United States v. John Doe

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 13-4274

________________

UNITED STATES OF AMERICA

v.

JOHN DOE,

Appellant

________________

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal Action No. 2-02-cr-00191-001)

District Judge: Honorable Donetta W. Ambrose

________________

Argued January 12, 2015

Before: AMBRO, FUENTES, and ROTH, Circuit Judges

(Opinion filed: December 9, 2015)

William C. Kaczynski, Esquire (Argued)

1004 Manor Complex

564 Forbes Avenue

Pittsburgh, PA 15219

Counsel for Appellant

David J. Hickton

United States Attorney

Laura S. Irwin (Argued)

Assistant U.S. Attorney

Rebecca R. Haywood, Esquire

Margaret E. Picking, Esquire

Office of United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

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OPINION OF THE COURT

________________

AMBRO, Circuit Judge

Contents

I. Introduction ..................................................................... 4

II. Procedural and Legal History .......................................... 4

III. Summary of Our Decision............................................. 11

IV. Standards of Review and Jurisdiction ........................... 13

A. Mootness .................................................................. 13

B. Jurisdiction to Grant a COA .................................... 15

C. Should We Grant a COA? ....................................... 16

1. Begay’s Arguably Constitutional Dimension ....... 20

2. Doe’s Arguably Meritorious Begay Claim........... 22

2

3. The District Court’s Arguably Wrong Procedural

Holdings ............................................................... 24

4. Conclusion With Respect to COA........................ 25

D. Cognizability as a Jurisdictional Limit .................... 25

V. Did the 2008 Motion Count Such That Any Later

Motion Was Second or Successive?.............................. 27

VI. Statute of Limitations .................................................... 28

VII. Was Doe Entitled to Rule 60 Relief? ............................ 30

VIII. Procedural Default ......................................................... 35

IX. Retroactivity .................................................................. 37

X. Cognizability ................................................................. 38

A. Supreme Court Guidance ......................................... 38

B. Seventh Circuit ........................................................ 40

C. Fourth Circuit ........................................................... 41

D. Eleventh Circuit ....................................................... 43

E. Eighth Circuit ........................................................... 43

F. Our Dicta ................................................................. 44

G. The Government’s Argument .................................. 45

H. Synthesis and Conclusion With Respect

Cognizability............................................................ 46

XI. Savings Clause .............................................................. 49

XII. Conclusion ..................................................................... 50

“The whole thing was a very cleverly planned jigsaw

puzzle, so arranged that every fresh piece of

knowledge that came to light made the solution of the

whole more difficult.”—Agatha Christie, Murder on

the Orient Express.

“It’s like kind of complicated to me”—John Doe, on

the withdrawal of his § 2255 motion.

3

I. Introduction

John Doe, whose identity we protect because he is a

Government informant, appeals from the denial of (1) a 28

U.S.C. § 2255 motion filed in 2012 and (2) a request made in

2013 to reopen a § 2255 motion filed in 2008. Doe was

sentenced pursuant to the then-mandatory Sentencing

Guidelines as a “career offender” on the basis of two

convictions for simple assault in Pennsylvania. He argued in

his 2008 motion that his convictions were not “crimes of

violence” within the meaning of the Guidelines and thus he

was not a career offender. Our precedent foreclosed that

argument when he made it, but, in light of the Supreme Court

case Begay v. United States, 553 U.S. 137 (2008), we

reversed ourselves, and Doe’s argument became plausible.

He therefore filed another § 2255 motion, but it too was

denied.

This case presents many procedural complexities of

first impression within this Circuit. If Doe can manage the

Odyssean twists and turns of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), including the Scylla of

the second-or-successive bar and the Charybdis of the statute

of limitations, he may find a meritorious claim at the end of

his journey. However, we do not definitively reach the merits

here and instead remand to let Doe’s case continue its

uncertain course.

II. Procedural and Legal History

In 1991 Doe pled guilty in Pennsylvania to cocaine

possession. In 1996 and 2000 (also in Pennsylvania), he pled

guilty to two simple assaults. In 2003, he pled guilty in

federal court to distribution and possession with intent to

distribute at least five grams of crack cocaine in violation of

21 U.S.C. § 841(a)(1) & (b)(1)(B)(iii) (2000). Doe was

4

sentenced to 262 months’ incarceration pursuant to the then-

mandatory Sentencing Guidelines and case law that has since

been overruled. This is the sentence he now attacks.

The Sentencing Guidelines provide a significant

enhancement for “career offenders,” defined as those with “at

least two prior felony convictions of either a crime of

violence or a controlled substance offense.” U.S.S.G.

§ 4B1.1(a)(3). Doe’s 1991 drug conviction was not relevant

to the career-offender designation because it occurred more

than 10 years before his federal conviction and did not result

in a sentence longer than one year and one month of

imprisonment.1 Thus Doe was a career offender only if both

of his prior assaults were “crime[s] of violence.” Id.

§ 4B1.1(a)(3). His sentence in 2003 occurred under our case

law categorically designating simple assault in Pennsylvania

as a crime of violence, and hence Doe was a career offender.

United States v. Dorsey, 174 F.3d 331, 333 (3d Cir. 1999).

He was sentenced to 262 months of imprisonment, the bottom

of the Guidelines range, and did not appeal. Without the

career-offender enhancement, Doe’s Guidelines range would

1

See U.S.S.G § 4B1.2(c)(2) (offenses must be counted under

§ 4A1.1’s calculation of criminal history points in order to

count for career offender purposes); § 4A1.1 Commentary

(cross-referencing § 4A1.2 for instructions on how to

compute criminal history points); § 4A1.2(e)(2) (excluding

from calculation offenses for which the sentence received is

less than one year and a month and that occurred more than

ten years before the offense conduct to which the defendant is

being sentenced).

5

have been 110–137 months, with a mandatory minimum of

10 years.2 U.S.S.G. ch. 5 pt. A (2002).

In 2004 the Government filed a motion to reduce

Doe’s sentence because he provided “substantial assistance”

to the Government in a different criminal investigation. Fed.

R. Crim. P. 35(b). The Government requested that the

District Court hold the motion in abeyance while the

investigation was ongoing, which the Court did. While the

Rule 35 motion was still pending, Doe filed a § 2255 motion

arguing in part that his simple assault convictions were not

crimes of violence and that he was therefore wrongly

sentenced as a career offender.

On April 16, 2008, the Supreme Court decided Begay,

which held that a DUI conviction is not a “violent felony”

within the meaning of the Armed Career Criminal Act

(ACCA) because it does not involve “purposeful, violent, and

aggressive conduct.” 553 U.S. at 145. The words and

structure of the career-offender Sentencing Guideline are

similar to the ACCA’s. This holding thus significantly

strengthened Doe’s argument (which otherwise would have

certainly failed because of Dorsey), as the subsection of

Pennsylvania’s assault statute to which Doe pled guilty

2

Doe faced a mandatory minimum sentence of 10 years

based on his 1991 conviction for cocaine possession. 21

U.S.C. § 841(b)(1)(B)(iii) (2000). Although, as explained

above, not relevant to his Guidelines calculation, Doe’s 1991

conviction set his minimum statutory sentence, as older

sentences for drug crimes involving small amounts of

contraband still count as prior convictions that trigger

mandatory minimums under the Controlled Substances Act.

Id.

6

proscribes intentional (i.e., purposeful), knowing and reckless

conduct. 18 Pa. Cons. Stat. § 2701(a)(1) & (a)(2). Yet,

panels of this Court continued to apply Dorsey in

nonprecedential opinions. E.g., United States v. Wolfe, 301 F.

App’x 134 (3d Cir. 2008).

The District Court appointed the Federal Defenders to

represent Doe on collateral review. On April 16, 2009, one

year to the day from Begay (and thus the last day of

AEDPA’s limitations period within which Doe could make an

argument attacking his sentence based on that decision, see

28 U.S.C. 2255(f)), the District Court held an evidentiary

hearing on both the Rule 35(b) and the § 2255 motions.

It indicated that it would grant Rule 35 relief but

would not vacate the sentence under § 2255, and Doe’s

counsel withdrew the § 2255 motion. Throughout the

hearing, a crucial factor for everyone was how to keep

confidential that Doe was cooperating with the authorities; if

his cooperation got out, he would have been in danger from

other inmates. The Court and counsel engaged in a lengthy

colloquy about whether they were proceeding on Doe’s

§ 2255 motion or the Government’s Rule 35 motion.

Eventually, Doe’s lawyer proposed the following.

MR. LIVINGSTON [Doe’s counsel]: Your

Honor, what I can do at sidebar is withdraw [the

§ 2255 motion], but when I was asking, for the

public portion of this record, the reason I made

that request and the reason why I said the things

I said of public record were mostly for Mr.

Doe’s[3] safety. When he explained—what he

3

We do not note in this opinion where we have altered Doe’s

name.

7

explained to me is that he is fully expecting that

the Court is going to enter a sentence today that

is greater than time served and that he’s going

to go back to the federal place from which he

came, and that inmates there, if they find out

that he is now serving a lesser term of

imprisonment will suspect that he came in here

on a 35(b) motion. So, without of record

formally withdrawing the motion, what I can

say at sidebar is that Mr. Doe is not expecting

relief under the 2255 vehicle.

THE COURT: But I think we have a problem

then, I do, because I’m not going to grant the

relief under 2255. I’m glad to grant it under

35(b) and I’m glad to keep that under seal, but I

am not finding today that he’s not a career

offender and that his criminal history

calculation in the presentence report

overrepresented the actual severity of his past

criminal history. So, I mean I think to do that, I

almost have to say then that he’s really not a

career offender because I have to give those

past offenses less weight and take him out of

that status, and I don’t find that to be true.

