F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M I C H A E L A L L E

N , Petitioner-Appellant
,

v.

R I C H A R D I V E S , R espondent-Appellee

. No. 18-35001

D.C. No. 3:17-cv-00044-HZ

ORDER

F iled September 22, 2020

B efore: W illiam A. F letcher, Consuelo M. Callahan, and Morg an Christen, Circuit J udg es.

Order; Concurrence by

J udg e W

. F letcher; Dissent by

J udg e R. NelsonA L L E N V

. I V E S 2

SUMMARY *

Habeas Corpus

T he panel denied a petition for r e h earing en b anc a n d denied on behalf of the court a petition f or rehearing en banc.

Concurring in the d enial of rehearing en banc, J udg e W. F letcher, joined b y J udg e Christen, wrote to respond to the dissent from rehearing

en banc a nd to ex plain why

the panel majority r eached the correct d ecision in this habeas case in which the only question was w hether Allen was making a claim o f actual innocence. J udg e W

. F letcher ex plained that Al l e n’s claim of being “actually innocent” of his mandatory sentencing enhancement due to a retroactiv e c h ang e in law
meets the definition of “actual innocence” under Bousley ; a nd rather than d eepening the ex isting circuit split, instead alig ns the Ninth Circuit with the F o urth, Six th, and Seventh Circuits. Responding to J udg e R. Nelson’s arg ument that the decision is contrary to Marrero v

. I ves , 682 F .3d 1190 (9th Cir. 2012), J udg e W

. F letcher wrote that the c laims a r e d i f f erent in that Al l e n’s c laim relied on retroactively applicable Supreme Court case law while the c laim in Marrero was based on a non-retroactive interpre t a tion of the Sentencing Guidelines.

Dissenting
, J udg e R. Nelson—joined by J udg es Callahan, M. Smith, I ku t a , Bennett, B ade, Collins, L ee, B ress, B umatay , VanDy

k e, and ( as to Parts I I a nd I V) Hunsaker—wrote that the panel majority ’s holding conflicts

w i t h Supreme Court precedent in Bousley v. United States
,

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.A L L E N V

. I V E S 3

523 U.S. 614 (1998); deepens a four-way circuit split; creates

an irreconci l a b l e intra-circuit conflict with the holding in Marrero ; a

nd ig nores the statutory tex t by evading the limits of the Antiterrorism and Effective Death Penalty Act of 1996.

COUNSEL

Eliz abeth G

. Daily (arg u ed )
, A ssistant F e deral Public Defender, F e deral Public Defender ’s Office, Portland, Oreg on, for Petitioner-Appellant.

Amy Potter ( arg ued) and Natalie K. Wig ht, Assistant United States Attorney s; Kelly A. Z usman, A ppellate Chief; B illy J

. W illiams, U nited States A ttorney , District of Oreg on; United States Attorney ’s Office, Portland, Oreg on; for RespondentAppellee.

ORDER

J udg e W

. F letcher and J u d g e Christen have voted to deny Respondent-Appellee’s petition for rehearing e n banc, filed J une 8, 2020 (Dkt. Entry 54). J udg e Callahan has v o t ed to g rant the petition for rehearing en banc.

The full court h as been advised of the p e t ition for rehearing en banc. A judg e requested a vote o n w h e t h er to rehear the matter en banc. The matter faile d t o r e ceive a majority of votes of the nonrecused active judg es in favor o f en banc consideration. F ed. R. App. P. 35(f).

The petition for rehearing en banc is DENIED

.A L L E N V

. I V E S 4

W

. F L ETCHER, Circuit J udg e, with whom CHRI STEN, Circuit J udg e , joins, c o ncurring in the denial of the Petition for Rehearing

En B anc:

Our colleag ue called this case en banc, but the call failed
to g ain the approval of a majority of the active judg es o n our court. W e write to r espond to our colleag ue and to e x plain why we believe we reached the correct decision.

T he question p resented in this case w as fair l y straig htforward. Petitioner Allen soug ht a wri t o f h abeas
corpus under 28 U.S.C. § 2241. I n Marrero v. I ves , 682 F .3d 1190, 1 192 (9th Cir. 2 012), we held that relief may be soug ht under § 2241 if a petitioner “(1) m a kes a claim of actual innocence, and (2) has not had an u n o b s tructed procedural shot a t presenting that claim.” (in t ernal quotation marks omitted). The g o vernment did not c ontest that Al l e n “ha[ d]
not had an unobstructed procedural shot” a t presenting his claim. The only question was whether Allen was “mak[ ing ] a claim of actual innocence.”

Marrero r ecog niz ed that a habeas petitioner in a capital

case could be “actually innocent” o f his capital sentence, but left open the quest ion whether a petitioner could be actually innocent of a non-capital sentence for p urposes of § 2 241. Id.
at 1193. I n Allen
, we answered the question l e f t o p e n in Marrero

. W e held that Alle n made a cog niz able claim o f actual inn o cence of his n on-capital sentence a nd that he properly sough t relief u nder § 2 241. See Allen v. Ives
, 950 F .3d 1184 (9th Cir. 2020).

Our dissenting colleag ue arg u es that our d ecision in Allen is contrary to Marrero
, but the two cases are quite different. As we e x p lained in our opinion, Allen’s claim relied onA L L E N V

. I V E S 5

retroactively applicable Supreme Court case law. The claim
at issu e i n Marrero
, by contrast, was based on a nonretroactive interpretation of the Sentencing Guidelines.

Allen pleaded g uilty in federal district court to three d rug and firearm-related crime s in 1997. His minimum sentence under t he then-mandatory Sentencing Guidelines was increased based on the district court’s finding that he had two prior state-law c o nvictions for “ controlled substance offenses” that were predicate crimes under the Guidelines. I f Allen h ad previously been convicted of only one “controlled substance offence,” and thus only one predicat e crime, his mandatory minimum Guideline sentence would have b een lower. At sentencing
, the district judg e stated that if the mandatory minimum sentence had not been increased by the
two p rior convictions for pred i c a te crimes he would have sentenced Allen to a substantially shorter term.

One of Allen’s two prior state-law convictions was based

on a g uilty p lea for a marijuana offens e u n d e r Conn. Gen. Stat. § 21a-277(a). Some of the conduct p r o hibited under § 21a-277(a) was a “controlled substance offense” within the meaning o f the Guidelines, but some of the conduct was not. The federal district court b e lieved that § 2 1 a -277(a) was divisible, and that its overbreadth could therefore be ig nored for p u rposes of determining whether it was a “controlled substance o ffense. ” The court concluded that the marijuana conviction u nder § 21a-277(a) was for a controlled substance offense, and thus for a predicate crime.

After the deadlin e for filing a motion pursuant to 28 U.S.C. § 2255 had passed, t h e S u preme Court decided Descamps v. United S

tates , 570 U .S. 254 (2013), a nd Mathis

v. United States
, 136 S. Ct. 2243 (2016). Those retroactivelyA L L E N V

. I V E S 6

applicable decisions clarified the divisibility a naly sis. Under Descamps and Mathis
, it is very likely that § 21a-277(a) was indivisible rathe r than divisible. I f § 21a-277(a) was in divisible, A llen’s marijuana conviction under that statute was not a conviction for a “controlled substance offense.”

Under A lleyne v. U

nited States
, 570 U.S. 99, 107–08 (2013), a fact that increases a mandatory minimum sentence is an “element of the offense.” I f an element of an o ffense is
not established, a defendant is n ecessarily innocent of that offense. See Bousley v. United States
, 523 U.S. 614 (1998); Unit e d States v. Geozos
, 870 F .3d 890, 896 (9th Cir. 2017),

a b r o gated on other grounds by W a rd v. United Stat e s , 936 F .3d 914 ( 9 t h Cir. 2019) (“[ A] n y ‘fact increasing either end o f [ a sentencin g] r a n g e p roduces a new penalty a nd constitutes a

n ing redient of t h e offense.’” (second alteration in orig inal) ( quoting Alleyne
, 570 U.S. a t 1 12)); B rown v

. Caraway
, 7 19 F .3d 583, 588 (7th Cir. 2 013) (“F or a prisoner serving a sentence impo s e d w hen the g uidelines were mandatory
, a § 2241 habeas petition r aising a g uidelines error ‘tests the leg ality of his detention’ within the meaning of the saving s clause, § 2255(e), because the g u idelines had the force an d e f

f ect of law; the o n ly lawful sentence was a g uidelines sentenc e .”). I f Allen is rig ht that h is conviction under § 21a-277(a) was not for a “c o n t r o lled substance offense,” and thus w as not a c o n viction for a predicate crime, he is “actually innocent” of the increased mandatory element of his sentence and is elig ible for h abeas relief under § 2241.

Our dissentin g c o l leag ue does not disag r ee with our holding that a habeas petitioner c an be “actually innocent” o f

a non-capital sentence for purposes of § 2241. H e arg ues

o nly that, on the facts of this case, Allen is not actually innocent of his sentence.A L L E N V

. I V E S 7

Our colleag ue makes essentially four arg uments. F irst, he
arg ues that we have misapplied the Supreme Court’s decision in Bousley

. Second, h e arg u es that Allen should have a pplied for habeas under 28 U.S.C. § 2255 rather than § 2241. T h ird, he a r gu e s that our decision conflicts with decisions in all o f the other circuits ex cept the D.C. Circuit. F inally , he arg ues that our decision opened the proverbial floodg ates. W e take each arg ument in turn.

I

. Bousley

Our c olleag ue’s most important arg ument is that we have misap p lied Bousley
, the foundation c ase ex plaining the meaning of “actua l i n n o cence” under § 2241. He writes, “The panel majority disreg a rded the Supreme Court’s ho l ding in B ousley that ‘“actual innocence” means factual innocence,
not mere leg al insufficiency .’ 523 U.S. at 623– 2 4.” Diss. Op. at 20. Our colleag ue arg ues that actual innocence o f a predicate crime, and resulting innocence o f a m a ndatory element of a sentence, is a “mere leg al insuffi c i e n cy ” rather than “actual innocence.” He misunderstands Bousley

.

