Michael Allen v. Richard Ives

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL ALLEN, No. 18-35001

Petitioner-Appellant,

D.C. No.

v. 3:17-cv-00044-HZ

RICHARD IVES,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the District of Oregon

Marco A. Hernandez, District Judge, Presiding

Argued and Submitted April 10, 2019

Seattle, Washington

Filed February 24, 2020

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

and Morgan B. Christen, Circuit Judges.

Opinion by Judge W. Fletcher;

Dissent by Judge Callahan

2 ALLEN V. IVES

SUMMARY*

Habeas Corpus

The panel reversed the district court’s judgment

dismissing for lack of jurisdiction Michael Allen’s 28 U.S.C.

§ 2241 habeas corpus petition claiming that he is “actually

innocent” of his sentence as a career offender, and remanded

for consideration of the claim on the merits.

Allen’s sentence was enhanced under the career offender

provisions of U.S.S.G. §§ 4B1.1 and 4B1.2 (1997) when the

sentencing guidelines were mandatory. In his 2017 § 2241

petition, Allen contended that Mathis v. United States, 136

S. Ct. 2243 (2016), and Descamps v. United States, 570

U.S. 254 (2013), retroactively established that under the

categorical approach of Taylor v. United States, 495 U.S. 575

(1990), his Connecticut state court marijuana conviction was

not a “controlled substance offense” as defined in § 4B1.2,

and that he was therefore innocent of being a career offender.

The district court concluded that Marrero v. Ives, 682 F.3d

1190 (9th Cir. 2012), squarely rejected jurisdiction under

§ 2241 to address career offender errors because such claims

are purely legal and have nothing to do with factual

innocence.

The panel held that the appeal is not moot because there

is a nontrivial possibility that the sentencing court will reduce

Allen’s term of supervised release if the district court had

*

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

been prepared by court staff for the convenience of the reader.

ALLEN V. IVES 3

jurisdiction over the § 2241 petition and Allen is held to be

actually innocent of having been a career offender.

The panel held that Allen has made a claim of actual

innocence that permits jurisdiction over his § 2241 petition

under the 28 U.S.C. § 2255(e) “escape hatch,” which permits

a federal prisoner to file a § 2241 petition to contest the

legality of a sentence where his remedy under 28 U.S.C.

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

detention.

The panel wrote that if Allen prevails on the merits of his

claim that his Connecticut marijuana conviction was not a

predicate conviction for career offender status, the factual

predicate for his mandatory sentencing enhancement did not

exist, and he is actually innocent of a noncapital sentence for

the purpose of qualifying for the escape hatch.

The panel wrote that Allen did not have an unobstructed

procedural shot at presenting his claim of actual innocence

because (1) it was foreclosed by existing precedent at the time

of his direct appeal and § 2255 motion, and (2) his claim,

which is not based on the Constitution but on the

Mathis/Decamps interpretations of federal statutes, would not

satisfy the 28 U.S.C. § 2244 criteria for a second or

successive § 2255 motion.

The panel clarified that Mathis and Decamps apply

retroactively when a court reviews a criminal judgment in the

course of addressing a § 2241 petition or a first § 2255

motion.

4 ALLEN V. IVES

Judge Callahan dissented because this court rejected a

similar effort to expand the § 2255(e) escape hatch in

Marrero, which is binding on this three-judge panel.

COUNSEL

Elizabeth G. Daily (argued), Assistant Federal Public

Defender, Federal Public Defender’s Office, Portland,

Oregon, for Petitioner-Appellant.

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

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

Williams, United States Attorney, District of Oregon; United

States Attorney’s Office, Portland, Oregon; for Respondent-

Appellee.

OPINION

W. FLETCHER, Circuit Judge:

Petitioner Michael Allen appeals the district court’s

dismissal of his 28 U.S.C. § 2241 habeas corpus petition for

lack of jurisdiction. Allen contends that he is “actually

innocent” of his sentence as a career offender; that the

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

ineffective” to test his claim of actual innocence; and that the

district court may therefore entertain his § 2241 petition. We

conclude that Allen’s claim of actual innocence is cognizable

under § 2241. We therefore reverse the district court’s

dismissal for lack of jurisdiction and remand.

ALLEN V. IVES 5

I. Background

In 1997, Allen pleaded guilty in federal district court in

Connecticut to conspiracy to possess with intent to distribute

cocaine and cocaine base in violation of 21 U.S.C.

§§ 841(a)(1) and 846; carrying a firearm in connection with

a drug trafficking offense in violation of 18 U.S.C. § 924(c);

and possession of a firearm as a felon in violation 18 U.S.C.

§ 922(g)(1) and 924(c). When Allen was sentenced, the

sentencing guidelines were mandatory. See United States v.

Booker, 543 U.S. 220, 245 (2005).

Allen’s sentence was enhanced under the career offender

provisions of U.S.S.G. §§ 4B1.1 and 4B1.2 (1997). The

district court concluded that he was a career offender based

on two predicate “controlled substance offenses” for which he

had previously been convicted under Connecticut law. One

of the predicate offenses was a conviction for two sales of

marijuana on the same day, treated by the district court as a

single conviction for purposes of career offender status. The

other was a conviction for possession of narcotics. The

Connecticut conviction records are no longer available, but it

is clear from the sentencing transcript that at least the

marijuana offense was a conviction under Connecticut

General Statute 21a-277(a).

Because Allen was found to be a career offender, his base

offense level for the conspiracy count increased from 36 to

37, increasing his sentencing range from 235 to 293 months

to 262 to 327 months. The district court sentenced Allen to

262 months on the conspiracy count, a mandatory

consecutive sentence of 60 months on the carrying-a-firearm

count, and a concurrent sentence of 120 months on the felon-

6 ALLEN V. IVES

in-possession count. Allen was sentenced to a total term of

imprisonment of 322 months.

The district court concluded, based on Allen’s status as a

career offender, that there was no legal basis for imposing a

sentence below the guideline range. The court concluded,

further, that Allen did not qualify for a downward departure

under U.S.S.G. § 5H1.3 because, despite being “persuaded

that the physical abuse to which [Allen] was subjected very

early in life is extraordinary,” and despite finding that Allen

had suffered emotional and sexual abuse, the court could not

find a sufficient nexus between Allen’s abusive upbringing

and the crimes of conviction.