So I don’t know how we accomplish that

because that’s the basis of my relief today. The

basis of my relief is . . . the government having

filed a 35(b) motion and telling me what they

have told me today.

There followed further discussion on how to seal proceedings,

and the Court addressed the defendant:

8

THE COURT: Mr. Doe, do you have any

questions at all about what we’ve just been

talking about here?

THE DEFENDANT: It’s like kind of

complicated to me.

THE COURT: If you want to have a little bit of

time to speak with Mr. Livingston, you

certainly can.

THE DEFENDANT: I would appreciate that.

(Whereupon, there was a brief pause in the

proceedings.)

MR. LIVINGSTON: I’ve had an opportunity to

discuss the procedures that we’ve just been

going through here with Mr. Doe, and on his

behalf, what I’m going to do formally is move

to withdraw his pro se 2255.

The Court then granted the Rule 35(b) motion and reduced

Doe’s sentence by about seven years.

On May 5, 2009, Doe appealed from the grant of the

Rule 35(b) motion, arguing that he was entitled to further

reduction because of his wrongful classification as a career

offender under the Guidelines. While that appeal was

pending, we decided United States v. Johnson, 587 F.3d 203

(2009), which overruled Dorsey in light of Begay and held

that courts must inquire into the part of the statute to which

the defendant actually pled guilty in order to determine

whether the career-offender enhancement applies. If the

defendant pled guilty to “an intentional or knowing violation

of” Pennsylvania’s assault statute, he has committed “a crime

of violence” within the meaning of the career-offender

9

sentencing guideline. Id. at 212. In looking to the part of the

statute to which a defendant pled, courts are restricted to the

“Shepard materials,” namely, “the statutory definition,

charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to

which the defendant assented.” Shepard v. United States, 544

U.S. 13, 16 (2005).

Shortly after our Court’s decision in Johnson, Doe

filed a motion to remand his appeal to the District Court,

which we denied. When we ruled on the merits of his appeal,

we erroneously stated that Doe would be able to bring his

Begay claim in a timely § 2255 motion based on our mistaken

conclusion that the statute of limitations does not begin to run

until a new right is deemed retroactive on collateral review.

United States v. Doe, No. 09-2265, slip op. at 11 (3d. Cir.

2012) (sealed). In fact, the statute begins to run from the date

the new right is recognized. Dodd v. United States, 545 U.S.

353, 360 (2005). In any event, we affirmed the sentence and

held that Rule 35 was not an appropriate means for Doe to

attack his underlying sentence.

After our opinion on appeal from the Rule 35

proceedings, in 2012 Doe filed a § 2255 motion, again raising

his Begay argument. The statute of limitations for a § 2255

motion is one year, and, as stated above, begins to run the

date a new right is recognized. Therefore, the statute of

limitations on Doe’s Begay argument expired on April 16,

2009, the day his lawyer withdrew his 2008 § 2255 motion.

The District Court concluded that there was no basis to toll

the limitations period for the 2012 motion and, in the

alternative, that the 2012 motion was an impermissible

second § 2255 motion. Doe filed a motion for

reconsideration, arguing that the withdrawal in 2009 of his

2008 § 2255 motion was involuntary due to ineffective

assistance of counsel. The District Court appointed new

10

counsel, who in 2013 filed a “supplemental” § 2255 motion

and requested that the District Court either reinstate the 2008

pro se motion or equitably toll the statute of limitations for

the 2012 motion. (The parties treat the 2012 motion and the

2013 supplemental motion collectively as one motion filed in

2012, and we do the same.) The District Court again held

that there was no basis for equitable tolling and also

concluded that, because § 2255 counsel was not deficient

under Strickland, the 2008 motion should not be reinstated.

Doe appeals.

III. Summary of Our Decision

Doe’s case is unusually complex, even in the already

intricate and technical areas of law under § 2255 and its

cousin habeas corpus. We therefore begin with an overview

of the questions we face and our bottom-line holdings.

Readers uninitiated in the mysteries of collateral review will

find the following paragraphs opaque; we hope the rest of our

opinion clarifies them.

To reiterate, Doe’s central claim is that he was

sentenced as a career offender on the basis of two convictions

for assault that should not have been considered. When he

first raised this claim, our case law labeled it a loser, but the

argument gained strength after the Supreme Court ruled in

Begay.

Although Doe has been released from prison, we first

hold that Doe’s case is not moot, as it is sufficiently likely

that, if he wins, the District Court will shorten his term of

supervised release. Next, we consider whether Doe has made

the substantial showing of the denial of a constitutional right

that entitles him to appeal even though Begay was not

explicitly a constitutional decision. We conclude that we

11

have jurisdiction to issue a certificate of appealability (COA);

we then issue one on three threshold issues. We further decide

that even though Doe’s claim is arguably not cognizable on

collateral review, we have jurisdiction over the case, as

cognizability is not always a jurisdictional limit.

Secure in our jurisdiction, we turn to the issues on

which we grant the COA and assume without deciding that

Doe’s 2012 § 2255 motion is not a second or successive

motion over which the District Court lacked jurisdiction. We

do so because, even if the 2008 motion did not count as Doe’s

first, the 2012 motion would have been untimely and the

circumstances of this case do not call for tolling the statute of

limitations.

Then we consider whether Doe was entitled to

reinstate his 2008 motion under Federal Rule of Civil

Procedure 60. Concluding that this is a question properly left

to the District Court’s sound discretion, we remand on this

ground.

To make sure that our remand is not a waste of time,

we consider other potential bars to collateral relief. We hold

that Doe has not procedurally defaulted his claim and that in

any event the Government has waived this affirmative

defense. We then accept the Government’s concession that

Begay applies retroactively. Next, we hold that claims of

Begay error are cognizable on collateral review at least where

they are not defaulted and the § 2255 movant was sentenced

under the mandatory Guidelines. Finally, we acknowledge

that, even if Doe is unsuccessful in reinstating his 2008

§ 2255 motion, he may be able to pursue the rare petition for

a writ of habeas corpus under 28 U.S.C. § 2241.

We proceed to put some flesh on these bones.

12

IV. Standards of Review and Jurisdiction

We review legal determinations de novo, factual

findings for clear error, and matters committed to the District

Court’s discretion for abuse thereof.

There are four jurisdictional questions in this case.

First, the Government argues that Doe’s appeal is moot

because he is currently serving the supervised release portion

of his sentence, which may not be reduced even if Doe

prevails on the merits. The next question is whether we have

jurisdiction to grant a COA. If we do, we reach the third

question, which is whether we should in fact grant a COA so

that we have jurisdiction over the merits of the case. Finally,

we raise nostra sponte (that is, on our own) the question of

whether, if Begay error is not cognizable in a § 2255

proceeding, the District Court lacked jurisdiction.

A. Mootness

The Government has moved to dismiss Doe’s appeal

as moot because, under 21 U.S.C. §§ 841(b)(1)(B)(iii) and

851, he must serve eight years of supervised release

regardless of the merits of his appeal. Even if it turns out that

he was incarcerated too long, the Government argues that no

relief is available to him because removing the career-

offender designation will not affect his supervised release.

In circumstances similar to this case, where a § 2255

movant on supervised release appealed the length of his

imprisonment, we observed that the District Court could

credit him with the time served in prison exceeding a lawful

sentence and reduce the length of his supervised release by

that amount. United States v. Wright, 642 F.3d 148, 155 n.7

(3d Cir. 2011). Likewise here, that Doe’s eight-year

supervised release term is statutorily required is no obstacle to

13

our jurisdiction because Federal Rule of Criminal Procedure

35(b), under which Doe was sentenced, “authorizes a district

court to reduce any aspect of a defendant’s [otherwise

statutorily mandated] sentence, including supervised release

terms.” United States v. Spallone, 399 F.3d 415, 424 (2d Cir.

2005).4 Because the District Court may reduce the duration

of Doe’s supervised release if he prevails, the case is not

moot.

4

The Government, in a petition for panel rehearing, argued

that the “putative availability to Doe of a wholly separate

procedural route to redress in the form of Rule 35(b) has no

bearing on whether the instant matter is moot” because Doe’s

Rule 35(b) proceedings are “closed and final.” Pet. for Panel

Rehearing at 11. In essence, the Government’s argument is

that Rule 35(b) cannot help Doe in the current case because

the challenge here is to his initial sentence, not to his sentence

as modified by the closed Rule 35(b) proceedings. However,

this overlooks that, if Doe prevails, it would necessarily mean

that the District Court used an unlawful sentence as a starting

point for its Rule 35(b) reduction. Because that reduction was

intertwined with Doe’s initial sentence, the District Court

would have the authority to vacate both and revisit them de

novo as part of its resentencing. Cf. United States v. Diaz, 639

F.3d 616, 620 (3d Cir. 2011) (noting that “common sense

dictates” that de novo resentencing should be available where

there is a need to “reconstruct the sentencing architecture”

after one component of an interrelated sentencing scheme is

vacated) (quoting United States v. Davis, 112 F.3d 118, 122

(3d Cir. 1997) (internal quotation marks omitted).

14

B. Jurisdiction to Grant a COA

The motions panel that referred Doe’s COA request to

our (merits) panel directed the parties to brief whether we

have jurisdiction to issue a COA. This phrasing bundles two

distinct questions: whether we have jurisdiction to entertain

Doe’s request for a COA; and, if we grant a defective COA,

whether that would deprive us of jurisdiction over the appeal.

We clearly have jurisdiction to consider Doe’s

application for a COA, as an appeal may be taken to a court

of appeals if “a circuit justice or judge issues a certificate of

appealability.” 28 U.S.C. § 2253(c)(1). A COA is a

“jurisdictional prerequisite” to an appeal on the merits.

