                                           PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                       ______

                        No. 14-4284
                          ______

                CHARLES GRAY BRUCE,
                 a/k/a Charles Gary Bruce,
                                       Appellant

                              v.

               WARDEN LEWISBURG USP
                      ______

      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
                (M.D. Pa. No. 3-13-cv-02362)
      District Judge: Honorable Malachy E. Mannion
                           ______

                Argued: October 26, 2016
      Before: FISHER, VANASKIE, and KRAUSE,
                     Circuit Judges.


      
         Honorable D. Michael Fisher, United States Circuit
Judge for the Third Circuit, assumed senior status on February
1, 2017.
                  (Filed: August 22, 2017)

Rajeev Muttreja, Esq. [ARGUED]
Jones Day
250 Vesey Street
New York, NY 10281
      Counsel for Appellant

Edward L. Stanton III, Esq.
John D. Fabian, Esq.
Kevin G. Ritz, Esq. [ARGUED]
Office of United States Attorney
167 North Main Street, Suite 800
Memphis, TN 38103

Peter J. Smith, Esq.
Carlo D. Marchioli, Esq.
Mark E. Morrison, Esq.
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

Anthony D. Scicchitano, Esq.
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
       Counsel for Appellee




                             2
                             ______

                  OPINION OF THE COURT
                          ______

FISHER, Circuit Judge.
        Some 26 years ago in a small town located in western
Tennessee, Danny Vine and Della Thornton were murdered.
Vine’s home-based business was robbed and burned down
with his and Thornton’s bodies inside. Not long after, state and
local law enforcement began to suspect Charles Gary Bruce
and three others. Federal authorities later became involved,
leading to Bruce’s 1996 conviction for various federal crimes,
including two counts of witness tampering murder for killing
Vine and Thornton. For his wrongdoing, Bruce received a
sentence of life without parole plus ten years in prison.
        Fifteen years later, the Supreme Court handed down
Fowler v. United States, 563 U.S. 668 (2011), a decision that
interpreted the statute under which Bruce was convicted. That
statute makes it a crime “to kill another person, with intent to .
. . prevent the communication by any person to a law
enforcement officer . . . of the United States . . . of information
relating to the . . . possible commission of a Federal offense.”
18 U.S.C. § 1512(a)(1)(C). Fowler addressed situations like
Bruce’s, where the defendant killed a person with the intent to
prevent communication with law enforcement officers in
general but did not have federal officers in mind at the time of
the offense. In light of Fowler, Bruce now claims that he was
convicted of conduct that is not a crime under the statute.
        Ordinarily, federal prisoners collaterally challenging
their convictions or sentences must seek relief pursuant to the
remedial framework set out in 28 U.S.C. § 2255. But Bruce



                                3
never pursued his current statutory interpretation argument on
direct appeal or in his initial § 2255 motion. And § 2255(h)
does not permit a second bite at the habeas apple for previously
unavailable rules of statutory interpretation. Bruce instead
invokes § 2255’s saving clause, which allows a federal
prisoner to seek a writ of habeas corpus under 28 U.S.C. § 2241
when § 2255’s remedy “is inadequate or ineffective to test the
legality of his detention.” § 2255(e).
        The District Court read our Circuit precedent as
permitting Bruce to pass through the saving clause to § 2241,
but declined to grant the writ. We hold that the District Court
properly exercised jurisdiction under § 2241. And after careful
review of the record, we also conclude that this is not the
extraordinary case in which a successful showing of actual
innocence has been made. The judgment of the District Court
will therefore be affirmed.
                               I
                               A
       In December 1990, Charles Gary Bruce (Gary Bruce or
Bruce) was experiencing financial difficulty. Together with
his brothers Jerry and Robert, Gary Bruce devised a scheme to
rob a mussel shell camp in Camden, Tennessee operated by
Danny Vine. The Bruces believed that Vine, a local mussel
shell buyer, carried large amounts of cash and that his camp,
being secluded in the woods, would be easy to rob.
       Camden is located in Benton County, not far from the
Kentucky Lake, a large artificial reservoir created by the
impounding of the Tennessee River by the Kentucky Dam.
During the 1990s, the harvesting, processing, and exportation
of freshwater mussel shells was a thriving industry in
Tennessee. Divers would take the shells from the Kentucky
Lake or the Tennessee River and sell them to local buyers like