In 2003, the federal district court in Connecticut denied

Allen’s § 2255 motion to vacate his sentence. The Second

Circuit affirmed. In January 2017, Allen filed a petition

under 28 U.S.C. § 2241 in federal district court in Oregon,

where he was incarcerated. (A motion under § 2255 must be

filed in the district where the defendant was sentenced. A

petition under § 2241 must be filed in the district where the

petitioner is incarcerated.) Allen contended in his § 2241

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

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

retroactively established that under the categorical approach

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

Connecticut state court marijuana conviction was not a

“controlled substance offense” as defined in U.S.S.G.

§ 4B1.2, and that he was therefore innocent of being a career

offender. Allen asked to be resentenced without the

enhancement resulting based on career offender status.

The district court in Oregon dismissed Allen’s § 2241

petition for lack of jurisdiction. The court concluded that our

ALLEN V. IVES 7

decision in Marrero v. Ives, 682 F.3d 1190, 1193–95 (9th Cir.

2012), had “squarely rejected” jurisdiction under § 2241 to

address career offender errors because such claims are

“purely legal” and have “nothing to do with factual

innocence.” Because the court held that it lacked jurisdiction,

it did not address Allen’s contention that his Connecticut state

court conviction was not a predicate conviction for career

offender status. The district court granted a Certificate of

Appealability “as to whether 28 U.S.C. § 2241 habeas corpus

jurisdiction is appropriate.”

II. Mootness

After we heard argument in this case, the district court in

Connecticut reduced Allen’s sentence under the First Step

Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), to time

served and ordered his immediate release. The court reduced

his period of supervised release to four years. The

government contends that Allen’s release and reduction in

sentence renders his appeal moot. We disagree.

The district court in Connecticut was required under

21 U.S.C. § 841(b)(1)(B) to impose a sentence of supervised

release of “at least four years.” However, 18 U.S.C.

§ 3583(e) authorizes a district court to terminate the period of

supervised release after one year “if it is satisfied that such

action is warranted by the conduct of the defendant released

and the interest of justice.” Allen has a nontrivial argument

for reducing his supervised release period under § 3583(e).

If we hold that the district court in Oregon had jurisdiction

over Allen’s § 2241 petition, and if Allen is held to be

actually innocent of having been a career offender, there is a

nontrivial possibility that the district court in Connecticut will

reduce his term of supervised release under § 3583(e). See

8 ALLEN V. IVES

Mujahid v. Daniels, 413 F.3d 991, 995 (9th Cir. 2005) (“The

‘possibility’ that the sentencing court would use its discretion

to reduce a term of supervised release under 18 U.S.C.

§ 3583(e)(2) was enough to prevent the petition from being

moot.”) (citing Gunderson v. Hood, 268 F.3d 1149, 1153 (9th

Cir. 2001)); see also United States v. D.M., 869 F.3d 1133,

1137 (9th Cir. 2017).

Allen’s appeal therefore is not moot.

III. Standard of Review

We review de novo a district court’s decision that it lacks

jurisdiction over a petition under 28 U.S.C. § 2241. Stephens

v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006).

IV. Discussion

As a general rule, “a motion under 28 U.S.C. § 2255 is the

exclusive means by which a federal prisoner may test the

legality of his detention[.]” Stephens, 464 F.3d at 897

(internal citations omitted). An exception to the general rule,

termed the § 2255(e) “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(e)). We have

held that a remedy under § 2255 is inadequate where “the

prisoner ‘(1) makes a claim of actual innocence, and (2) has

not had an unobstructed procedural shot at presenting that

claim.’” Marrero, 682 F.3d at 1192 (quoting Stephens, 464

F.3d at 898).

ALLEN V. IVES 9

A. Actual Innocence

Allen contends under Mathis and Descamps that his

Connecticut marijuana conviction is not a predicate crime for

career offender status, and that he is therefore actually

innocent of being a career offender under the Sentencing

Guidelines. That is, he contends, he has a claim of actual

innocence cognizable under § 2241.

In addressing claims of actual innocence under § 2241,

we have relied on “the standard articulated by the Supreme

Court in Bousley v. United States, 523 U.S. 614 (1998).”

Stephens, 464 F.3d at 899. A “petitioner must demonstrate

that, in light of all the evidence, it is more likely than not that

no reasonable juror would have convicted him.” Bousley,

523 U.S. at 623 (internal quotation marks omitted). At issue

in Bousley was a claim of actual innocence of the crime of

conviction for which a petitioner has been sentenced.

The government conceded at oral argument that if a

petitioner is actually innocent of a predicate crime for career

offender status in the sense that he did not commit the state-

law crime of which he was convicted, Bousley applies. In

that event, the petitioner would have a claim of actual

innocence cognizable under § 2241. This would be the case,

for example, if the predicate crime were rape, and DNA

evidence later proved petitioner’s innocence. The question

before us, then, is not whether a petitioner who did not

commit a predicate crime of which he was convicted may

challenge his career offender status under § 2241. The

government has conceded that he may do so. Rather, it is the

closely related question whether a petitioner who committed

a crime that is not a predicate crime may challenge his career

offender status under § 2241.

10 ALLEN V. IVES

Allen does not challenge the validity of his conviction for

sales of marijuana under Connecticut General Statute 21a-

277(a). But he contends under Mathis and Descamps, which

apply retroactively, that his conviction under that statute is

not a conviction for a predicate crime. That is, Allen claims

that he is actually innocent of a crime that would qualify him

for career offender status, and is therefore actually innocent

of the sentence that was imposed.

In Marrero, we held that a prisoner seeking resentencing

based on non-retroactive changes to the treatment of related

predicate crimes under the Sentencing Guidelines did not

present a claim of actual innocence. 682 F.3d at 1194.