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). “The COA

statute establishes procedural rules and requires a threshold

inquiry into whether the circuit court may entertain an

appeal.” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 482

(2000), and Hohn v. United States, 524 U.S. 236, 248 (1998)).

Section 2253 unambiguously gives us jurisdiction—as a panel

or individually as circuit judges—over the threshold inquiry.

Gonzalez v. Thaler, 132 S. Ct. 641, 649 (2012) (“Congress

placed the power to issue COAs in the hands of a ‘circuit

justice or judge.’” (quoting 28 U.S.C. § 2253(c)(1)).

As a COA is a jurisdictional prerequisite to an appeal,

it was until recently arguable that a defective COA fails to

give a court jurisdiction over the merits of a case. United

States v. Cepero, 224 F.3d 256 (3d Cir. 2000) (en banc),

overruled by Gonzalez, 132 S. Ct. 641. A COA is defective if

it is issued where the applicant has made no “substantial

showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Here, Doe’s most substantial claim is that the

sentencing Court applied an incorrect (but not in itself

unconstitutional) interpretation of the Sentencing Guidelines.

Therefore, the case could be made that any COA here would

15

be defective, as Doe has failed to make the required showing

of the denial of a constitutional right.5 Under Cepero, if the

COA were defective, we would lack jurisdiction over the

appeal. However, in Gonzalez the Supreme Court clarified

that § 2253(c)(2) is not a jurisdictional statute. 132 S. Ct. at

649. Therefore, even if we issued a defective COA, it would

still give us jurisdiction over the appeal.

We thus have jurisdiction to decide whether to grant

the COA. It is also settled that we should not grant the COA

unless Doe has made a substantial showing of the denial of a

constitutional right. Furthermore, even if we erroneously

granted a COA over a non-constitutional issue, we would still

have jurisdiction over the appeal. The next question is

whether we should in fact grant the COA, giving us

jurisdiction over the merits of the appeal.

C. Should We Grant a COA?

Section 2253(c)(2) provides that “[a] certificate of

appealability may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.”

(emphasis added). The Supreme Court has held that, as here,

5

As discussed immediately below in Part III.C, it was

arguably unconstitutional to sentence Doe according to the

erroneous interpretation of the Guidelines because it is

unconstitutional to punish someone more severely than the

law allows; however, if the Guidelines in fact meant what the

sentencing Court thought they did, there would be no

constitutional infirmity in Doe’s sentence.

16

[w]hen the district court denies a habeas

petition[6] on procedural grounds without

reaching the prisoner’s underlying

constitutional claim, a COA should issue when

the prisoner shows, at least, that jurists of

reason would find it debatable whether the

petition states a valid claim of the denial of a

constitutional right and that jurists of reason

would find it debatable whether the district

court was correct in its procedural ruling.

Slack, 529 U.S. at 484.

Perhaps surprisingly, there is some debate as to

whether “constitutional” in § 2253(c)(1) means

“constitutional” or “federal.” 2 Randy Hertz & James S.

Liebman, Federal Habeas Corpus Practice and Procedure

§ 35.4b[i] & n.33 (6th ed. 2011) [hereinafter FHCPP]

(collecting cases). This is because, pre-AEDPA, to obtain a

certificate of probable cause to appeal (the term for what is

now a COA), an applicant needed to make a substantial

showing of the denial of a federal right. Barefoot v. Estelle,

463 U.S. 880, 893 (1983). The Supreme Court since held, in

Slack v. McDaniel, that § 2253(c) codified that standard. 529

U.S. at 483. In doing so, the Slack Court expressed “due note

for the substitution of the word ‘constitutional’” for “federal.”

Id. However, the Court did not engage in extended

discussion about whether the change was meaningful. See

6

There are significant overlaps between the law of habeas

corpus and motions to vacate, set aside, or correct sentences

under 28 U.S.C. § 2255. In quoting cases from the habeas

context, we do not address the differences from § 2255 law

except where they are relevant to this appeal.

17

Medellín v. Dretke, 544 U.S. 660, 678 (2005) (per curiam)

(O’Connor, J., dissenting). We have held that the change was

meaningful. Marshall v. Hendricks, 307 F.3d 36, 80–81 (3d

Cir. 2002); Cepero, 224 F.3d at 265–68. Hence, to obtain a

COA, Doe must make a substantial showing of the denial of a

constitutional right; a mere federal right will not do.7

7

Cepero went further than saying we may not hear appeals

from denials of collateral relief when the appellant only

brings federal claims that are non-constitutional; we also held

that we may not hear an appeal on any such claim even when

the appellant has made a substantial showing of the denial of

an independent constitutional right (for example, under

Cepero, if a § 2255 movant makes a substantial showing of

both a Brady violation and a non-constitutional sentencing

error, the movant may appeal only the Brady issue). But see

Ramunno v. United States, 264 F.3d 723, 725 (7th Cir. 2001)

(“If the case presents a substantial constitutional question,

then an independently substantial statutory issue may come

along for the ride. This is one holding of Slack.”).

We need not decide whether this aspect of Cepero

survives Gonzalez. Our case held that we have no jurisdiction

over appeals from denials of statutory claims. After

Gonzalez, we clearly have jurisdiction, but it is still an open

question whether § 2253(c)(1) bars appellants without any

constitutional claims or bars all non-constitutional claims on

appeal even if a constitutional claim is alongside. On this

point Cepero is difficult to reconcile with Slack (which held

that a petitioner may appeal from an adverse non-

constitutional procedural decision, 529 U.S. 483–84), and

Gonzalez may be read to undermine Cepero significantly, but

Doe’s case does not actually present the question because his

18

One important qualification is in order: even though an

appellant must make a substantial showing of the denial of a

constitutional right to get a COA, this aspect of our threshold

inquiry is satisfied even if the claim is only debatably

constitutional. In Hunter v. United States, 559 F.3d 1188,

1190 (11th Cir. 2009), the Eleventh Circuit denied a COA

because Begay was not a constitutional decision. However,

the Supreme Court vacated that judgment in light of the

position in the Solicitor General’s brief, which argued the

proper approach would “encompass[] review of ‘debatably

constitutional’ claims.” See Br. of Solicitor General 9,

Hunter v. United States, No. 09-122, 2009 WL 4099534

(Nov. 25, 2009); Hunter v. United States, 558 U.S. 1143

(2010). The Solicitor General’s position is consistent with

Slack’s characterization of the decision to grant or deny a

COA as a threshold inquiry. The contrary stance, requiring

the claim at issue to be constitutional beyond debate, would in

close cases require something approaching a merits decision

at the supposedly threshold COA phase. In this context, we

hold that Doe may be granted a COA even if Begay is only

arguably (to be clear, plausibly or subject to good faith

debate) a decision of constitutional dimension. See United

States v. Martin, 226 F.3d 1042, 1046 (9th Cir. 2000) (issuing

a COA because, at the time defendant’s § 2255 motion was

filed, the constitutional issue was debatable, even though by

the time of appeal the Supreme Court had resolved it against

defendant’s position); see also Hunter, 558 U.S. 1143.

So we come to another threshold question in this case:

is Doe entitled to a COA? There are three predicate

only substantial claim is the Begay violation; either the Begay

claim is constitutional or it’s not, and we need not decide

whether it can “tag along” with a clearly constitutional claim.

19

questions: could jurists of reason debate whether (1) Begay is

constitutional as applied through the Sentencing Guidelines;

(2) Doe has stated a valid claim of Begay error; and (3) the

District Court rightly decided Doe’s motion?

1. Begay’s Arguably Constitutional

Dimension

Debate is currently fervid across the circuits on

whether Begay is a constitutional decision; we have yet to

weigh in. Supporting Doe’s position are Narvaez v. United

States, 674 F.3d 621 (7th Cir. 2011), and Whiteside v. United

States, 748 F.3d 541, 548 (4th Cir.), rev’d on other grounds,

775 F.3d 180 (4th Cir. 2014) (en banc), cert. denied, 135 S.

Ct. 2890 (2015), both of which held that erroneously

classifying someone as a career criminal under the mandatory

Sentencing Guidelines arguably violates the Due Process

Clause by conferring a longer sentence than the law allows.

The Government argues that in this case Doe’s classification,

even if erroneous, did not result in an illegally long sentence

(and thus comported with due process) because the top of the

relevant statutory sentencing range (life imprisonment) is

higher than the sentence he received (262 months). Narvaez

rejected that argument, as the career offender enhancement

created a legal presumption that [Narvaez] was

to be treated differently from other offenders

because he belonged in a special category

reserved for the violent and incorrigible. No

amount of evidence in mitigation or extenuation

could erase that branding or its effect on his

sentence. . . . The sentencing court’s

misapplication of the then-mandatory § 4B1.1

career offender categorization in Mr. Narvaez’s

case was the lodestar to its guidelines

calculation.

20

674 F.3d at 629 (emphasis in original).

A panel of the Fourth Circuit held that

miscategorization as a career offender worked a “complete

miscarriage of justice” without deciding whether it also

violated the Due Process Clause. Whiteside, 748 F.3d at 548.

In granting the COA, however, the Court made a threshold

inquiry about whether the erroneous designation worked a

constitutional deprivation and was “satisfied that . . . it [was]

at least debatable that erroneous application of the career

offender enhancement deprived Whiteside of his liberty in

violation of his due process rights.” Id. at 555.

By contrast, the Eighth Circuit, sitting en banc, held in

Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011)

(en banc), that: Begay’s analysis of the language used in

U.S.S.G. § 4B1.1 presented an “ordinary question[] of

[G]uideline interpretation;” because Sun Bear’s sentence was

within the District Court’s statutory authority to impose, “no

miscarriage of justice is at issue;” and the claim, far from

being constitutional, was not even cognizable in a § 2255

case. The District Court in Sun Bear had granted a COA, and

neither the panel nor the en banc Circuit Court discussed

whether the COA was defective.

