing that bank rob-
bery does not qualify as a “crime of violence” under 18 U.S.C.
§ 924(c). Knocking out that conviction was part of his effort to
overturn his sentence in the Texas capital case.
A threshold question, however, concerns jurisdiction. A
§ 2255 motion in the sentencing court is the exclusive method
for federal prisoners to collaterally challenge their sentences.
Only one motion is permitted, with limited exceptions for
claims based on new evidence of actual innocence or a new,
retroactive constitutional rule from the Supreme Court.
28 U.S.C. § 2255(h). To reinforce this finality principle,
§ 2255(e) prohibits courts from entertaining § 2241 habeas ap-
plications from prisoners who have failed to apply for or have
been denied relief under § 2255 “unless it also appears that
the remedy by motion is inadequate or ineffective to test the

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No. 24-1067 3
legality of his detention.” Id. § 2255(e). The “unless” language
is known as the “saving clause.”
We held long ago that § 2255 is “inadequate”—and thus
the saving clause is satisfied—for statutory claims barred by
§ 2255(h)’s limits on successive motions. In re Davenport,
147 F.3d 605, 610–12 (7th Cir. 1998). That decision provided a
gateway to § 2241 for Agofsky’s Borden claim. But the
Supreme Court overruled Davenport in Jones v. Hendrix,
599 U.S. 465, 477–78 (2023), ending his habeas quest. The
Indiana district judge dismissed the § 2241 petition for lack of
jurisdiction.
Agofsky initially urged us to adopt an exception to Jones
for capital cases. He dropped that argument after President
Biden commuted his death sentence to life in prison. His
fallback position is that § 2255(e) is merely a venue provision
and that the government waived it. The government replies
that § 2255(e) is jurisdictional and cannot be waived.
Our caselaw is inconsistent on whether § 2255(e)
addresses jurisdiction, but other circuits have uniformly held
that the statute sets a jurisdictional limit. We now join that
consensus and hold that § 2255(e) limits the court’s
jurisdiction. We affirm the jurisdictional dismissal of the
§ 2241 petition.
I. Background
A. Habeas and § 2255
We begin with an overview of the remedies available to
federal prisoners to challenge the legality of their
confinement—starting with the writ of habeas corpus. The
federal courts are authorized to grant writs of habeas corpus
“within their respective jurisdictions.” 28 U.S.C. § 2241(a).

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4 No. 24-1067
Habeas applications must be filed in the judicial district
where the prisoner is confined and directed to the person with
custody of the prisoner—typically the prison’s warden.
Rumsfeld v. Padilla, 542 U.S. 426, 434–36 (2004).
In 1867 Congress expanded the scope of habeas corpus to
permit prisoners to use the writ to collaterally challenge their
convictions and sentences. Jones, 599 U.S. at 472–73; see United
States v. Hayman, 342 U.S. 205, 211–12 (1952). Accordingly,
“[f]or most of our Nation’s history,” the habeas writ served as
the remedial vehicle for collateral review of criminal judg-
ments. Jones, 599 U.S. at 473.
Over time, however, the use of habeas proceedings for
postconviction review created serious administrative prob-
lems. Id. at 474. Federal prisoners often serve their sentences
far away from their sentencing districts and thus “far re-
moved from the records of the sentencing court and other
sources of needed evidence.” Id. And prisoners are not evenly
distributed between judicial districts, leading to dispropor-
tionate habeas workloads for some courts. Id.
Congress responded in 1948 by adopting § 2255, a remedy
specifically designed for collateral attacks on federal criminal
judgments. Id. The statute provides that prisoners may seek
postconviction review by filing a motion in the sentencing
court “to vacate, set aside or correct the sentence.” 28 U.S.C.
§ 2255(a). Importantly, however, Congress channeled all fed-
eral postconviction review into the § 2255 remedy by prohib-
iting courts from entertaining § 2241 habeas applications as
an alternative. Relevant here, the statute provides:
An application for a writ of habeas corpus in be-
half of a prisoner who is authorized to apply for

