FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL ALLEN,

Petitioner-Appellant,

v.

RICHARD IVES,

Respondent-Appellee.

No. 18-35001

D.C. No.

3:17-cv-00044-HZ

ORDER

Filed September 22, 2020

Before: William A. Fletcher, Consuelo M. Callahan,

and Morgan Christen, Circuit Judges.

Order;

Concurrence by Judge W. Fletcher;

Dissent by Judge R. Nelson
2 ALLEN V. IVES

SUMMARY*

Habeas Corpus

The panel denied a petition for rehearing en banc and

denied on behalf of the court a petition for rehearing en banc.

Concurring in the denial of rehearing en banc, Judge W.

Fletcher, joined by Judge Christen, wrote to respond to the

dissent from rehearing en banc and to explain why the panel

majority reached the correct decision in this habeas case in

which the only question was whether Allen was making a

claim of actual innocence. Judge W. Fletcher explained that

Allen’s claim of being “actually innocent” of his mandatory

sentencing enhancement due to a retroactive change in law

meets the definition of “actual innocence” under Bousley; and

rather than deepening the existing circuit split, instead aligns

the Ninth Circuit with the Fourth, Sixth, and Seventh Circuits. 

Responding to Judge R. Nelson’s argument that the decision

is contrary to Marrero v. Ives, 682 F.3d 1190 (9th Cir. 2012),

Judge W. Fletcher wrote that the claims are different in that

Allen’s claim relied on retroactively applicable Supreme

Court case law while the claim in Marrero was based on a

non-retroactive interpretation of the Sentencing Guidelines. 

Dissenting, JudgeR. Nelson—joined byJudges Callahan,

M. Smith, Ikuta, Bennett, Bade, Collins, Lee, Bress,

Bumatay, VanDyke, and (as to Parts II and IV)

Hunsaker—wrote that the panel majority’s holding conflicts

with Supreme Court precedent in Bousley v. United States,

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ALLEN V. IVES 3

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

an irreconcilable intra-circuit conflict with the holding in

Marrero; and ignores the statutory text by evading the limits

of the Antiterrorism and Effective Death PenaltyAct of 1996.

COUNSEL

Elizabeth G. Daily (argued), Assistant Federal Public

Defender, Federal Public Defender’s Office, Portland,

Oregon, for Petitioner-Appellant.

Amy Potter (argued) and Natalie K. Wight, Assistant United

States Attorneys; Kelly A. Zusman, Appellate Chief; Billy J.

Williams, United States Attorney, District of Oregon; United

States Attorney’s Office, Portland, Oregon; for RespondentAppellee.

ORDER

Judge W. Fletcher and Judge Christen have voted to deny

Respondent-Appellee’s petition for rehearing en banc, filed

June 8, 2020 (Dkt. Entry 54). Judge Callahan has voted to

grant the petition for rehearing en banc.

The full court has been advised of the petition for

rehearing en banc. A judge requested a vote on whether to

rehear the matter en banc. The matter failed to receive a

majority of votes of the nonrecused active judges in favor of

en banc consideration. Fed. R. App. P. 35(f).

The petition for rehearing en banc is DENIED.
4 ALLEN V. IVES

W. FLETCHER, Circuit Judge, with whom CHRISTEN,

Circuit Judge, joins, concurring in the denial of the Petition

for Rehearing En Banc:

Our colleague called this case en banc, but the call failed

to gain the approval of a majority of the active judges on our

court. We write to respond to our colleague and to explain

why we believe we reached the correct decision.

The question presented in this case was fairly

straightforward. Petitioner Allen sought a writ of habeas

corpus under 28 U.S.C. § 2241. In Marrero v. Ives, 682 F.3d

1190, 1192 (9th Cir. 2012), we held that relief may be sought

under § 2241 if a petitioner “(1) makes a claim of actual

innocence, and (2) has not had an unobstructed procedural

shot at presenting that claim.” (internal quotation marks

omitted). The government did not contest that Allen “ha[d]

not had an unobstructed procedural shot” at presenting his

claim. The only question was whether Allen was “mak[ing]

a claim of actual innocence.”

Marrero recognized that a habeas petitioner in a capital

case could be “actually innocent” of his capital sentence, but

left open the question whether a petitioner could be actually

innocent of a non-capital sentence for purposes of § 2241. Id.

at 1193. In Allen, we answered the question left open in

Marrero. We held that Allen made a cognizable claim of

actual innocence of his non-capital sentence and that he

properly sought relief under § 2241. See Allen v. Ives,

950 F.3d 1184 (9th Cir. 2020).

Our dissenting colleague argues that our decision in Allen

is contrary to Marrero, but the two cases are quite different. 

As we explained in our opinion, Allen’s claim relied on
ALLEN V. IVES 5

retroactively applicable Supreme Court case law. The claim

at issue in Marrero, by contrast, was based on a nonretroactive interpretation of the Sentencing Guidelines.

Allen pleaded guilty in federal district court to three drug

and firearm-related crimes in 1997. His minimum sentence

under the then-mandatory Sentencing Guidelines was

increased based on the district court’s finding that he had two

prior state-law convictions for “controlled substance

offenses” that were predicate crimes under the Guidelines. If

Allen had previously been convicted of only one “controlled

substance offence,” and thus only one predicate crime, his

mandatory minimum Guideline sentence would have been

lower. At sentencing, the district judge stated that if the

mandatory minimum sentence had not been increased by the

two prior convictions for predicate crimes he would have

sentenced Allen to a substantially shorter term.

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

on a guilty plea for a marijuana offense under Conn. Gen.

Stat. § 21a-277(a). Some of the conduct prohibited under

§ 21a-277(a) was a “controlled substance offense” within the

meaning of the Guidelines, but some of the conduct was not. 

The federal district court believed that § 21a-277(a) was

divisible, and that its overbreadth could therefore be ignored

for purposes of determining whether it was a “controlled

substance offense.” The court concluded that the marijuana

conviction under § 21a-277(a) was for a controlled substance

offense, and thus for a predicate crime.

After the deadline for filing a motion pursuant to

28 U.S.C. § 2255 had passed, the Supreme Court decided

Descamps v. United States, 570 U.S. 254 (2013), and Mathis

v. United States, 136 S. Ct. 2243 (2016). Those retroactively
6 ALLEN V. IVES

applicable decisions clarified the divisibility analysis. Under

Descamps and Mathis, it is very likely that § 21a-277(a) was

indivisible rather than divisible. If § 21a-277(a) was

indivisible, Allen’s marijuana conviction under that statute

was not a conviction for a “controlled substance offense.”

Under Alleyne v. United States, 570 U.S. 99, 107–08

(2013), a fact that increases a mandatory minimum sentence

is an “element of the offense.” If an element of an offense is

not established, a defendant is necessarily innocent of that

offense. See Bousley v. United States, 523 U.S. 614 (1998);

United States v. Geozos, 870 F.3d 890, 896 (9th Cir. 2017),

abrogated on other grounds by Ward v. United States,

936 F.3d 914 (9th Cir. 2019) (“[A]ny ‘fact increasing either

end of [a sentencing] range produces a new penalty and

constitutes an ingredient of the offense.’” (second alteration

in original) (quoting Alleyne, 570 U.S. at 112)); Brown v.

Caraway, 719 F.3d 583, 588 (7th Cir. 2013) (“For a prisoner

serving a sentence imposed when the guidelines were

mandatory, a § 2241 habeas petition raising a guidelines error

‘tests the legality of his detention’ within the meaning of the

savings clause, § 2255(e), because the guidelines had the

force and effect of law; the only lawful sentence was a

guidelines sentence.”). If Allen is right that his conviction

under § 21a-277(a) was not for a “controlled substance

offense,” and thus was not a conviction for a predicate crime,

he is “actually innocent” of the increased mandatory element

of his sentence and is eligible for habeas relief under § 2241.