The Supreme Court has stressed that the decision to

grant a COA is a “threshold inquiry” into whether “jurists of

reason could disagree with the district court’s resolution

. . . or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Given the

live debate in several circuits about whether Begay error in a

sentencing case violates the Constitution, a debate that has

resulted in a circuit split and at least two rehearings en banc,

we join the Fourth and Seventh Circuits in holding that,

whatever the final outcome, Begay error is debatably

21

constitutional, and therefore the word “constitutional” in

§ 2253(c)(2) is no bar to a COA in this case.

2. Doe’s Arguably Meritorious Begay

Claim

Next, we must analyze whether “jurists of reason

would find it debatable whether [Doe’s motion] states a valid

claim of” Begay error. Slack, 529 U.S. at 484. This is easy—

Doe was sentenced as a career offender because of two

simple assault convictions. A career offender is someone

who has been convicted of at least two crimes of violence.

U.S.S.G. § 4B1.1. Simple assault is not categorically a crime

of violence under the Sentencing Guidelines; rather, only

knowing or intentional assaults are. Johnson, 587 F.3d at

210–211 & n.8.8 In deciding whether a defendant pled guilty

to a knowing or intentional assault, we are “generally limited

to examining the statutory definition, charging document,

written plea agreement, transcript of plea colloquy, and any

8

Because the Government conceded in Johnson that reckless

assault did not qualify as a crime of violence, we saw no need

to decide whether Begay overruled our prior holding that

“purely reckless crimes may count as predicate offenses for

purposes of career offender guideline.” Dorsey, 174 F.3d at

333. We did, however, note that “Begay . . . made plain that

only ‘purposeful, violent, and aggressive conduct’ may

constitute a violent felony . . . [and] distinguished that sort of

conduct from . . . ‘a crime of negligence or recklessness.’”

Johnson, 587 F.3d at 211 n.8 (quoting Begay, 553 U.S. at

144–46). The Government also concedes here that reckless

conduct is not a crime of violence, Gov’t Br. at 70, and we

agree for the reasons quoted from Begay in Johnson.

22

explicit factual finding by the trial judge to which the

defendant assented.” Shepard, 544 U.S. at 16. We have also

held that a Presentence Investigation Report (PSR) can be a

Shepard document when the defendant does not object to a

factual account of a crime therein. United States v. Siegel,

477 F.3d 87, 93 (3d Cir. 2007).9

The Shepard materials in the record before us do not

establish that Doe pled guilty to knowing or intentional

conduct. We have the statutory definition of simple assault,

the criminal information for Doe’s first assault, the plea

colloquies for both of Doe’s assaults, and Doe’s PSR in this

case to which he did not object. A person is guilty of simple

assault in Pennsylvania if he “attempts to cause or

intentionally, knowingly or recklessly causes bodily injury to

another” or if he “negligently causes bodily injury to another

with a deadly weapon.” 18 Pa. Cons. Stat. § 2701(a)(1) &

(a)(2). To be guilty of intentional or knowing assault, the

defendant must “intend[] to impair the victim’s physical

condition or cause her substantial pain.” Johnson, 587 F.3d at

212. Doe’s information tracks the language of the statute’s

first subsection and says that he “intentionally, knowingly or

recklessly caused injury to another, namely David Amon to

wit: by spitting on him in the face and slapping him in the left

cheek area causing pain, redness and swelling to the left

cheek area.” App. 51. At the plea colloquy, the only

9

In Johnson, 587 F.3d at 212, n.10, we declined, despite

Siegel, to consider factual matter in an unobjected-to PSR on

the ground that the document provided no basis to determine

the defendant’s mens rea. We need not attempt to resolve

any tension between Johnson and Siegel, as the description of

Doe’s actions here does not provide an adequate basis to hold

that he pled guilty to knowing or intentional assault.

23

reference to Doe’s conduct was a question by the prosecutor,

“Do you admit that you did strike him,” and Doe’s answer,

“Yes.” Tr. 12:17–19, App. 64. The PSR, to which Doe did

not object, states roughly the same set of facts for Doe’s

second assault conviction as the information that Doe slapped

the victim in the face and spat on him (the PSR adds that he

spat a second time). This factual recitation is insufficient to

hold that Doe’s conduct was knowing or intentional.

Slapping someone in the face and spitting are not violent

enough for us to conclude that Doe must have intended to

“impair the victim’s physical condition or cause [him]

substantial pain.” Johnson, 587 F.3d at 212. Therefore, it

appears that Doe has at most one conviction for a crime of

violence within the meaning of the Sentencing Guidelines.

For these reasons, Doe likely was not a career

offender, and, at a minimum, jurists of reason would at least

find it debatable whether Doe has stated a valid Begay claim.

3. The District Court’s Arguably Wrong

Procedural Holdings

Third, we must determine whether jurists of reason

would find it debatable that the District Court correctly

dismissed Doe’s motion as second or successive, denied his

request for equitable tolling of the statute of limitations, and

denied Rule 60 relief that would have reinstated Doe’s timely

2008 motion that also challenged his career offender status.

The District Court evaluated all three issues through the lens

of an ineffective-assistance-of-counsel claim, deciding that,

because counsel was not ineffective in withdrawing the 2008

motion, the 2012 motion was a second motion, and neither

equitable tolling nor Rule 60 relief was available. We explore

these points in greater detail below, but for the threshold

COA question it is enough to note that the District Court

engaged in the wrong analysis. Whether the 2012 motion was

24

a second motion depends on why the 2008 motion was

withdrawn, not on whether it was a legitimate strategic

choice. See Thai v. United States, 391 F.3d 491, 495 (2d Cir.

2004) (per curiam). As for equitable tolling and Rule 60,

both require courts to inquire into the totality of the

circumstances; counsel’s ineffectiveness may be one factor,

but it is not necessarily determinative.

4. Conclusion With Respect to COA

For the reasons discussed above, we grant Doe a COA

on whether the District Court properly ruled that (1) his 2012

motion was his second, (2) he was not entitled to equitable

tolling on his 2012 motion, and (3) he was not entitled to

reinstate his 2008 motion.

D. Cognizability as a Jurisdictional Limit

The Government contends that Begay error is not

cognizable on collateral review because it is not of

constitutional magnitude. Assuming for the moment the

Government is correct, we do not believe (nor does the

Government argue) that this sort of cognizability limitation is

also a jurisdictional one. But, as we have a duty to be sure we

have power to decide the case, we pause to consider any

potential jurisdictional implications.

Sometimes habeas petitioners and § 2255 movants

bring claims that are not cognizable on collateral review, and

judges conclude they lack jurisdiction over those claims.

E.g., Palma-Salazar v. Davis, 677 F.3d 1031, 1038 (10th Cir.

2012); Trinidad y Garcia v. Thomas, 683 F.3d 952, 1009 (9th

Cir. 2012) (per curiam) (en banc) (Kozinski, J. dissenting).

Other courts have indicated that cognizability is not

jurisdictional. United States v. Fung, 935 F.2d 276, mem. at

2 (9th Cir. 1991) (not precedential) (per curiam). These

25

strands of case law are harmonized when we recognize that

collateral review courts lack jurisdiction if applicants seek

unavailable remedies. A habeas court may lack jurisdiction

over a claim that does not challenge the fact, duration, or

conditions of confinement because the court is powerless to

afford the proper remedy for the claim, like damages (as

available collateral remedies are generally release or vacating

a conviction or sentence, or some combination of the

foregoing, see 2 FHCPP § 33.1). In Article III terms, certain

claims are not redressable on collateral review, and thus the

Court lacks jurisdiction over them. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992).

Doe’s claim is not the sort of non-redressable claim

over which collateral courts lack jurisdiction. He seeks to

correct his sentence, and therefore he is properly proceeding

under § 2255. If his claim is not cognizable, then he has

failed to state a claim on which relief may be granted, but he

properly invoked the District Court’s jurisdiction. Bell v.

Hood, 327 U.S. 678, 681 (1946). This distinction is not all

that important to Doe’s case, but as a general matter it is more

than semantic because, were cognizability always

jurisdictional, courts would have to raise the issue sua sponte.

If a movant brings a non-cognizable sentencing issue and the

Government only argues that the movant loses on the merits,

a court may afford relief (if the movant’s position is correct)

regardless whether the Government could have persuasively

argued that the claim was non-cognizable. By contrast, if a

habeas petitioner seeks damages, notwithstanding the

Government’s position, a district court would lack authority

to redress the claimed harm.

Because cognizability is not a jurisdictional bar in this

case, it is discussed below after other procedural hurdles.

26

V. Did the 2008 Motion Count Such That Any Later

Motion Was Second or Successive?

In general, federal defendants get two conceptual bites

at the apple of relief from criminal charges: first at trial (and

appeal therefrom), and second by a motion to vacate, set

aside, or correct a sentence under 28 U.S.C. § 2255, the first

step in what is known as “collateral review” of a trial and

pretrial proceedings (the appeal from a guilty verdict is

“direct review”). After an unsuccessful § 2255 motion, there

is very little a defendant may plausibly ask a court to do;

particularly relevant here, a defendant may not present a court

with a second or “successive” (i.e., third, fourth, etc.) § 2255

motion except in rare circumstances. Thus, the next threshold

question in this case is whether Doe’s 2012 § 2255 motion is

an impermissible second or successive one.

AEDPA (and, to a lesser extent, pre-AEDPA case law)

puts a very high barrier between movants and relief on “[a]

claim presented in a second or successive” motion. 28 U.S.C.