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No. 24-1067 5
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.
§ 2255(e) (emphases added). This language makes § 2255 the
exclusive postconviction remedy for federal prisoners. The
“unless” clause—commonly referred to as the “saving
clause”—retains habeas as a backstop, but it applies only in
very narrow circumstances. Jones, 599 U.S. at 474–75, 482–86.
In the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Congress enacted additional restrictions on
federal postconviction review by strictly limiting successive
§ 2255 motions. As amended by AEDPA, the statute provides
that a “second or successive” motion is permitted only if the
claim is based on newly discovered and decisive evidence of
factual innocence or a new and retroactive constitutional rule
from the Supreme Court. § 2255(h). AEDPA reinforced these
restrictions through a precertification requirement: a succes-
sive motion may not proceed unless a panel of circuit judges
certifies that one of the preconditions is met. Id.; see id. § 2244.
Together, subsections (e) and (h) reinforce the exclusivity of
the § 2255 motion and generally restrict federal prisoners to
one such motion.
In 1998 our circuit recognized an exception to these limi-
tations. We held in Davenport that § 2255 is “inadequate” for
purposes of the saving clause for claims based on new statu-
tory decisions if leaving the error uncorrected would work a
miscarriage of justice. 147 F.3d at 610–12; see Chazen v. Marske,

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6 No. 24-1067
938 F.3d 851, 856 (7th Cir. 2019) (synthesizing the Davenport
requirements). Davenport thus opened the door to § 2241 ha-
beas review for nonconstitutional claims, with the anomalous
effect of removing the procedural limits on § 2255 motions—
the one-year limitations period, the certification requirement
for successive motions, and the requirement of a certificate of
appealability—for claims based on new statutory-interpreta-
tion decisions. Jones, 599 U.S. at 479. Davenport also reintro-
duced the administrative problems Congress sought to
address when it consolidated postconviction review in the
sentencing court under § 2255. Id.
In June 2023 the Supreme Court overruled Davenport and
similar decisions in other circuits. Id. at 477. As the Court ex-
plained, “[i]n § 2255(h), Congress enumerated two—and only
two—conditions in which a second or successive § 2255 mo-
tion may proceed,” and the straightforward inference of the
enumeration “is that a second or successive collateral attack
on a federal sentence is not authorized unless one of those two
conditions is satisfied.” Id. at 477–78. The saving clause, the
Court explained, applies only in “unusual circumstances in
which it is impossible or impracticable for a prisoner to seek
relief from the sentencing court”—for example, when the
court has been dissolved or the prisoner is incapable of being
present where he was tried and sentenced. Id. at 474.
In all other cases, the Court held, the enumerated limits
strictly apply:
Section 2255(h) specifies the two limited condi-
tions in which Congress has permitted federal
prisoners to bring second or successive collat-
eral attacks on their sentences. The inability of a
prisoner with a statutory claim to satisfy those

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No. 24-1067 7
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.
Id. at 480 (emphasis added).
B. Agofsky’s Case
With the legal background in place, we turn to the specif-
ics of Agofsky’s case. The history is long and complex; we will
simplify where appropriate.
In October 1989 Agofsky and his brother robbed a bank in
in rural southwest Missouri and kidnapped Dan Short, the
bank’s president, at gunpoint. United States v. Agofsky, 20 F.3d
866, 868–69 (8th Cir. 1994). Five days after the robbery, Short’s
body was found in a lake across the state line in Oklahoma.
The victim was duct-taped to a chair with a concrete block
and metal chain secured to his ankle. Id.
A 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, id. § 924(c)(1)(A); and conspiracy, id. § 371.
Agofsky, 20 F.3d at 868. A jury found him guilty on all charges,
and the district judge imposed a sentence of life plus
60 months in prison. Id.
The Eighth Circuit affirmed. Id. at 874. Agofsky then filed
a collateral challenge in the sentencing court under § 2255, but
the judge denied relief in 1997. Agofsky tried three times to
obtain authorization from the Eighth Circuit to file a second
or successive § 2255 motion, but the court denied each re-
quest.