Habeas petitioner B ousley pleaded g ui l t y to “using ” a firearm in violation of 18 U

. S

. C

. § 924(c)(1). B ousley did
not challeng e his conviction on d irect appeal, and he allowed the o ne-y ear limitati o n p e r iod under § 2255 to lapse. F ive
y ears after his conviction, in B a iley v. U nited States
, 5 16 U.S. 137 (1995), the Supreme Court c larified, with r e t r o a ctive effect, the d e finition of “ using .” B ased on the Court’s decision in Bailey
, B ousley soug ht habeas under § 2241 on the g r o und that he had not u nderstood the meaning of “using ” when he entered his plea. The Court allowed B ousley to seek habeas under § 2241, p r ovided he could demonstrate “actual innocence.” We have previou sly applied B ousley to g rantA L L E N V

. I V E S 8

relief in Alaimalo v. U

nited S tates , 645 F .3d 1042, 1047–48 (9th Cir. 2 011) (holding that a § 2241 petitioner had a claim of actual innocence under Bousley when a la t e r e n banc decision narrowed the interp r e t ation of “importation” so a s not to reach petitioner’s conduct), and United States v

. A v ery , 7 1 9 F .3d 1080, 1085 (9th Cir. 2013) (holding that a § 2 2 5 5 pet i t ioner had a claim o f actual innocence under Bousley when a later Supreme Court decision narrowed the definition of “honest services” so as not to reach petitioner’s conduct).

The Court wrote in Bousley
, “I t is important to note

. . . that ‘actual innocence’ means f actual innocence, not mere leg al insufficiency .” Bousley , 523 U.S. at 623. “Mere leg al insufficienc y , ” a s used by the Court, meant insufficiency o f the evidence of B o usl ey ’s g u ilt in the ex isting record. That is, B ousley could not demonstr a t e his “actual innocence” simply by pointing to the “ mere leg al insufficiency ” of the evidence in the record made in connec t ion with his g uilty plea. Rather, B ousley had to show, on a n open record, that he

was a ctually innocent. The Court wrot e , “ [ O] n remand, the Government should b e permitted to present any a d m issible evidence of petitioner’s g uilt even if that evidence was not presented during

petitioner’s plea colloquy

. . . .” Id. at 624.

Allen d id not alleg e “mere leg al in sufficiency ” in the

sense used i n B o u s l e

y

. The issue was not the leg al i n s u f ficiency of the evidence to support Allen’s g uilt in t h e state-law m a r i

j u a na case under § 21a-277(a). He d id not contest his g uilt in that case. The issue, rather, was whether in that case All e n h a d been convicted o f a “controlled substance offense” within the meaning of the then-mandatory Guidelines. I n Descamps and Mathis the Supreme Court

r e t r o actively c larified the divisibility analy sis for crimina l
statutes. A l l e n contended that under the law as c larified b yA L L E N V

. I V E S 9

the Court in Descamps a nd Mathis
, the Con n ec t i cut marijuana statute under which he was convicted was indivisible, and that his conviction was theref o re not a conviction for a “controlled substance offense” according to the then-mandatory Guidelines. Under Bousley
, this i s a claim of actual innocence of the mandatory increase i n h i s federal sentence.

Allen was in a very

different position from B ousley . He did not cl a i m “a c tual innocence” o f his sentence because o f

a “leg al insufficiency

” of the evidence in the r e cord. He

c l a imed “actual innocence” because a predicate for h i s mandatory increased sentence—the ex istence of a prior conviction of a predicate crime—was missing

. To impose the mandatory increased s e ntence under the Guidelines, the district court had to f

ind a s a fact that A llen had previously been convicted of two predicate crim es. To determine whether the Connecticu t m arijuana conviction was a predicate crime, there is no need f or the federal habeas court to look bey ond the ex isting record. That court need only look
at the definition o f the crime under § 21a-277(a) and to a pply the analy sis set forth in Taylor v. United States
, 4 95 U.S. 575 (1990). There is no additional evidence the Government can offer on the point.

Our dissenting colleague contends that so long as Allen

was previously c onvicted of som e c r i me, it does not matter under B ous l e

y what the crime w as. Our colleag ue writes, “Allen’s claim here has nothing to do with whether his prior conduct is still c r i m i n a l, unlike in B ousley

. . . . He remains rig htly convicted of his p ast c r imes.” D iss. Op. at 22. B ut the question under the mandatory sentencing Guidelines was not whether Allen had bee n c onvicted of some crime. The
q u estion was whether he h ad been convicted of a predi c a t eA L L E N V

. I V E S 10

crime. Under the log ic of our dissenting colleag ue, it would
not matter if the district cou r t h a d u sed as a predicate crime

a prior c o n v i c tion for jay walking
, so long as the p etitioner had been “rig htly convicted of his past crime” o f jay w alking

.

B o usley claimed innocence of the c rime of c o n v i c tion, and Allen claimed ac t u a l innocence of the increased mandatory sentence. B ut f or purposes of “actual innocence” under Bousley
, the difference does not matter. Our colleag ue does not contend that there is no such t h i n g as actual innocence of an increased mandatory sentence. A fact that increases a mandatory sentence is an “ element of the offense.” Alleyne
, 570 U.S. at 1 0 8

. A leg al analy sis is
necessary to determine whether a c o n v i ction for marijuana possession—or for jay

walkin g— w as a predicate offense for
purposes of a mandatory sen t ence under the Sentencing Guidelines in effect at the time Allen was sentenced. B ut the leg al analy sis leads to a determination o f a fact: A llen’s conviction under § 21a-277(a) either was, o r wa s not, a conviction for a predicate offense. I f it was not a conviction for a predicate offense, A llen is “ac t u a l l y innocent” of his increased mandatory

sentence.

I I

. Petition Should Have B een B r oug ht Under § 2255

Our d issenting colleag u e ar gu e s that Allen had an opportunity to assert his c laim of actual inno c e n c e i n an application under § 2255. He writes:

Allen’s first § 2255 motion in the Connecticut district court was denied in 2 003.

. . . H e h ad

an opportunity to brin g t he instant claim that he wa s not a career offender in that initial § 2255 motion but d id not do so. As a result,A L L E N V

. I V E S 11

he may n ot p roceed by way of the e s c a p e hatch now.

Diss. Op. at 4 0 ( citation omitted). T hat is, according to our colleag ue, Allen had an “u n o b structed procedural shot” at presenting his claim of actual innocence in an a ppli cation under § 2255. Therefore, h e cannot now seek habeas under § 2241.

This arg u ment ig nores two thi n gs

. F irst, Allen is in the

same position as B ousley

. W hen B ousley was c o n v i cted, “using ” a firearm had an accepted definition. Only after the Supreme Court cla rified the definition of “using ” five y ears later in Bailey did B ousley have a claim of actual innocence. That is, because of th e incorrect definition of “using ”
pr e v i o u sly relied upon by the parties and the court, B ousley had n ot had an “unobstructed procedural shot” at presenting his c laim o f actual innocence under the corre ct definition. S i milarly
, w hen Allen was sentenced, § 21a-277(a) was believed to be severable under the accepted mode o f analy sis. Under that analy sis, an overbread th arg ument was not available. On l y a fter the Supreme Court clarified the severability analy sis in Descamps a n d M athis several y ears later did Allen have a

n a rg ument that § 21a-277(a) was inseverable a

nd a r esulting claim of actual innocence. That is, b ecause of the incorrect severability analy sis previously relied u p o n by the parties a nd the federal district court in Connecticut, Allen had not had an “unobstructed procedural shot” at pre senting his claim of actual innocence under the
correct analy sis. I n Bousle y , w here a later Supreme Court decision clarified the law, the Court allowed a h a b e as claim under § 2241. W e did the same in Allen

.A L L E N V

. I V E S 12

S econd, the Government c o n ceded the point. T h e Government d i d not arg ue that Allen had an unobstructed procedu r al shot at bring ing his actual innocence c laim in an application under § 2255. I t conceded that if Allen h a d a p lausible claim of actual innocence of the increase i n h i s mandatory

sentence he could seek habeas under § 2241.

I I I . Other Circuits

Our dissenting colleag ue arg u es that our decisi o n conflicts with the decision of e v ery other circuit ex cept the D.C. Circuit, “creat[ ing ] a new f our-way c ircu i t split a

nd maroon[ ing ] the N inth Circuit on our own island o f § 2255(e) jurisdiction.” Diss. O p

. at 24. Our colleag ue overstates the matter.

Decisions by the F ifth, Eleventh and, possibly
, the T e nth Circuits conflict with our decision i n A l len

. See In re Bradford
, 6 6 0 F. 3 d 226 (5th Cir. 2011); McCarthan v

. Director of Goodwill Industries—Suncoast, Inc.
, 851 F .3d 1076 (11th Cir. 2017) (en banc); see also Sandlain v. English
, 714 F

. App’x 8 27 (10th Cir. 2017). H owev e r , decisions b y the F o urth, Six th and Seventh Circuits ag ree with A l l en , t h o u g h using somewhat different lang uag e. See Lester v. Flournoy
, 909 F .3 d 7 0 8
, 712 (4th Cir. 2018) (allowing a § 2241 habeas challeng e to a mandato ry sentence when “miscla s s i f

i cation as a career offender, which increased his mandatory Guidelines r ang e from a max imum of 151 months
to a minimum of 262, is a n ‘e r r or sufficiently g rave to be deemed a fundame n t a l defect.’” (quoting United States v

. W heeler
, 886 F .3d 415, 429 (4th Cir. 2 018), cert. d e n i ed
, 139 S

. C t

. 1318 (2019)); Hill v. Masters
, 836 F .3d 591, 600 (6th Cir. 2016) (allowing a § 2241 habeas c halleng e to a mandatory sentence “ because [ petitioner] was sentencedA L L E N V

. I V E S 13

under the mandatory G uidelines Manual; is barred from filing

a s u ccessive § 2255 petition; and received the enhanceme n t b ased on a prior conviction that a subsequent, retroact i v e chang e in Supreme Court jurispru d e n c e [ in D escamps ] reveals is not a predicate offense.”); Brown v. Caraw a y , 719 F .3d 5 8 3 ( 7 th Cir. 2013) (allowing a § 2241 h abeas challeng e to a mandatory sentence aft e r B e gay v. United States
, 553 U .S. 137 (2008), clarified the definition of g eneric arson, with the result that what had been thoug ht a predicate crime w as no long er a predicate crime for career offender status). The o ther circuits have not decided any cases directly on point.