§§ 2244(a), (b) & 2255(h). To oversimplify, relief on a

second or successive motion is only available when the

Supreme Court makes a new rule of constitutional law

retroactive to cases on collateral review or when newly

discovered evidence clearly shows the movant is factually

innocent of the crime of which he was convicted. Doe meets

neither condition; hence he cannot file a second or successive

§ 2255 motion.

Doe’s is literally his second § 2255 motion, but

“second or successive” is a term of art; the second-or-

successive bar does not apply to all § 2255 motions that are

filed after an initially filed motion. Panetti v. Quarterman,

551 U.S. 930, 943–44 (2007) (“[‘Second or successive’] takes

its full meaning from our case law, including decisions

predating [AEDPA].”). To figure out whether the 2012

27

motion, numerically Doe’s second, was also legally his

second, we need to decide whether the 2008 motion

“counted” as his first even though it was withdrawn. We do

not have a precedential opinion addressing the precise

question here: when does a voluntarily withdrawn § 2255

motion or habeas petition “count” so that a numerically

second motion or petition will be deemed a “second or

successive” filing within the meaning of § 2244?

Even though the second-or-successive bar is

jurisdictional, see Burton v. Stewart, 549 U.S. 147, 157

(2007), we need not decide whether Doe’s 2012 motion was

his second because, even if it was, AEDPA’s statute of

limitations bars the motion. See Olson v. United States, 953

F. Supp. 2d 223, 229 (D.D.C. 2013) (relying on Sinochem

Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431

(2007)), to dismiss case on statute-of-limitations grounds

without deciding jurisdictional issue). As such, we assume

the 2012 motion was Doe’s first, and he hops out of the

second-or-successive frying pan into the statute-of-limitations

fire.

VI. Statute of Limitations

The limitations period ran in 2009, one year after the

Supreme Court decided Begay, and Doe’s motion was filed in

2012. See Dodd v. United States, 545 U.S. 353, 360 (2005).

Therefore, the motion is barred unless the limitations period

is tolled.

The District Court erroneously analyzed the equitable

tolling question, concluding that, because Doe’s § 2255

counsel was not ineffective within the meaning of Strickland,

equitable tolling was inappropriate. The correct standard is

that equitable tolling is available when a movant shows “(1)

that he has been pursuing his rights diligently, and (2) that

28

some extraordinary circumstance stood in his way and

prevented timely filing.” Holland v. Florida, 560 U.S. 631,

649 (2010) (internal quotation marks omitted).

Doe has diligently pursued his rights. He filed his

Begay claim one month before the case came down; he

withdrew his § 2255 motion without any obvious indication

that he was abandoning the Begay claim. He raised Begay on

appeal; when we issued Johnson, he sought remand to the

District Court to litigate his Begay claim. We denied that

relief, telling Doe he could file a timely § 2255 motion; four

and a half months after our mandate issued in his appeal from

the Rule 35 motion, he filed the 2012 motion. Doe has taken

every possible opportunity to press his case and thus satisfies

the first prong of equitable tolling.

As for the second prong, the question is whether his

attorney’s error in dismissing his 2008 motion as meritless is

the sort of “extraordinary circumstance” that entitles Doe to

equitable tolling. We have “rejected the argument that an

attorney’s mistake in determining the date a habeas petition is

due constitutes extraordinary circumstances for purposes of

equitable tolling.” Johnson v. Hendricks, 314 F.3d 159, 163

(3d Cir. 2002). The failure of Doe’s lawyer to anticipate

Dorsey’s overruling is far less negligent than the error in

Johnson v. Hendricks by a lawyer who miscalculated a well-

established deadline. Indeed, Doe’s lawyer was not negligent

at all. And the failure to anticipate the change in the law did

not impede Doe from directing his lawyer not to withdraw the

motion; the colloquy at Doe’s Rule 35 hearing where Doe’s

attorney withdrew the timely § 2255 motion to move forward

with the Rule 35 relief suggests that Doe agreed with his

lawyer’s strategy, although without completely

comprehending the consequences of that assent. Not

anticipating a legal development, assuming it can even be

considered a “mistake,” is just the sort of ordinary mistake

29

that courts have held insufficient for equitable tolling.

Johnson, 314 F.3d at 163 (collecting cases).

Moreover, while we regret misstating on his appeal

from the Rule 35 hearing that Doe could file a timely § 2255

motion after our remand, it is beside the point because, even

at the time of our decision, the limitations period had long

passed. This is a case where a lawyer failed to foresee

developments in the law, a circumstance far from

extraordinary. Therefore, even if we deem Doe’s 2012

§ 2255 motion his first, it must be dismissed as untimely, and

Doe can only win by obtaining Rule 60 relief from the

withdrawal of his 2008 motion.

VII. Was Doe Entitled to Rule 60 Relief?

The District Court denied Doe’s request to reinstate his

pro se motion on the ground that, because counsel was not

ineffective in withdrawing the 2008 motion, Doe was not

entitled to relief. We believe the Court should have treated

Doe’s request as a Rule 60 motion, and then should have

asked whether the Rule 60 motion was a disguised second or

successive motion and, if it was not, whether extraordinary

circumstances justified granting relief.10

10

Except in supplemental briefing we ordered, Doe does not

bring up Rule 60 on appeal (he does argue that the pro se

motion should have been reinstated, Opening Br. at 37, 38 &

42). The Government in its supplemental letter brief does not

contend that a Rule 60 argument is waived, and we believe

Doe may pursue it on remand. Doe sought reinstatement of

the 2008 motion in his brief in support of his 2013

supplemental § 2255 motion. The Court had granted

30

The question whether the Rule 60 motion is second or

successive is close. The Supreme Court has held that when a

motion asserts that “a subsequent change in substantive law is

a reason justifying relief from the previous denial of a claim

. . . [,] such a pleading, although labeled a Rule 60(b) motion,

is in substance a successive habeas petition and should be

treated accordingly.” Gonzalez v. Crosby, 545 U.S. 524, 531

reconsideration of its denial of the 2012 motion because Doe

argued his lawyer had been ineffective in withdrawing the

§ 2255 motion in 2008; the Court allowed Doe to present his

arguments through new counsel (in support of the 2012

§ 2255 motion). The Court also ordered briefing on

“ineffective assistance of counsel, as it relates to the grounds

for denial of Defendant’s [2012 § 2255] Motion via this

Court’s March 14 [2013] Order.” ECF No. 82 at 1–2. But

Doe’s Motion for Reconsideration attacked counsel’s

performance in 2008, and in any event counsel’s

ineffectiveness has never been particularly relevant in this

case, as Doe has no legitimate Strickland claim, nor has he

defaulted any claim that ineffectiveness could overcome. Cf.

Martinez v. Ryan, 132 S. Ct. 1309 (2012). Because the

confusion about the proper basis for reinstating the 2008

§ 2255 motion may well have occurred at least in part

because of the District Court’s order, we do not consider the

Rule 60 argument waived.

Doe also argues that the pro se motion was in fact

reinstated when the Court granted reconsideration of its

denial of his 2012 § 2255 motion in order to appoint new

counsel, but this argument is plainly wrong: the Court granted

reconsideration only to allow Doe to present his arguments

through a counsel he had not accused of inefficacy.

31

(2005). At first glance, it would appear that Gonzalez

forecloses Doe’s motion, for it arguably “attacks the federal

court’s previous resolution of a claim on the merits.” Id. at

532 (emphasis removed). However, in Cox v. Horn we read

Gonzalez to hold that a change in the law “without more” is

an inadequate basis for Rule 60 relief. 757 F.3d 113, 124 (3d

Cir. 2014). The approach in Cox calls for a remand to the

District Court to determine if the “more” exists.

“The fundamental point of 60(b) is that it provides a

grand reservoir of equitable power to do justice in a particular

case.” Id. at 122 (internal quotation marks omitted).

“[C]ourts are to dispense their broad powers under 60(b)(6)

only in extraordinary circumstances where, without such

relief, an extreme and unexpected hardship would occur.” Id.

at 120. And just as “we have not embraced any categorical

rule that a change in decisional law is never an adequate basis

for Rule 60(b)(6) relief,” id. at 121, it would be nonsensical to

hold as a categorical matter that a person with constitutionally

adequate counsel can never qualify for Rule 60(b) relief.

“We have not taken that route. Instead, we have long

employed a flexible, multifactor approach to Rule 60(b)(6)

motions . . . that takes into account all the particulars of a

movant’s case.” Id. at 122.

The most relevant factor in this case is the change in

law from Dorsey to Johnson. But a change in decisional law,

without more, is not enough to warrant Rule 60 relief. Cox,

757 F.3d at 115. It is nonetheless an important factor, as is

the significance of that change. Johnson changed the

interpretation of the Sentencing Guidelines in an important

way, but it was not an obviously constitutional decision nor a

decision that made any conduct or activity legal that had

previously been illegal. That the law changed in a significant

way cuts in favor of granting Rule 60 relief, but Doe will still

32

need to show “much more” to get relief. Cox, 757 F.3d at

115. (internal quotation marks omitted).

Doe’s diligence is also an “important factor” under

Rule 60(b). Id. at 126. For the reasons discussed above in

Part VI with respect to equitable tolling, Doe has been

diligent in pursuing his rights.11

Doe’s underlying claim’s merit is relevant, too. Id. at

124. For the reasons discussed above in connection with his

COA, it appears to us (at least from the record on appeal) that

the Begay claim has merit. Other relevant factors are the time

between the dismissal of Doe’s § 2255 motion and his Rule

60 motion and the nature of his sentence; here, it has been six

11

The Government in its supplemental brief argues that if

Doe’s 2012 motion is construed as a Rule 60 motion, it would

be “untimely.” Gov’t Supp. Br. at 4. That contention is

clearly wrong. First, Rule 60(b)(6) has no built-in time limit.