Our dissenting colleague does not disagree with our

holding that a habeas petitioner can be “actually innocent” of

a non-capital sentence for purposes of § 2241. He argues

only that, on the facts of this case, Allen is not actually

innocent of his sentence.
ALLEN V. IVES 7

Our colleague makes essentially four arguments. First, he

argues that we have misapplied the Supreme Court’s decision

in Bousley. Second, he argues that Allen should have applied

for habeas under 28 U.S.C. § 2255 rather than § 2241. Third,

he argues that our decision conflicts with decisions in all of

the other circuits except the D.C. Circuit. Finally, he argues

that our decision opened the proverbial floodgates. We take

each argument in turn.

I. Bousley

Our colleague’s most important argument is that we have

misapplied Bousley, the foundation case explaining the

meaning of “actual innocence” under § 2241. He writes,

“The panel majoritydisregarded the Supreme Court’s holding

in Bousley that ‘“actual innocence” means factual innocence,

not mere legal insufficiency.’ 523 U.S. at 623–24.” Diss.

Op. at 20. Our colleague argues that actual innocence of a

predicate crime, and resulting innocence of a mandatory

element of a sentence, is a “mere legal insufficiency” rather

than “actual innocence.” He misunderstands Bousley.

Habeas petitioner Bousley pleaded guilty to “using” a

firearm in violation of 18 U.S.C. § 924(c)(1). Bousley did

not challenge his conviction on direct appeal, and he allowed

the one-year limitation period under § 2255 to lapse. Five

years after his conviction, in Bailey v. United States, 516 U.S.

137 (1995), the Supreme Court clarified, with retroactive

effect, the definition of “using.” Based on the Court’s

decision in Bailey, Bousley sought habeas under § 2241 on

the ground that he had not understood the meaning of “using”

when he entered his plea. The Court allowed Bousley to seek

habeas under § 2241, provided he could demonstrate “actual

innocence.” We have previously applied Bousley to grant
8 ALLEN V. IVES

relief in Alaimalo v. United States, 645 F.3d 1042, 1047–48

(9th Cir. 2011) (holding that a § 2241 petitioner had a claim

of actual innocence under Bousley when a later en banc

decision narrowed the interpretation of “importation” so as

not to reach petitioner’s conduct), and United States v. Avery,

719 F.3d 1080, 1085 (9th Cir. 2013) (holding that a § 2255

petitioner had a claim of 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, “It is important to note . . .

that ‘actual innocence’ means factual innocence, not mere

legal insufficiency.” Bousley, 523 U.S. at 623. “Mere legal

insufficiency,” as used by the Court, meant insufficiency of

the evidence of Bousley’s guilt in the existing record. That

is, Bousley could not demonstrate his “actual innocence”

simply by pointing to the “mere legal insufficiency” of the

evidence in the record made in connection with his guilty

plea. Rather, Bousley had to show, on an open record, that he

was actually innocent. The Court wrote, “[O]n remand, the

Government should be permitted to present any admissible

evidence of petitioner’s guilt even if that evidence was not

presented during petitioner’s plea colloquy . . . .” Id. at 624.

Allen did not allege “mere legal insufficiency” in the

sense used in Bousley. The issue was not the legal

insufficiency of the evidence to support Allen’s guilt in the

state-law marijuana case under § 21a-277(a). He did not

contest his guilt in that case. The issue, rather, was whether

in that case Allen had been convicted of a “controlled

substance offense” within the meaning of the then-mandatory

Guidelines. In Descamps and Mathis the Supreme Court

retroactively clarified the divisibility analysis for criminal

statutes. Allen contended that under the law as clarified by
ALLEN V. IVES 9

the Court in Descamps and Mathis, the Connecticut

marijuana statute under which he was convicted was

indivisible, and that his conviction was therefore not a

conviction for a “controlled substance offense” according to

the then-mandatory Guidelines. Under Bousley, this is a

claim of actual innocence of the mandatory increase in his

federal sentence.

Allen was in a very different position from Bousley. He

did not claim “actual innocence” of his sentence because of

a “legal insufficiency” of the evidence in the record. He

claimed “actual innocence” because a predicate for his

mandatory increased sentence—the existence of a prior

conviction of a predicate crime—was missing. To impose the

mandatory increased sentence under the Guidelines, the

district court had to find as a fact that Allen had previously

been convicted of two predicate crimes. To determine

whether the Connecticut marijuana conviction was a

predicate crime, there is no need for the federal habeas court

to look beyond the existing record. That court need only look

at the definition of the crime under § 21a-277(a) and to apply

the analysis set forth in Taylor v. United States, 495 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 convicted of some crime, it does not matter

under Bousley what the crime was. Our colleague writes,

“Allen’s claim here has nothing to do with whether his prior

conduct is still criminal, unlike in Bousley. . . . He remains

rightly convicted of his past crimes.” Diss. Op. at 22. But

the question under the mandatory sentencing Guidelines was

not whether Allen had been convicted of some crime. The

question was whether he had been convicted of a predicate
10 ALLEN V. IVES

crime. Under the logic of our dissenting colleague, it would

not matter if the district court had used as a predicate crime

a prior conviction for jaywalking, so long as the petitioner

had been “rightly convicted of his past crime” of jaywalking.

Bousley claimed innocence of the crime of conviction,

and Allen claimed actual innocence of the increased

mandatory sentence. But for purposes of “actual innocence”

under Bousley, the difference does not matter. Our colleague

does not contend that there is no such thing 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 108. A legal analysis is

necessary to determine whether a conviction for marijuana

possession—or for jaywalking—was a predicate offense for

purposes of a mandatory sentence under the Sentencing

Guidelines in effect at the time Allen was sentenced. But the

legal analysis leads to a determination of a fact: Allen’s

conviction under § 21a-277(a) either was, or was not, a

conviction for a predicate offense. If it was not a conviction

for a predicate offense, Allen is “actually innocent” of his

increased mandatory sentence.

II. Petition Should Have Been Brought Under § 2255

Our dissenting colleague argues that Allen had an

opportunity to assert his claim of actual innocence in an

application under § 2255. He writes:

Allen’s first § 2255 motion in the Connecticut

district court was denied in 2003. . . . He had

an opportunity to bring the instant claim that

he was not a career offender in that initial

§ 2255 motion but did not do so. As a result,
ALLEN V. IVES 11

he may not proceed by way of the escape

hatch now.

Diss. Op. at 40 (citation omitted). That is, according to our

colleague, Allen had an “unobstructed procedural shot” at

presenting his claim of actual innocence in an application

under § 2255. Therefore, he cannot now seek habeas under

§ 2241.

This argument ignores two things. First, Allen is in the

same position as Bousley. When Bousley was convicted,

“using” a firearm had an accepted definition. Only after the

Supreme Court clarified the definition of “using” five years

later in Bailey did Bousley have a claim of actual innocence. 

That is, because of the incorrect definition of “using”

previously relied upon by the parties and the court, Bousley

had not had an “unobstructed procedural shot” at presenting

his claim of actual innocence under the correct definition. 

Similarly, when Allen was sentenced, § 21a-277(a) was

believed to be severable under the accepted mode of analysis. 

Under that analysis, an overbreadth argument was not

available. Only after the Supreme Court clarified the

severability analysis in Descamps and Mathis several years

later did Allen have an argument that § 21a-277(a) was

inseverable and a resulting claim of actual innocence. That

is, because of the incorrect severability analysis previously

relied upon by the parties and the federal district court in

Connecticut, Allen had not had an “unobstructed procedural

shot” at presenting his claim of actual innocence under the

correct analysis. In Bousley, where a later Supreme Court

decision clarified the law, the Court allowed a habeas claim

under § 2241. We did the same in Allen.
12 ALLEN V. IVES

Second, the Government conceded the point. The

Government did not argue that Allen had an unobstructed

procedural shot at bringing his actual innocence claim in an

application under § 2255. It conceded that if Allen had a

plausible claim of actual innocence of the increase in his

mandatory sentence he could seek habeas under § 2241.