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8 No. 24-1067
In 2001, while serving his life sentence in a Texas prison,
Agofsky brutally attacked and killed a fellow inmate. He was
charged in the Eastern District of Texas with capital murder.
United States v. Agofsky, 516 F.3d 280, 283 (5th Cir. 2008);
United States v. Agofsky, 458 F.3d 369, 371 (5th Cir. 2006). A
jury found him guilty, and during the penalty phase of the
trial, found that four aggravating factors supported the death
penalty, including Agofsky’s firearm conviction in the Mis-
souri case. The Texas district judge accepted the jury’s find-
ings and imposed a death sentence.
That brings us to the present case, filed more than three
decades after the bank robbery and drowning of Dan Short
and more than two decades after Agofsky murdered the
inmate in the Texas federal prison. It’s a challenge to the
Missouri judgment, but the defense team’s ultimate goal in
filing it was to reopen the Texas federal death sentence.
In 2022 Agofsky’s lawyers filed a petition for habeas
corpus under § 2241 in the Southern District of Indiana, where
he was then confined in the death-row facility. Relying on the
Supreme Court’s 2021 decision in Borden, the petition sought
to invalidate his § 924(c) firearm conviction in the Missouri
case, arguing that bank robbery is not a “crime of violence”
under the statute. Borden addressed the term “violent felony”
in § 924(e), which is materially identical to the term “crime of
violence” in § 924(c).
Because Borden is a statutory decision—not a new
constitutional rule—and Agofsky wasn’t relying on new
evidence of actual innocence, his new claim satisfied neither
of § 2255(h)’s conditions for a successive postconviction
motion. But our decision in Davenport gave him a path to raise
his claim in a § 2241 habeas petition. While his petition was

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No. 24-1067 9
pending, however, the Supreme Court shut the door we had
opened in Davenport, abrogating our decision and similar
ones in other circuits. Jones, 599 U.S. at 477.
After Jones was issued, the Indiana district judge ordered
Agofsky to show cause why the § 2241 petition should not be
dismissed for lack of jurisdiction. Agofsky responded that
Jones should not apply in capital cases because the Eighth
Amendment imposes a heightened requirement of reliability
for death sentences. The judge rejected this argument and dis-
missed the petition for lack of jurisdiction.
II. Discussion
On appeal Agofsky initially reprised his argument that the
Eighth Amendment requires an exception to Jones for capital
cases, but that claim has dropped out of the case. On
December 23, 2024, shortly after we heard oral argument,
President Biden commuted Agofsky’s death sentence to life
in prison. Agofsky tried to challenge the commutation in
several pro se filings, but the judge rejected that effort. Once
the time to appeal expired, Agofsky’s defense team formally
withdrew the Eighth Amendment argument.
What’s left is a backup argument about waiver: Agofsky
maintains that the government waived reliance on § 2255(e)’s
bar to habeas.1 He argues that the statute is merely a venue
provision—not a jurisdictional limit—and thus can be waived
if not properly asserted; he insists that the government
waived it here. The government responds that § 2255(e) is a
1 Agofsky belatedly raised this fallback argument, after briefing had con-
cluded but before oral argument. We permitted supplemental briefs on the
jurisdictional status of § 2255(e).

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10 No. 24-1067
limit on the court’s jurisdiction and cannot be waived, and in
any event, there was no waiver.2
Agofsky’s argument finds support in Harris v. Warden,
425 F.3d 386 (7th Cir. 2005), though his reasoning does not
precisely map onto ours in that case. We did not characterize
§ 2255(e) as a venue provision; we did, however, say that the
statute does not limit the court’s jurisdiction. Harris, 425 F.3d
at 387–88.
Harris involved a federal prisoner who had pursued his
one allotted § 2255 motion without success in the District of
Columbia, where he was sentenced, and later petitioned for
habeas relief under § 2241 in the Southern District of Illinois,
where he was then confined. Id. The district court denied
relief, and on appeal we observed that the petition might be
inconsistent with § 2255(e) but that the infirmity did not affect
jurisdiction. In a brief analysis, we explained that
“[s]ections 2241 and 2255 deal with remedies; neither one is a
jurisdictional clause.” Id. at 388. We noted that the petitioner’s
claim might have been barred by § 2255(e) “had the United
States Attorney resisted,” but the government had not raised
the statutory bar in the district court. Id. So we did not
independently address it, stating that § 2255(e) “does not
diminish the district court’s subject-matter jurisdiction, which
rests on 28 U.S.C. § 1331 because the claim arises under
federal law.” Id. We also said that § 2241 is “unaffected” by
AEDPA, so “the special rules for second and successive
2 Though it’s not necessary to our resolution of this appeal, we note for
completeness that there was no waiver. In its response to Agofsky’s § 2241
petition, the government explicitly preserved its argument that § 2255(e)
barred the district court from hearing the petition and that Davenport (and
similar cases in other circuits) were incorrectly decided.