                               4
Vine, who served as purchasing agents for large companies.
The buyers then transported their shells to the company for
which they worked, where the meat was removed and the shells
shipped overseas, most often to Japan. There, producers used
the white lining of the mussel shells to manufacture cultured
pearls.
        On January 15, 1991, joined by their friend David
Riales, the Bruces agreed that they would rob Vine’s camp.
They decided to kill anyone who was there and do whatever it
took to take the shells. The following day, the group purchased
several cans of gasoline from a local gas station and carried out
their plan. When they arrived, Vine was present at the camp
with his fiancée, Della Thornton, and their puppy. Gary Bruce
tied up Vine and Thornton, who were both shot in the head at
point-blank range with Gary’s gun—Gary shot Vine, and Jerry
shot Thornton. The group then poured gasoline on Vine and
Thornton’s bodies and throughout the house. Finally, they set
the house ablaze and drove away with Vine’s truck full of
mussel shells.
        Vine, Thornton, and their puppy’s charred remains were
discovered by the local sheriff’s department three days later.
Special Agent Alvin Daniel of the Tennessee Bureau of
Investigation (TBI) was then assigned to the case. Through
forensic evidence, state and local authorities identified Vine
and Thornton as the victims and determined that the two had
been shot in the head prior to the fire. The state fire marshal
concluded that gasoline was used to set fire to the house and
burn the bodies. Beyond that, investigators had limited
physical evidence and no leads.
        A few weeks after the murders, investigators learned of
several suspicious sales of mussel shells by Gary Bruce’s wife
and brothers. At that point the Bruces became suspects.
Ballistics testing, including a search warrant to recover bullets



                               5
fired into a tree on Gary Bruce’s property, led Special Agent
Daniel to determine that Bruce’s gun was used to shoot Vine
and Thornton. The investigation became drawn out, however,
by the unwillingness of witnesses to speak to state and local
law enforcement.
        Eventually Daniel approached the local United States
Attorney’s Office for assistance. A federal grand jury
investigation commenced to hear testimony from witnesses,
several of whom later indicated that their fear of the Bruces
prevented them from cooperating prior to the involvement of
federal authorities. The Federal Bureau of Investigation and
the federal Bureau of Alcohol, Tobacco, and Firearms (ATF)
also became involved.
                               B
        On November 1, 1993, a grand jury sitting in the
Western District of Tennessee issued an indictment charging
Gary, Jerry, and Robert Bruce, as well as David Riales, each
with two counts of witness tampering murder, in violation of
18 U.S.C. § 1512(a)(1)(C). The eight-count indictment also
included charges of Hobbs Act robbery, conspiracy to commit
Hobbs Act robbery, use of a firearm to commit robbery and
murder, arson, use of fire to commit robbery and murder, and
conspiracy to obstruct justice. Kathleen Bruce, the mother of
the Bruce brothers, was also charged with conspiracy to
obstruct justice, in addition to facing separate counts of lying
to a grand jury and witness tampering by threat or intimidation.
        Gary Bruce was detained at the McNary County,
Tennessee jail pending trial. He escaped on July 27, 1994, and
remained at large for 14 months. While a fugitive, a jury
convicted Bruce’s codefendants on all counts, except that
Kathleen Bruce was acquitted of her witness tampering charge.
The Sixth Circuit affirmed their convictions, United States v.