III. Other Circuits

Our dissenting colleague argues that our decision

conflicts with the decision of every other circuit except the

D.C. Circuit, “creat[ing] a new four-way circuit split and

maroon[ing] the Ninth Circuit on our own island of 

§ 2255(e) jurisdiction.” Diss. Op. at 24. Our colleague

overstates the matter.

Decisions by the Fifth, Eleventh and, possibly, the Tenth

Circuits conflict with our decision in Allen. See In re

Bradford, 660 F.3d 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 827 (10th Cir. 2017). However, decisions by

the Fourth, Sixth and Seventh Circuits agree with Allen,

though using somewhat different language. See Lester v.

Flournoy, 909 F.3d 708, 712 (4th Cir. 2018) (allowing a

§ 2241 habeas challenge to a mandatory sentence when

“misclassification as a career offender, which increased his

mandatory Guidelines range from a maximum of 151 months

to a minimum of 262, is an ‘error sufficiently grave to be

deemed a fundamental defect.’” (quoting United States v.

Wheeler, 886 F.3d 415, 429 (4th Cir. 2018), cert. denied,

139 S. Ct. 1318 (2019)); Hill v. Masters, 836 F.3d 591, 600

(6th Cir. 2016) (allowing a § 2241 habeas challenge to a

mandatory sentence “because [petitioner] was sentenced
ALLEN V. IVES 13

under the mandatoryGuidelines Manual; is barred from filing

a successive § 2255 petition; and received the enhancement

based on a prior conviction that a subsequent, retroactive

change in Supreme Court jurisprudence [in Descamps]

reveals is not a predicate offense.”); Brown v. Caraway,

719 F.3d 583 (7th Cir. 2013) (allowing a § 2241 habeas

challenge to a mandatory sentence after Begay v. United

States, 553 U.S. 137 (2008), clarified the definition of generic

arson, with the result that what had been thought a predicate

crime was no longer a predicate crime for career offender

status). The other circuits have not decided any cases directly

on point.

We agree with our dissenting colleague’s argument that

there is a circuit split. We also agree with our dissenting

colleague’s implicit argument that the Supreme Court should

grant certiorari—in this or in some other case—to resolve the

circuit split. We disagree, however, with our colleague’s

argument that we are “marooned . . . on our own island.” We

are in the distinguished company of the Fourth, Sixth and

Seventh Circuits.

IV. Floodgates

Finally, our dissenting colleague argues that our decision

in Allen “throws wide open an escape hatch reserved for the

rarest of occasions,” and “opens the floodgates to habeas

review of noncapital ‘actual innocence’ claims.” Diss. Op.

at 16, 23. We disagree. Our decision reaches only a small

and diminishing subset of § 2241 petitions. For other

petitioners to be similarly situated to Allen and to be actually

innocent of a mandatory sentence, they will have to show: (1)

they were convicted of prior offenses, at least one of which

was mistakenly deemed to qualify as a predicate offense; (2)
14 ALLEN V. IVES

the mistake was later addressed by the Supreme Court in a

retroactive decision clarifying the applicable law; (3) they

received a mandatory sentence under a mandatory sentencing

scheme; and (4) all of this came to light after the opportunity

to raise it in a § 2255 motion had passed. See Hill, 836 F.3d

at 599–600 (explaining that the Sixth Circuit’s holding only

applies to petitioners who received mandatory minimum

sentences pre-Booker, were unable to file a successive § 2255

petition, and who relied on Supreme Court authority that

retroactively disqualified a prior conviction from serving as

a predicate offense). Allen’s actual innocence claim was

cognizable under § 2241 because he was sentenced before the

Court decided Booker, which rendered the Sentencing

Guidelines advisory rather than mandatory. Booker was

decided more than fifteen years ago. The number of

remaining actual innocence claims under the pre-Booker

mandatory sentencing scheme, comparable to Allen’s, is

small and dwindling.

R. NELSON, Circuit Judge, with whom CALLAHAN,

M. SMITH, IKUTA, BENNETT, BADE, COLLINS, LEE,

BRESS, BUMATAY, and VANDYKE, Circuit Judges, join,

and with whom HUNSAKER, Circuit Judge, joins as to Parts

II and IV, dissenting from the denial of rehearing en banc:

This case has all the hallmarks worthy of en banc review. 

The panel majority held that a challenge to a conviction based

on a subsequent change in legal classification of a crime

qualifies as a claim of “actual innocence” for purposes of

28 U.S.C. § 2255(e). The panel majority’s holding conflicts

with Supreme Court precedent in Bousley v. United States,

523 U.S. 614 (1998); deepens a four-way circuit split; creates
ALLEN V. IVES 15

an irreconcilable intra-circuit conflict with our holding in

Marrero v. Ives, 682 F.3d 1190 (9th Cir. 2012); and ignores

the statutory text by evading the limits of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). Not only

has every other circuit rejected the panel majority’s

reasoning, but 24 judges on this court—including 19 active

judges—have interpreted Marrero to preclude the panel

majority’s holding. See infra at 27 n.15. Yet today we allow

just two judges to overrule 19 active judges without en banc

review. The panel majority’s opinion and the court’s denial

of en banc review disregards the rule of law generally and

AEDPA specifically.

The panel majority becomes the first panel to decide that

a petitioner legally misclassified as a career offender

under the Sentencing Guidelines has a claim of actual

innocence—ignoring Supreme Court precedent in Bousley

holding “‘actual innocence’ means factual innocence, not

mere legal insufficiency.” 523 U.S. at 623–24 (citation

omitted). We now become the lone outlier among all of our

sister circuits on a question of exceptional importance. Even

our concurring colleagues agree that this case warrants

Supreme Court review. Concurrence at 13. Furthermore, we

directly contradict our precedent in Marrero, where we held

that “the purely legal argument that a petitioner was wrongly

classified as a career offender under the Sentencing

Guidelines is not cognizable as a claim of actual innocence

under the escape hatch.” 682 F.3d at 1195. The panel

majority’s holding also ignores AEDPA’s statutory text. All

told, we now add the panel majority’s fundamental legal
16 ALLEN V. IVES

error to the long list of errors we have made in habeas

jurisprudence.1

The panel majority throws wide open an escape hatch

reserved for the rarest of occasions. By reading any legal

insufficiency as actual innocence, the panel majority invites

a massive influx of previously meritless habeas petitions. 

Instead, we should “apply[] the law as Congress wrote it

. . . .” McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,

851 F.3d 1076, 1080 (11th Cir. 2017). That means that “[t]o

invoke the savings clause, there must be something about the

initial § 2255 procedure that itself is inadequate or ineffective

for testing a challenge to detention.” Prost v. Anderson,

636 F.3d 578, 589 (10th Cir. 2011) (Gorsuch, J.). Ultimately,

the panel majority fails in its charge “to apply, not amend,

the work of the People’s representatives.” Henson v.

1

See, e.g., Johnson v. Lee, 136 S. Ct. 1802, 1806 (2016) (per curiam)

(“The Ninth Circuit’s contrary reasoning is unpersuasive and inconsistent

with this Court’s precedents.”); Davis v. Ayala, 576 U.S. 257, 258 (2015)

(“The Ninth Circuit misunderstood the role of a federal court in a habeas

case.”); Waddington v. Sarausad, 555 U.S. 179, 194 (2009) (“The

reasoning of the Court of Appeals, which failed to review the state courts’

resolution of this question through the deferential lens of AEDPA, does

not convince us. . . .”); Evans v. Chavis, 546 U.S. 189, 200 (2006) (“[W]e

find the Ninth Circuit’s reasoning in conflict with our Saffold holding.”);

Mayle v. Felix, 545 U.S. 644, 662 (2005) (noting the “Ninth Circuit’s rule

would permit the ‘relation back’ doctrine to swallow AEDPA’s statute of

limitation”) (internal quotation marks and citation omitted); Brown v.