Marrero did not contend that he was innocent of the felonies

that qualified as crimes of violence or controlled substance

offenses under U.S.S.G. § 4B1.2. Nor did he contend that he

was improperly classified as a career offender at the time he

was sentenced. Rather, he claimed that he was “‘actually

innocent’ of being a career offender” because under non-

retroactive amendments to the Sentencing Guidelines, two of

his prior convictions would now be treated as related, rather

than separate, predicate crimes. Id. at 1193. We held that the

fact that his two prior offenses might be related under non-

retroactive current law “ha[d] nothing to do with factual

innocence.” Id.

In Marrero, we left open the “question whether a

petitioner may ever be actually innocent of a noncapital

sentence for the purpose of qualifying for the escape hatch.”

Id. at 1193. We now reach that question and hold that Allen

has made a claim of actual innocence that permits jurisdiction

over his § 2241 petition. If Allen prevails on the merits of his

claim that his Connecticut marijuana conviction was not a

predicate conviction for career offender status under the

ALLEN V. IVES 11

Guidelines, the factual predicate for his mandatory sentencing

enhancement did not exist. That is, he is actually innocent of

the enhancement. In that case, it is beyond dispute that he is

not, and was not, a career offender. See Stephens, 464 F.3d

at 899.

Some of the decisions cited by Marrero restricted actual

innocence claims to cases in which the sentence exceeded

what would otherwise have been the statutory maximum. But

the advisory nature of the post-Booker guidelines was

important to the reasoning in those decisions. See, e.g., Gibbs

v. United States, 655 F.3d 473, 479 (6th Cir. 2011) (“While

the sentencing guidelines are used as a starting point for

determining where within the statutorily set range a

prisoner’s sentence should fall, the guidelines themselves are

advisory. A challenge to the sentencing court’s guidelines

calculation, therefore, only challenges the legal process used

to sentence a defendant and does not raise an argument that

the defendant is ineligible for the sentence she received.”).

For prisoners sentenced under the mandatory Guidelines, we

doubt such a restriction can survive the Supreme Court’s

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

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

sentence is an “element” of the offense. See 570 US. 99,

107–08 (2013). In the case before us, the finding that Allen

was a career offender increased his minimum sentence under

the mandatory Guidelines from 235 months to 262 months

and disqualified him from receiving an otherwise available

downward departure.

At least one circuit has recognized an actual innocence

claim where the petitioner contended that a prior

conviction did not qualify as a predicate offense. In United

States v. Maybeck, 23 F.3d 888, 890–91 (4th Cir. 1994),

12 ALLEN V. IVES

the sentencing court determined that Maybeck’s prior

conviction for burglary was a crime of violence based on a

mischaracterization in his presentencing interview. In fact,

his prior conviction was for third-degree burglary, not armed

burglary. The Fourth Circuit concluded that “[t]here is no

question . . . Maybeck [wa]s actually innocent of being a

career offender” because “Maybeck has only one prior felony

conviction that was a crime of violence, and he has none that

were controlled substance offenses.” Id. at 892 (footnote

omitted). We find this reasoning persuasive.

The dissent relies on language from Bousley, 523 U.S.

at 623, that actual innocence means more than “mere legal

insufficiency.” But consistent with Bousley, and our cases

applying Bousley, a retroactive intervening change in the law

may render a petitioner factually innocent of a predicate

crime. The basis for the claim in Bousley was that

intervening retroactive case law had defined “use” of a

firearm differently than the definition given by the sentencing

court at the time of petitioner’s guilty plea. See id. at 616.

The Court instructed that on remand, the petitioner could

establish actual innocence by showing that he did not make

“use” of a firearm within the meaning of the statute of

conviction. Id. at 623–24. Petitioner could be factually

innocent if, on the facts of the case, his conduct did not

legally amount to “use” of a firearm. See, e.g., Alaimalo v.

United States, 645 F.3d 1042, 1047 (9th Cir. 2011) (petitioner

showed actual innocence where statute of conviction was

subsequently interpreted not to reach petitioner’s conduct).

We read Marrero as consistent with a claim of actual

innocence in this case. In Marrero, petitioner’s claim of

actual innocence failed because his claim to actual innocence

was based on a non-retroactive interpretation of the

ALLEN V. IVES 13

Guidelines, and he made no claim to factual innocence of the

crimes of which he had been convicted. In this case, by

contrast, Allen’s claim of actual innocence is based on a

retroactive change of law, which transformed his Connecticut

marijuana conviction from a predicate crime into a non-

predicate crime. In other words, Allen claims that his prior

conviction is not a conviction for a predicate crime, that he is

therefore actually innocent of a predicate crime, and that he

is thus actually innocent of the mandatory sentencing

enhancement. If Allen is correct under Mathis and Descamps

that his Connecticut marijuana conviction is not a conviction

for a controlled substance offense, he is “actually innocent of

a noncapital sentence for the purpose of qualifying for the

escape hatch.” Marrero, 682 F.3d at 1193.

B. Unobstructed Procedural Shot

When deciding whether a petitioner has had an

“unobstructed procedural shot,” we consider “(1) whether the

legal basis for petitioner’s claim did not arise until after he

had exhausted his direct appeal and first § 2255 motion; and

(2) whether the law changed in any way relevant to

petitioner’s claim after that first § 2255 motion.” Harrison v.

Ollison, 519 F.3d 952, 960 (9th Cir. 2008) (internal quotation

marks omitted). If an intervening court decision after a

prisoner’s direct appeal and first § 2255 motion “effect[s] a

material change in the applicable law[,]” then the prisoner did

not have an unobstructed procedural shot to present his claim.

Alaimalo, 645 F.3d at 1047–48 (prisoner lacked unobstructed

procedural shot where circuit precedent foreclosed his actual

innocence claim when he brought his § 2255 motion); see

Stephens, 464 F.3d at 898 (prisoner lacked unobstructed

procedural shot where Supreme Court precedent foreclosed

14 ALLEN V. IVES

his actual innocence claim when he brought his § 2255

motion).