                               6
Bruce, 100 F.3d 957, 1996 WL 640468 (6th Cir. Nov. 5, 1996)
(unpublished table decision), and the Supreme Court denied
certiorari, 520 U.S. 1128 (1997).
        Gary Bruce’s trial commenced on July 29, 1996. As to
the witness tampering murder counts, the district court
instructed the jury that, to convict, it must find beyond a
reasonable doubt (1) that Bruce killed another person, (2) with
the intent to prevent the communication of information to a law
enforcement officer, and (3) that the information related to the
commission of a federal crime. J.A. 1004-05. No instruction
was given that the potential communication of information
needed to be to a federal law enforcement officer. The jury
convicted Bruce on all counts, including a separately-indicted
charge of escape. The district court sentenced Bruce to life
without parole, plus another ten years for his pre-trial escape.
The Sixth Circuit affirmed Bruce’s convictions, United States
v. Bruce, 142 F.3d 437, 1998 WL 165144 (6th Cir. Mar. 31,
1998) (per curiam) (unpublished table decision), and the
Supreme Court denied certiorari, 525 U.S. 882 (1998).
        Since his convictions became final, Bruce has
unsuccessfully sought post-conviction relief several times,
proceeding pro se throughout. In June 2008, Bruce filed a
motion under 28 U.S.C. § 2255 in the United States District
Court for the Western District of Tennessee. That court denied
the motion. Both the district court and the Sixth Circuit denied
a certificate of appealability. In 2012 and 2013, Bruce sought
authorization to file second or successive § 2255 motions, but
the Sixth Circuit denied those requests. It was not until the
2013 motion that Bruce invoked Fowler v. United States, 563
U.S. 668 (2011). In denying the 2013 motion, the Sixth Circuit
reasoned that Bruce failed to satisfy § 2255(h)’s limitations on
second or successive motions because Fowler created a rule of
statutory interpretation, not constitutional law, and has not



                               7
been held by the Supreme Court to apply retroactively in cases
on collateral review. In re Bruce, 2013 U.S. App. LEXIS
25436, at *4-5 (6th Cir. Aug. 2, 2013).
                               II
        On September 12, 2013, Bruce filed a pro se petition for
a writ of habeas corpus under 28 U.S.C. § 2241 in the United
States District Court for the Middle District of Pennsylvania,
the district of his confinement. Citing Fowler, Bruce
contended that he is actually innocent of his two convictions
for witness tampering murder.
        The Magistrate Judge initially recommended that
Bruce’s petition be dismissed for lack of jurisdiction due to his
failure to satisfy the gatekeeping requirements of 28 U.S.C. §
2255(e)’s saving clause. The following day, however, this
Court decided United States v. Tyler, 732 F.3d 241 (3d Cir.
2013), which permitted a prisoner who had filed successive §
2255 motions to pursue a Fowler-based actual innocence claim
under § 2241. In the wake of Tyler, the District Court declined
to adopt the Magistrate Judge’s recommendation, and
remanded the matter for further proceedings.
        On remand, the Magistrate Judge found that jurisdiction
under § 2241 was proper, but recommended that Bruce’s
petition be denied. Bruce v. Thomas, 2014 WL 5242407 (M.D.
Pa. June 20, 2014). The Magistrate Judge concluded that
Bruce had failed to show that it was more likely than not that
no reasonable juror would have convicted him of witness
tampering murder based on Fowler’s interpretation of 18
U.S.C. § 1512(a)(1)(C). Id. at *10. The District Court adopted
the Magistrate Judge’s report and recommendation in its
entirety and denied Bruce’s petition. Bruce v. Thomas, 2014
WL 5242409 (M.D. Pa. Oct. 15, 2014).
        Still proceeding pro se, Bruce timely filed a notice of



                               8
appeal. The requirements for obtaining a certificate of
appealability set forth in 28 U.S.C. § 2253(c) do not apply to
prisoners appealing the denial of a § 2241 petition. See United
States v. Cepero, 224 F.3d 256, 264-65 (3d Cir. 2000) (en
banc), abrogated on other grounds by Gonzales v. Thaler, 565
U.S. 134 (2012); Burkey v. Marberry, 556 F.3d 142, 146 (3d
Cir. 2009). We appointed Thomas S. Jones and Rajeev
Muttreja of Jones Day to represent Bruce on appeal. The Court
thanks Messrs. Jones and Muttreja for accepting this matter pro
bono and for their well-stated arguments. Attorneys who act
pro bono fulfill the highest service that members of the bar can
offer to indigent parties and to the legal profession.
                               III
        It is appropriate to begin by addressing whether the
District Court properly entertained Bruce’s petition for a writ
of habeas corpus under 28 U.S.C. § 2241. Even though the
Government agrees with Bruce that he may seek the writ,
“every federal appellate court has a special obligation to
‘satisfy itself not only of its own jurisdiction, but also that of
the lower courts in a cause under review,’ even though the
parties are prepared to concede it.” Bender v. Williamsport
Area School Dist., 475 U.S. 534, 541 (1986) (quoting Mitchell
v. Maurer, 293 U.S. 237, 244 (1934)); see Steel Co. v. Citizens
for Better Environment, 523 U.S. 83, 94-95 (1998). That duty
is especially pertinent in this case, there being an entrenched
split among the courts of appeals regarding the extent to which
a change in statutory interpretation permits a federal prisoner
to resort to § 2241 for an additional round of collateral review.
                                A
       Since the Judiciary Act of 1789, Congress has
authorized federal courts to issue writs of habeas corpus to
federal prisoners. Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat.