Payton, 544 U.S. 133, 147 (2005) (holding the Ninth Circuit “made this

. . . assumption, and it was in error to do so”); Woodford v. Garceau,

538 U.S. 202, 205–06 (2003) (“Five Courts of Appeals have ruled that

AEDPA applies . . . while the Court of Appeals for the Ninth Circuit has

held it does not . . . . [W]e agree with the majority of the Courts of

Appeals.”) (internal quotation marks and citation omitted); Early v.

Packer, 537 U.S. 3, 10 (2002) (per curiam) (“[T]he Ninth Circuit erred by

relying on those nonconstitutional decisions.”).
ALLEN V. IVES 17

Santander Consumer USA Inc., 137 S. Ct. 1718, 1726 (2017).

Accordingly, I respectfully dissent.

I

A brief background. A federal prisoner who seeks to

challenge his confinement must generally rely on a § 2255

motion to do so. See Stephens v. Herrera, 464 F.3d 895, 897

(9th Cir. 2006). Section 2255 has a “1-year period of

limitation[.]” § 2255(f). Section 2255 also restricts second

or successive petitions to claims involving either newly

discovered evidence that can clearly and convincingly

establish innocence or new rules of constitutional law made

retroactive by the Supreme Court. See § 2255(h). But the socalled “escape hatch” or “savings clause” of § 2255(e) allows

a federal prisoner to file a § 2241 petition if the remedy under

§ 2255 is “inadequate or ineffective to test the legality of his

detention.” § 2255(e). In the Ninth Circuit, a § 2255 remedy

is “inadequate or ineffective” when the petitioner “(1) makes

a claim of actual innocence, and (2) has not had an

unobstructed procedural shot at presenting that claim.” 

Stephens, 464 F.3d at 898 (internal quotation marks omitted). 

Allen’s claim centers on the definition of “actual innocence.”

In this case, Petitioner Michael Allen pled guilty in 1997

to multiple drug and firearm offenses. Allen, 950 F.3d

at 1186. Allen’s base offense level was 36. Id. The district

court applied a one-level upward adjustment because Allen

was a “career offender” under U.S. Sentencing Guideline

§ 4B1.1, due to two prior state court convictions for drug

offenses. Id. This adjustment increased the applicable

guideline range from 235 months to 262 months on the low

end, and from 293 months to 327 months on the high end. Id. 

The district court sentenced Allen to 262 months on the
18 ALLEN V. IVES

conspiracy count, a mandatory consecutive sentence of

60 months on the carrying-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

of sentencing, the Sentencing Guidelines were mandatory. 

See United States v. Booker, 543 U.S. 220, 245 (2005). 

Allen’s direct appeal was denied by the Second Circuit. 

United States v. Perry, 1998 WL 961120 (2d Cir. 1998). He

then filed a § 2255 motion in the U.S. District Court for the

District of Connecticut, which 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 Oregon in 2017, where he had been

incarcerated.2Id. Importantly, “Allen does not claim to be

actually innocent of the crimes for which he was sentenced. 

Nor does Allen claim to be actually innocent of his prior

convictions that, at the time of his sentencing, qualified him

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

2 On April 26, 2019, Allen’ssentence was reduced to time served and

he was released under the First Step Act. Allen, 950 F.3d at 1187. The

term of supervised release was reduced to 48 months. United States v.

Allen, 384 F. Supp. 3d 238, 244 (D. Conn. 2019). The panel majority and

dissent agree that this case has not been mooted by Allen’s release from

prison. Allen, 950 F.3d at 1187–89, 1192 n.1. Because the career

offender enhancement potentially impacts the terms of Allen’s supervised

release, the case presents a live case and controversy. See Jones v.

Cunningham, 371 U.S. 236, 243 (1963) (“While petitioner’s parole

releases him from immediate physical imprisonment, it imposes

conditions which significantly confine and restrain his freedom; this is

enough to keep him in . . . ‘custody’ . . . within the meaning of the habeas

corpus statute . . . .”); see also Mujahid v. Daniels, 413 F.3d 991, 995 (9th

Cir. 2005) (“The ‘possibility’ that the sentencing court would use its

discretion to reduce a term of supervised release . . . was enough to

prevent the petition from being moot.”).
ALLEN V. IVES 19

950 F.3d at 1192 (Callahan, J., dissenting). It’s undisputed

that he committed the two prior drug dealing offenses. Allen,

950 F.3d at 1188 (“Allen does not challenge the validity of

his conviction for sales of marijuana . . . .”).

Rather, Allen claims he was “actually innocent” of being

classified as a career offender. Id. at 1186. He argues that

Mathis v. United States, 136 S. Ct. 2243 (2016), and

Descamps v. United States, 570 U.S. 254 (2013),

retroactively established that one of his two state law drug

offenses did not qualify as a federal predicate crime under the

Sentencing Guidelines, when applying the categorical

approach of Taylor v. United States, 495 U.S. 575 (1990). Id.

at 1187. Allen asserts that because one of his past crimes

should be legally reclassified, he would not meet the

sentencing standard for being a career offender. Id. The

district court dismissed the § 2241 petition for lack of

jurisdiction, relying on our opinion in Marrero. Id. The

district court did not reach the merits of Allen’s claim, but it

granted a certificate of appealability “as to whether 28 U.S.C.

§ 2241 habeas corpus jurisdiction is appropriate.” Id.

The panel majority held that Allen “made a claim of

actual innocence that permits jurisdiction over his § 2241

petition,” meeting the stringent requirement under the

§ 2255(e) escape hatch. Id. at 1189. It reasoned that Allen’s

claim of innocence was factual in nature because the legal

classification of his crimes was a “factual predicate”

underlying his designation as a career offender. Id. Thus, it

held that he could be “actually innocent of a noncapital

sentence for the purpose of qualifying for the escape hatch”

due to the retroactive change in Mathis and Descamps. Id.

Judge Callahan dissented, stating that a claim of innocence

based on misclassification as a career offender is “purely
20 ALLEN V. IVES

legal” and cannot support a claim of actual, factual

innocence. Id. at 1192–96 (Callahan, J., dissenting).

II

The panel majority disregarded the Supreme Court’s

holding in Bousley that “‘actual innocence’ means factual

innocence, not mere legal insufficiency.” 523 U.S. at 623–24

(citation omitted). Instead, the panel majority decided that a

petitioner may be “actually innocent” of being classified as a

career offender, even when he indisputably committed the

prior criminal acts. Allen, 950 F.3d at 1188–89. It reshapes

Allen’s claim of legal insufficiency, calling the legal

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 qualify for the escape hatch under Ninth Circuit precedent. 

The standard for actual innocence is drawn from the Supreme

Court’s holding in Bousley and rests on whether the

underlying conduct was criminal (not the legal classification

of the crime). See also Muth v. Fondren, 676 F.3d 815, 822

(9th Cir. 2012) (“Thus, Petitioner was convicted of engaging

in conduct that remains criminal, and he is not actually

innocent.”) (emphasis added). The petitioner in Bousley had

pled guilty 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 guilty plea was unintelligent, and his habeas

petition was construed as a motion under § 2255. Id.

at 617–18. While that challenge was pending, the Supreme

Court decided Bailey v. United States, 516 U.S. 137, 144

(1995), which restrictively defined the term “using” in

§ 924(c)(1). Id. at 617. Bousley had not raised a challenge

to the notion that “using” meant “possessing” during direct
ALLEN V. IVES 21

review. Id. at 622. To raise this procedurally defaulted issue

on collateral review, he had to demonstrate “cause and actual

prejudice . . . or that he [was] actually innocent.” Id. (internal

quotation marks and citations omitted).

For purposes of habeas relief, the Supreme Court held that

“‘actual innocence’ means factual innocence, not mere legal

insufficiency.” Id. at 623–24 (citation omitted). To establish

actual innocence, a petitioner had to show “in light of all the

evidence, it is more likely than not that no reasonable juror

would have convicted him.” Id. (internal quotation marks

and citation omitted). The Supreme Court remanded so

Bousley could try to show on an open record that his conduct

was not criminal—that he merely possessed a firearm, and

did not “use” it. Id. at 624. This showing would make a

cognizable claim of actual innocence and entitle his habeas

petition to be considered on the merits. Id.