Allen did not have an unobstructed procedural shot at

presenting his claim of actual innocence because it was

foreclosed by existing precedent at the time of his direct

appeal and § 2255 motion. Under the law at the time of his

§ 2255 motion, his conviction under Connecticut law would

have been analyzed under the modified categorical approach

because the statute of conviction—Connecticut General

Statute § 21a-277—would have been deemed divisible. See

United States v. Beardsley, 691 F.3d 252, 265 (2d Cir. 2012)

(statute was “not divisible into predicate and non-predicate

offenses” because it did not list these offenses “in separate

subsections or a disjunctive list”). Under that approach,

Allen’s claim would have failed.

Based on the Supreme Court’s later decisions in Mathis

and Descamps, Allen is now able to argue that (1) the

categorical approach should apply to Connecticut General

Statute § 21a-277, and (2) his conviction for marijuana

possession is not a “controlled substance offense” under the

categorical approach. See United States v. Savage, 542 F.3d

959, 965–66 (2d Cir. 2008) (definition of “sale” as used in

§ 21a-277 includes “mere offer[s]” to sell controlled

substances, thereby criminalizing “more conduct than falls

within the federal definition of a controlled substance

offense”). The legal basis for this argument arose only after

Allen had appealed and after he had filed his § 2255 motion.

Nor would a second or successive § 2255 motion be

adequate to test the legality of Allen’s detention. “A second

or successive [2255] motion must be certified as provided in

section 2244 by a panel of the appropriate court of appeals to

ALLEN V. IVES 15

contain . . . (1) newly discovered evidence . . . or (2) a new

rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously

unavailable.” § 2255(h). Both the Ninth Circuit and the

Second Circuit have held that the decisions in Mathis and

Descamps do not meet the standard for a second or successive

§ 2255 motion because they interpreted federal statutes, not

the Constitution. See Arazola-Galea v. United States,

876 F.3d 1257, 1259 (9th Cir. 2017); Ezell v. United States,

778 F.3d 762, 766 (9th Cir. 2015); Washington v. United

States, 868 F.3d 64, 66 (2d Cir. 2017) (per curiam).

Because Allen’s claim under Mathis and Descamps “did

not become available until after the [Second] Circuit denied

his § 2255 motion, and because that claim does not satisfy the

criteria of § 2244 for a second or successive § 2255 motion,

[Allen] has not had (and, indeed, will never get) an

opportunity to present his . . . claim in a § 2255 motion” that

his prior convictions were not for predicate crimes under the

standard in Mathis and Descamps. Stephens, 464 F.3d at 898.

Thus, Allen has not had an unobstructed procedural shot at

presenting his actual innocence claim.

C. Retroactivity

Our holding that Allen has made a cognizable claim of

actual innocence, and that he did not have an unobstructed

procedural shot at presenting that claim, resolves the question

of statutory jurisdiction in this case. We take the opportunity

to clarify that Mathis and Descamps apply retroactively when

a court reviews a criminal judgment in the course of

addressing a § 2241 petition or a first § 2255 motion.

16 ALLEN V. IVES

New rules of criminal law do not always apply

retroactively on collateral review of criminal judgments. See

Teague v. Lane, 489 U.S. 288, 299 (1989) (plurality opinion).

“A new rule applies retroactively in a collateral proceeding

only if (1) the rule is substantive or (2) the rule is a watershed

rule of criminal procedure implicating the fundamental

fairness and accuracy of the criminal proceeding.” Whorton

v. Bockting, 549 U.S. 406, 416 (2007) (internal quotation

marks omitted). “A rule is substantive rather than procedural

if it alters the range of conduct or the class of persons that the

law punishes.” Welch v. United States, 136 S. Ct. 1257,

1264–65 (2016) (quoting Schriro v. Summerlin, 542 U.S. 348,

353 (2004)).

Our dissenting colleague contends that neither Mathis nor

Descamps announced a new rule at all. If this is so, there is

no dispute about whether they apply retroactively. It is black-

letter law that they do. Decisions that do not announce a new

rule apply retroactively on collateral review whether

substantive or procedural. See Whorton, 549 U.S. at 416.

To the extent that Mathis and Descamps may be thought

to have announced a new rule, we have no trouble concluding

that the rule is one of substance rather than procedure. Like

other decisions interpreting the reach of federal sentencing

enhancements, the rule from Mathis and Descamps alters “the

range of conduct . . . that the law punishes” and not “only the

procedures used to obtain the conviction.” Welch, 136 S. Ct.

at 1266. The Supreme Court in Welch expressly rejected the

argument—an argument reiterated today by our dissenting

colleague—that a new rule may not be deemed substantive

merely “because it does not limit Congress’ power” to punish

certain conduct. Id. at 1267. We have previously recognized

that decisions that alter the substantive reach of a federal

ALLEN V. IVES 17

statute apply retroactively in § 2241 proceedings under the

escape hatch. See, e.g., Alaimalo, 645 F.3d 1042. The

Supreme Court’s decisions in Mathis and Descamps therefore

will apply retroactively to a review of Allen’s sentence on

remand.

Conclusion

We hold that Allen has made a cognizable claim that he

is “actually innocent of a noncapital sentence for purposes of

qualifying for the escape hatch,” and that he has not had an

“unobstructed procedural shot at presenting the claim.” He

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

We reverse the district court’s dismissal of his § 2241 petition

for lack of jurisdiction and remand for consideration of

Allen’s claim on the merits.

REVERSED and REMANDED.

CALLAHAN, Circuit Judge, dissenting:

Allen does not claim to be actually innocent of the crimes

for which he was sentenced. Nor does Allen claim to be

actually innocent of his prior convictions that, at the time of

his sentencing, qualified him as a career offender under the

Sentencing Guidelines. Rather, Allen claims that he is

“actually innocent” of his career offender designation based

on the intervening Supreme Court decisions in Descamps v.

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

States, 136 S. Ct. 2243 (2016). On that basis, he asserts that

he may file a petition pursuant to 28 U.S.C. § 2241 under the

escape hatch provision of 28 U.S.C. § 2255(e).