W e ag ree wit h o u r dissenting c o lleag ue’s arg ument that there is a circuit split. W e also ag ree with our dissenting colleag ue’s implicit arg ument that the Supreme Court should
g rant c ertiorari—in this or in some other case—to resolve the circuit split. W e disag ree, however, with our colleag ue’s
arg ument that we are “marooned

. . . on our own island.” W e

are in the disting uished company of the Fo u r th, Six th a nd Seventh Circuits.

I V. F loodg a tes

F inally
, o ur dissenting colleag ue arg ues that our decision in Allen “throws wide open an escape hatch reserved for the
rarest of occasions,” a

nd “opens the floodg ate s t o h abeas review of n onca p ital ‘actual innocence’ claims.” Diss. Op.
at 16, 2 3. W e disag ree. Our decision r eaches o nly a small and diminishing s u b s et of § 2241 petitions. F or other petitioners to be similarly situated to A llen and to be actually innocent of a mandatory sentence, they will have to show: (1) they were c onvicted of prior offenses, at least one of which

was mistakenly deemed to qualify as a p redicate offense; (2)A L L E N V

. I V E S 14

the mistake w as late r a d d re ssed by the Supreme Court in a retroactive d e cision clarify ing the a pplicable law; (3) they received a mandatory sentence under a mandatory sentencing scheme; and (4) a ll of this came to lig ht after the opportunity
to raise it in a § 2255 motion had passed. See Hill
, 836 F .3d
at 5 99–600 (ex plaining that the Six th Circuit’s holding only applies to petitioners who received mandatory minimum
sentences pre -Booker
, were u nable to f ile a successive § 2255 petition, a n d who relied on Supreme Court authority that retroactively d isqualified a prior conviction from servi ng a s

a predicate o ffense). Allen’s a c t u al innocence claim was cog niz able under § 2241 because he was sentenced before the Court decided Booker
, w hich rendered the Senten cing Guidelines a dvisory rather than mandatory

. Booker was decided more than fift e en y ears ag o. The number o f remaining actual innocence claims under the p re- Booker mandatory sentencing scheme, comp a r able to Allen’s, is small and dwindling

.

R. N EL SON, Circuit J udg e, with whom CAL L AHAN, M. SMI TH, I KUTA, B ENNETT, BA D E
, COL L I NS, L EE, B RESS, B UMATAY, and VANDYKE, Circuit J udg es, join, and with whom HUNSAKER, Circuit J udg e, joins as to Parts I I and I V, dissenting from the denial of rehearing en banc:

This case has all the h allmarks worthy of en banc review. The panel majority held that a challeng e to a conviction based

on a su bsequent c hang e in leg al classification of a crime qualifies as a claim of “actual innocence” f o r p urposes o f 28 U.S.C. § 2255(e). The panel majority ’s holding conflicts with Supre m e C ourt precedent in Bousley v. United States
, 523 U.S. 6 14 (1998); deepens a four-way circuit split; createsA L L E N V

. I V E S 15

an irreconcilable intra-circuit conflict w ith our holding in Marrero v. Ives
, 682 F .3d 1 190 (9th Cir. 2012); and ig nores the statutory tex t by e v ading the limits of t h e A n titerrorism and Effective D eath Penalty Act o f 1996 (AEDPA). Not only has every other circuit rejected t h e panel majority ’s reasoning
, b ut 24 judg es on this court—including 1 9 a ctive j u d ges—have interpreted Marrero to preclude the pane l majority ’s holding

. See infra at 27 n.15. Yet today w e allow just two judg e s to overrule 19 active judg es without en banc review. The panel majority ’s opinion and the court’s denial of en b anc review disreg a rds the rule of law g e nerally a nd AEDPA specifically

.

The panel majority becomes the first panel to decide that

a petitioner leg ally m isclassified as a career offender under the Sentencing Guidel i n e s h as a claim of actual innocence—ig noring Supreme Court precedent in Bousley holding “‘actual innocence’ means f a c tual innocence, not

mere leg al insufficiency .” 523 U.S. at 6 2 3–24 (citation omitted). W e now become the lone outlier among all of our sister circuits on a question of ex ceptional importance. Even

ou r concurring colleag u es ag ree that this case warrants Supreme Court review. Concurrence at 1 3. F urthermore, we directly contradict our precedent in Marrero
, where we held that “the purely leg al arg u ment that a p etitioner was wrong ly classified as a career o ffender under the Sentencing Guidelines is not c o gn iz able as a claim of actual innocence

un d e r t h e e scape hatch.” 682 F .3d a t 1195. The panel majority ’s holding also ig nores AEDPA’s statutory tex t. All told, we now add the panel majority ’s fund a m e n tal leg alA L L E N V

. I V E S 16

error t o t h e long list of errors we have made in h abeas jurisprudence. 1

The panel majority throws wide o p e n an escape hatch reserved f

or the rarest o f occasions. B y reading a ny leg al insufficiency a s actual innocence, the panel majority invites

a massive influx of previously meritless habeas p et i t ions. I nstea d
, we should “apply [ ] the law a s Cong r ess wrote it

. . . .” McCarthan v

. Dir. o f Goodwill Indus.-Suncoast, Inc.
, 851 F .3d 1076, 1080 (11th Cir. 2017). That means that “[ t] o invoke the saving s c lause, there must b e something about the initial § 2 255 procedure that itself is inadequate or ineffective for testing a challeng e to detention.” Prost v. Anderson
, 636 F

. 3d 578, 589 (10th Cir. 2 011) (Gorsuch, J

. ). Ultimately
, the pan e l majority fails in its charg e “to apply
, not amend, the w ork o f the People’s re p r e sentatives.” H enson v

.

1 S ee, e.g

. , Jo h n so n v. Lee
, 1 3 6 S. Ct. 1 8 0 2, 1 8 0 6 (2 0 1 6) (p er cu riam ) (“ T h e Nin th C ircu it’ s co n t rary reaso n in g is u

n persu asiv e an d in co n sisten t

w ith th is C o u

rt’ s preced en ts.”); Da vis v. Aya la
, 5 7 6 U.S. 2 5 7
, 2 5 8 (2 0 1 5) (“ T h e Nin t

h Circu it m i su

n d ersto o d th e ro le o f a f

ed eral co u rt in a h ab eas case.”); W

a d d i n g to n v. S

a ra u s a d
, 5 5 5 U.S. 1 7 9
, 1 9 4 (2 0 0 9) ( “T h e

reaso n i n g of th e Co u rt o f A p p eals, w h ich f ailed to rev iew th e state co u rts’

reso l u t i o n o f th is q u estio n th ro u g h t h e d ef eren tial len s o f A EDP A
, d oes

n o t co n v in ce u s

. . . .”); Eva ns v. C h a vis
, 5 4 6 U.S. 1 8 9
, 2 0 0 (2 0 0 6 ) (“ [W ]e f in d th e Nin th Circu it’ s reaso n in g in co n f lict w ith o u r S

a ffo ld h o ld in g .”); Ma yle v. Felix
, 5 4 5 U .S. 6 4 4, 6 62 (2 0 0 5) (n o tin g th e “ Nin th Circu it’ s ru le

w o u ld p erm it th e ‘ relatio n back ’ d octrin e to sw allo w A EDP A ’ s statu te of lim itatio n ”) (in tern al q u o tatio n m ark s an d citati o n o m itted ); Bro wn v. Pa yto n , 5 4 4 U.S. 1 3 3
, 14 7 (2 00 5 ) (h o ld in g th e Nin th Circu it “ m ad e th is

. . . assu m p tio n , an d it w as i n e r r o r t o d o so ”); W o o d fo rd v. Ga rcea u , 5 3 8 U.S. 2 02
, 2 0 5

– 0 6 (2 0 0 3 ) (“ Fiv e Co u rts o f A p p e a l s h av e ru led th at A EDP A ap p lies

. . . w

h ile th e Co u rt o f

A p peals f o r th e Nin t

h Circu it h as h eld it do es n ot

. . . . [W ]e ag ree w i t h th e m aj o rity o f th e Co u rts of A p peals.”) (in tern al qu o tatio n m ark s an d citatio n o m itted ); Ea rl y v. Pa cker
, 5 3 7 U .S. 3
, 1 0 (2 00 2 ) (p er cu riam ) (“ [T ]h e Nin th Circu it erred b y rely in g o n

th o se n o n co n stitu

t io n al d ecisio n s.”).A L L E N V

. I V E S 17

Santander Consumer USA Inc.
, 137 S. Ct. 1718, 1 726 (2017)

. According ly
, I respectfully dissent.