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No. 24-1067 11
collateral attacks under § 2254 and § 2255 do not change the
jurisdictional footing of a proceeding under § 2241.” Id. In the
end we affirmed the denial of § 2241 relief based on an
unrelated procedural flaw. Id. at 389.
Despite our seemingly straightforward holding in Harris,
our caselaw on the jurisdictional status of § 2255(e)—both
before and after that decision—has been marked by
inconsistency. Prior to Harris we had described § 2255(e) as a
jurisdictional provision and routinely affirmed jurisdictional
dismissals of § 2241 petitions that did not satisfy the saving
clause. See, e.g., Kramer v. Olson, 347 F.3d 214, 217, 219 (7th Cir.
2003) (per curiam); Garza v. Lappin, 253 F.3d 918, 921 (7th Cir.
2001) (“Determining whether the district court had
jurisdiction to consider Garza’s petition requires us to
examine the interaction between 28 U.S.C. § 2255 and
28 U.S.C. § 2241.”); Atehortua v. Kindt, 951 F.2d 126, 129 (7th
Cir. 1991) (“Atehortua has failed to demonstrate that a § 2255
motion is inadequate to test the legality of his detention … .
The trial court lacked jurisdiction to hear a claim under
§ 2241.”); Domer v. Smith, 422 F.2d 831, 832 (7th Cir. 1969) (per
curiam) (“[A] § 2255 proceeding would not be ineffective and
the court below was correct in holding that … it did not have
jurisdiction.”). Harris did not address this line of cases.
On the other hand, we have applied Harris and bypassed
opportunities to reconsider it—at least when the government
hasn’t asked us to do so. See, e.g., Bourgeois v. Watson, 977 F.3d
620, 629 & n.4 (7th Cir. 2020) (“The government has not asked
us to reconsider our conclusion that § 2255(e) is non-jurisdic-
tional.”); Beason v. Marske, 926 F.3d 932, 935 (7th Cir. 2019) (ac-
cepting the government’s concession that §§ 2241 and 2255
address remedies, not jurisdiction); Shepherd v. Krueger,

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12 No. 24-1067
911 F.3d 861, 863 (7th Cir. 2018) (electing to “bypass … proce-
dural hurdles,” like § 2255(e), to resolve a § 2241 petition on
the merits); Prevatte v. Merlak, 865 F.3d 894, 900–01 (7th Cir.
2017) (affirming the dismissal of a prisoner’s § 2241 petition
but citing Harris and remanding for entry of a modified judg-
ment reflecting a merits rather than a jurisdictional dismissal).
Since the Supreme Court’s decision in Jones, however, a
pronounced intracircuit conflict has emerged: our decisions
applying Jones reflect both jurisdictional and nonjurisdictional
dispositions. Compare Hogsett v. Lillard, 72 F.4th 819, 822 (7th
Cir. 2023) (“Jones holds that federal courts lack jurisdiction to
consider habeas petitions filed by prisoners in Hogsett’s posi-
tion.”), and Fields v. Gilley, 121 F.4th 598, 604 (7th Cir. 2024)
(same, citing Hogsett), with Horton v. Lovett, 72 F.4th 825, 827
(7th Cir. 2023) (affirming the denial of a § 2241 petition based
on Jones, implicitly treating § 2255(e) as a merits issue, not a
jurisdictional bar), and Sanders v. Joseph, 72 F.4th 822, 825 (7th
Cir. 2023) (same).
In contrast to the confusion in our circuit, other appellate
courts are notably consistent on this issue. Every circuit that
has addressed the jurisdictional status of § 2255(e)—both
before and after Jones—has disagreed with Harris and held
that the statute sets a jurisdictional limit. See Dhinsa v. Krueger,
917 F.3d 70, 81 (2d Cir. 2019); Voneida v. Johnson, 88 F.4th 233,
236 n.1, 239 (3d Cir. 2023); Cordaro v. United States, 933 F.3d
232, 240 n.2 (3d Cir. 2019) (“Only the Seventh Circuit Court of
Appeals has held that § 2255(e) is not jurisdictional … .”);
United States v. Wheeler, 886 F.3d 415, 425–26 (4th Cir. 2018);
see also Hammoud v. Ma’at, 49 F.4th 874, 878, 883 (5th Cir. 2022)
(en banc) (affirming a jurisdictional dismissal of a § 2241
petition that did not satisfy § 2255(e)’s saving clause); Taylor