18 ALLEN V. IVES

We squarely rejected a similar effort to expand the

§ 2255(e) escape hatch in Marrero v. Ives, 682 F.3d 1190 (9th

Cir. 2012), and our holding in Marrero is binding on this

three-judge panel. See Hart v. Massanari, 266 F.3d 1155,

1171 (9th Cir. 2001) (“[A] later three-judge panel considering

a case that is controlled by the rule announced in an earlier

panel’s opinion has no choice but to apply the earlier-adopted

rule; it may not any more disregard the earlier panel’s opinion

than it may disregard a ruling of the Supreme Court.”). Thus,

I dissent from the majority’s erroneous conclusion that Allen

raises a cognizable “actual innocence” claim for purposes of

the escape hatch.1 The majority’s expansion of actual

innocence jurisdiction is inconsistent with both Supreme

Court and Ninth Circuit precedent. I would affirm the district

court’s dismissal of Allen’s petition under 28 U.S.C. § 2241

for lack of jurisdiction.

I.

In general, the “exclusive procedural mechanism” by

which a federal prisoner may challenge the legality of his

detention is a habeas petition under 28 U.S.C. § 2255. Ivy v.

Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003) (citation

omitted). Restrictions on the availability of a § 2255 motion

generally cannot be avoided through a petition under

28 U.S.C. § 2241. Stephens v. Herrera, 464 F.3d 895, 897

(9th Cir. 2006). The only exception to that rule—termed the

1

I agree with the majority that, even though Allen has been released

and his sentence reduced to time served pursuant to § 404 of the First Step

Act, the certified issue before us is not moot given Allen’s current

supervised release status. See Mujahid v. Daniels, 413 F.3d 991, 995 (9th

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

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

prevent the petition from being moot.”).

ALLEN V. IVES 19

§ 2255(e) “escape hatch” or “savings clause”—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 28 U.S.C.

§ 2255(e)).

“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.” Stephens, 464 F.3d at 898

(quoting Ivy, 328 F.3d at 1060) (also citing several other

circuit cases). In this circuit, a petitioner’s claim of actual

innocence for purposes of the escape hatch of § 2255 must

meet 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.” Stephens, 464 F.3d at 898

(quoting Bousley, 523 U.S. at 623).

Under the Bousley standard, “[a]ctual innocence means

factual innocence, not mere legal insufficiency.” 523 U.S. at

623. Accordingly, we held in Marrero that “the purely legal

argument that a petitioner was wrongly classified as a career

offender under the Sentencing Guidelines is not cognizable as

a claim of actual innocence under the escape hatch.” 682

F.3d at 1195. Allen’s argument that he is “actually innocent”

of being a career offender under the Sentencing Guidelines

due to the intervening Supreme Court decisions in Descamps

and Mathis is a “purely legal” claim that is essentially no

different than the one we rejected in Marrero. As such, Allen

20 ALLEN V. IVES

fails to raise a cognizable actual innocence claim for purposes

of the escape hatch, and the district court properly dismissed

his § 2241 petition for lack of jurisdiction. This should be the

end of the matter under our authority as a three-judge panel.

II.

In spite of Marrero’s unequivocal holding, the majority

makes several attempts to evade its reach, none of which are

persuasive. The majority first contends that Allen’s actual

innocence claim is different from the claim we rejected in

Marrero because “Marrero did not contend that he was

innocent of the felonies that qualified as crimes of violence or

controlled substance offenses” under the applicable career

offender provision in the Sentencing Guidelines.

But Allen, too, does not claim to be actually innocent of

any of his underlying predicate offenses, which, at the time of

sentencing, qualified him as a career offender under the

Sentencing Guidelines; nor does Allen otherwise challenge

the validity of any of his predicate convictions. Rather, like

Marrero, Allen claims that his predicate convictions no longer

qualify him for the career offender designation due to an

intervening change in law. Such a claim, like Marrero’s, “is

a purely legal claim that has nothing to do with factual

innocence.” Marrero, 682 F.3d at 1193. Put differently,

whether Allen’s prior convictions constitute “controlled

substance offenses” to qualify him as a career offender under

the Sentencing Guidelines is as much of a “purely legal”

question as whether two of Marrero’s prior convictions were

“related” offenses for the purposes of qualifying for the same

career offender designation under the Guidelines. That Allen

dresses his claim in slightly more direct “actual innocence”

terms does not hide the true nature of his legal argument.

ALLEN V. IVES 21

The majority further attempts to distinguish Marrero on

the ground that Allen’s claim is based on retroactive Supreme

Court case law, whereas Marrero’s claim was based on a non-

retroactive change in the Sentencing Guidelines. This

distinction, however, does not place Allen’s claim beyond the

control of Marrero. Our ruling in Marrero was not based on

any distinction between retroactive and non-retroactive

changes in the law, or even on the merits of Marrero’s claim.

Rather, our conclusion that challenges to wrongful career

offender designations are not claims of actual innocence was

based entirely on the standard adopted in our circuit for actual

innocence claims—which, consistent with the Supreme

Court’s position in Bousley, hinges on factual innocence, and

not mere legal insufficiency. See Marrero, 682 F.3d at 1193

(“Whatever the merits of Petitioner’s argument that he would

not qualify as a career offender were he to be sentenced under

the post-2007 Guidelines, his claim is not one of actual

innocence. ‘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 . . . .’”).

Under this standard, a retroactive change in the law that

arguably undercuts the legal correctness of a petitioner’s

sentence, but does not render him factually innocent of the

convictions underlying his sentence (or sentence

enhancement), cannot serve as the basis for a cognizable

actual innocence claim. A change in the law, even if

retroactively applicable, generally cannot and does not

change the facts of the past. Applied to Allen, the Supreme

Court decisions in Descamps and Mathis, while retroactive in

nature, do not undo his criminal acts on which his sentence

was based. Whether Allen’s prior convictions qualify him for

a career offender enhancement under the Sentencing

Guidelines is a legal matter that is unrelated to any question

22 ALLEN V. IVES

of Allen’s factual innocence of his convictions, and thus does

not create a cognizable claim of actual innocence for

purposes of the escape hatch.