I

A brief b ackg round. A f e d eral prisoner who seeks to challeng e h is confinement m u s t generally rely on a § 2255 motion to do so. See Stephens v. Herrera
, 464 F .3d 8 95, 897 (9th Cir. 2006). Section 2255 h a s a “ 1-y ear period o f limitation[ .] ” § 22 5 5(f). Section 2 255 also restricts second

or successive p e t i tions to claims involving either newly discovered evidence that can clearly and convincing ly

e s t a b l i sh innocence or new r ules o f constitutional law made retroactive by the Supreme Court. See § 2255(h). B ut the socalled “escape hatch” or “saving s c lause” of § 2255(e) a llows

a federal prisoner to f

ile a § 2241 petition if the remedy under § 2255 is “inadequate o r ineffective to test the leg ality of his detention.” § 2255(e). I n the Ninth Circuit, a § 2255 remedy is “inadequate or ineffective” when the petitioner “(1) makes

a claim of actual innocence, and (2) h a s not had an unobstructed procedural shot at p resenting that c lai m

. ” Stephens
, 464 F .3d at 898 (internal quotation marks omitted). Allen’s claim centers on the definition of “actual innocence.”

I n this case, Petitioner Michael Allen pled g uilty in 1997
to multiple drug and f

i r e a r m offenses. Allen
, 950 F .3d at 1186. Allen’s base offense level was 36. Id. The district
court applied a one-level u pward adjustment bec ause Allen

was a “career offender” under U.S. Se n t e n cing Guideline § 4B 1.1, due to two prior st ate court convictions for d rug offenses. Id. Thi s adjustment increased the applicable
g uideline rang e from 2 3 5 m o nths to 262 months on the low end, a nd from 2 93 months to 327 months on the hig h end. Id. The dis t r i c t court sentenced Allen to 262 months on theA L L E N V

. I V E S 18

c o n spiracy count, a mandatory consecutive sentence o f 60 months on the carry

ing -a-firearm count, and a concurrent sentence of 120 months on the felon-in-possession count, for

a total term of imprisonment of 322 months. Id. At the time

o f sentencing
, the Sentencing Guidelines w ere mandato ry

. See United States v. B o oker
, 543 U .S. 220, 245 (2005). Allen’s direct appeal was denied by t h e S e cond Circuit. United States v

. Perry
, 1998 W L 961120 (2d Cir. 1 9 98). He th e n f i l e d a § 2 255 motion in the U.S. District Court for the District o f Connecticut, w hich was denied. Allen
, 950 F .3d at 1187. The Second Circuit affirmed. Id.

Allen filed the instant § 2241 petition in the U.S. District Court for the District of Oreg on in 2 017, where he had been incarcerated. 2 Id. I mportantly
, “Allen does not cla i m t o b e actually innocent of the crimes for which he was se n tenced. Nor does Allen claim to be actually i n n o cent of his prior convictions that, at the time of his sentencing
, qualified him

as a career offender under the Sentencing Guidelines.” Allen
,

2 On A pril 2 6
, 2 01 9
, A llen ’ s sen ten ce w as red u ced to tim e serv ed an d h e w a s r e l eased u n d er th e First Step A ct. Allen
, 9 5 0 F.3 d at 1 1 8 7. T h e term of s u

p erv ised release w as red u ced to 4 8 m o n th s

. Un ited S t a t e s v. Allen
, 3 8 4 F. Su

p p

. 3 d 2 3 8
, 2 44 (D. C o n n

. 2 0 19 ). T h e p an el m aj o rity an d d i ssen t ag ree th at th is case h as n o t b een m o o t ed b y A llen ’ s release f ro m p riso n

. Allen
, 9 5 0 F.3 d at 1 18 7

– 8 9
, 1 1 9 2 n .1

. B ecau s e th e career

o f f en d er en h an cem en t p o ten tially im pacts th e term s o f A llen ’ s su p erv i s ed release, th e case p resen t s a liv e case an d co n tro v ersy

. S ee Jo n es v. Cu n nin g h a m , 3 7 1 U .S. 2 36
, 24 3 (1 9 6 3 ) (“ W h ile p etitio n er’ s p aro l e releases h im f

ro m im m ed iate p h

y sical im

priso n m en t, it im

p o s e s

c o n d itio n s w

h ich sig n if

ican tly co n f

in e an d restrain h is f

reed o m ; th is i s

en o u g h to k eep h i m in

. . . ‘ cu s to d y ’

. . . w ith in th e m ean in g of t h e h ab eas

co rp u s statu te

. . . .”); see also M u ja h i d v. Da n iels
, 4 1 3 F.3 d 9 91
, 9 9 5 (9 th Cir. 2 0 05 ) (“ T h e ‘ po ssib ility ’ th at th e sen ten cin g co u rt w o u l d u se its d iscretio n to red u c e a t erm o f su p erv ised release

. . . w as en o u g h to p rev en t th e p etitio n

f ro m b ein g m o o t.”).A L L E N V

. I V E S 19

950 F .3d at 1 192 (Callahan, J
., dissenting ). I t’s undispu ted that h e committed the two prior drug dealing offenses. Allen
, 950 F .3d at 1 188 (“Allen d oes n o t ch al l eng e the validity o f his conviction for sales of marijuana . . . .”).

Rather, Allen claims h e was “ a ctually innocent” of being classified a s a career offender. Id. a t 1186. He arg ues that Mathis v. United States
, 1 36 S. Ct. 2243 ( 2016), a nd Descamps v. United S tates , 570 U.S. 254 (2013), retroactively established that o n e o f his two state law d rug offenses did not qualify as a f ederal predicate crime under the Sentencing Guidelines, w hen apply ing t h e categ orical approach of Taylor v. United States
, 4 95 U.S. 575 (1990). Id.

a t 1187. Allen asserts that because one of his past crim e s should be leg ally reclassified, he would not meet the sentencing standard f

or being a career off

e n d e r

. Id. The district court dismissed the § 2 2 4 1 petition for lack o f jurisdiction, relying on our opinion in Marrero

. Id. The district court did not reach the merits of Allen’s claim, but it
g ranted a certificate of appealability “as to whether 28 U .S.C. § 2241 habeas corpus jurisdiction is appropriate.” Id.

The panel majority held t h at Allen “made a claim o f actual innocence that permits juri s d i ction o ver his § 2241 petition,” meeting the string ent requirement under the § 2255(e) escape hatch. I d. a t 1189. I t r e asoned that A llen’s claim of innocence was factual i n n ature because the leg al cl assification of his crimes was a “factual predicate” underly ing his desig nation as a career offender. Id. Thus, it held that he c ou ld be “actually innocent of a noncapital
sentence for the purpose of qualify ing for the e s c a p e hatch” due to the retroactive cha n ge i n M athis and Descamps

. Id. J u d ge Callahan d issented, stating that a claim of innocence based on misclassificati o n a s a career offender is “purelyA L L E N V

. I V E S 20

leg al” and c annot sup p o rt a claim of actual, f actual innocence. Id. at 1192–96 (Callahan, J ., dissenting ).

II

The panel majority disreg arded the Supreme Court’s holding in Bousley that “‘actual innocence’ means f actual innocence, n ot mere leg al insufficiency

. ” 523 U.S. at 623–24 (citation omitted). I nstead, the panel majority decided that a petitioner may be “actually innocent” of being classified as a

career offender
, e ven when he indisputably committed the prior criminal acts. A llen , 950 F .3d at 1188–89. I t reshapes Allen’s clai m of leg al insufficiency
, calling the leg al classification of his crimes a “factual predicate” for his career offender status. Id. at 1189.

Actual, factual innocence is the touchstone here for Allen
to q ualify for the escape h atch under Ninth Circuit precedent. The standard f

or actual innocence is d

rawn f rom the Supreme Court’s h olding in Bousley and rests o n whether the underly ing conduct was c r iminal ( not the leg al classification of the crime). See also Muth v. F ondren , 676 F .3d 815, 822 (9th Cir. 2012) (“Thus, Petitioner was convicted of eng a g ing i n conduct that remains criminal, and he is not actual l y innocent.”) (emphasis added). The petitioner in Bousley h ad pled g u ilty under 18 U.S.C. § 924(c)(1) to “using ” a firearm. 523 U .S. at 616. He then filed for habeas relief under § 2241, claiming his g uilty plea was u nintellig ent, and his h abeas petition was construed as a motion u nder § 2255. Id.
at 617–18. W hile that challeng e was pending
, the S u p r eme Court decided Baile

y v

. U nited States
, 516 U.S. 137, 144 ( 1 9 95), which r estrictively defined the term “using ” i n § 924(c)(1). Id. a t 6 1 7

. B ousley had not raised a challeng e t o the notion that “ using ” meant “possessing ” d uring dir e ctA L L E N V

. I V E S 21

review. I d. at 622. To raise this procedurally defaulted issue

on collateral review, he had to d emonstrate “cause and actual prejudice

. . . or that he [ was] actually innocent.” Id. (internal quotation marks and citations omitted).

F or purposes of habeas r elief, the Supreme Court held that “‘actual innocence’ means factual innocence, not mere leg al insufficiency .” Id. at 623–24 (citation omitted). To establish actual innocence, a petitioner h ad to show “in lig ht of all the

e v i dence, it is more likely than not that no reasonable j u r o r would have convicted him.” Id

. (internal quotation marks and citation omitted). The Supreme Court r e m a n ded so B ousley c ould try to show on an open record that his conduct

was n ot criminal—that he merely possessed a firearm, a nd did not “ use” it. Id. at 6 24. Th i s s h owing would make a cog niz able claim of actual innocence and entitle hi s h a b e a s petition to be considered on the merits. Id.

This makes sense, and the same reasoning should a pply
to our actual innocence ex ception under t h e e scape hatch. Habeas relief is not a vailable w here a defendant would win post-conviction relief b a sed on a legal t ec h nicality
, see Sawyer v. W

hitley
, 505 U .S. 333, 339 (1992 )
, and the same must be true u n der § 2255(e). J u st like the Bousley petitioner,

a petitioner invoking § 2 255(e) cannot win or lose merely because the r ecord contains no e v idence of his g uilt, due to his g uilty plea. 523 U.S. at 624. I nstead, he must show on an op en r ec o r d that he, in fact
, did not eng ag e in the criminal conduct. Id. U n t i l n ow, we have faithfully applied the Supreme Court’s d e f

inition o f the term “actual innocence.” F or ex ample, in A laimalo v. United S tates , the petitioner h ad

a cog niz able actual innocence claim when he w as convicted for conduct which was later held to be leg al. 645 F

. 3d 1042, 1047 (9th Cir. 2011). L ikewise, in United States v. A v ery , theA L L E N V

. I V E S 22

petitioner qualified for the escape hatch after a Supreme Court decision clarified that his conduct in fact wasn’t illeg al

u n d e r the c onvicting statute. 719 F .3d 1080, 1082–83 ( 9 t h Cir. 2 013). These cases stand f or the proposition that actual, factual innocence requires that the petitioner’s conduct w a s not illeg a l ( not just leg a lly misclassified) under the c onvicting
statute.