Second, the Government tries to argue that the 2012 motion

was filed at an unreasonable time because it came 72 months

after Begay, but the Government ignores that Doe first argued

he was not a career offender before Begay came down and

that he has since made repeated arguments both in the District

Court and this Court to the same effect. Finally, the

Government claims that a five-month delay (here it is actually

less) between our mandate on appeal from Doe’s Rule 35

motion and his 2012 motion is unreasonable. We disagree

that, even if the Government were correct about the facts, five

months to make a critical motion in a highly complex case is

categorically unreasonable, particularly when the motion

makes the same meritorious argument Doe has been making

for years to no avail.

33

years since the 2008 motion was dismissed (though the lapse

is largely due to the courts and not Doe), and he has been

released from prison. Yet his motion is not moot, as

discussed above. A final relevant factor is the allegation—

which will be for the District Court to credit or not—that Doe

disagreed with his 2008 counsel on the subject of whether to

withdraw the motion and allowed him to do so only because

he was confused about the proceedings.

These factors suggest that it would be within the

District Court’s discretion to grant Rule 60 relief, but it is not

so obvious that Doe deserves relief that we would direct that

Court to do so. We therefore vacate the denial of Doe’s

request to reinstate his 2008 § 2255 motion and remand for

consideration of all the relevant factors, including those

factors the parties care to brief that we have not just

discussed.

But there are still more threshold issues that we must

resolve to guarantee that remand is not a fool’s errand in case

there is a bar to relief independent of everything discussed so

far.12

12

In a letter and response pursuant to Fed. R. App. P. 28(j),

the parties dispute whether the Supreme Court’s recent

decision in Johnson v. United States, 135 S. Ct. 2551 (2015)

(holding that the ACCA is unconstitutionally vague), applies

to the career offender provision of the Sentencing Guidelines,

which uses very similar language to the ACCA. We believe

this issue is properly decided by the District Court in the first

instance, assuming Doe obtains Rule 60 relief. If the District

Court reinstates his timely 2008 motion, Doe may seek to

amend it to include the Johnson argument. Because the need

34

VIII. Procedural Default

The Government argues that Doe defaulted his claim

by not raising it on appeal when its legal basis did not exist.

We disagree. If a claim is defaulted, the default may be

overcome by a showing of cause and prejudice. When the

“legal basis for a claim was not reasonably available to

counsel,” Coleman v. Thompson, 501 U.S. 722, 753 (1991),

there is “cause” for a procedural default; here prejudice is

clear if the Begay claim is valid. See English v. United States,

42 F.3d 473, 479 (9th Cir. 1994) (failure to object in the face

of a “solid wall of circuit authority” contrary to movant’s

position did not work a default); 2 FHCPP § 41.4[a] (“[T]his

procedural bar is inapplicable to claims that could not have

been raised on direct appeal.”).

The Government also concedes that it did not rely on

procedural default below, but it argues that we may reach the

issue on our own accord. For that proposition it cites Sweger

v. Chesney, 294 F.3d 506, 521 (3d Cir. 2002), a § 2254 case

stating, among other things, that, in determining whether to

consider an alleged default the Government has not raised,

courts should consider “comity, federalism, judicial

efficiency, and the ends of justice.” Id. (internal quotation

marks omitted). At the outset, Sweger and decisions from

other circuits holding that courts may raise procedural default

sua sponte are in some tension with the Supreme Court’s

to decide whether that case invalidated the career-offender

provision depends on the interpretation of a very recent

Supreme Court opinion and on how the District Court will

exercise its discretion over any amendment that is sought, we

believe it sensible to remand this case without addressing

Johnson.

35

statement in Gray v. Netherland, 518 U.S. 152, 165–66

(1996), a § 2254 case, that “procedural default is an

affirmative defense for the [Government]. If the . . . claim

was addressed at some stage of federal proceedings, the

[Government] would have been obligated to raise procedural

default as a defense, or lose the right to assert the defense

thereafter.” And regardless of Sweger, § 2254 is sufficiently

different from § 2255, where comity and federalism are

irrelevant, that we join those circuits that have allowed courts

to hold that the federal Government has waived or forfeited

procedural default defenses. See, e.g., United States v.

Cannady, 126 F.3d 352, 359 (2d Cir. 1997); Rogers v. United

States, 1 F.3d 697, 699 (8th Cir. 1993) (per curiam); Shukwit

v. United States, 973 F.2d 903, 904 (11th Cir. 1992) (per

curiam); United States v. Drobny, 955 F.2d 990, 995 (5th Cir.

1992); see also 2 FHCPP § 41.7[b] n.20 (“Although some

court decisions in the section 2254 context assert that

considerations of comity may justify sua sponte judicial

invocation of a procedural default even when the state’s

representative fails to assert a default in a timely manner,

such a rationale would appear to be inapplicable to section

2255 proceedings.” (citations omitted)). One crucial

difference between §§ 2254 and 2255 is that § 2254(b)(3)

expressly forbids federal courts from deeming the related

exhaustion defense waived, and there is no parallel

prohibition in § 2255, suggesting that in the § 2255 context

Congress intended courts to use their traditional rules of

waiver and forfeiture.

Doe spills a great deal of ink arguing that

ineffectiveness of his collateral review counsel can excuse

any procedural default. Br. at 43–53. Because the claim is

not defaulted and the Government waived this affirmative

defense, Doe’s argument need not be addressed in much

detail. But we note that his attorney’s performance could not

excuse a procedural default (if there were a default), as we

36

have held that failing to predict a change in the law is not

deficient performance. Sistrunk, 96 F.3d at 672. We also

point out that, to the extent Doe argues that ineffectiveness of

collateral-review counsel can be an independent Sixth

Amendment violation, see Br. at 53, this claim is a nonstarter.

Coleman, 501 U.S. at 752 (“There is no constitutional right to

an attorney in state post-conviction proceedings.

Consequently, a petitioner cannot claim constitutionally

ineffective assistance of counsel in such proceedings.”

(citations omitted)).

In any event, the claim is not defaulted, and, even if it

were, the Government waived the defense of procedural

default.

IX. Retroactivity

Begay was decided after Doe was sentenced, and

therefore he can only benefit from the decision if it applies

retroactively, meaning that those sentenced before Begay was

decided may avail themselves of the rule of that case. The

Government concedes that it does, and we agree. Gov’t Br. at

64; see Narvaez, 674 F.3d at 625.13

13

The Government argues that Begay is not “retroactively

applicable” to Doe’s 2012 § 2255 motion because it is his

second and is thus not allowed. Gov’t Br. at 64–65. This

phrasing confuses two distinct issues, (1) whether a new rule

of law is retroactive generally (usually because it is

“substantive” or a “watershed rule of criminal procedure,” see

Whorton v. Bockting, 549 U.S. 406, 416 (2007) (describing

doctrine derived from Teague v. Lane, 489 U.S. 288 (1989)),

and (2) whether in a particular case a prisoner may benefit

37

X. Cognizability

The Government argues that Doe’s Guidelines claim is

not cognizable because it is neither constitutional nor the sort

of “fundamental defect” that can be remedied under § 2255.

Hill v. United States, 368 U.S. 424, 428 (1962). This is a

difficult question and one that has divided the circuits. We

hold that it is cognizable.

A. Supreme Court Guidance

Before delving into the narrow question whether a

challenge to the career-offender enhancement may be brought

in a § 2255 motion that has no procedural defects, we review

the Supreme Court’s guideposts for non-constitutional claims

that are cognizable in a § 2255 proceeding. As in many

situations, the polar cases are easy.

In Davis v. United States, an interpretation of the law

handed down after the defendant’s conviction and appeal (the

same interpretation Davis had advanced on the appeal that he

from new law in a second or successive motion, see 28 U.S.C.

§ 2255(h)(2). Under Teague, either a rule is retroactive or it

is not. By contrast, § 2255(h) imposes an independent bar for

relief to the category of prisoners who have already filed one

§ 2255 motion, and in the context of the second-or-successive

bar the language of “retroactivity” is confusing and unhelpful.

Our difference with the Government on this point may be

semantic, but in this technical area of law it is best to be as

clear as possible. We agree with the Government that if

Doe’s 2012 motion is second or successive, he cannot clear

the § 2255(h)(2) hurdle, but, as discussed above, we assume

that the 2012 motion was Doe’s first.

38

lost) rendered the defendant’s conduct no longer punishable,

and therefore the Supreme Court held the conviction and

sentence could be challenged via § 2255. 417 U.S. 333, 343

(1974). By contrast, in Peguero v. United States, 526 U.S. 23

(1999), a district court failed to inform a criminal defendant

of his right to appeal, as required by the Federal Rules of

Criminal Procedure; Peguero did not appeal, and he sought to

have his appellate rights reinstated on collateral review.

Despite his failure to appeal and his lawyer’s lack of advice

on that right, record evidence made it clear that the defendant

had independent knowledge of his right to appeal. The

Supreme Court held that the District Court’s noncompliance

with the formal requirements of the Federal Rules of Criminal

Procedure could not support a basis for collateral relief when

the movant failed to bring his claim on direct appeal, and, in

any event, he suffered no prejudice from the error. Id. at 27–

28.

