                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 18a0165p.06

                    UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT



 KURT HARRINGTON,                                         ┐
                                  Petitioner-Appellant,   │
                                                          │
                                                           >       No. 17-6229
        v.                                                │
                                                          │
                                                          │
 J. RAY ORMOND, Warden,                                   │
                                  Respondent-Appellee.    │
                                                          ┘


                          Appeal from the United States District Court
                         for the Eastern District of Kentucky at London.
                     No. 6:17-cv-00199—David L. Bunning, District Judge.

                               Decided and Filed: August 13, 2018

                     Before BOGGS, CLAY, and ROGERS, Circuit Judges.

                                       _________________

                                            COUNSEL

ON BRIEF: Charles P. Wisdom Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington,
Kentucky, for Appellee. Kurt Harrington, Pine Knot, Kentucky, pro se.
                                       _________________

                                            OPINION
                                       _________________

       ROGERS, Circuit Judge. Kurt Harrington, a federal prisoner proceeding pro se, appeals
the district court’s judgment denying his petition for a writ of habeas corpus filed under
28 U.S.C. § 2241 and based on Burrage v. United States, 571 U.S. 204 (2014). Harrington was
sentenced to life in prison for his role in a drug-distribution conspiracy that resulted in the death
of another and thus implicated the “death results” penalty enhancement of 21 U.S.C. § 841(b)(1).
 No. 17-6229                          Harrington v. Ormond                                 Page 2


In Burrage, the Supreme Court held that the death-results enhancement requires that drugs
distributed by the defendant were “a but-for cause of [the victim’s] death.” 571 U.S. at 218–19.
For that reason, Harrington’s claim is properly construed as one of actual innocence. Moreover,
because Burrage is retroactive, Harrington is entitled to an evidentiary hearing to determine
whether it is more likely than not that no reasonable juror would have convicted him, if given the
proper jury instruction.

       Harrington was sentenced to life in prison under the death-results penalty enhancement in
the Southern District of Iowa. The Eighth Circuit, affirming his conviction, described his crimes
as follows:

                Kurt Harrington was convicted in 2009 of seven drug offenses, including
       conspiring to manufacture, distribute, and possess with intent to distribute heroin
       and at least 50 grams of cocaine base, resulting in death (Count 1); and
       distributing heroin, resulting in death (Count 7). Pursuant to 21 U.S.C. §§ 841
       and 851, the government filed notice that Harrington was subject to a mandatory
       sentence of life imprisonment by reason of a 2002 felony drug conviction. See
       21 U.S.C. § 841(b)(1)(A) (sentence shall be life imprisonment if death results
       from use of substance and violation was committed after prior conviction for
       felony drug offense). The district court sentenced Harrington to concurrent terms
       of life in prison on Counts 1 and 7, and 360 months on each of the five remaining
       counts.

United States v. Harrington, 617 F.3d 1063, 1064 (8th Cir. 2010) (per curiam) (footnote
omitted).

       In 2014, the Supreme Court decided Burrage, which held that “at least where use of the
drug distributed by the defendant is not an independently sufficient cause of the victim’s death or
serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of
21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” 571 U.S. at
218–19.

       Later in 2014, Harrington filed a habeas petition under § 2241, challenging his conviction
and sentence in light of Burrage. That petition was denied. In 2017, Harrington filed a second
§ 2241 petition, citing intervening out-of-circuit authority holding that Burrage is retroactively
applicable on collateral review. The district court dismissed this petition on initial review and
 No. 17-6229                                Harrington v. Ormond                                          Page 3


without service, reasoning that “neither the Supreme Court nor the Sixth Circuit has yet indicated
that Burrage is retroactive to cases on collateral review.” Citing Hill v. Masters, 836 F.3d 591
(6th Cir. 2016), the district court also reasoned in the alternative that Harrington’s claim was not
cognizable under § 2241 because he was not sentenced under the mandatory guidelines regime
that existed before United States v. Booker, 543 U.S. 220 (2005).

        Harrington appeals and continues to argue that Burrage applies retroactively to cases on
collateral review and that, therefore, his claim may proceed under § 2241. At our request, the
Government has filed a brief representing the views of the United States.

        Harrington properly petitioned for relief under § 2241.1 Ordinarily, a federal prisoner
may collaterally attack the validity of his conviction or sentence only under 28 U.S.C. § 2255.
See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001). However, the so-called
savings clause, found at § 2255(e), permits a federal prisoner to petition under § 2241 if “the
remedy by motion [under § 2255] is inadequate or ineffective to test the legality of his
detention.” To obtain relief under the savings clause, the prisoner must not only be barred from
proceeding under § 2255 (which Harrington is), but must also be determined to be “actually
innocent.” Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012).