Allen’s claim her e h a s n othing to d o with whether his prior conduct is still criminal, unlike in Bousley

. Allen concedes that he committed the criminal conduct that supported his state law convictions. Allen
, 950 F .3d at 1188. He n ever claims he was factually innocent under Bousley o r

our c aselaw. Rat h e r , Allen arg ues that his state court conviction—as a leg al matter—is no long er a categ orical match w ith the federal predicate crime. I d. at 1187. Thus, he essentially claims his conviction is leg ally insufficient for the

career offender sentencing enhancement based on a superseding chang e in law. T he chang e in law h er e—the Supreme Court’s decisions in Mathis and Descamps —didn’t make Allen’s past conduct noncriminal

. He remains rig htly convicted of his past crimes.

B u t the panel majority turns the concept of actual, f actual innocence on its head. The panel majority validates A llen’s claim o f actual innocence because the “retroactive c hang e o f law

. . . transformed his Conne c t i c u t marijuana conviction from a predicat e crime into a non-predicate crime.” Allen
, 950 F

. 3d at 1 190. T he panel majority recog niz e s that Bousley allowed the petitioner to e stablish actual innocence o n l y b y showing his conduct was n ot criminal under the con v i cting
statute. S e e i d. B ut the panel majority essentially reframes

a p u r ely leg al c lassification as a “factual p redicate,”A L L E N V

. I V E S 23

contradicting the Supreme Court’s precedent in Bousley a nd our holding in Marrero

. See Allen , 950 F .3d at 1189.

The panel majority ’s definition stretches the mean i n g o f the word “factual” bey ond any meaning in leg al parlan c e

. W h ether Allen’s prior crime is a p redicate crime is p u r e ly a leg al question—it w ould never be submitted to a jury for trial

as a fact question. A “que s t i o n of fact” means an “issue involving the r esolution of a factual dispute and h ence within the provin c e o f t he jury in contrast to a question of law.” Question of

fact
, Black’s Law Dictionary 1246 ( 6th ed. 1990). B ut a “ q u e s t i o n of law” is an “issue which involves the

a p p l ication o r interpretation of a law and hence within the province of the judg e a

n d not the jury .” Qu e s t i o n o f law
, Black’s Law Diction a r

y 1 2 4 6 (6th e d. 1990). The panel majority ’s rationale means that a ny chang e in how a crime is leg ally classified now qualifies a s “factual innocence,” despite the Supreme Court’s directio n to the contrary in Bousley

.

The panel majority ’ s application o f actual innocence allows any petitioner to seek relief from career-offender sentencing enhancements based on retr o a ctive chang e s; transforms what is a quintessential c l aim of “ leg al insufficiency

” into a claim of “factual innocence;” and flouts the Supreme Court’s g eneral admoniti o n that “‘actual innocence’ is a very n arrow ex ception[ .] ” Sawyer , 505 U.S.
at 341. Rather than a ffect a mere “small and d i m inishing subset,” Conc urrence at 1 3, the panel majority ’s opinion
opens the fl o odg ates to habeas r eview of noncapital “actual innocence” claims.A L L E N V

. I V E S 24

III

Apparently the e x isting deep three-way circuit conflict on this issue was not enoug h. The panel majority ’s decision

c r eates a new four-way circuit split and maroons the N i n t h C i r c u it on our own island of § 2 255(e) jurisdiction. I t accomplishes this feat alm o s t without comment and ig nores

a wealth of precedent on this issue, nearly all of which would compel dismissing Allen’s petition for lack of jurisdiction. I n

one set o f ca s es, the F irst, 3 Second, 4 Third, 5 F ifth, 6 a nd

3 Da mo n v. Un i t ed Sta tes , 7 3 2 F.3 d 1
, 6 (1 st Cir. 2 01 3 ) (“ B ecau s e Dam o n co n tests o n ly th e categ o rizatio n o f h is p rio r co n v ictio n as a crim e

o f v io len ce, h e h as n o t plead ed ‘ actu al in n o cen ce’ as d e fi n e d in Bo u sley .”).

4 Po in d exter v. Na sh
, 3 3 3 F.3 d 3 7 2
, 3 8 2 (2 d Cir. 2 0 0 3) (af f i rm in g d ism issal o f

a § 2 2 4 1 p etitio n

b ased o n career o f f en d er m isclassif

icatio n b ecau se “ w

h atev er t h e m erit o f th e co n ten tio n t h at th e Gu i delin es w ere

m isap p lied in t

h e treatm en t o f P o in d ex t er’ s th ree u n d isp u t ed p rio r

co n v ictio n s, h is claim th at th e t h ree crim es sh o u ld h av e b een tre a t ed as

o n e crim e is n o t co g n izab le as a claim o f actu al in n o cen ce”).

5 Okereke v. Un ited S ta t es , 30 7 F.3 d 1 1 7
, 1 2 0

– 2 1 (3 d Cir. 2 0 0 2) (h o ld i n g th at th e p etitio n er co u ld no t q u a l if y f o r th e escap e h atch w

h ere h e bro u g h t an Ap

p ren d i ch allen g e t o h is sen t en ce an d d id n o t claim f actu al in n o cen ce o f t

h e u n d erly in g crim e o f co n v i ctio n ); S co tt v. S h artle
, 5 7 4 F. A p p’ x 1 5 2
, 1 5 5 (3 d Cir. 2 0 1 4) (ap p ly in g Okereke to d en y a ch allen g e to th e ap p licatio n o f t h e c a reer of f en d er en h an cem en t by w ay o f a § 2 2 4 1
p etitio n ).

6 In re Bra d

f o rd
, 6 6 0 F.3 d 2 26
, 2 3 0 (5 th Cir. 2 0 1 1) (p er cu riam ) (“ [A ] claim o f actu al in n o cen ce o f a career o f f en d er en h an cem en t is n o t a claim

o f actu al in n o cen ce o f t h e crim e o f co n v ictio n an d
, th u s, n o t th e ty p e of claim th at w arran ts rev iew

u n d er § 2 2 4 1 .”).A L L E N V

. I V E S 25

Eig hth 7 Circuits would dismiss the p etition by rely ing on the definitio n o f “actual innocence” as laid out in Bousley

. 8 On

a secon d view, the T e nth 9 and Eleventh 1 0 Circuits do not in c o r porate an “actual innocence” ex ception in their § 2255(e) escape h atch jurisprudence. They would instead dismiss the petition as successive under § 2255 because there

was an opportunity to raise the issue in the first petition, even if the issue was foreclosed b y Supreme Court precedent at the time.

7 S u n Bea r v. Un ited S t

a tes , 64 4 F.3 d 70 0
, 7 0 5

– 0 6 (8 th Cir. 2 0 11 ) (en b an c) (af f irm in g d en ial o f m o tio n to v acate b ased o n an alleg ed ly u n l aw f u l

career o f f en der en h an cem en t b ecau se th ere w as n o alleg atio n “ th at th e

co n d u ct f o r w h ich p etitio n er h ad b een co n v icted an d sen ten ced ” h ad n o t

o ccu rred ).

8 Ou r co n cu rrin g co lleag u es accu se u s of m isu n d erstan d in g Bo u sley

. Co n cu rren ce at 7

. T o th e co n trary , o u r u n d erstan d in g o f B o usley is

co n sisten t w ith ev ery circu i t, in clu d in g o u r d ecisio n in Ma rrero , th at relies

o n th e Bo u sley “ actu al in n o cen ce” stan d ard

.

9 Pro s t , 6 3 6 F.3 d at 5 8 4 , 5 9 0 (Go rsu ch
, J.) (h o ld in g t h at a p etitio n er

can n o t u se a § 2 2 41 p etitio n to ch allen g e h is sen ten ce w h ere h e co u ld h av e raised t h e sam e claim in h is in itial § 2 2 5 5 m o tio n , ev en if th e claim w as f o reclo sed at th e tim e b y b in d in g circu it or Su p rem e Co u rt p reced en t); S a n d la in v. En g lish
, 7 1 4 F. A p p’ x 8 2 7
, 83 1 (1 0 th Cir. 2 01 7 ) (ap p ly in g Pro st to d en

y a ch allen g e t o th e ap p licatio n o f t h e c a reer o f f en der

en h an cem en t b y

w ay o f a § 2 2 4 1 p etitio n ).

10 McCa rth a n , 8 5 1 F.3 d at 1 08 9 (“ A p riso n er h as an ad eq u ate p ro ced u re to raise an y claim a t t a c k in g h i s sen ten ce, ev en if th at claim is f o reclo sed b y

circu it p reced en t.”).A L L E N V

. I V E S 26

On the third side, that leaves the F o urth, 1 1 Six th, 1 2 and Seventh 1 3 Circuits as the o nly circuits that could theoretically find jurisdiction for Allen’s habeas c laim, but under a completely different standar d

. L ike the Tenth and Eleventh C ircuits, they also do not incorporate a n actual inno c e n c e

ex c e ption to qualify f

or the escape hatch. See Allen
, 950 F .3d
at 1199 (Callahan, J

. , dissenting ). Rather, they demand an “error sufficien tly g rave to b e [ ] a fundamental defect” to allow a petition under the § 2 2 5 5 ( e ) saving s clause. See Lester
, 90 9 F. 3 d a t 712 ( citation omitted). This equitable consideration in their escape hatch jurispruden c e requires sig n ificant disparities between the “ but for” and “imposed”
sentences to qualify f

or r elief. 1 4 But even they would likely

11 Lester v. Flo u rn o

y , 9 0 9 F.3 d 7 0 8, 7 1 6 (4 t

h Cir. 2 0 1 8 ) (“ W h ere, as h ere, an erro n eo u s career o f f en d er d esig n atio n ra i s e s a d ef en d an t’ s

m an d ato ry p riso n term f

ro m a m ax im

u m o f 1 2 1⁄2 y ears to a m i n im u m of alm o st 2 2
, th e resu ltin g sen ten ce is f u n d am en tally d ef

ectiv e” an d can g iv e rise to j u risd ictio n u n der § 2 2 4 1 .).