                                9
82. The Reconstruction Congress later expanded the scope of
the writ to reach state prisoners as well. Act of Feb. 5, 1867,
ch. 28, § 1, 14 Stat. 385. That guarantee can be found in its
current form at § 2241 of the Judicial Code, which provides
that federal judges may grant the writ of habeas corpus on the
application of a prisoner held “in custody in violation of the
Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(3). The prisoner must direct his petition to
“the person who has custody over him.” § 2242; see also
Wales v. Whitney, 114 U.S. 564, 574 (1885); Braden v. 30th
Judicial Circuit Court of Ky., 410 U.S. 484, 494-95 (1973).
Longstanding practice under this immediate custodian rule
“confirms that in habeas challenges to present physical
confinement . . . the default rule is that the proper respondent
is the warden of the facility where the prisoner is being held.”
Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). And under the
statute’s jurisdiction of confinement rule, district courts may
only grant habeas relief against custodians “within their
respective jurisdictions.” § 2241(a); see also Braden, 410 U.S.
at 495 (“[T]he language of § 2241(a) requires nothing more
than that the court issuing the writ have jurisdiction over the
custodian.”).
        An increase in the number of federal habeas petitions
produced serious administrative problems and overburdened
the few district courts in the jurisdictions with major federal
prisons. See United States v. Hayman, 342 U.S. 205, 210-19
(1952). Congress responded in 1948 by enacting 28 U.S.C. §
2255. Pub. L. No. 80-773, ch. 646, 62 Stat. 967-68. A new
remedial mechanism, § 2255 “replaced traditional habeas
corpus for federal prisoners (at least in the first instance) with
a process that allowed the prisoner to file a motion with the
sentencing court on the ground that his sentence was, inter alia,
imposed in violation of the Constitution or laws of the United




                               10
States.” Boumediene v. Bush, 553 U.S. 723, 774 (2008)
(internal quotation marks omitted). The statute’s “sole purpose
was to minimize the difficulties encountered in habeas corpus
hearings by affording the same rights in another and more
convenient forum.” Hayman, 342 U.S. at 219; see also Hill v.
United States, 368 U.S. 424, 427, 428 n.5 (1962) (describing
the § 2255 remedy as “exactly commensurate” with § 2241’s
writ of habeas corpus); United States v. Anselmi, 207 F.2d 312,
314 (3d Cir. 1953).
        So it is that a federal prisoner’s first (and most often
only) route for collateral review of his conviction or sentence
is under § 2255. Indeed, § 2255 provides that a habeas petition
filed in the prisoner’s district of confinement “shall not be
entertained if it appears that the applicant has failed to apply
for relief, by motion, to the court which sentenced him, or that
such court has denied him relief.” § 2255(e) (emphasis added).
But to this limitation, Congress also provided a saving clause:
a federal prisoner may resort to § 2241 only if he can establish
that “the remedy by motion [under § 2255] is inadequate or
ineffective to test the legality of his detention.” Id.; see also
Boumediene, 553 U.S. at 776 (discussing § 2255’s “saving
clause”). See generally Bryan A. Garner, Garner’s Dictionary
of Legal Usage 797 (3d ed. 2011) (“[S]aving is the precise
word” for “a statutory provision exempting from coverage
something that would otherwise be included”).
        With the passage of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214, Congress added significant gatekeeping
provisions to § 2255, while at the same time leaving the
statute’s saving clause untouched. Under AEDPA, a federal
prisoner may only file a second or successive motion under §
2255 on the basis of “newly discovered evidence” or “a new
rule of constitutional law, made retroactive to cases on