        Harrington’s claim is properly construed as one of actual innocence. In Burrage, the
Court referred to the death-results enhancement as “an element that must be submitted to the jury
and found beyond a reasonable doubt.” 571 U.S. at 210. This case is thus unlike Hill, 836 F.3d
at 591, which dealt with a sentencing enhancement under the pre-Booker mandatory guidelines,
id. at 593, rather than a substantive, statutory element of a crime, like the death-results
enhancement at issue here.

        Moreover, Harrington’s actual-innocence claim based on Burrage may well have merit.
Savings-clause petitioners can show actual innocence by demonstrating:



        1As   a threshold matter, there is no second-or-successive limitation to filing a second § 2241 petition, as
Harrington has done here. 28 U.S.C. § 2244(a) provides generally that “[n]o circuit or district judge shall be
required” to entertain a second habeas petition, but we may exercise our discretion to consider such a petition, and
we do so here.
 No. 17-6229                            Harrington v. Ormond                                 Page 4


         (1) the existence of a new interpretation of statutory law, (2) which was issued
         after the petitioner had a meaningful time to incorporate the new interpretation
         into his direct appeals or subsequent motions, (3) is retroactive, and (4) applies to
         the merits of the petition to make it more likely than not that no reasonable juror
         would have convicted him.

Wooten, 677 F.3d at 307–08. Prongs one and two are satisfied: Burrage is a new interpretation
of 21 U.S.C. § 841(b)(1) and was decided in 2014, well after Harrington’s 2009 conviction, his
2010 direct appeal, see Harrington, 617 F.3d at 1063, and the one-year window within which he
could have filed an initial, unconstrained § 2255 motion, see 28 U.S.C. § 2255(f).

         It is also clear that Burrage is retroactive, as the Government commendably concedes.
Substantive decisions that “narrow the scope of a criminal statute by interpreting its terms” apply
retroactively to cases on collateral review. Schriro v. Summerlin, 542 U.S. 348, 351 (2004)
(citing Bousley v. United States, 523 U.S. 614, 620–621 (1998)). Burrage fits that bill: because
but-for causation is a stricter requirement than, for example, the contributing-cause rule rejected
in Burrage, see 571 U.S. at 208, some conduct punished by 21 U.S.C. § 841(b)(1) pre-Burrage is
no longer covered post-Burrage. At least two of our sister circuits to consider the issue have
held that Burrage applies retroactively to cases on collateral review. See Santillana v. Upton,
846 F.3d 779, 783–84 (5th Cir. 2017); Krieger v. United States, 842 F.3d 490, 499–500 (7th Cir.
2016).

         For purposes of motions under § 2241, it makes no difference that the Supreme Court
itself has not held that Burrage applies retroactively. The rule requiring retroactivity to be
determined by the Supreme Court comes from Tyler v. Cain, 533 U.S. 656 (2001), a case that
interpreted the statutory limitation set forth in 28 U.S.C. § 2244(b)(2) on second-or-successive
petitions brought by state prisoners under 28 U.S.C. § 2254. See id. at 661–62. There is no
comparable limitation on petitions filed under § 2241. That is why, for instance, we considered
for ourselves whether the rule at issue in Wooten applied retroactively, see 677 F.3d at 308–09,
and why the Fifth Circuit did the same for Burrage, explaining that “the retroactivity element of
our savings-clause analysis is not tethered to a similar statutory limitation” as the one in
§ 2244(b)(2), Santillana, 846 F.3d at 783. When it comes to petitions brought under § 2241 as
 No. 17-6229                         Harrington v. Ormond                                Page 5


authorized by § 2255’s savings clause, rare though they might be, lower courts—both district and
circuit—are free to make their own retroactivity determinations.

       However, we are not in a position to determine whether Burrage “applies to the merits of
[Harrington’s] petition to make it more likely than not that no reasonable juror would have
convicted him,” as would be required for us to grant relief. See Wooten, 677 F.3d at 307–08.
Because the district court denied Harrington’s petition on its initial review, the respondent was
not served, and there is no evidentiary record before us. We therefore remand, and direct the
district court to order service on the respondent and to hold a hearing on this issue. The court
may consider whether to appoint counsel under 18 U.S.C. § 3006A(a)(2)(B).

       The judgment of the district court is vacated, and the case remanded for proceedings
consistent with this opinion.