12 Hill v. M

a s t ers , 8 36 F .3 d 59 1
, 6 0 0 (6 th Cir. 2 01 6 ) (“ Hill’ s ch allen g e to h is m isap p lied career- o f f en d er en h an cem en t is p ro p erly b ro u g h t u n d er § 2 2 4 1 b ecau s e h e w a s sen ten ced u n d er th e m an d ato ry Gu i d elin es Man u al; is b arred f ro m f ilin g a su ccessiv e § 2 2 5 5 m o tio n ; an d receiv ed th e en h an cem en t b ased o n a p rio r co n v ictio n th at a su b seq u en t,

r e t r o activ e ch an g e in Su p rem e Co u rt j u risp ru d en ce rev eals is n o t a p red icate o f

f en se.”).

13 Bro wn v. C

a ra wa y , 7 1 9 F.3 d 5 8 3
, 5 8 8 ( 7 t h Cir. 2 01 3 ) (“ [T ]h e

m isap p licatio n o f th e sen t en ci n g g u id elin es, at least w h ere (as h ere) th e d ef en d an t w as sen ten ced in th e p re- Bo o ker era, rep resen ts a f u n d am en t al d ef ect th at co n stitu

tes a m iscarriag e o f j u stice co rrig ib le in a § 2 2 4 1
p ro ceed in g .”).

14 S ee, e.g

. , Lester
, 9 0 9 F.3 d a t 7 1 6 ( m i sap p lied sen ten cin g

en h an cem en t ad d in g alm o st ten y ears); Hill
, 8 3 6 F.3 d at 5 9 3 (m isap p lied

sen ten cin g en h an cem en t ad din g u p to an ad d itio n al n in e y ears); Bro wn ,A L L E N V

. I V E S 27

not find jurisdiction in this case. He re , Allen only received

a sentence 29 months above the top end of th e r ang e that would have applied absent the career o ffender enhancement. Allen
, 9 50 F .3d at 1186–7. I n conclusion, not a sing le circuit

u s e s the erroneous definition o f “actual innocence” that t h e panel majority adopts, and n ot a sing le court would l i k ely find jurisdiction under § 2255(e).

IV

The panel majority ’s decision also creates an intra-circuit conflic t with our previously uniform case law ex pressly foreclosing Allen’s claim that h e is “actually innocent” o f his

career offender classification. I n Marrero
, we held that “the purely leg al arg ument that a p etitioner w as wrong ly classified

as a career offender u nder the Sentencing Guideline s i s not cog niz able as a c laim of actual innocence under the escape hatch.” 682 F .3d at 1195.

Over the last e ig ht y ears, all relevant d e c isions of this
court have uniformly interpreted Marrero to p r e c lude the panel majority ’s holding here. 1 5 For those counting
, that

7 1 9 F.3 d at 5 8 6 (m isap p lied s en ten cin g en h an cem en t ad d in g b etw een 3 3 to 9 8 m o n t

h s).

1 5 Ma rrero , 6 8 2 F.3 d at 1 1 91 (T h o m as, C.J .; Grab er, J
., Sch ro ed er , J .); Do r ise v. Ma tevo usia n , 6 9 2 F

. A p p ’ x 8 6 4
, 8 6 5 (9 th Cir. 20 1 7) ( T h o m as, C .J .; Mu rg u i a, J .; Mccalla, D.J .) (“ A lth o u g h p resen ted as a n actu al in n o cen ce claim
, Do rise’ s real arg u m en t is th at h e w as i n co rrectly categ o rized as a career o f f en der u n d er U.S.S.G. § 4 B 1 .1

. A s in Ma r rero , th is claim is p u rely leg al an d h as n o t h in g to d o w ith f

actu al in n o cen ce.” (in t ern al q u o tatio n m ark s o m itted )); Rio s-Vizca rra v. W ig en , 6 6 9 F. A

p p ’ x 8 8 6
, 8 8 7 (9 th Cir. 2 0 1 6) (Klein f eld
, J .; T ash im a, J .; M. Sm ith
, J .) (“ Rio s

Vizcarra do es n o t alleg e t h at h e w as f

actu ally in n o cen t o f th e state

co n v ictio n , n o r w as Rio s- Vizcarra statu to r i l y in elig ib le to receiv e h isA L L E N V

. I V E S 28

means that prior to the e n banc v ote 15 judg es on this court and o ne judg e sitting by d esig nation—includi n g 10 active judg es elig ible to vote en banc—had already rej e cted the panel majority ’s holding in clear lang u ag e in six separate

cases and the Allen panel’s dissent. True, the panel majority

was not bound by the five unpublished decis i o n s. B ut hopefully judg es on those panels mean t w h a t they wrote. And if so, 19 active judg es on this court have now rejected the panel majority ’s holding under Marrero

.

I b r iefly review Marrero

. The petitioner was convicted in 2001 of two counts of interference with i n t e r s tate

commerce b y threat or violence and a firearm offense. Marrero v. United States
, 2 007 W L 914313, at *1 (N.D. I ll. M a r

. 2 1, 2007). The district court classified Marrero a s a

career offender based o n several prior convictions a nd sentenced him to 324 months o f im p r i s o n ment. M arrero , 682 F .3d at 1192

. Marrero’s direct appeal was denied, a s was his first § 2255 motion. Id.

sen ten ce, eith er w ith o r w ith o u t th e en h an cem en t.”); Un ited St a t e s v. Meeks
, 61 6 F

. A

pp ’ x 3 3 5
, 3 3 6 (9 th Cir. 2 0 1 5) (Go od w in
, J .; Go u ld
, J .; Ik u ta, J.) (“ T h e district c o u rt d i d n o t err w

h en it co n clu d ed th at Meek s f ailed to satisf

y th e req u i rem en t o f t h e § 2 2 5 5 (e) escap e h atch b ecau s e Meek s h as n o t p lau sib ly sh ow n t h at h e w as actu ally in n o cen t of th e career

o f f en d er sen t en cin g en h an cem en t u n d er t h e A rm ed Career C rim in al A ct

. . . .”); Rith v. Rio s , 5 1 4 F. A p p ’ x 6 84 , 6 8 5 (9 th Cir. 2 0 1 3 ) (W allace, J .; McKeo w n , J.; Ik u ta, J .) (n o tin g p etitio n er’ s “ arg u m en t th at h e w as in n o cen t o f h is career of f en der statu s f

o r sen ten cin g p u rp o s es is n o t

co g n izab le as a claim o f actu al i n n o cen ce” (in tern al q u o tatio n m ark s

o m itted )); G reen v. Th o ma s , 4 8 5 F. A pp ’ x 8 8 8
, 8 8 9 (9 th C i r

. 2 0 1 2) (Raw lin so n , J .; Mu rg u ia, J .; W atf o rd
, J.) (“ [P etitio n er] co n t en d s th at h e is
actu ally in n o cen t o f

b ein g a career o f

f en der u n d er U.S.S.G. § 4 B 1 .1 an d th eref o re h e sh o u ld b e allo w ed to p ro ceed w ith h is sectio n 2 2 41 p etitio n

u n d er t h e ‘ escap e h atch ’ o f 2 8 U.S.C. § 22 5 5(e). T h is co n ten tio n is f o reclo sed [b y Ma rrero ].”).A L L E N V

. I V E S 29

Marrero then filed a § 2241 petition in 2008 making two separate claims of actual innocence. Id. F irst, Marrero “may have intended to raise the claim that he was f actually innocent of his crimes of conviction. Bu t he introduced n o evidence tending to show that he did not commit the robberies underly ing his convictions,” doo ming his first claim o f factual innocence. Id. Second, he also arg ued that “two o f his prior o ffenses should no long e r be con s i d e red ‘related’” due to th e 2007 amendments to the Sentencing Guidelines. Id. at 1193. Therefore, h e claimed he was “actually innocent” of being a care e r offender b ecause he would b e one prior conviction short of the requirement. Id.

W e h e ld t h at “[ w] hatever the merits of Petitioner’s
arg ument that he woul d n o t qualify as a career o ffender

. . . his claim [ was] not one of actual innocence.” Id. W e relied

on the Supreme Court’s h olding i n B o u s ley that “‘actual innocence’ means factu a l innocence, n o t mere leg al insufficiency .” Id. at 1193 (citing Bousley
, 523 U.S. at 623). M a r r e r o had presented a “ purely leg al claim that ha[ d] nothing to do with factual innocence. ” Id. Therefore, we affirmed the district court’s dismissal of the petition for lack of jurisdiction, holding that “ the purely leg al arg ument that a petitioner was wrong ly c l a s s ified as a c areer offender under the Sentencing Guidelines is not cog niz able as a claim o f actual innocence under the escape hatch.” Id. at 1195.

