FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MOSE STEPHENS, JR., a/k/a Steve 

M. Stephens, No. 04-56232 Plaintiff-Appellant,

D.C. No.

v.  CV-03-06190-SHS

AL HERRERA, Warden; UNITED OPINION STATES OF AMERICA,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Suzanne H. Segal, Magistrate Judge, Presiding

Submitted February 6, 2006*

Pasadena, California

Filed September 13, 2006

Before: Harry Pregerson, William A. Fletcher, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge William A. Fletcher

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

11279
COUNSEL

Mose Stephens, Jr., pro se, Lompoc, California, Gerson

Simon, Los Angeles, California, for the appellant.

Elyssa Getreu, Office of the United States Attorney, Los

Angeles, California, for the appellees. 

OPINION

W. FLETCHER, Circuit Judge: 

Petitioner-appellant Mose Stephens appeals the district

court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition for lack of jurisdiction. Stephens argues that because the

remedy provided by 28 U.S.C. § 2255 is “inadequate or

11282 STEPHENS v. HERRERA
ineffective” to test his claim of “actual innocence” based on

Richardson v. United States, 526 U.S. 813 (1999), the district

court may entertain his § 2241 petition. We conclude that Stephens has not made a sufficient showing of actual innocence

within the meaning of Bousley v. United States, 523 U.S. 614,

623 (1998). We therefore affirm the district court’s dismissal

of Stephens’s § 2241 petition. 

I. Background

In 1987, after a jury trial in federal district court in Oklahoma, Stephens was convicted of (1) conspiring to possess

and distribute heroin and cocaine in violation of 21 U.S.C.

§ 846, (2) conspiring to impede and impair the collection of

federal income taxes in violation of 18 U.S.C. § 371, and (3)

engaging in a continuing criminal enterprise in violation of 21

U.S.C. § 848. Stephens was sentenced to forty years in prison.

In 1988, his conviction was affirmed on direct appeal to the

Tenth Circuit.1

Stephens filed, and attempted to file, numerous motions

under 28 U.S.C. § 2255 in the district court in Oklahoma and

in the Tenth Circuit. On June 3, 1988, while his petition for

a writ of certiorari on direct review was still pending in the

Supreme Court, Stephens filed a motion under 28 U.S.C.

§ 2255 in the district court. The district court denied the

motion as premature. On November 7, 1990, after the

Supreme Court denied certiorari, Stephens filed another

§ 2255 motion. The district court denied the motion, and the

Tenth Circuit affirmed in an unpublished opinion. See United

States v. Stephens, No. 90-5251, 1991 WL 268918 (10th Cir.

Dec. 9, 1991). Stephens filed a third § 2255 motion on March

28, 1994. The district court denied the motion on July 25, and

directed the clerk of court not to file further motions without

1Stephens’s sentence for his conviction under 21 U.S.C. § 846 was later

vacated and dismissed by the district court on the ground that this conviction was for a lesser included offense under § 848. 

STEPHENS v. HERRERA 11283
first obtaining leave of court. Sometime in September 1994

(the docket sheet does not specify the date), Stephens filed an

unsuccessful motion in the Tenth Circuit for leave to file a

second or successive motion. On September 24, 1994, the district court denied permission to file another § 2255 motion.

On June 26, 1997, the district court denied an “appeal” that

it characterized as a successive motion under § 2255. On September 21, 2000, Stephens tried to file a § 2255 motion,

which the district court transferred to the Tenth Circuit. On

January 25, 2001, the Tenth Circuit denied authorization to

file the motion. 

On August 29, 2003, Stephens filed a petition for habeas

corpus in federal district court in California under 28 U.S.C.

§ 2241. A § 2255 motion must be filed in the district where

the defendant was sentenced. Hernandez v. Campbell, 204

F.3d 861, 864 (9th Cir. 2000) (per curiam). By contrast, a

§ 2241 petition must be filed in the district where the petitioner is in custody. Id. When Stephens filed his § 2241 petition, he was being held in the United States Penitentiary in

Lompoc, California. 