In fact, we rejected on Marrero grounds a near-identical

claim to Allen’s in Dorise v. Matevousian, 692 F. App’x 864,

865 (9th Cir. 2017), cert. denied, 138 S. Ct. 1023 (2018).2

There, Dorise claimed that he was “actually innocent” of his

career offender designation because his two predicate robbery

offenses no longer constituted “crimes of violence” under the

Sentencing Guidelines based on the intervening Supreme

Court decisions in Johnson v. United States, 135 S. Ct. 2551

(2015), and Welch v. United States, 136 S. Ct. 1257 (2016).

Like Allen, Dorise alleged “actual innocence” on the ground

that his predicate offenses no longer qualified him as a career

offender due to a change in law triggered by new Supreme

Court decisions with retroactive application. The panel in

Dorise rejected the claim, concluding that

Dorise’s claim is not cognizable for the

purpose of qualifying to bring a § 2241

petition under the escape hatch. Although

presented as an actual innocence claim,

Dorise’s real argument is that he was

incorrectly categorized as a career offender

under U.S.S.G. § 4B1.1. As in Marrero, this

claim is purely legal and “has nothing to do

with factual innocence.”

2

An unpublished memorandum disposition may not be precedential,

but its existence rebuts the assertion that this is an issue of first

impression.

ALLEN V. IVES 23

Dorise, 692 F. App’x at 865. Like Marrero and Dorise,

Allen’s real claim is that he was incorrectly categorized as a

career offender under the Sentencing Guidelines, which is a

“purely legal” claim that is not cognizable “for the purpose of

qualifying to bring a § 2241 petition under the escape hatch.”

Id.

III.

The majority’s endeavor to reach the question left open in

Marrero—which is, “whether a petitioner may ever be

actually innocent of a noncapital sentence for the purpose of

qualifying for the escape hatch”—is likewise misguided.

682 F.3d at 1193–94. In Marrero, we noted that other

circuits “have recognized exceptions” to this general rule, and

briefly summarized three general categories of exceptions,

the second of which is the suggestion by some courts that “a

petitioner may qualify for the escape hatch if he received a

sentence for which he was statutorily ineligible.” Id. at 1194.

The majority suggests that this exception extends to Allen’s

claim—which Marrero did not endorse for our court, but

merely recognized from a few extra-circuit cases—because

his career offender designation “increased his minimum

sentence under the mandatory Guidelines from 235 months to

262 months and disqualified him from receiving an otherwise

available downward departure.” As the majority admits,

however, the cases defining this exception have limited it to

claims that the petitioner received a sentence that exceeded

the statutory maximum, rather than simply an incorrect

sentencing range calculation under the Guidelines.3 And

3

See Gibbs v. United States, 655 F.3d 473, 479 (6th Cir. 2011) (“A

challenge to the sentencing court’s guidelines calculation . . . only

challenges the legal process used to sentence a defendant and does not

24 ALLEN V. IVES

here, Allen received a sentence for which he was eligible,

regardless of whether his career offender designation was

correct.4

The majority justifies its leap of logic by contending that

this restriction of Marrero’s “second exception” turned

largely on “the advisory nature of the post-Booker

guidelines.” Thus, according to the majority, this restriction

does not apply to prisoners, like Allen, who were sentenced

under the mandatory guidelines, particularly after Alleyne v.

United States, 570 U.S. 99 (2013). But Alleyne said nothing

about the meaning of an “actual innocence” claim or the

§ 2255 escape hatch, and the majority’s proposition lacks any

direct legal support from Marrero or any other relevant cases.

Furthermore, if the majority is correct, any challenge to a

sentencing factor that increased the petitioner’s minimum

sentence under the pre-Booker guidelines—which is,

essentially, any garden-variety challenge to a court’s pre-

Booker sentencing range calculation—would qualify as an

“actual innocence” claim for purposes of the escape hatch.

raise an argument that the defendant is ineligible for the sentence she

received. The Supreme Court did not intend the ‘actual innocence’

exception to save such procedural claims.”); Gilbert v. United States,

640 F.3d 1293, 1323 (11th Cir. 2011) (en banc) (declining to decide

whether a petitioner could bring a § 2241 petition under the savings clause

if “he was sentenced to a term of imprisonment exceeding the statutory

maximum”).

4

At the time of sentencing, Allen was sentenced to 262 months on his

conspiracy count, which was the minimum sentence at the bottom of the

Guideline range based on his career offender designation. If he had not

been designated a career offender, his applicable Guideline range on the

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

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

Accordingly, Allen would not qualify for relief under this exception.

ALLEN V. IVES 25

Under the majority’s reasoning, an exception that the

Supreme Court reserved for the “extraordinary case” seems

not so extraordinary anymore. See Schlup v. Delo, 513 U.S.

298, 321 (1995) (“To ensure that the fundamental miscarriage

of justice exception would remain ‘rare’ and would only be

applied in the ‘extraordinary case,’ while at the same time

ensuring that the exception would extend relief to those who

were truly deserving, this Court explicitly tied the miscarriage

of justice exception to the petitioner’s innocence.”).

IV.

I also take exception to the majority’s holding that “to the

extent that Mathis and Descamps may be thought to have

announced a new rule . . . the rule is one of substance rather

than procedure.” First, there is no need to reach the question

of the retroactivity of Descamps and Mathis under Teague v.

Lane, 489 U.S. 288 (1989),5 in this case. Neither party raised

this issue (either before us or below), and regardless of

whether Teague applies here, Allen is still unable to meet the

first requirement of an “actual innocence” claim for escape

hatch jurisdiction.

5

In Teague, the Supreme Court laid out a framework for “determining

whether a rule announced in one of [its] opinions should be applied

retroactively to judgments in criminal cases that are already final on direct

review.” Whorton v. Bockting, 549 U.S. 406, 416 (2007). “Under the

Teague framework, an old rule applies both on direct and collateral

review, while a new rule is generally applicable only to cases that are still

on direct review.” Id. A new rule is one that “breaks new ground,”

“imposes a new obligation on the States or the Federal Government,” or

was not “dictated by precedent existing at the time the defendant’s

conviction became final.” Teague, 489 U.S. at 301 (emphasis in original).