This makes sense, and the same reasoning should apply

to our actual innocence exception under the escape hatch. 

Habeas relief is not available where a defendant would win

post-conviction relief based on a legal technicality, see

Sawyer v. Whitley, 505 U.S. 333, 339 (1992), and the same

must be true under § 2255(e). Just like the Bousley petitioner,

a petitioner invoking § 2255(e) cannot win or lose merely

because the record contains no evidence of his guilt, due to

his guilty plea. 523 U.S. at 624. Instead, he must show on an

open record that he, in fact, did not engage in the criminal

conduct. Id. Until now, we have faithfully applied the

Supreme Court’s definition of the term “actual innocence.” 

For example, in Alaimalo v. United States, the petitioner had

a cognizable actual innocence claim when he was convicted

for conduct which was later held to be legal. 645 F.3d 1042,

1047 (9th Cir. 2011). Likewise, in United States v. Avery, the
22 ALLEN V. IVES

petitioner qualified for the escape hatch after a Supreme

Court decision clarified that his conduct in fact wasn’t illegal

under the convicting statute. 719 F.3d 1080, 1082–83 (9th

Cir. 2013). These cases stand for the proposition that actual,

factual innocence requires that the petitioner’s conduct was

not illegal (not just legallymisclassified) under the convicting

statute.

Allen’s claim here has nothing to do 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 never claims he was factually innocent under Bousley or

our caselaw. Rather, Allen argues that his state court

conviction—as a legal matter—is no longer a categorical

match with the federal predicate crime. Id. at 1187. Thus, he

essentially claims his conviction is legally insufficient for the

career offender sentencing enhancement based on a

superseding change in law. The change in law here—the

Supreme Court’s decisions in Mathis and Descamps—didn’t

make Allen’s past conduct noncriminal. He remains rightly

convicted of his past crimes.

But the panel majority turns the concept of actual, factual

innocence on its head. The panel majority validates Allen’s

claim of actual innocence because the “retroactive change of

law . . . transformed his Connecticut marijuana conviction

from a predicate crime into a non-predicate crime.” Allen,

950 F.3d at 1190. The panel majority recognizes that Bousley

allowed the petitioner to establish actual innocence only by

showing his conduct was not criminal under the convicting

statute. See id. But the panel majority essentially reframes

a purely legal classification as a “factual predicate,”
ALLEN V. IVES 23

contradicting the Supreme Court’s precedent in Bousley and

our holding in Marrero. See Allen, 950 F.3d at 1189.

The panel majority’s definition stretches the meaning of

the word “factual” beyond any meaning in legal parlance. 

Whether Allen’s prior crime is a predicate crime is purely a

legal question—it would never be submitted to a jury for trial

as a fact question. A “question of fact” means an “issue

involving the resolution of a factual dispute and hence within

the province of the jury in contrast to a question of law.” 

Question of fact, Black’s Law Dictionary 1246 (6th ed. 1990). 

But a “question of law” is an “issue which involves the

application or interpretation of a law and hence within the

province of the judge and not the jury.” Question of law,

Black’s Law Dictionary 1246 (6th ed. 1990). The panel

majority’s rationale means that any change in how a crime is

legally classified now qualifies as “factual innocence,”

despite the Supreme Court’s direction to the contrary in

Bousley.

The panel majority’s application of actual innocence

allows any petitioner to seek relief from career-offender

sentencing enhancements based on retroactive changes;

transforms what is a quintessential claim of “legal

insufficiency” into a claim of “factual innocence;” and flouts

the Supreme Court’s general admonition that “‘actual

innocence’ is a very narrow exception[.]” Sawyer, 505 U.S.

at 341. Rather than affect a mere “small and diminishing

subset,” Concurrence at 13, the panel majority’s opinion

opens the floodgates to habeas review of noncapital “actual

innocence” claims.
24 ALLEN V. IVES

III

Apparently the existing deep three-waycircuit conflict on

this issue was not enough. The panel majority’s decision

creates a new four-way circuit split and maroons the Ninth

Circuit on our own island of § 2255(e) jurisdiction. It

accomplishes this feat almost without comment and ignores

a wealth of precedent on this issue, nearly all of which would

compel dismissing Allen’s petition for lack of jurisdiction. In

one set of cases, the First,3 Second,4 Third,5 Fifth,6and

3 Damon v. United States, 732 F.3d 1, 6 (1st Cir. 2013) (“Because

Damon contests only the categorization of his prior conviction as a crime

of violence, he has not pleaded ‘actual innocence’ as defined in

Bousley.”).

4 Poindexter v. Nash, 333 F.3d 372, 382 (2d Cir. 2003) (affirming

dismissal of a § 2241 petition based on career offender misclassification

because “whatever the merit of the contention that the Guidelines were

misapplied in the treatment of Poindexter’s three undisputed prior

convictions, his claim that the three crimes should have been treated as

one crime is not cognizable as a claim of actual innocence”).

5 Okereke v. United States, 307 F.3d 117, 120–21 (3d Cir. 2002)

(holding that the petitioner could not qualify for the escape hatch where

he brought an Apprendi challenge to his sentence and did not claimfactual

innocence of the underlying crime of conviction); Scott v. Shartle, 574 F.

App’x 152, 155 (3d Cir. 2014) (applying Okereke to deny a challenge to

the application of the career offender enhancement by way of a § 2241

petition).

6

In re Bradford, 660 F.3d 226, 230 (5thCir. 2011) (per curiam) (“[A]

claim of actual innocence of a career offender enhancement is not a claim

of actual innocence of the crime of conviction and, thus, not the type of

claim that warrants review under § 2241.”).
ALLEN V. IVES 25

Eighth7 Circuits would dismiss the petition by relying on the

definition of “actual innocence” as laid out in Bousley.

8 On

a second view, the Tenth9and Eleventh10 Circuits do not

incorporate an “actual innocence” exception in their

§ 2255(e) escape hatch 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 by Supreme Court precedent at the

time.

7

Sun Bear v. United States, 644 F.3d 700, 705–06 (8th Cir. 2011) (en

banc) (affirming denial ofmotion to vacate based on an allegedly unlawful

career offender enhancement because there was no allegation “that the

conduct for which petitioner had been convicted and sentenced” had not

occurred).

8 Our concurring colleagues accuse us of misunderstanding Bousley. 

Concurrence at 7. To the contrary, our understanding of Bousley is

consistent with every circuit, including our decision in Marrero, that relies

on the Bousley “actual innocence” standard.

9 Prost, 636 F.3d at 584, 590 (Gorsuch, J.) (holding that a petitioner

cannot use a § 2241 petition to challenge his sentence where he could have

raised the same claim in his initial § 2255 motion, even if the claim was

foreclosed at the time by binding circuit or Supreme Court precedent);

Sandlain v. English, 714 F. App’x 827, 831 (10th Cir. 2017) (applying

Prost to deny a challenge to the application of the career offender

enhancement by way of a § 2241 petition).

10 McCarthan, 851 F.3d at 1089 (“A prisoner has an adequate

procedure to raise any claim attacking his sentence, even if that claim is

foreclosed by circuit precedent.”).
26 ALLEN V. IVES

On the third side, that leaves the Fourth,11 Sixth,12and

Seventh13 Circuits as the only circuits that could theoretically

find jurisdiction for Allen’s habeas claim, but under a

completely different standard. Like the Tenth and Eleventh

Circuits, they also do not incorporate an actual innocence

exception to qualify for the escape hatch. See Allen, 950 F.3d

at 1199 (Callahan, J., dissenting). Rather, they demand an

“error sufficiently grave to be [] a fundamental defect” to

allow a petition under the § 2255(e) savings clause. See

Lester, 909 F.3d at 712 (citation omitted). This equitable

consideration in their escape hatch jurisprudence requires

significant disparities between the “but for” and “imposed”

sentences to qualify for relief.14 But even they would likely

11 Lester v. Flournoy, 909 F.3d 708, 716 (4th Cir. 2018) (“Where, as

here, an erroneous career offender designation raises a defendant’s

mandatory prison term from a maximum of 12 1⁄2 years to a minimum of

almost 22, the resulting sentence is fundamentally defective” and can give

rise to jurisdiction under § 2241.).