                               11
collateral review by the Supreme Court, that was previously
unavailable.” § 2255(h). No exception exists for new non-
constitutional rules, even if that rule was previously
unavailable and applies retroactively in cases on collateral
review. By omitting such an exception, “Congress seems to
have lost sight of the fact that federal convicts more often can
raise federal statutory claims in their collateral attacks—
notably in cases in which the federal criminal statute under
which a prisoner was convicted has since been authoritatively
interpreted more narrowly.” Richard H. Fallon, Jr., John F.
Manning, Daniel J. Meltzer, & David L. Shapiro, Hart and
Wechsler’s The Federal Courts and the Federal System 1362
(7th ed. 2015).
       We first addressed that scenario one year after
AEDPA’s enactment. In re Dorsainvil, 119 F.3d 245 (3d Cir.
1997), involved a prisoner convicted of using a firearm during
the commission of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1). After Ocsulis Dorsainvil’s initial § 2255
motion, the Supreme Court decided Bailey v. United States,
516 U.S. 137 (1995). Bailey held as a matter of statutory
interpretation that § 924(c)(1)’s “use” prong reaches only
“active employment of the firearm” as opposed to mere
possession. Id. at 144. Dorsainvil then asked this Court for
permission to file a second or successive § 2255 motion,
arguing that Bailey rendered noncriminal the conduct for
which he was convicted. Because Bailey was a new statutory
rule, not a new constitutional one, we denied Dorsainvil’s
request. Dorsainvil, 119 F.3d at 248.
       Dorsainvil argued in the alternative, however, that if
AEDPA prevented him from pursuing his Bailey argument,
then he should be able to resort to the writ of habeas corpus
under § 2241. We agreed. “Were no other avenue of judicial
review available for a party who claims that s/he is factually or



                               12
legally innocent as a result of a previously unavailable
statutory interpretation,” the Court observed that it “would be
faced with a thorny constitutional issue.” Id. We accordingly
concluded that it would be a “complete miscarriage of justice
to punish a defendant for an act that the law does not make
criminal,” thus rendering § 2255 “‘inadequate or ineffective to
test the legality of [Dorsainvil’s] detention.’” Id. at 251
(brackets in original; quoting § 2255(e)). And so the Court
held that in the unusual situation where an intervening change
in statutory interpretation runs the risk that an individual was
convicted of conduct that is not a crime, and that change in the
law applies retroactively in cases on collateral review, he may
seek another round of post-conviction review under § 2241. Id.
        The issue we confronted in Dorsainvil has since been
addressed by every regional circuit. Nine of our sister circuits
agree, though based on widely divergent rationales, that the
saving clause permits a prisoner to challenge his detention
when a change in statutory interpretation raises the potential
that he was convicted of conduct that the law does not make
criminal. See Trenkler v. United States, 536 F.3d 85, 99 (1st
Cir. 2008); Poindexter v. Nash, 333 F.3d 372, 378 (2d Cir.
2003); In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000);
Reyes-Requena v. United States, 243 F.3d 893, 903-04 (5th
Cir. 2001); Wooten v. Cauley, 677 F.3d 303, 307-08 (6th Cir.
2012); Brown v. Caraway, 719 F.3d 583, 586-87 (7th Cir.
2013); Abdullah v. Hedrick, 392 F.3d 957, 963-64 (8th Cir.
2004); Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012);
In re Smith, 285 F.3d 6, 8 (D.C. Cir. 2002). Two circuits see
things differently, holding that an intervening change in
statutory interpretation cannot render § 2255 inadequate or
ineffective. See Prost v. Anderson, 636 F.3d 578, 588 (10th
Cir. 2011) (Gorsuch, J.); McCarthan v. Director of Goodwill
Indus.-Suncoast, Inc., 851 F.3d 1076, 1099-1100 (11th Cir.