In his § 2241 habeas petition, Stephens alleges “actual

innocence” based on Richardson v. United States, 526 U.S.

813 (1999). He contends the district court has jurisdiction

because a § 2255 motion is “inadequate or ineffective to test

the legality of his detention.” 28 U.S.C. § 2255. The district

court disagreed, dismissing his § 2241 petition for lack of

jurisdiction. For the reasons that follow, we affirm. 

II. Standard of Review

We review de novo the district court’s decision to deny a

petition under 28 U.S.C. § 2241. Benny v. U.S. Parole

Comm’n, 295 F.3d 977, 981 (9th Cir. 2002). We also review

de novo whether a district court has jurisdiction over a § 2241

petition. See Lucky v. Calderon, 86 F.3d 923, 925 (9th Cir.

1996).

11284 STEPHENS v. HERRERA
III. Discussion

[1] The general rule is that a motion under 28 U.S.C.

§ 2255 is the exclusive means by which a federal prisoner

may test the legality of his detention, see Ivy v. Pontesso, 328

F.3d 1057, 1059 (9th Cir. 2003) (as amended), and that

restrictions on the availability of a § 2255 motion cannot be

avoided through a petition under 28 U.S.C. § 2241. See

Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per

curiam). The one exception to the general rule is what we

have called the “escape hatch” of § 2255. Lorentsen v. Hood,

223 F.3d 950, 953 (9th Cir. 2000). The escape hatch permits

a federal prisoner to “file a habeas corpus petition pursuant to

§ 2241 to contest the legality of a sentence where his remedy

under § 2255 is ‘inadequate or ineffective to test the legality

of his detention.’ ” Hernandez v. Campbell, 204 F.3d 861,

864-65 (9th Cir. 2000) (per curiam) (quoting § 2255). 

[2] As described above, Stephens has filed multiple unsuccessful § 2255 motions in federal district court in Oklahoma.

In order to file another § 2255 motion, he must first obtain

authorization from the court of appeals. See 28 U.S.C.

§ 2244(b)(2) and (3). A court of appeals may authorize a second or successive § 2255 motion only if (1) “the claim relies

on a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was previously unavailable,” or (2) “the factual predicate for the claim

could not have been discovered previously through the exercise of due diligence,” and “the facts underlying the claim . . .

would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying

offense.” Id. § 2244(b)(2). 

[3] The claim Stephens seeks to present in his § 2241

motion is that his jury was given an erroneous instruction

under 21 U.S.C. § 848. The instruction given in Stephens’s

case did not require the jury to agree unanimously on the

STEPHENS v. HERRERA 11285
same three acts comprising the “series of violations” necessary to its finding that he had engaged in a “continuing criminal enterprise” within the meaning of § 848. Several years

after the Tenth Circuit’s 1991 denial of Stephens’s § 2255

motion, the Supreme Court held in Richardson v. United

States, 526 U.S. 813 (1999), that § 848 requires that the jury

unanimously agree on the same three acts that comprise the

“series of violations.” The parties agree that Stephens’s Richardson claim is a statutory claim that relies neither on a “new

rule of constitutional law” nor on “newly discovered evidence.” A “second or successive” § 2255 motion is therefore

not available to address Stephens’s Richardson claim. See

United States v. Reyes, 358 F.3d 1095 (9th Cir. 2004). 

Stephens does not argue that the unavailability of a second

or successive § 2255 motion automatically allows him to

bring a § 2241 petition pursuant to the “escape hatch” of

§ 2255. “[T]he general rule in this circuit is that the ban on

unauthorized second or successive petitions does not per se

make § 2255 ‘inadequate or ineffective.’ ” Lorentsen, 223

F.3d at 953 (quoting § 2255); see also Moore, 185 F.3d at

1055. Rather, Stephens argues that a § 2255 motion is “inadequate or ineffective” because he is seeking to present a claim

of “actual innocence.” 