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No. 24-1067 13
v. Owens, 990 F.3d 493, 497–99 (6th Cir. 2021); Jones v. Hendrix,
8 F.4th 683, 686 (8th Cir. 2021), aff’d, 599 U.S. 465 (2023);
Marrero v. Ives, 682 F.3d 1190, 1194–95 (9th Cir. 2012);
Abernathy v. Wandes, 713 F.3d 538, 557–58 (10th Cir. 2013);
Amodeo v. FCC Coleman-Low Warden, 984 F.3d 992, 996–97
(11th Cir. 2021).
And Jones itself has undermined Harris—not explicitly, but
by necessary implication. The Supreme Court granted
certiorari in Jones to review a judgment of the Eighth Circuit
affirming a jurisdictional dismissal of a prisoner’s § 2241
petition based on § 2255(e). Jones, 599 U.S. at 471 (“The District
Court dismissed Jones’ habeas petition for lack of subject-
matter jurisdiction, and the Eighth Circuit affirmed.”); see
Jones v. Hendrix, 8 F.4th 683, 686 (8th Cir. 2021) (explaining
that if the prisoner fails to show that the saving clause applies,
“a court must dismiss his habeas petition for lack of subject-
matter jurisdiction”). The Court affirmed the judgment
“[c]onsistent with the Eighth Circuit’s reasoning.” Jones,
599 U.S. at 471.
It’s true that Jones did not expressly consider the
jurisdictional status of § 2255(e), but the Court’s mandate—
affirming the judgment dismissing the prisoner’s § 2241
petition on jurisdictional grounds—casts significant doubt on
the continued vitality of Harris. At the very least, it suggests
that our caselaw on this issue warrants reconsideration.
In sum, although it takes a compelling reason to recon-
sider circuit precedent, here we have three: (1) Harris is the
minority position, indeed the lone outlier; (2) the Supreme
Court has signaled that our decision is likely incorrect; and
(3) our own caselaw has been persistently inconsistent on the
jurisdictional status of § 2255(e). See Glaser v. Wound Care

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14 No. 24-1067
Consultants, Inc., 570 F.3d 907, 915 (7th Cir. 2009) (identifying
these three circumstances as compelling reasons to overrule
circuit precedent). Taking a fresh look at the matter, we now
align with the appellate consensus.
“Jurisdictional requirements mark the bounds of a court’s
adjudicatory authority,” but “not all procedural requirements
fit that bill.” Boechler, P.C. v. Comm’r, 596 U.S. 199, 203 (2022)
(quotation marks omitted). Many procedural requirements
are simply claim-processing rules that instruct the litigants to
“take certain procedural steps at certain specified times with-
out conditioning a court’s authority to hear the case on com-
pliance with those steps.” Id. (quotation marks omitted).
“These nonjurisdictional rules promote the orderly progress
of litigation but do not bear on a court’s power.” Id. (quotation
marks omitted).
Jurisdictional requirements, on the other hand, define and
limit the court’s power, so they “cannot be waived or
forfeited, must be raised by courts sua sponte, and … do not
allow for equitable exceptions.” Id. Mindful of these serious
consequences, the Supreme Court “treat[s] a procedural
requirement as jurisdictional only if Congress clearly states
that it is.” Id. (quotation marks omitted). The clear-statement
rule as applied in this context doesn’t require that Congress
specifically use the word “jurisdiction” or otherwise “incant
magic words” to promulgate a jurisdictional requirement. Id.
Rather, the Court has instructed us to apply the traditional
tools of statutory interpretation to determine if Congress has
“imbued a procedural bar with jurisdictional consequences.”
Id. (quotation marks omitted).
Using those tools, we agree with our sister circuits that
§ 2255(e) establishes a limit on the court’s jurisdiction. As the