The lead case for filling in the space between these

poles is Reed v. Farley, 512 U.S. 339 (1994). Although Reed

was a § 2254 case, it was pre-AEDPA, when the cognizable

claims under §§ 2254 and 2255 were coextensive. Davis, 417

U.S. at 343. Under Reed, § 2255 relief is available for

nonconsitutional claims to remedy “a fundamental defect

which inherently results in a complete miscarriage of justice

[or] an omission inconsistent with the rudimentary demands

of fair procedure,” 512 U.S. at 348 (alteration in original), or

when “aggravating circumstances” make “the need for the

remedy afforded by the writ of habeas corpus . . . apparent,”

id. at 350. Examples of “aggravating circumstances” include

“[v]iolations of statutes as to which nationally uniform

interpretation is particularly important” and “[p]rejudice to

important interests of the incarcerated petitioner.” 1 FHCPP

§ 9.1 (internal quotation marks omitted). For example, in

Peguero, 526 U.S. at 24–28, the Supreme Court held that

because of the “general rule, that a court’s failure to give a

39

defendant advice required by the Federal Rules is a sufficient

basis for collateral relief only when the defendant is

prejudiced by the court’s error,” a “district court’s failure to

advise a defendant of his right to appeal as required by the

Federal Rules of Criminal Procedure” can “provide[] a basis

for collateral relief” only if the movant “suffered . . .

prejudice from the omission.”

With these guideposts in mind, we turn to the circuit

courts that have faced the same question presented here:

whether a challenge to the career-offender Guidelines

enhancement is cognizable in a § 2255 motion.

B. Seventh Circuit

In Narvaez v. United States, 674 F.3d 621 (2011), with

facts similar to those here, a defendant was classified as a

career offender under the Sentencing Guidelines. Because

that classification was no longer valid after Begay, Narvaez

brought a § 2255 motion. The Seventh Circuit acknowledged

the “general rule” that sentencing errors are not cognizable on

collateral review yet held that the case before it “present[ed] a

special and very narrow exception: A postconviction

clarification in the law has rendered the sentencing court’s

decision unlawful.” Id. 674 F.3d at 627. The Court surveyed

the five cases where the Supreme Court had considered “the

issue of whether a non-constitutional, non-jurisdictional error

is a miscarriage of justice on collateral review,” id. at 627

n.11. In four of the cases, procedural error did not amount to

a miscarriage of justice, but in Davis (the case where a

subsequent change in decisional law rendered defendant’s

conduct lawful) the Supreme Court held that “[t]here can be

no room for doubt that such a circumstance inherently results

in a complete miscarriage of justice and present[s]

exceptional circumstances that justify collateral relief under

40

§ 2255.” 417 U.S. at 346–47 (alteration in original) (internal

quotation marks omitted).

For the Seventh Circuit, the difference between Davis

and the other key cases meant that new procedural rules could

not support a § 2255 claim, while new substantive ones could.

Narvaez relied on Welch v. United States, 604 F.3d 408, 415

(7th Cir. 2010)—a case that held Begay retroactive because

its new interpretation of the ACCA was “substantive”—to

extend the reasoning in Davis to Narvaez’s case. In

particular, the Narvaez Court held that the difference between

a ruling that limits the amount of punishment that can

lawfully be imposed for given conduct and a ruling that

makes punishment impermissible altogether is “one of

degree, not one of kind.” Narvaez, 674 F.3d at 628. The

Court also analogized the situation of Narvaez to one who has

been sentenced on the basis of materially false information, a

well-established due-process violation. Townsend v. Burke,

334 U.S. 736, 741 (1948). The Court concluded, “To classify

Mr. Narvaez as belonging to this group [career offenders] and

therefore to increase, dramatically, the point of departure for

his sentence is certainly as serious as the most grievous

misinformation that has been the basis for granting habeas

relief.” Narvaez, 674 F.3d at 629. Narvaez has been limited

to cases decided (as occurred to Doe) under the mandatory

Guidelines. Hawkins v. United States, 706 F.3d 820, 822–23

(7th Cir. 2013).

C. Fourth Circuit

In Whiteside v. United States, a panel of the Fourth

Circuit reached the same conclusion as the Seventh Circuit.

748 F.3d 541, 543–54 (4th Cir. 2014), rev’d on other

grounds, 775 F.3d 180 (2014) (en banc). The Whiteside

Court first reasoned that the defendant’s failure to take a

direct appeal of his career-offender designation did not

41

foreclose collateral review. It acknowledged that Whiteside

“would likely be entitled to a vacated sentence” were the case

now on direct appeal, id. at 554, but at the time of

Whiteside’s conviction pre-Begay Circuit precedent would

have barred his argument and rendered direct appeal fruitless.

That the procedural posture of Whiteside’s case depended

less on the presentation of his claims than on the timing of the

Court’s own decisions “contribute[d] to the conclusion that

denial of review [on collateral review would] operate[] a

complete miscarriage of justice.” Id. As the Court put it,

“[Whiteside] should not be punished—and we mean literally

punished, as in additional time spent in federal prison, time

which the law does not countenance—for th[e] fact” that he

was sentenced pursuant to case law that the Court only

repudiated after the time for a direct appeal had elapsed. Id.

Next, the Court relied on Peugh v. United States, 133

S. Ct. 2072 (2013), which held that application of a later

edition of advisory Guidelines recommending a higher

sentence than the edition in print at the time of the crime

violated the Constitution’s Ex Post Facto Clause. The

Whiteside Court cited Peugh for the propositions that

Guidelines challenges can be constitutional (thus cognizable

on collateral review) and that principles of fairness and justice

should inform whether a defendant “was subject to a

fundamental miscarriage of justice.” Whiteside, 748 F.3d at

554. The Court concluded that, because of Begay, Whiteside

was “not a career offender, and he should not serve a sentence

that was based on his classification as one.” Indeed, such a

sentence is a fundamental miscarriage of justice. Id. The en

banc Fourth Circuit reversed the Whiteside panel but did not

address cognizability. 775 F.3d 180.

42

D. Eleventh Circuit

The panel decision in Gilbert v. United States, 609

F.3d 1159, 1165 (11th Cir. 2010), rev’d on other grounds,

640 F.3d 1293 (11th Cir. 2011) (en banc), used yet another

line of reasoning to conclude that wrongful career-offender

enhancements are cognizable on collateral review,

considering the enhancement to be in substance a crime: “For

federal sentencing purposes, the act of being a career offender

is essentially a separate offense, with separate elements (two

. . . convictions[] for violent felonies), which must be proved,

for which separate and additional punishment is provided.”

(The Seventh Circuit echoed this reasoning in determining

that challenges to career-offender status are cognizable under

28 U.S.C. § 2241. Brown v. Caraway, 719 F.3d 583 (7th Cir.

2013).) Because Gilbert was “actually innocent” of being a

career offender, he could challenge his sentence collaterally.

Gilbert, 609 F.3d at 1165. The Eleventh Circuit en banc

reversed the panel’s decision, as it concluded the motion in

question was a second or successive one, but it expressly

reserved whether Gilbert’s claim could have been brought in

a first § 2255 motion. Gilbert v. United States, 640 F.3d

1293, 1306 & n.13 (11th Cir. 2011) (en banc).

E. Eighth Circuit

Although a panel of the Eighth Circuit also held that

Begay error was cognizable on collateral review (following a

similar line of reasoning as did the Seventh Circuit), the en

banc Court reversed. Sun Bear v. United States, 611 F.3d

925, 931 (8th Cir. 2010), rev’d, 644 F.3d 700 (8th Cir. 2011)

(en banc). The en banc decision is straightforward: because

the defendant’s sentence was statutorily authorized, there was

no miscarriage of justice, and his claim was not cognizable on

collateral review (even though he was sentenced pursuant to

the mandatory Guidelines). Sun Bear, 644 F.3d at 705.

43

F. Our Dicta

In Cepero, we faced a question of Guidelines

interpretation and held that we lacked jurisdiction over the

appeal because it was not a constitutional issue. We then

“confront[ed] the specter that Congress has now differentiated

between the type of § 2255 petition that may be filed in

district court and the type that may be appealed to this court.”

Cepero, 224 F.3d at 265. We acknowledged that “[s]ection

2255 petitioners may allege and have adjudicated non-

constitutional issues in district court.” Id. In coming to this

conclusion, we relied on the statute providing that “[a]

prisoner in custody under sentence of a court established by

Act of Congress claiming the right to be released upon the

ground that the sentence was imposed in violation of the

Constitution or laws of the United States . . . may move the

court which imposed the sentence to vacate, set aside or

correct the sentence.” Id. (emphasis in original); accord

United States v. Gordon, 172 F.3d 753, 754 (10th Cir. 1999)

(“Congress, in enacting § 2253(c)(2), differentiated between

the type of petition that can be filed and the type that can be

appealed. Petitions may be filed in district court alleging

violations of the Constitution or federal law. The claims may

only be appealed, however, if they involve the denial of

constitutional rights.” (citation omitted) (emphases in

original)). Even if the advisory Guidelines are arguably not

“law,” there is no doubt the mandatory Guidelines were.

United States v. Booker, 543 U.S. 220, 234 (2005). The

discussions in Cepero and Gordon strongly suggest that any

violation of the “laws of the United States” is cognizable (and

therefore that Guidelines error is too), but the analyses are

dicta, as those cases turned on the appealability of claims

rather than their cognizability in the district courts.

44

G. The Government’s Argument

The Government has an impressively long string cite

for the proposition that “federal appellate courts . . . faced

with the question of whether an error in calculating the

Guidelines is cognizable on post-conviction collateral

review[] have ruled consistently that they are not.” Br. at 37.

Surprisingly, only two of the twelve cases the Government

cites—Sun Bear, 644 F.3d at 704 & United States v.

Williamson, 183 F.3d 458, 462 (5th Cir. 1999)—actually

support this proposition. The others are not relevant, as either

they do not discuss the cognizability of sentencing errors in

§ 2255 motions before district courts, United States v.