                              13
2017) (en banc), petition for cert. filed sub nom. McCarthan v.
Collins, No. 17-85 (U.S. July 12, 2017).
        Even within the circuits that permit actual innocence
claims based on changes in statutory interpretation, there is a
deep divide as to when § 2255 is inadequate or ineffective in
this context. That split is illustrated by the present case. As
will be explained, this Court concludes that the saving clause
requires that Gary Bruce be permitted to resort to § 2241 for
another round of collateral review. But Robert Bruce—who,
like his brother, was convicted of federal witness tampering
murder for killing Danny Vine and Della Thornton, and
sentenced to life without parole—could not. See Bruce v.
Warden, 658 F. App’x 935 (11th Cir. 2016) (per curiam), cert.
denied sub nom. Bruce v. Drew, 137 S. Ct. 683 (2017). Before
the Eleventh Circuit’s en banc decision earlier this year in
McCarthan, that court’s precedent held that the saving clause
allows prisoners to assert actual innocence claims under § 2241
based on a retroactive change in statutory law, but only if
applicable circuit precedent foreclosed such an argument at the
time of the prisoner’s direct appeal and initial § 2255 motion.
See Zelaya v. Sec’y, Fla. Dep’t of Corr., 798 F.3d 1260, 1371
(11th Cir. 2015). Because Sixth Circuit precedent did not
foreclose the kind of argument later accepted by the Supreme
Court in Fowler until years after Robert Bruce’s first § 2255
motion in 1998, see United States v. Carson, 560 F.3d 566,
579-82 (6th Cir. 2009), the Eleventh Circuit held that the
district court lacked jurisdiction to consider his actual
innocence claim under § 2241, see 658 F. App’x at 939.
        This Court’s precedent does not contain a similar
limitation. Our Circuit permits access to § 2241 when two
conditions are satisfied: First, a prisoner must assert a “claim
of ‘actual innocence’ on the theory that ‘he is being detained
for conduct that has subsequently been rendered non-criminal



                              14
by an intervening Supreme Court decision’ and our own
precedent construing an intervening Supreme Court
decision”—in other words, when there is a change in statutory
caselaw that applies retroactively in cases on collateral review.
Tyler, 732 F.3d at 246 (quoting Dorsainvil, 119 F.3d at 252).
And second, the prisoner must be “otherwise barred from
challenging the legality of the conviction under § 2255.” Id.
Stated differently, the prisoner has “had no earlier opportunity
to challenge his conviction for a crime that an intervening
change in substantive law may negate.” Dorsainvil, 119 F.3d
at 251. It matters not whether the prisoner’s claim was viable
under circuit precedent as it existed at the time of his direct
appeal and initial § 2255 motion. What matters is that the
prisoner has had no earlier opportunity to test the legality of his
detention since the intervening Supreme Court decision issued.
       While differences in the law amongst the circuits is a
feature, not a bug, of our federal judicial system, the disparate
treatment of Gary and Robert Bruce should not be overlooked.
When it comes to their actual innocence claims, the two Bruce
brothers are similarly situated in all respects but one: they are
incarcerated in federal prisons located in different circuits. Yet
as already noted, by enacting § 2255 Congress sought to
alleviate the inefficiencies that attend § 2241’s immediate
custodian and district of confinement rules. Now those
difficulties have returned, though in a new form. And so they
will remain, at least until Congress or the Supreme Court
speaks on the matter.
                                B
        Against this background, we now consider whether the
District Court properly exercised jurisdiction under § 2241.
        The witness tampering murder statute prohibits the
“kill[ing] or attempt[ed] kill[ing]” of “another person, with