26 ALLEN V. IVES

Second, the majority’s holding is wrong because

Descamps and Mathis neither issued a “new rule” nor “one of

substance rather than procedure.” To start, the majority’s

holding that these Supreme Court decisions issued a “new

rule” is directly contradicted by prior precedent, in which we

have held otherwise. See Ezell v. United States, 778 F.3d

762, 766 (9th Cir. 2015) (“The Supreme Court did not

announce a new rule in Descamps. Descamps did not impose

a new obligation nor did it break new ground.”); Arazola-

Galea v. United States, 876 F.3d 1257, 1259 (9th Cir. 2017)

(“We now join our sister circuits in definitively holding that

Mathis did not establish a new rule of constitutional law.”).

Rather than issuing a new rule, both Descamps and Mathis

simply clarified existing precedent regarding the application

of the categorical and modified categorical approach under

the Armed Career Criminal Act (ACCA). See Descamps,

570 U.S. at 260 (“Our caselaw explaining the categorical

approach and its ‘modified’ counterpart all but resolves this

case.”); Mathis, 136 S. Ct. at 2257 (“Our precedents make

this a straightforward case. For more than 25 years, we have

repeatedly made clear that application of ACCA involves,

and involves only, comparing elements.”); United States v.

Martinez-Lopez, 864 F.3d 1034, 1039 (9th Cir. 2017)

(“Mathis did not change the rule stated in Descamps; it only

reiterated that the Supreme Court meant what it said when it

instructed courts to compare elements.”); United States v.

Quintero-Junco, 754 F.3d 746, 751 (9th Cir. 2014) (“As the

Supreme Court recently clarified in Descamps, courts may

employ the modified categorical approach only when the

statute of conviction is ‘divisible . . . .’”). 6

6

Because Descamps and Mathis did not announce a new rule, Allen’s

Descamps/Mathis claim is not necessarily governed by the Teague

doctrine. But whether or not Teague applies in this case still has no

ALLEN V. IVES 27

Furthermore, even if we were to assume that Descamps

and Mathis announced a “new rule” for the purposes of

Teague, the majority errs in characterizing the rule as

substantive rather than procedural. A rule is “substantive

rather than procedural if it alters the range of conduct or the

class of persons that the law punishes.” Schriro v.

Summerlin, 542 U.S. 348, 353 (2004). Substantive rules

include “decisions that narrow the scope of a criminal statute

by interpreting its terms, as well as constitutional

determinations that place particular conduct or persons

covered by the statute beyond the State’s power to punish.”

Id. at 351–52 (citations omitted); see also Saffle v. Parks,

494 U.S. 484, 494 (1990) (“The [substantive rule] exception

permits the retroactive application of a new rule if the rule

places a class of private conduct beyond the power of the

State to proscribe, or addresses a ‘substantive categorical

guarante[e] accorded by the Constitution,’ such as a rule

‘prohibiting a certain category of punishment for a class of

defendants because of their status or offense.’” (citations

omitted)).

“Procedural rules, by contrast, ‘regulate only the manner

of determining the defendant’s culpability,’” and “alter ‘the

range of permissible methods for determining whether a

defendant’s conduct is punishable.’” Welch, 136 S. Ct.

at 1265 (quoting Summerlin, 542 U.S. at 353 (emphasis in

original)). “They do not produce a class of persons convicted

of conduct the law does not make criminal, but merely raise

the possibility that someone convicted with use of the

bearing on whether Allen can raise his claim in a § 2241 petition given

that it fails to qualify as a claim of “actual innocence” for purposes of the

§ 2255 escape hatch.

28 ALLEN V. IVES

invalidated procedure might have been acquitted otherwise.”

Id.

Descamps and Mathis did not issue a substantive rule

because these decisions did not modify the elements of an

offense as defined in a criminal statute, and thereby “alter the

range of conduct the statute punishes”—such as the rule

recognized in Bousley.7 See Summerlin, 542 U.S. at 354 (“A

decision that modifies the elements of an offense is normally

substantive rather than procedural. New elements alter the

range of conduct the statute punishes, rendering some

formerly unlawful conduct lawful or vice versa.”). Nor did

Descamps and Mathis issue “constitutional determinations

that place particular conduct or persons covered by the statute

beyond the State’s power to punish,” id. at 352, such as the

Eighth Amendment rules recognized in Penry v. Lynaugh,

492 U.S. 302 (1989).8 Instead, Descamps and Mathis merely

instructed sentencing courts how to apply the “categorical

approach” set forth in Taylor v. United States, 495 U.S. 575

(1990), in determining whether a defendant’s prior state

7

In Bousley, the Court concluded that petitioner’s Bailey claim was

not barred by Teague because Bailey issued a substantive, rather than

procedural, new rule. The new rule announced in Bailey was that a

conviction for use of a firearm under § 924(c)(1) requires the government

prove “active employment of the firearm,” and not mere possession.

Bailey, 516 U.S. at 144.

8

In Penry, the Supreme Court noted that its prior decisions holding

“that the Eighth Amendment, as a substantive matter, prohibits imposing

the death penalty on a certain class of defendants because of their status,

or because of the nature of their offense,” fell within the Teague

“substantive rule” exception. 492 U.S. at 329–30 (citations omitted).

ALLEN V. IVES 29

conviction meets a predicate offense under the ACCA.9 In

that way, Descamps and Mathis “regulate[d] only the manner

of determining” a defendant’s qualification for a sentencing

enhancement: specifically, by clarifying the circumstances

under which a sentencing court could look to extra-statutory

documents in its analysis (i.e., the modified categorical

approach) as opposed to only the statutory elements (i.e., the

categorical approach). Welch, 136 S. Ct. at 1265 (quoting

Summerlin, 542 U.S. at 353). Thus, like other procedural

rules, the holdings in Descamps and Mathis did “not produce

a class of persons convicted of conduct the law does not make

criminal,” but only altered “the range of permissible methods

for determining” whether a defendant’s predicate convictions

qualify him for a sentencing enhancement. Id.

The majority cursorily asserts that Descamps and Mathis

announced a substantive rule because, like “other decisions

9

The Taylor categorical approach requires sentencing courts to

“look[] only to the statutory definitions of the prior offenses, and not to the

particular facts underlying those convictions.” Taylor, 495 U.S. at 600.