12 Hill v. Masters, 836 F.3d 591, 600 (6th Cir. 2016) (“Hill’s

challenge to his misapplied career-offender enhancement is properly

brought under § 2241 because he was sentenced under the mandatory

Guidelines Manual; is barred from filing a successive § 2255 motion; and

received the enhancement based on a prior conviction that a subsequent,

retroactive change in Supreme Court jurisprudence reveals is not a

predicate offense.”).

13 Brown v. Caraway, 719 F.3d 583, 588 (7th Cir. 2013) (“[T]he

misapplication of the sentencing guidelines, at least where (as here) the

defendant was sentenced in the pre-Booker era, represents a fundamental

defect that constitutes a miscarriage of justice corrigible in a § 2241

proceeding.”).

14 See, e.g., Lester, 909 F.3d at 716 (misapplied sentencing

enhancement adding almost ten years); Hill, 836 F.3d at 593 (misapplied

sentencing enhancement adding up to an additional nine years); Brown,
ALLEN V. IVES 27

not find jurisdiction in this case. Here, Allen only received

a sentence 29 months above the top end of the range that

would have applied absent the career offender enhancement. 

Allen, 950 F.3d at 1186–7. In conclusion, not a single circuit

uses the erroneous definition of “actual innocence” that the

panel majority adopts, and not a single court would likely

find jurisdiction under § 2255(e).

IV

The panel majority’s decision also creates an intra-circuit

conflict with our previously uniform case law expressly

foreclosing Allen’s claim that he is “actually innocent” of his

career offender classification. In Marrero, we held that “the

purely legal argument that a petitioner was wrongly classified

as a career offender under the Sentencing Guidelines is not

cognizable as a claim of actual innocence under the escape

hatch.” 682 F.3d at 1195.

Over the last eight years, all relevant decisions of this

court have uniformly interpreted Marrero to preclude the

panel majority’s holding here.15 For those counting, that

719 F.3d at 586 (misapplied sentencing enhancement adding between

33 to 98 months).

15 Marrero, 682 F.3d at 1191 (Thomas, C.J.; Graber, J., Schroeder,

J.); Dorise v. Matevousian, 692 F. App’x 864, 865 (9th Cir. 2017)

(Thomas, C.J.; Murguia, J.; Mccalla, D.J.) (“Although presented as an

actual innocence claim, Dorise’s real argument is that he was incorrectly

categorized as a career offender under U.S.S.G. § 4B1.1. As in Marrero,

this claim is purely legal and has nothing to do with factual innocence.” 

(internal quotationmarks omitted)); Rios-Vizcarra v. Wigen, 669 F. App’x

886, 887 (9th Cir. 2016) (Kleinfeld, J.; Tashima, J.; M. Smith, J.) (“RiosVizcarra does not allege that he was factually innocent of the state

conviction, nor was Rios-Vizcarra statutorily ineligible to receive his
28 ALLEN V. IVES

means that prior to the en banc vote 15 judges on this court

and one judge sitting by designation—including 10 active

judges eligible to vote en banc—had already rejected the

panel majority’s holding in clear language in six separate

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

was not bound by the five unpublished decisions. But

hopefully judges on those panels meant what they wrote. 

And if so, 19 active judges on this court have now rejected

the panel majority’s holding under Marrero.

I briefly review Marrero. The petitioner was convicted

in 2001 of two counts of interference with interstate

commerce by threat or violence and a firearm offense.

Marrero v. United States, 2007 WL 914313, at *1 (N.D. Ill.

Mar. 21, 2007). The district court classified Marrero as a

career offender based on several prior convictions and

sentenced him to 324 months of imprisonment. Marrero,

682 F.3d at 1192. Marrero’s direct appeal was denied, as was

his first § 2255 motion. Id.

sentence, either with or without the enhancement.”); United States v.

Meeks, 616 F. App’x 335, 336 (9th Cir. 2015) (Goodwin, J.; Gould, J.;

Ikuta, J.) (“The district court did not err when it concluded that Meeks

failed to satisfy the requirement of the § 2255(e) escape hatch because

Meeks has not plausibly shown that he was actually innocent of the career

offender sentencing enhancement under the Armed Career Criminal Act

. . . .”); Rith v. Rios, 514 F. App’x 684, 685 (9th Cir. 2013) (Wallace, J.;

McKeown, J.; Ikuta, J.) (noting petitioner’s “argument that he was

innocent of his career offender status for sentencing purposes is not

cognizable as a claim of actual innocence” (internal quotation marks

omitted)); Green v. Thomas, 485 F. App’x 888, 889 (9th Cir. 2012)

(Rawlinson, J.; Murguia, J.; Watford, J.) (“[Petitioner] contends that he is

actually innocent of being a career offender under U.S.S.G. § 4B1.1 and

therefore he should be allowed to proceed with his section 2241 petition

under the ‘escape hatch’ of 28 U.S.C. § 2255(e). This contention is

foreclosed [by Marrero].”).
ALLEN V. IVES 29

Marrero then filed a § 2241 petition in 2008 making two

separate claims of actual innocence. Id. First, Marrero “may

have intended to raise the claim that he was factually innocent

of his crimes of conviction. But he introduced no evidence

tending to show that he did not commit the robberies

underlying his convictions,” dooming his first claim of

factual innocence. Id. Second, he also argued that “two of

his prior offenses should no longer be considered ‘related’”

due to the 2007 amendments to the Sentencing Guidelines. 

Id. at 1193. Therefore, he claimed he was “actually innocent”

of being a career offender because he would be one prior

conviction short of the requirement. Id.

We held that “[w]hatever the merits of Petitioner’s

argument that he would not qualify as a career offender . . .

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

on the Supreme Court’s holding in Bousley that “‘actual

innocence’ means factual innocence, not mere legal

insufficiency.” Id. at 1193 (citing Bousley, 523 U.S. at 623). 

Marrero had presented a “purely legal 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 legal argument that a

petitioner was wrongly classified as a career offender under

the Sentencing Guidelines is not cognizable as a claim of

actual innocence under the escape hatch.” Id. at 1195.

To distinguish Marrero, the panel majority claims it was

merelyanswering a question left open—“whether a petitioner

may ever be actually innocent of a noncapital sentence for the

purpose of qualifying for the escape hatch.” Allen, 950 F.3d

at 1189. But regardless of the broad hypothetical left open in

Marrero, the Marrero panel clearly answered the narrow

question at issue in Allen’s case: the argument that “a
30 ALLEN V. IVES

petitioner was wrongly classified as a career offender under

the Sentencing Guidelines” is “purely legal” and therefore “is

not cognizable as a claim of actual innocence under the

escape hatch.” 682 F.3d at 1195. The panel majority’s

invocation of the question left open in Marrero is a thinlyveiled attempt to evade its holding.

There are situations where Marrero’s hypothetical

question of actual innocence might be presented—but not in

Allen’s case. A petitioner may actually be innocent if he

were factually innocent of the crimes: “for example, if the

predicate crime were rape, and DNA evidence later proved

petitioner’s innocence.” Allen, 950 F.3d at 1188. But the

panel majority acknowledges that Allen committed two prior

crimes of drug dealing and that this conduct was criminal. Id. 

The panel majority’s own formulation clarifies the issue:

“[t]he question before us . . . is not whether a petitioner who

did not commit a predicate crime of which he was convicted

may challenge his career offender status under § 2241.” Id. 