                                15
intent to . . . prevent the communication by any person to a law
enforcement officer or judge of the United States of
information relating to the commission or possible commission
of a Federal offense.” 18 U.S.C. § 1512(a)(1)(C). With regard
to the defendant’s intent, a related subsection of the statute
provides that “no state of mind need be proved with respect to
the circumstance . . . that the law enforcement officer is an
officer or employee of the Federal Government.” § 1512(g)(2).
         As this Court recognized in Tyler, the Supreme Court’s
Fowler decision interpreted the witness tampering murder
statute in a manner that gave the statute a narrower reach than
that previously permitted by our Circuit precedent. 732 F.3d
at 251-52. Prior to Fowler, this Court held that § 1512(a)(1)(C)
requires the Government to prove that “the officers with whom
the defendant believed the victim might communicate would in
fact be federal officers.” United States v. Bell, 113 F.3d 1345,
1349 (3d Cir. 1997). And as already noted, the jury at Bruce’s
trial in the Western District of Tennessee was instructed under
an even more lenient standard: no instruction was given that
the victim might communicate with a federal officer. Fowler
adopted a different approach: the Government must now prove
that it was “reasonably likely under the circumstances that (in
the absence of the killing) at least one of the relevant
communications would have been made to a federal officer.”
563 U.S. at 677-78 (emphasis added). Because Bruce was
convicted under a lesser standard than that required by Fowler,
there stands a chance that he is incarcerated for conduct that
does not constitute a crime. As this change in the law did not
occur until 2011—long after Bruce’s convictions became final,
and months after the denial of his initial § 2255 motion—he
had no earlier opportunity to test of legality of his detention
under Fowler.
         We further conclude that the change in the law brought



                              16
about by Fowler applies retroactively in cases on collateral
review. The established framework for determining the
retroactive effect of new rules was set forth in the plurality
opinion in Teague v. Lane, 489 U.S. 288 (1989). That
framework applies as much in a federal collateral challenge to
a federal conviction as it does in a federal collateral challenge
to a state conviction. United States v. Reyes, 755 F.3d 210, 213
(3d Cir. 2014). But cf. Welch v. United States, 136 S. Ct. 1257,
1264 (2016) (assuming without deciding that Teague applies
to federal collateral review of federal convictions). Teague
concluded that, as a general matter, new constitutional rules of
criminal procedure do not apply retroactively to convictions
that are already final. Two categories of new rules fall outside
this general bar. First are “[n]ew substantive rules.” Schriro
v. Summerlin, 542 U.S. 348, 351 (2004); see Teague, 489 U.S.
at 307, 311. Second are “new watershed rules of criminal
procedure implicating the fundamental fairness and accuracy
of the criminal proceeding.” Schriro, 542 U.S. at 352 (internal
quotation marks omitted); see Saffle v. Parks, 494 U.S. 484,
495 (1990); Teague, 489 U.S. at 311-13.
        It is quite clear that the rule set forth in Fowler is new.
“A case announces a new rule if the result was not dictated by
precedent existing at the time the defendant’s conviction
became final.” Teague, 489 U.S. at 301. It is equally clear that
the rule announced in Fowler is a substantive one. “A rule is
substantive rather than procedural if it alters the range of
conduct or the class of persons that the law punishes.” Schriro,
542 U.S. at 353. “This includes 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 (citation omitted).          In such
circumstances, “where the conviction or sentence is not in fact




                                17
authorized by substantive law, then finality interests are at their
weakest.” Welch, 136 S. Ct. at 1266. By interpreting the
witness tampering murder statute, Fowler narrowed its scope.
Fowler therefore announced a new rule of substantive law that
applies retroactively in cases on collateral review. Accord
United States v. Smith, 723 F.3d 510, 515 (4th Cir. 2013).
       The constitutional foundation for the retroactive
application of new substantive rules lends further support to
Dorsainvil’s interpretation of § 2255’s saving clause.
Decisions of the Supreme 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.’”
Bousley v. United States, 523 U.S. 614, 620 (1998) (quoting
Davis v. United States, 417 U.S. 333, 346 (1974)); see also
Dorsainvil, 119 F.3d at 250-51. And because it is a first
principle of the separation of powers that “it is only Congress,
and not the courts, which can make conduct criminal,”
Bousley, 523 U.S. at 620-21; see United States v. Hudson, 11
U.S. (7 Cranch) 32 (1812), a court is “prohibited from
imposing criminal punishment beyond what Congress in fact
has enacted by a valid law.” Welch, 136 S. Ct. at 1268. It is
for these reasons that “Teague’s conclusion establishing the
retroactivity of new substantive rules is best understood as
resting upon constitutional premises.”            Montgomery v.
Louisiana, 136 S. Ct. 718, 728 (2016).
       In light of these principles, the significant constitutional
concerns we expressed in Dorsainvil are manifest. The
Constitution dictates that “[a] conviction and sentence imposed
in violation of a substantive rule is not just erroneous but
contrary to law and, as a result, void.” Id. at 731 (citing Ex
parte Siebold, 100 U.S. 371, 376 (1880)). “It follows, as a
general principle, that a court has no authority to leave in place