If the statutory elements under which a defendant was convicted “are the

same as, or narrower than, those of the generic offense,” the prior

conviction qualifies as a predicate offense under the ACCA. Descamps,

570 U.S. at 257. “But if the statute sweeps more broadly than the generic

crime, a conviction under that law cannot count as an ACCA predicate,

even if the defendant actually committed the offense in its generic form.”

Id. at 261. The Supreme Court has “approved a variant of this

method—labeled (not very inventively) the ‘modified categorical

approach’—when a prior conviction is for violating a so-called ‘divisible

statute,’” which is, a statute that “sets out one or more elements of the

offense in the alternative.” Id. at 257. Under the “modified categorical

approach,” sentencing courts may look beyond the statutory elements and

“consult a limited class of documents, such as indictments and jury

instructions, to determine which alternative formed the basis of the

defendant’s prior conviction.” Id.

30 ALLEN V. IVES

interpreting the reach of federal sentencing enhancements,”

they “altered ‘the range of conduct . . . that the law

punishes,’” citing to Welch and Alaimalo v. United States,

645 F.3d 1042 (9th Cir. 2011). But neither of these cases

support the majority’s contention. In Welch, the Supreme

Court held that its decision in Johnson—which ruled that the

residual clause of the ACCA was unconstitutionally vague

under due process principles—announced a new substantive

rule. 136 S. Ct. at 1268. The rule announced in Johnson was

substantive, however, because it fell within the category of

“constitutional determinations that place particular conduct or

persons covered by the statute beyond the State’s power to

punish.” Summerlin, 542 U.S. at 352. In contrast, Descamps

and Mathis did not make any constitutional determinations

whatsoever. See Ezell, 778 F.3d at 766 (“But even if the

Supreme Court did announce a new rule in Descamps, that

rule is not constitutional. Descamps is a statutory

interpretation case . . . .”). Alaimalo is likewise inapposite

here. The “new rule” considered in that case came from the

Ninth Circuit decision in United States v. Cabaccang,

332 F.3d 622, 623 (9th Cir.2003) (en banc), which “held that

transporting drugs from one location within the United States

(California) to another (Guam) does not constitute

importation within the meaning of 21 U.S.C. § 952(a).”

Alaimalo, 645 F.3d at 1046. This rule from Cabaccang was

substantive because it fell squarely within the category of

“decisions that narrow the scope of a criminal statute by

interpreting its terms.” Summerlin, 542 U.S. at 351.

Descamps and Mathis, in contrast, did not narrow the

substantive elements of a federal criminal statute or otherwise

“place[] a class of private conduct beyond the power of the

State to proscribe.” Parks, 494 U.S. at 494.

ALLEN V. IVES 31

In short, the majority errs in concluding that, to the extent

Descamps and Mathis announced a new rule under the

Teague framework, it qualifies as a substantive one. But

there is simply no need for the majority to reach this question

where the issue has not been raised or contested by any party

in this case, and it has no impact on Allen’s inability to raise

his claim in a § 2241 petition given his failure to allege a

claim of actual innocence.

V.

A few final remarks. First, I do not deny the possibility

that a petitioner might qualify for the escape hatch by raising

a claim of actual innocence based on a new interpretation of

the law. For instance, if Allen claimed that he was actually

innocent of one of his predicate convictions that triggered his

career offender designation because an intervening Supreme

Court decision held that the conduct for which he was

convicted was not actually criminal, we might have

jurisdiction under the escape hatch. See Alaimalo, 645 F.3d

at 1047 (holding that the petitioner “made a showing of actual

innocence” because he was convicted of conduct that a later

court decision held was “not a crime”); see also Bousley, 523

U.S. at 620 (“[D]ecisions of this Court holding that a

substantive federal criminal statute does not reach certain

conduct . . . necessarily carry a significant risk that a

defendant stands convicted of ‘an act that the law does not

make criminal.’” (citations omitted)). But Allen presents no

such case here. An actual innocence claim, even if derived in

part from a new interpretation of the law, remains focused on

the facts pertaining to the underlying conduct or conviction

challenged. Whether Allen’s predicate crimes qualify him for

the career offender designation under the Sentencing

Guidelines is a legal conclusion, not a fact of which Allen can

32 ALLEN V. IVES

be “actually innocent” for the purposes of the escape hatch.

Because Allen’s claim is controlled by Marrero, the district

court properly dismissed Allen’s § 2241 petition.

Second, I recognize that there is currently a circuit split

on this issue. Some other circuits have allowed sentencing

challenges similar to Allen’s under the escape hatch. See,

e.g., United States v. Wheeler, 886 F.3d 415, 419 (4th Cir.

2018); Hill v. Masters, 836 F.3d 591 (6th Cir. 2016); Brown

v. Caraway, 719 F.3d 583 (7th Cir. 2013); United States v.

Wheeler, 886 F.3d 415, 419 (4th Cir. 2018); Hill v. Masters,

836 F.3d 591 (6th Cir. 2016). But these circuits, unlike ours,

do not read § 2255(e) to require a petitioner to bring an actual

innocence claim in order to be entitled to escape hatch

jurisdiction. Thus, if we want to follow these circuits in their

treatment of claims like Allen’s, we would need to abandon

the actual innocence requirement clearly set forth in our own

controlling precedent—which we cannot do as a three-judge

panel. The majority’s use of the “actual innocence” rubric

does not disguise its blunt and unpersuasive departure from

both Ninth Circuit and Supreme Court precedent.

Finally, I fear the majority’s expansion of actual

innocence jurisdiction opens the proverbial floodgate for

habeas petitions under the escape hatch. Numerous federal

prisoners may be encouraged to file challenges under

28 U.S.C. § 2241 on the ground that some post-sentence

development in the law—whether it be by legislation, judicial

opinion, or a revision of the Sentencing Guidelines—has

rendered them “actually innocent” of a sentencing

enhancement that they received. Allowing them to do so

ALLEN V. IVES 33

undoubtedly circumvents and flouts Congress’ intent in

establishing the “exclusive procedural mechanism” in

28 U.S.C. § 2255.

I respectfully dissent.