The question here is a separate one: “whether a petitioner

who committed a crime that is not a predicate crime may

challenge his career offender status under § 2241.” Id. Until

now, the answer to that question was a unanimous and

resounding no. Allen was not actually, factually innocent of

his underlying conviction.

The panel’s circuitous approach to avoiding Marrero is

unavailing because Marrero’s open question simply doesn’t

apply here. There is no actual innocence in this case; rather,

both Marrero and Allen presented claims of legal

insufficiency. Marrero (1) argued he was actually innocent,

(2) of the career offender sentencing enhancement, (3) via a

§ 2241 petition filed through the § 2255(e) escape hatch

provision, (4) because the state law predicate offenses that the
ALLEN V. IVES 31

district court relied on at sentencing, (5) are no longer

sufficient federal predicate offenses, (6) under the revised

Sentencing Guidelines. 682 F.3d at 1192–93. Compare

Marrero’s claim to Allen’s. Allen (1) argues he is actually

innocent, (2) of the career offender sentencing enhancement,

(3) via a § 2241 petition filed through the § 2255(e) escape

hatch provision, (4) because the state law predicate offense

that the district court relied on at sentencing, (5) is no longer

a sufficient federal predicate offense, (6) due to an

intervening change in the SupremeCourt’s non-constitutional

caselaw. Allen, 950 F.3d at 1189–90. In short, Marrero is on

all fours with this case.

To justify dismembering Marrero, the panel majority

turns to a single out-of-circuit case, United States v. Maybeck,

23 F.3d 888 (4th Cir. 1994), decided before Congress passed

AEDPA. Allen, 950 F.3d at 1189. Although Maybeck’s

holding facially supports the panel majority’s opinion,

Maybeck is distinguishable. First, Maybeck involved a

motion brought under § 2255, not a § 2241 petition. 23 F.3d

at 891. Thus, the Fourth Circuit was not presented with the

precise question presented here: whether a § 2255 motion was

“inadequate or ineffective.” Second, Maybeck was factually

and actually innocent of the crime reported in his presentence

report. Maybeck’s presentence report said he was convicted

of “armed burglary.” Id. at 890. This caused him to be

sentenced as a career offender. Id. at 890–91. But Maybeck,

in fact, did not have a weapon during this burglary. Id.

at 891, 892 n.7. Maybeck’s actual innocence claim was

based on the facts of his prior state conviction, which did not

involve the use of a weapon. The panel majority’s misplaced

reliance on this single Fourth Circuit case ignores a wealth of
32 ALLEN V. IVES

precedent adopting the concept of actual, factual innocence

from Bousley and Marrero.

16

Separately, the panel majoritysuggests it was not required

to follow Marrero because that case involved a nonretroactive change in the law, whereas the change here was

retroactive. Allen, 950 F.3d at 1190. But this distinction

again ignores our past decisions, suggesting many of my

colleagues have gotten the law wrong in unpublished

decisions applying Marrero. See supra at 27 n.15. By way

of example, a few years ago, we rejected a claim that a

petitioner was “‘actually innocent’ of his career offender

status” under the Guidelines by virtue of the Supreme Court’s

“retroactive[]” invalidation of “the residual clause of the

Armed Career Criminal Act as unconstitutionally vague.” 

We held “[a]s in Marrero, th[at] claim [was] purely legal and

ha[d] nothing to do with factual innocence.” Dorise, 692 F.

App’x at 865 (internal quotation marks and citation

omitted).17

More importantly, Marrero rejected the argument that the

retroactivity of a legal change in the law had any bearing on

“actual innocence.” 682 F.3d at 1193. To the contrary,

Marrero recognized that the merits of the petitioner’s

16

See, e.g., Damon, 732 F.3d at 6; Poindexter, 333 F.3d at 382;

Okereke, 307 F.3d at 120–21; In re Bradford, 660 F.3d at 230; Sun Bear,

644 F.3d at 705–06.

17 See also Wigen, 669 F. App’x at 887 (applying Marrero to reject

habeas petition based on the argument that “a prior state court conviction

should not be construed as a ‘prior drug felony’” after the Supreme

Court’s decision in Descamps); Meeks, 616 F. App’x at 336 (applying

Marrero to reject claim of actual innocence of the “career offender

sentencing enhancement” based on retroactive application of Descamps).
ALLEN V. IVES 33

argument that the law had changed as a legal matter were

irrelevant because “his claim [was] not one of actual

innocence.” Id. Retroactivity, therefore, is not a basis for

distinguishing Allen’s case from Marrero.

The panel majority also grasps at dicta from Marrero to

try to bolster its reasoning. It cites language from Marrero

briefly summarizing other circuit cases’ exceptions to the

general rule that a petitioner cannot be actually innocent of a

noncapital sentence under the escape hatch. See Allen,

950 F.3d at 1189; see also Marrero, 682 F.3d at 1194. In

particular, it focuses on the second exception, where “a

petitioner may qualify for the escape hatch if he received a

sentence for which he was statutorily ineligible,” Marrero,

682 F.3d at 1195. See Allen, 950 F.3d at 1189. But the panel

majority “admits . . . this exception [is] limited . . . to claims

that the petitioner received a sentence that exceeded the

statutory maximum.” Allen, 950 F.3d at 1195 (Callahan, J.,

dissenting). Here, if Allen “had not been designated a career

offender, his applicable Guideline range on the conspiracy

count would have been 235 to 293 months—meaning, he

would have still been eligible for the 262-month sentence he

received.” Id. at 1195 n.4. This exception, at odds with our

jurisprudence as applied, could not even apply in Allen’s

case.

The panel majority justifies its leap of logic by

contending that “the advisory nature of the post-Booker

guidelines was important.” Allen, 950 F.3d at 1189. The

panel majority surmises that Alleyne v. United States might

mean that for petitioners sentenced under the mandatory

Sentencing Guidelines, like Allen, whenever the statutory

minimum is increased an actual innocence claim might be

available. See Allen, 950 F.3d at 1189 (citing Alleyne,
34 ALLEN V. IVES

570 U.S. 99, 107–08 (2013)). So the panel majority uses

Allen’s increased minimum sentence under the mandatory

Sentencing Guidelines as cursory justification for its holding. 

Id. But Alleyne said nothing about the meaning of an “actual

innocence” claim or the § 2255 escape hatch. The panel

majority’s proposition lacks any legal support from Marrero

or any other case.

This lone paragraph from the panel majority’s opinion

threatens to blow the habeas escape hatch wide open so that

the “very narrow exception” of actual innocence now

swallows the rule for finality. See Sawyer, 505 U.S. at 341. 

Any challenge to a sentencing factor that increased the

petitioner’s minimum sentence under the pre-Booker

guidelines would qualify as an “actual innocence” claim for

purposes of the escape hatch. Under the panel majority’s

reasoning, habeas relief would be open to essentially any

garden-variety challenge to a court’s pre-Booker sentencing

range calculation. The actual innocence exception reserved

for the “extraordinary case” would apply to every ordinary

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

V

Besides its misapplication of “actual innocence,” the

panel majority more fundamentally reads the escape hatch in

conflict with the text, structural context, and history of the

statute. While our court has already applied the escape hatch

unmoored from the statutory text, the panel majority

exacerbates this problem.
ALLEN V. IVES 35

A

The text of the statute is instructive. See Los Angeles

Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 802 (9th Cir.

2017) (“[W]e start, as we must, with the text of the statute.”). 

Section 2255(e) provides:

An application for a writ of habeas corpus in

behalf of a prisoner who is authorized to apply

for relief by motion pursuant to this section,

shall not be entertained if it appears that the

applicant has failed to apply for relief, by

motion, to the court which sentenced him, or

that such court has denied him relief, unless it

also appears that the remedy by motion is

inadequate or ineffective to test the legality of

his detention.

(emphasis added). The operative clause contains three key

terms: “remedy,” “inadequate or ineffective,” and “to test.” 