To disting u ish Marrero
, the panel majority claims it was merely answering a question left open—“whether a p etitioner
may e ver be a ctually innocent o f a n oncapital sentence f or the
purpose of q

ualify ing for the escape hatch.” Allen
, 950 F .3d
at 1189. B ut reg ardless of the b road hy p o thetical left open in Marrero
, the Marrero p anel clearly answered the narrow questio n at issue in Allen’s case: the arg ument that “aA L L E N V

. I V E S 30

petitioner was wr o n gl y classified as a c areer offender under the Sentencing Guidelines” is “purely leg al” and therefore “ is
not cog niz able a s a claim of a c tual innocence under the
escape hatch.” 682 F

. 3 d at 1195. The panel majority ’s invocation of the question left open in Marrero is a thinly

veiled attempt to evade its holding

.

There a re sit u a tions where M arrero ’s hy

pothetical question of a ctual innocence mig h t be presented—but not in Allen’s c ase. A petitioner may actually b e innocent if he

were fa c t u a lly innocent o f the crimes: “for ex a mple, if the predicate crime we r e rape, and D NA evidence later proved
p e t itioner’s innocence.” Allen
, 950 F .3d at 1188. B ut the panel majority acknowledg es that A llen committed two prior crimes of drug dealing a

n d that this conduct was criminal. Id. The panel majority ’s o wn formulatio n c l arifies the issue: “[ t] he question before us . . . is not whether a petitioner w ho did not commit a predicate crime of which he was convicted
may challeng e his career offender status under § 2241.” Id. The question here is a separate one: “ w hether a p etitioner

w h o c o mmitted a crime that is not a predicate crime m a y challeng e his career offender status under § 2 241.” Id. Until
now, the answer to that question was a unanimous a nd resounding no. A llen was n ot actually
, factually innocent o f his underly ing conviction.

The panel’s c ircuitous approach to avoiding Marrero is unavailing because Marrero ’s open question simply doesn’t apply here. There is no a ctual innocence in this case; r ather, both Marrero and Allen presented claims o f leg al insufficiency

. Marrero (1) arg u ed he was actua l l y i nnocent, (2) o f the career offender sentencing e nha n c e m e n t, (3) via a § 2241 petition filed thr oug h the § 2255(e) escape hatch provision, (4) b ecause the state law predicate offenses that theA L L E N V

. I V E S 31

district court relie d o n a t sentencing
, (5) are no long er sufficient f

e d er a l predicate offenses, (6) under the revised Sentencing Guide l i n es. 682 F .3d at 1 192–93. Compare Ma r rero’s claim to Allen’s. Allen (1) arg ues he is actually innocent, (2) o f the career offender sentencing enhancement, (3) via a § 2 241 petition filed throug h the § 2 2 55(e ) escape hatch provision, (4) because the state law pred i c ate offense that the district court relied on at sentencing
, (5) is no long er

a sufficient fede r a l predicate o ffense, (6) due to an intervening chang e in the Suprem e C o u r t ’ s non-constitutional caselaw. Allen
, 950 F .3d at 1189–90. I n short, Marrero is on all fours with this case.

To justif y dismembering Marrero
, the panel majority
turns to a sing le out-of-circuit case, United States v. Maybeck
, 23 F .3d 888 (4th Cir. 1994), decided before Cong ress passed AEDPA. Allen
, 950 F .3d at 1189. Although Maybeck ’s holding facially supports the panel m a j o r ity ’s opinion, Maybeck is disting uishable. F irst, Maybeck inv o l v e d a motion broug ht u nder § 2255, not a § 2241 petition. 23 F .3d
at 891. Thus, the F ourth Circuit w as not presented with the precise q uestion p resented h ere: whether a § 2255 motion was “inadequate or ineffective.” Second, May beck was f

actually and actually innocent of the crime r eported in his presentence report. May

beck’s presentence report said he was convicted of “ a r m ed b u rg lary .” Id. at 8 90. This caused him to be sentenced a s a career offender. Id. at 890–91. B ut May beck, in fact, d id not have a weapon d uring this burgl ar y

. Id.
at 891, 8 9 2 n

. 7

. May

beck’s a ctual innocence c laim was based on the facts of his p rior state c onviction, which did not involve the use of a weapon. The panel majority ’s misplaced reliance on this sing le F ourth Circuit case ig nores a w ealth o fA L L E N V

. I V E S 32

precedent adopting the concept of act ual, factual innocence from Bousley and Marrero

. 1 6

Separately
, the panel majority sug g e sts it was not r equired
to follow Marrero because that case involved a nonr e troactive chang e in the law, whereas the chang e he r e w a s retroactive. Allen
, 950 F .3d at 1190. B ut thi s d istinction
ag ain ig nores our past decisions, sug g esti n g m any of my colleag ues have g otten the law wrong in unpubl ished decisions apply ing Marrero

. See supra at 27 n.1 5

. B y way of e x a m p l e , a few y ears ag o, we rejected a claim that a petitioner was “‘actually innocent’ of his car eer offender status” under the Guidelines by virtue o f the Supreme Court’s

“ r e t roactive[ ] ” invalidation of “the residual clause of t h e Armed Career Criminal A c t as unconstitutionally vag ue.” W e held “[ a] s in Marrero
, th[ at] claim [ was] purely leg al a nd ha[ d] nothing to do with factual innocence.” Dorise
, 692 F

. App’x at 8 65 (internal quotation marks and citation omitted). 1 7

More importantly
, M

arrero rejected the a

rg ument that the retroactivity of a leg al chang e i n the law had any bearing on “actual innocence.” 6 82 F .3d at 1193. To the cont r ary , Marrero recog niz ed that the m e r its of the petitioner’s

1 6 S ee, e.g

. , Da mo n , 7 3 2 F.3 d at 6 ; Po in d exter , 3 3 3 F.3 d at 3 8 2 ; Okereke
, 3 0 7 F.3 d at 1 2 0

– 2 1; In re Bra d fo rd
, 6 6 0 F.3 d at 2 3 0 ; S

un Bea r , 6 4 4 F.3 d at 7 05

– 0 6

.

17 See a lso W

ig en , 6 6 9 F. A

p p’ x at 8 8 7 (ap ply in g Ma r r e r o to rej ect h ab eas petitio n b ased on t h e arg u m en t t h at “ a p rio r state co u rt co n v ictio n sh o u ld n ot b e co n s tru ed as a ‘ p rio r d ru g fe l o n y ’ ” af ter th e S u

p rem e C o u r t ’s d ecisio n in Desca mp s ); Meeks
, 61 6 F. A p p ’ x at 3 3 6 (ap p ly in g Ma rrero to rej ect claim o f ac t u a l in n o cen ce o f th e “ career o f f en der

sen ten cin g en h an cem en t” b ased o n retro activ e ap p licatio n o f Desca mp s ).A L L E N V

. I V E S 33

arg ument that the law had chang e d as a le ga l matter were irrelevant because “his claim [was] not one of actual innocence.” Id. Ret r o a ct ivity
, therefore, is not a basis for disting uishing Allen’s case from Marrero

.

The p anel majority also g rasps at dicta f rom Marrero to try to bolster i t s r e a soning

. I t cites lang uag e from Marrero briefly summariz ing o ther circuit cases’ ex ception s t o the
g eneral rule that a petitioner c a nnot be actually innocent of a

n oncapital sentence under the escape hatch. See All en , 950 F .3d at 1189; see also Mar r e ro , 682 F .3d at 1194. I n particular, it foc u ses on the second e x ception, where “a petitioner may qu al ify for the escape hatch if he received a

s e n t ence f

or which he was statutorily inelig ible,” Marrer o , 682 F .3d at 1195. See A llen
, 950 F .3d at 1189. B ut the panel majority “admits

. . . this ex ception [ is] limited

. . . to c laims that the p etitioner received a sente n ce that ex c eeded the statutory max imum.” A llen
, 950 F .3d at 1195 ( Callahan, J
., dissenting ). Here, if Allen “had not been desig nated a career offender, his applicable Guideline ran g e on the conspiracy

c o u nt w ould have been 235 to 293 months—meaning
, h e would have still been elig ible f or the 262-month sentence he received.” Id. at 1195 n.4. This ex c eption, at odds with our jurisprudence as applied, c o uld n ot even ap p l y i n A llen’s

case.

The panel majority justifies its leap of l o g ic b y contending that “the advisory na t u re of the post-B ooker
g uidelines was important.” Allen
, 950 F .3d at 1 1 8 9

. T h e panel maj o ri ty surmises that Alleyne v. United States mig ht

mean that for petitioners sentenced under the m a ndatory Sentencing Guidelines, like Allen, whenever the statutory mi n imum is increased a

n actual innocence claim mig ht be available. See Allen
, 9 50 F. 3 d at 1189 (citing Alleyne
,A L L E N V

. I V E S 34

570 U.S. 99, 1 07–08 ( 2013)). So the pane l majority u ses Allen’s increased minimum sentence u n der the mandatory Sentencing Guidelines as cursory justification for its holding

. Id

. B u t Alleyne said nothing about the meaning of a n “actual innocence” claim or the § 2 2 5 5 e s c a pe hatch. The panel majority ’s proposition lacks any leg al support from Marrero
or any other case.

This lone parag ra p h f

rom the panel majority ’s opinion threatens to blow the h a

b eas escape hatch wide open so that the “very narrow e x ception” of actual innocence n ow swallows the rule f

or finality

. See Sawye r , 5 0 5 U.S. at 341. Any challenge t o a sentencing factor that increased the petitioner’s minimum sentence under the p re- Booker
gu idelines would qualify as an “actual innocence” c lai m f o r purposes of the escape hatch. Unde r t h e panel majority ’s reasoning
, habeas r elief would be op e n to essentially any g arden-variety challeng e to a court’s pre- Boo ker sentencing
rang e calculation. The actual innocence e x c e p tion reserved for the “ ex traordinary case” would app l y to every ordinary

case. See Schlup v. Delo , 513 U.S. 298, 321 (1995).