Manigault, 395 F. App’x 831, 834 (3d Cir. 2010), or they

stand for the proposition that sentencing errors that were

defaulted at sentencing or on direct appeal may not be

brought for the first time in a § 2255 motion. Graziano v.

United States, 83 F.3d 587, 589–90 (2d Cir. 1996) (per

curiam) (“Insofar as claims regarding a sentencing court’s

error in failing to properly apply the Sentencing Guidelines

are neither constitutional nor jurisdictional, we join several

other circuits in holding that, absent a complete miscarriage

of justice, such claims will not be considered on a § 2255

motion where the defendant failed to raise them on direct

appeal.”); Scott v. United States, 997 F.2d 340, 340 (7th Cir.

1993) (“In 1990 Phillip D. Scott was sentenced to 57 months’

imprisonment. He did not appeal.”); Hill, 368 U.S. at 425

(“There was no appeal.”); Knight v. United States, 37 F.3d

769, 771 (1st Cir. 1994) (“Knight did not appeal from his

federal sentence.”); United States v. Mikalajunas, 186 F.3d

490, 492 (4th Cir. 1999) (“Neither Mikalajunas nor Largent

pursued an appeal.”); United States v. Kinder, 69 F.3d 536

(5th Cir. 1995) (not precedential) (per curiam) (unclear

whether Kinder appealed his career offender designation, see

United States v. Kinder, 980 F.2d 961, 962 (5th Cir. 1992));

Gibbs v. United States, 655 F.3d 473, 475 (6th Cir. 2011)

45

(“Gibbs acknowledges that he failed to raise his U.S.S.G.

§ 4B1.1 claim on direct appeal and that the claim is therefore

procedurally defaulted.”); Burke v. United States, 152 F.3d

1329, 1331 (11th Cir. 1998) (“[T]he appeal was dismissed

pursuant to Burke’s motion for voluntary dismissal.”); United

States v. Coley, 336 F. App’x 933, 936 (11th Cir. 2009) (per

curiam) (“Coley did not raise this issue on direct appeal. In

fact, it appears that he filed no direct appeal at all.”). For the

reasons discussed above, Doe has not defaulted his Begay

claim, and therefore the Government’s cases (with the

exception of Sun Bear and Williamson) are not on point.

The Government also strenuously argues that there is

no reason to think that Doe would receive a reduction in his

sentence were he resentenced because it filed an information

under 21 U.S.C. § 851 that enhanced Doe’s statutory

sentencing range based on his prior drug conviction to a

mandatory minimum of 10 years and a maximum of life. But

the Government ignores that Doe was sentenced at the bottom

of the mandatory Guidelines range (262 months) and that the

Court at sentencing expressed its regret that the Guidelines

forced it to impose such a high sentence. Tr. 13:15–19, S.

App. 155 (“[T]here is not much room for discretion here.

There is a guideline sentence that I am required to follow

under the law and it’s a very stringent sentence. It is very

strict and it’s very, very difficult to impose.”). As discussed

above regarding mootness, even though Doe could receive the

same sentence on remand, the available facts suggest the

likely outcome is otherwise.

H. Synthesis and Conclusion With Respect to

Cognizability

The Government does not seriously grapple with the

precise issue here, which is whether erroneous sentencing as a

career offender is cognizable on collateral review, not

46

whether any Guidelines error can be raised on § 2255. We

have no precedential opinion on either question (though, as

noted above, dicta from Cepero supports Doe), and there is a

circuit split on the former one.

We hold that the claim is cognizable, at least in cases

arising under the mandatory Guidelines. In reaching that

conclusion, we do not adopt wholesale the reasoning of any

of the circuit courts that have so held; instead, we start from

the Supreme Court’s guidance in Reed and Peguero. The

former case stands for the proposition that a nonconstitutional

error can be cognizable in the presence of “aggravating

factors.” Peguero allows for claims attacking a district

court’s failure to comply with the Federal Rules of Criminal

Procedure when those claims prejudice the defendant. We

believe the incorrect computation of a mandatory Guidelines

range based on misclassification of the defendant as a career

offender is at least as serious as the error discussed in

Peguero and thus should also be cognizable where the

mistake prejudices the defendant.

This holding is consistent with the dicta of Cepero.

We further agree with the Narvaez Court that substantive

error, like more time in prison, is doubtless more serious than

procedural error, like failure by a court to advise someone of

appellate rights (the claim in Peguero). And as Narvaez

recognizes, § 4B1.1 “involves the classifying of an individual

as belonging to a subgroup of defendants, repeat violent

offenders, that traditionally has been treated very differently

from other offenders.” 674 F.3d at 629. However, unlike

Narvaez, we do not read the Supreme Court’s cases as having

drawn a bright line between, on the one hand, procedural

(therefore not cognizable) claims, and, on the other,

substantive (hence cognizable) ones.

47

Further, the Whiteside Court was correct to draw some

support from Peugh. Although, as a direct appeal about an ex

post facto challenge to wrongful calculation of the advisory

Guidelines, Peugh is entirely distinguishable from Doe, the

case does acknowledge the importance, even the primacy, of

the Sentencing Guidelines to criminal defendants.

Specifically, the Supreme Court cautioned courts that

“sentencing decisions are anchored by the Guidelines,”

Peugh, 133 S. Ct. at 2083, that “[t]he Sentencing Guidelines

represent the Federal Government’s authoritative view of the

appropriate sentences for specific crimes,” id. at 2085, and

that “the range is intended to, and usually does, exert

controlling influence on the sentence that the court will

impose.” Id. This description carries even greater force in

the context of mandatory Guidelines because before Booker

the Guidelines “ha[d] the force and effect of laws,” United

States v. Booker, 543 U.S. 220, 234 (2005).

Booker and Peugh render implausible the en banc

Eighth Circuit’s analysis that if a sentence is statutorily

authorized, even if not allowed by the mandatory Guidelines,

it is categorically legal and therefore cannot be challenged on

collateral review. We look to the actual world of sentencing,

which before Booker and even today relied far more heavily

on the Guidelines than on statutory ranges. Moreover, and

more importantly, the Supreme Court has not taken such a

categorical approach to cognizablility on collateral review, as

it has strongly suggested, if not held, that collateral challenges

to applications of the Federal Rules of Criminal Procedure are

permitted where the movant has been prejudiced. In short,

Reed’s recognition that nonconstitutional error may be

cognizable in § 2255 proceedings, Peguero’s

acknowledgement that prejudicial violations of the Rules of

Criminal procedure are cognizable, Cepero’s dicta that any

violation of the “laws of the United States” may be corrected

on collateral review, Booker’s emphasis that the mandatory

48

Guidelines are law, Peugh’s understanding that even the

advisory Guidelines exert considerable force over sentencing,

and the significance of a career-offender designation, lead us

to conclude that misapplication of the mandatory career-

offender Guideline, when such a misapplication prejudices

the Defendant, results in a sentence substantively not

authorized by law and is therefore subject to attack on

collateral review where the claim is not defaulted.

Our holding is narrow, and we do not consider

challenges to the advisory Guidelines, procedural Guidelines

error, provisions other than career-offender designation,

defaulted claims, or Guidelines errors that do not cause

prejudice.

XI. Savings Clause

We note one final issue that the parties do not brief:

§ 2255 is not a complete substitute for a petition for a writ of

habeas corpus under 28 U.S.C. § 2241. Section 2255(e),

referred to as the “savings clause,” provides that “[a]n

application for a writ of habeas corpus on behalf of a prisoner

who is authorized to apply for relief by motion pursuant to

this section[] shall not be entertained . . . unless it . . . appears

that the remedy by motion is inadequate or ineffective to test

the legality of his detention.”

We do not decide here whether Doe could properly

petition for a writ of habeas corpus, but we note that Doe’s

situation seems to fall between two of our cases. Compare In

re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997) (prisoner

may petition for habeas when intervening Supreme Court

case rendered conduct of which he was convicted no longer

criminal), with Okereke v. United States, 307 F.3d 117, 120

(3d Cir. 2002) (prisoner may not petition for habeas where

49

intervening Supreme Court case changed the identity of

factfinder and burden of proof on facts affecting sentence).

The Seventh Circuit in a case with factual similarities

to this one held that the second-or-successive bar rendered

§ 2255 inadequate to challenge a sentence after Begay when

the petitioner’s first § 2255 motion was brought at a time

when our Third Circuit precedent foreclosed his argument.

Brown, 719 F.3d at 588. (Seventh Circuit law governed the

§ 2241 petition because Brown was incarcerated in Indiana;

the § 2255 motion was governed by our law, as Doe was

convicted in Pennsylvania.) However, the Eleventh Circuit

rejected the same argument in Gilbert. 640 F.3d at 1295. We

do not decide which of these cases we believe is correct.

XII. Conclusion

Doe argued that he was not a career offender before

Begay came down. He was right when his lawyer, the

District Court, and our Court were wrong. After the Supreme

Court clarified the law, the District Court, our Court, and

Doe’s lawyer persevered in our error. We caused unfortunate

and unwarranted hope by informing Doe in his appeal from

the Rule 35 motion that he could still bring a timely § 2255

motion. We regret that this case proves wrong Justice

Holmes’s optimistic statement that collateral review “cuts

through all forms and goes to the very tissue of the structure.

It comes in from the outside, not in subordination to the

proceedings, and although every form may have been

preserved, opens the inquiry whether they have been more

than an empty shell.” Frank v. Mangum, 237 U.S. 309, 346

(1915) (Holmes, J. dissenting). AEDPA’s procedural

obstacles hobble the meritorious and frivolous claims alike;

while they have not stopped Doe, they may yet, and in any

event they have slowed his progress considerably. We vacate

50

the judgment of the District Court and remand for further

proceedings.

51