[4] Along with many of our sister circuits, we have held

that a § 2241 petition is available under the “escape hatch” of

§ 2255 when a petitioner (1) makes a claim of actual innocence, and (2) has not had an “unobstructed procedural shot”

at presenting that claim. Ivy, 328 F.3d at 1060; see also

Abdullah v. Hedrick, 392 F.3d 957, 960 (8th Cir. 2004);

Reyes-Requena v. United States, 243 F.3d 893, 903 (5th Cir.

2001); In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000);

Wofford v. Scott, 177 F.3d 1236, 1244 & n.3 (11th Cir. 1999);

In re Davenport, 147 F.3d 605, 609-11 (7th Cir. 1998); Triestman v. United States, 124 F.3d 361, 363 (2d Cir. 1997); In re

Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). We consider

these two requirements in reverse order. 

11286 STEPHENS v. HERRERA
[5] Stephens satisfies the requirement of not having had an

“unobstructed procedural shot” at presenting his claim under

Richardson. He was convicted in 1987 of violating 21 U.S.C.

§ 848. The Tenth Circuit denied Stephens’s § 2255 motion in

1991. Richardson was not decided until eight years later.

Because Stephens’s Richardson claim did not become available until after the Tenth Circuit denied his § 2255 motion,

and because that claim does not satisfy the criteria of § 2244

for a second or successive § 2255 motion, Stephens has not

had (and, indeed, will never get) an opportunity to present his

Richardson claim in a § 2255 motion. 

[6] However, Stephens cannot satisfy the actual innocence

requirement. In this circuit, a claim of actual innocence for

purposes of the escape hatch of § 2255 is tested by the standard articulated by the Supreme Court in Bousley v. United

States, 523 U.S. 614 (1998): “To establish actual innocence,

petitioner must demonstrate that, in light of all the evidence,

it is more likely than not that no reasonable juror would have

convicted him.” Id. at 623 (internal quotation marks omitted);

see also Lorentsen, 323 F.3d at 954 (quoting this passage

from Bousley). 

[7] A Richardson claim is not, by itself, a claim of actual

innocence. Rather, it is a claim that the jury has not been told

that § 848 requires unanimous agreement on the three particular acts comprising the “series of violations.” A jury might

conceivably convict an innocent person of violating § 848

because of an instruction given in violation of Richardson, but

the mere fact of an improper instruction is not sufficient to

meet the test for actual innocence. As the Sixth Circuit wrote

in Paulino v. United States, 352 F.3d 1056, 1061 (6th Cir.

2003), “Richardson does not render defendants who were

convicted of conducting a [continuing criminal enterprise]

‘not guilty,’ or ‘actually innocent,’ merely because the trial

court gave instructions that did not comply with the rule

announced therein[.]” 

STEPHENS v. HERRERA 11287
[8] We conclude that while Stephens can show that his jury

was improperly instructed under Richardson, he cannot satisfy the test for actual innocence articulated in Bousley. At

trial, the government presented testimony of two of Stephens’s alleged co-conspirators. One of them, Sam Williams,

testified that Stephens had sold him heroin either eleven or

twelve times. The jury could easily have found that each one

of these sales was an act constituting a “violation.” Stephen

argues that his co-conspirators’ testimony was unreliable

because they were motivated to lie about the supposed sales,

and because there was no evidence that the chemicals sold

were illegal drugs. However, the evidence against Stephens

was sufficiently strong that we cannot conclude that it is more

likely than not that no reasonable juror, properly instructed as

to the elements of the crime, would have found him guilty

under § 848.

Conclusion

[9] Because Stephens has not made out a claim of actual

innocence, we conclude that he has not properly invoked the

“escape hatch” exception of § 2255 that would permit him to

file a petition for habeas corpus under § 2241. We therefore

affirm the district court’s dismissal of his § 2241 petition for

lack of jurisdiction. 

AFFIRMED. 

11288 STEPHENS v. HERRERA