V

B es ides its misapplication of “actual innocence,” the panel majority more fundamentally r eads the escape hatch in conflict w ith the tex t, structural contex t, and histo ry of the
statute. W hile our court has already a p plied the escape hatch unmoored from the s t a t utory tex t, the panel majority

ex a c erbates this problem.A L L E N V

. I V E S 35

A

The tex t of the statute is instructive. See Lo s A n geles Lakers, Inc. v. Fed. Ins. Co.
, 8 6 9 F .3d 795, 802 (9th Cir. 2017) (“[ W ] e start, as we must, with the tex t of the statute.”). Section 2255(e) provides:

A n a pplication for a writ of habeas corpus i n behalf of a prisoner who is authoriz ed to apply for r elief by motion p u rsuant to this section, shall not be entertained if it appe a r s that the applicant has failed to apply for relief, b y motion, to the court which sentenced h i m, o r that such court h as denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention

. (emphasis added). The operative clause c ontains three key
terms: “remedy ,” “inadequate or ineffectiv e , ” and “to test.” I discuss each in turn.

F irst, Cong ress’s decisi o n to use the term “remedy ” indicates that a § 2255 motion is not made inadequate o r ineffective simply because a leg al claim is f o r e cl osed b y operative case law when first fi l i ng a habeas petition. A remedy i s t he “ means by which a r ig ht is enforced or the violation of a rig ht is prevented, r edressed, or compensated.” Remedy
, B lack’s Law Diction ary 1526 (3d ed. 1 933) (emphasis added)

. “ M eans” is the key component of the definition. So long as the p etitioner can file an initial § 2255
mot i o n challeng ing his detention, he h as the means to bring

a challeng e. The escape hatch r emains shut. See McCarthan
, 851 F .3d at 1086.A L L E N V

. I V E S 36

Cong r ess’s use of the term remedy
, as opp o sed to relief, is critical. “Section 2255(e) ex pressly disting uishes b etween the terms r emedy and relief, stating that § 2241 is not

av ai l a b l e to a petitioner simply because a ‘court has denied h i m relief.’” Prost
, 636 F .3d at 584–85 (internal citati o n s omitted). Cases from our c ircuit a nd others build o n this notion. F or ex ample, we have held that the inability to obtain relief because of a procedu r a l b ar does not mean that the § 2255 remedy is inadequate or ineffective. See, e .g. , Moore

v. Reno
, 185 F .3d 1054, 1055 (9th Cir. 1 9 99); see also Prost
, 636 F .3d at 585 (collecting c a ses). And even thoug h precedent mig ht be unfavorable to a claim, a petitioner still has the opportunity to challeng e hi s conviction. “[ F ]utility
cannot c onstitute cause if it means simply that a claim w a s unacceptable to that p articular court a t that particula r t i m e.” Bousley
, 523 U.S. a t 623 ( i n t e rnal quotation marks a nd citation omitted). “The U.S. Reports are, after all, r eplete with insta n ce s where the Supreme Court has r ewarded litig ants who took the trouble to challenge adverse circuit precedent.” Prost , 636 F .3d at 590.

Second
, C o ng ress’s decision to include the phrase “inadequate or ineffective” in § 2255(e) also supports this conclusion. I nadequate, in the c o ntex t of remedies, means “unfitted or n ot adapted to the end in view.” Inadequate Reme d y at Law
, Black’s Law Dictionary 940 (3d ed. 1933). “I neffective” means “[ o ] f such a nature as not to produce

. . . the intend e d [ ] effect.” Ineffective
, 5 Oxford English D ictionary 239 (1st ed. 1 933). Ag ain, neither term g uarantees substantive relief; the statutory tex t only protects the opportunity to b r i n g a challeng e

. “I f the r ule were otherwise—if, say , c ou rt s were to read subsection (h) a s barring o nly losing second or successive motions—the statute’s limitations would be effectively pointless

. ” Prost
,A L L E N V

. I V E S 37

636 F .3d at 586. A challeng e is “still ‘adapted to the end’ o f
t e s t i ng the claim reg ardless of the claim’s success on t h e merits.” McCarthan , 851 F .3d at 1087.

F inally
, Cong ress’s use of the phrase “to test” buttresses the conclusion that § 2255(e) g uarantees an opportunity
, not

a result. “‘To test’ means ‘ to try .’” Id

. at 1086 (quoting Test
, 11 Oxford English Dictionary 220 (1st ed. 1933 )). A
pe t i t i o n er may try a claim if he has “an opportunity to bring his arg ument.” Prost
, 6 36 F .3d at 584. Cong ress’s decision
to use the word “test” confirms that § 2 255(e)’s escape hatch is “concerned w ith process—ensuring the peti tioner an

o p portunity to bring his arg ument—not with substance—
g uaranteeing nothing abo u t what the opportunity promised will ultimately

y ield in terms of relief.” Id.

B

Section 2255(e)’s statutory c ontex t als o c o n firms that a petitioner ’ s re medy under § 2255 is not inadequate o r ineffective so long as the petitioner h a d the opportunity to raise that claim in his f irs t § 2 2 5 5 m otion. I t is a “fundamental canon of statutory construction that the words of a statute must b e r e ad in their c ontex t and with a view to their place in the overa l l s tatutory scheme.” FDA v. Brown & W illiamson Tobacco Corp.
, 529 U.S. 120, 133 (2000) (quoting Davis v. Michigan D ept. of Treasury
, 489 U.S. 803, 809 (1989)).

The escape hatch’s statutory neig hbor, § 2 25 5 (h ), supports a limited reading of § 2255(e). This provision bars second and successive petitions unless there is:A L L E N V

. I V E S 38

(1) newly discovered evidence that, if proven and viewed in lig ht o f the evide n c e as a whole, would be sufficien t to establish b y clear and co nvincing evidence that no

rea s o n a ble factfinder would have found the movant g uilty

of the offense; or

(2) a n e w rule of constitutional law, made retroactive to cases on collateral review by the S u p r e m e C o u r t , t h a t w a s p r e v i o u s l y unavailable.

§ 2255(h). Cong ress added this section in 1996, after federal
courts permitted § 2255 motions based on new statutory interpretations. See

, e.g. , Davis v. United S tates , 417 U.S. 333, 346–47 (1974). Yet Cong ress d i d not include a provision in § 2255(h) providing jurisdiction if a conviction

or sentence w as potentially affected by a retroactiv e chang e i n statutory interpretation. Cong ress intentionally chose not to do so. See Merck & Co. v. Reynolds
, 5 5 9 U

. S

. 633, 648 (2010) ( “ W e n ormally assume that, when Cong ress enacts statutes, it is aware of relevant judicial precedent.”).

Similarly
, Cong r e ss’s decision to impose a sta t ute o f l i mitations on § 2255 motions also should limit o u r interpretation of § 2255(e). Section 2255(f) provides:

A 1-y ear period of limitation shall apply to a motion under this sect ion. The limitation period shall run from the latest of—

(1) the d ate on which the judg ment o f conviction becomes final;A L L E N V

. I V E S 39

(2) the d a te on which the impediment to making a motion created by g overn mental action in violation of the Constitution or laws of the U nited States is removed, if the movant

was prevented from making a motion by such
g overnmental action;

(3) the date on which the rig ht asserted wa s initial l y r ecog niz e d by the Supreme Court, if that rig ht has b e e n newly recog niz ed by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim o r cl a ims presented could have been discovered t h roug h the ex e rcise of d ue dilig ence.

Ag ain, Cong ress did n ot include a n ex ception to the o n e-y e ar statute of limitations for new statutory interpretations issued by the Supreme Court or circuit courts. W e r u n r oug hshod

over that statutory lang uag e by reading in an e x ception to the
statute of limitations for cla ims broug ht under § 2255(e)’s escape hatch rely

ing on new statutory

interpretations.

Section 2255(e)’s statutory history also confirms that the
escape hatch should b e narrowly construed. When Cong ress

cr e ated the c ause of action in § 2255, it attempted to distribute habeas litig ation to the convicting courts away from the few courts with jurisdiction over prisons. See H u e s o v. Barnhart
, 948 F .3d 324, 327 ( 6th Cir. 2020). The panel majority ’s ex pansive i nterpretation of the escape hatch, however, d efeats this p ur p o s e

. B road access to the escape hatch dramatically increases, rather than reduces, the burdenA L L E N V

. I V E S 40

of crushing workloads for district c ourts. District courts with jurisdiction over prisons must h ear all the § 2255 motio n s stemming from their ow n c ases, while a lso considering the § 2241 petit i ons f

rom prisoners sentenced in other j urisdictions filing for habeas relief throug h the § 2255 ( e )
escape hatch. I n short, the panel majority ’s interpretation of the escape hatch e x acerbates the p roblem Cong ress wa s attempting to solve.

* * *

The panel majority veers so far afield because i t f ails to analy z e § 2255(e)’s full tex t, structural contex t, or statutory history

. Apply ing the plain lang u ag e o f § 2255(e) would lead
to a straig htforward denial of A llen’s petition. Allen ’ s first § 2255 motion in the Connecticut district court was denied in 2003. Allen
, 9 50 F

. 3d at 1187. He h a d an opportunity to b r ing the instant claim that h e was not a career off e n d e r i n t h a t i n i t i al § 2255 motion but did not do so. As a result, he
may not proceed by way of the escape ha t c h now. I nstead, his § 2241 petition should h ave been denied as a thinly -veiled second a nd successive motion ove r w h i ch we lack jurisdiction pursuant to § 2255(h). Denial is also warranted because the petition is untimely

under § 2255(f).

VI

The pa n e l majority ’s decision conflicts with Supreme Court precedent; every circuit’s case law, including our own; and ig nores the statutory lang uag e and contex t o f § 2255. I n doing so, it wrests jurisdictio n a l c ontrol over “the power to

a w a r d the writ” of habeas corpus from Cong ress. See E x parte Bollman , 8 U.S. 75, 94 (Marshall, C.J .). Chief J u stice Marshall rejected the ex p ropriation of this power to theA L L E N V

. I V E S 41

judiciary 213 y ears ag o. Id. W e should have taken this case en banc and followed his lead. I respectfully

dissent.