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No. 24-1067 15
Sixth Circuit aptly explained: “The key is the statutory text,”
and the text of § 2255(e) is a directive to the courts, not the
parties. Taylor, 990 F.3d at 497. To repeat, § 2255(e) says that
“[a]n application for a writ of habeas corpus … shall not be
entertained” if the applicant has failed to apply for or has been
denied relief under § 2255. (Emphasis added.) The statutory
command is to the court, not the litigants: it tells the court
what to do—or more accurately, what not to do. Id.
The statute bars the court from “entertaining” a habeas
application as a substitute for a § 2255 motion, with an
exceedingly narrow carveout for proper saving-clause cases.
“Entertaining a legal claim—declaring the law, applying the
law to the facts, and issuing a judgment—is exactly what it
means to exercise jurisdiction.” Id. By prohibiting the courts
from “entertaining” habeas applications except in qualifying
saving-clause cases, Congress established a limit on the
court’s subject-matter jurisdiction.
Other parts of the statutory scheme reinforce this
interpretation. We’ve held that § 2255(h)’s certification
requirement for successive § 2255 motions is a jurisdictional
limit. Blitch v. United States, 39 F.4th 827, 832 (7th Cir. 2022);
Adams v. United States, 911 F.3d 397, 403 (7th Cir. 2018); Nunez
v. United States, 96 F.3d 990, 991 (7th Cir. 1996). In similar
fashion, appeals from final orders in § 2255 and habeas cases
require certification from the court of appeals, 28 U.S.C.
§ 2253(c)(1), and the Supreme Court has held that this
requirement is a jurisdictional limit, Miller-El v. Cockrell,
537 U.S. 322, 335–36 (2003).
Just like § 2255(e), neither of these certification provisions
uses the term “jurisdiction,” but they are understood as
jurisdictional because the language addresses the court’s

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16 No. 24-1067
adjudicative authority. We particularly note that the text of
§ 2253(c)(1), which states that “an appeal may not be taken”
without precertification, closely tracks the language of
§ 2255(e), which states that “[a]n application for a writ of
habeas corpus … shall not be entertained.” It’s hard to
reconcile treating the former as jurisdictional and the latter as
nonjurisdictional.
Agofsky resists this conclusion, citing Moore v. Olson,
368 F.3d 757 (7th Cir. 2004), but that case doesn’t help him.
Moore addressed § 2241(a)—specifically, whether a prisoner’s
transfer to a prison in another district during the pendency of
his § 2241 petition extinguishes the court’s jurisdiction over
the petition. We answered that question “no,” reasoning that
although § 2241(a) authorizes courts to grant habeas writs
“within their respective jurisdictions,” the clause is better un-
derstood as a venue provision that can be waived by the pris-
oner’s custodian. Id. at 758–60. Importantly here, Moore did
not address the interplay between § 2255(e) and § 2241; in-
deed, it did not mention § 2255 at all.
In sum, the statutory text and context support the unani-
mous view of our sister circuits that § 2255(e) addresses the
court’s adjudicative power, not venue or some other filing re-
quirement that the litigants may waive or forfeit. Congress
has issued a clear command that operates on the court’s com-
petence: the court shall not “entertain”—i.e., adjudicate—a
habeas application if the prisoner has failed to apply for or
has been denied relief under § 2255. We therefore join the ap-
pellate consensus in holding that § 2255(e) limits the court’s

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No. 24-1067 17
jurisdiction. Harris and similar cases to the contrary are over-
ruled.3
The district court properly dismissed Agofsky’s § 2241
petition for lack of jurisdiction.
A FFIRMED
3 Because this opinion resolves a conflict in circuit caselaw and overrules
circuit precedent, we circulated it to all judges in active service under
Circuit Rule 40(e). No judge requested to hear this case en banc. Circuit
Judge Rebecca Taibleson did not participate in the consideration of this
matter.

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