I discuss each in turn.

First, Congress’s decision to use the term “remedy”

indicates that a § 2255 motion is not made inadequate or

ineffective simply because a legal claim is foreclosed by

operative case law when first filing a habeas petition. A

remedy is the “means by which a right is enforced or the

violation of a right is prevented, redressed, or compensated.” 

Remedy, Black’s Law Dictionary 1526 (3d ed. 1933)

(emphasis added). “Means” is the key component of the

definition. So long as the petitioner can file an initial § 2255

motion challenging his detention, he has the means to bring

a challenge. The escape hatch remains shut. See McCarthan,

851 F.3d at 1086.
36 ALLEN V. IVES

Congress’s use of the term remedy, as opposed to relief,

is critical. “Section 2255(e) expressly distinguishes between

the terms remedy and relief, stating that § 2241 is not

available to a petitioner simply because a ‘court has denied

him relief.’” Prost, 636 F.3d at 584–85 (internal citations

omitted). Cases from our circuit and others build on this

notion. For example, we have held that the inability to obtain

relief because of a procedural bar does not mean that the

§ 2255 remedy is inadequate or ineffective. See, e.g., Moore

v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999); see also Prost,

636 F.3d at 585 (collecting cases). And even though

precedent might be unfavorable to a claim, a petitioner still

has the opportunity to challenge his conviction. “[F]utility

cannot constitute cause if it means simply that a claim was

unacceptable to that particular court at that particular time.” 

Bousley, 523 U.S. at 623 (internal quotation marks and

citation omitted). “The U.S. Reports are, after all, replete

with instances where the Supreme Court has rewarded

litigants who took the trouble to challenge adverse circuit

precedent.” Prost, 636 F.3d at 590.

Second, Congress’s decision to include the phrase

“inadequate or ineffective” in § 2255(e) also supports this

conclusion. Inadequate, in the context of remedies, means

“unfitted or not adapted to the end in view.” Inadequate

Remedy at Law, Black’s Law Dictionary 940 (3d ed. 1933). 

“Ineffective” means “[o]f such a nature as not to produce . . .

the intended [ ] effect.” Ineffective, 5 Oxford English

Dictionary 239 (1st ed. 1933). Again, neither term

guarantees substantive relief; the statutory text only protects

the opportunity to bring a challenge. “If the rule were

otherwise—if, say, courts were to read subsection (h) as

barring only losing second or successive motions—the

statute’s limitations would be effectively pointless.” Prost,
ALLEN V. IVES 37

636 F.3d at 586. A challenge is “still ‘adapted to the end’ of

testing the claim regardless of the claim’s success on the

merits.” McCarthan, 851 F.3d at 1087.

Finally, Congress’s use of the phrase “to test” buttresses

the conclusion that § 2255(e) guarantees an opportunity, not

a result. “‘To test’ means ‘to try.’” Id. at 1086 (quoting Test,

11 Oxford English Dictionary 220 (1st ed. 1933)). A

petitioner may try a claim if he has “an opportunity to bring

his argument.” Prost, 636 F.3d at 584. Congress’s decision

to use the word “test” confirms that § 2255(e)’s escape hatch

is “concerned with process—ensuring the petitioner an

opportunity to bring his argument—not with substance—

guaranteeing nothing about what the opportunity promised

will ultimately yield in terms of relief.” Id.

B

Section 2255(e)’s statutory context also confirms that a

petitioner’s remedy under § 2255 is not inadequate or

ineffective so long as the petitioner had the opportunity to

raise that claim in his first § 2255 motion. It is a

“fundamental canon of statutory construction that the words

of a statute must be read in their context and with a view to

their place in the overall statutory scheme.” FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)

(quoting Davis v. Michigan Dept. of Treasury, 489 U.S. 803,

809 (1989)).

The escape hatch’s statutory neighbor, § 2255(h),

supports a limited reading of § 2255(e). This provision bars

second and successive petitions unless there is:
38 ALLEN V. IVES

(1) newly discovered evidence that, if proven

and viewed in light of the evidence as a

whole, would be sufficient to establish by

clear and convincing evidence that no

reasonable factfinder would have found the

movant guilty of the offense; or

(2) a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously

unavailable.

§ 2255(h). Congress added this section in 1996, after federal

courts permitted § 2255 motions based on new statutory

interpretations. See, e.g., Davis v. United States, 417 U.S.

333, 346–47 (1974). Yet Congress did not include a

provision in § 2255(h) providing jurisdiction if a conviction

or sentence was potentially affected by a retroactive change

in statutory interpretation. Congress intentionally chose not

to do so. See Merck & Co. v. Reynolds, 559 U.S. 633, 648

(2010) (“We normally assume that, when Congress enacts

statutes, it is aware of relevant judicial precedent.”).

Similarly, Congress’s decision to impose a statute of

limitations on § 2255 motions also should limit our

interpretation of § 2255(e). Section 2255(f) provides:

A 1-year period of limitation shall apply to a

motion under this section. The limitation

period shall run from the latest of—

(1) the date on which the judgment of

conviction becomes final;
ALLEN V. IVES 39

(2) the date on which the impediment to

making a motion created by governmental

action in violation of the Constitution or laws

of the United States is removed, if the movant

was prevented from making a motion by such

governmental action;

(3) the date on which the right asserted was

initially recognized by the Supreme Court, if

that right has been newly recognized by the

Supreme Court and made retroactively

applicable to cases on collateral review; or

(4) the date on which the facts supporting the

claim or claims presented could have been

discovered through the exercise of due

diligence.

Again, Congress did not include an exception to the one-year

statute of limitations for new statutory interpretations issued

by the Supreme Court or circuit courts. We run roughshod

over that statutory language by reading in an exception to the

statute of limitations for claims brought under § 2255(e)’s

escape hatch relying on new statutory interpretations.

Section 2255(e)’s statutory history also confirms that the

escape hatch should be narrowly construed. When Congress

created the cause of action in § 2255, it attempted to

distribute habeas litigation to the convicting courts awayfrom

the few courts with jurisdiction over prisons. See Hueso v.

Barnhart, 948 F.3d 324, 327 (6th Cir. 2020). The panel

majority’s expansive interpretation of the escape hatch,

however, defeats this purpose. Broad access to the escape

hatch dramatically increases, rather than reduces, the burden
40 ALLEN V. IVES

of crushing workloads for district courts. District courts with

jurisdiction over prisons must hear all the § 2255 motions

stemming from their own cases, while also considering the

§ 2241 petitions from prisoners sentenced in other

jurisdictions filing for habeas relief through the § 2255(e)

escape hatch. In short, the panel majority’s interpretation of

the escape hatch exacerbates the problem Congress was

attempting to solve.

* * *

The panel majority veers so far afield because it fails to

analyze § 2255(e)’s full text, structural context, or statutory

history. Applying the plain language of § 2255(e) would lead

to a straightforward denial of Allen’s petition. Allen’s first

§ 2255 motion in the Connecticut district court was denied in

2003. Allen, 950 F.3d at 1187. He had an opportunity to

bring the instant claim that he was not a career offender in

that initial § 2255 motion but did not do so. As a result, he

may not proceed by way of the escape hatch now. Instead,

his § 2241 petition should have been denied as a thinly-veiled

second and successive motion overwhich we lack jurisdiction

pursuant to § 2255(h). Denial is also warranted because the

petition is untimely under § 2255(f).

VI

The panel majority’s decision conflicts with Supreme

Court precedent; every circuit’s case law, including our own;

and ignores the statutory language and context of § 2255. In

doing so, it wrests jurisdictional control over “the power to

award the writ” of habeas corpus from Congress. See Ex

parte Bollman, 8 U.S. 75, 94 (Marshall, C.J.). Chief Justice

Marshall rejected the expropriation of this power to the
ALLEN V. IVES 41

judiciary 213 years ago. Id. We should have taken this case

en banc and followed his lead. I respectfully dissent.