                                18
a conviction or sentence that violates a substantive rule,
regardless of whether the conviction or sentence became final
before the rule was announced.” Id. Of signal importance, it
is “uncontroversial . . . that the privilege of habeas corpus
entitles the prisoner to a meaningful opportunity to
demonstrate that he is being held pursuant to ‘the erroneous
application or interpretation’ of relevant law.” Boumediene,
553 U.S. at 779 (quoting INS v. St. Cyr, 533 U.S. 289, 302
(2001)). Foreclosing a prisoner from even having an
opportunity to assert his actual innocence in light of an
intervening Supreme Court decision announcing a new
substantive rule would challenge one of the writ’s core
guarantees. Thus, as we concluded in Dorsainvil and reaffirm
today, for a prisoner in those circumstances § 2255’s remedy
is “inadequate or ineffective to test the legality of his
detention.” § 2255(e).
        We therefore hold that the District Court properly
exercised jurisdiction under 28 U.S.C. § 2241. Past decisions
of this Court permitting a prisoner to pass through the saving
clause to assert an actual innocence claim have sent the case
back to the district court to consider the merits of that claim in
the first instance. Our prior cases confronted only a threshold
jurisdictional determination, however; the district courts in
those cases did not reached the merits of the underlying claims.
In Dorsainvil we denied the prisoner’s motion for a second or
successive § 2255 motion without prejudice to his proceeding
under § 2241. 119 F.3d at 252. And in Tyler we remanded the
matter to the district court for an evidentiary hearing on the
prisoner’s actual innocence claims. 732 F.3d at 246-47, 252-
53. The present case arrives in a different posture. Here the
District Court, in accord with our Circuit precedent, concluded
that it had jurisdiction under § 2241 and rejected Bruce’s
Fowler-based actual innocence claim.




                               19
                               C
        Having assured ourselves of the District Court’s
jurisdiction, we shall proceed to consider the merits of this
appeal. We have jurisdiction to do so under 28 U.S.C. §§ 1291
and 2253(a). As no evidentiary hearing was held below, we
are presented solely with the District Court’s legal conclusion
to deny Bruce’s petition for a writ of habeas corpus, which we
shall review de novo. Woodall v. Federal Bureau of Prisons,
432 F.3d 235, 239 n.3 (3d Cir. 2005).
                              IV
       This leads to the question whether Gary Bruce was
convicted of conduct that is not a crime in light of Fowler. It
should be observed that we are venturing into something of a
habeas corpus frontier, this being the first case in which this
Court has considered the merits of an actual innocence claim
under § 2241.
                               A
       The Supreme Court has yet to decide whether a prisoner
can obtain habeas relief based on a freestanding claim of actual
innocence, having left the matter open time and again. Herrera
v. Collins, 506 U.S. 390, 404-05 (1993); House v. Bell, 547
U.S. 518, 554-55 (2006); District Attorney’s Office for Third
Judicial Dist. v. Osborne, 557 U.S. 52, 71-72 (2009). That
does not mean, however, that innocence is irrelevant: a
prisoner’s proof of actual innocence may provide a gateway for
federal habeas review of procedurally defaulted or untimely
claims of constitutional error. See McQuiggin v. Perkins, 133
S. Ct. 1924, 1931-32 (2013). Bruce’s actual innocence claim
does not come to us as a gateway issue. He is not seeking to
demonstrate his innocence so as to proceed with some
otherwise defaulted or untimely claim, but to obtain full habeas




                              20
relief. If Bruce were indeed asserting a freestanding actual
innocence claim, “the threshold showing for such an assumed
right would necessarily be extraordinarily high.” Herrera, 506
U.S. at 417.
        We need not resolve whether Bruce’s actual innocence
claim is a freestanding one. This Court’s precedent instructs
that actual innocence claims under § 2241 are to be initially
tested against the more relaxed (but still stringent) actual
innocence gateway standard. Tyler, 732 F.3d at 246. To
succeed under that standard, 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). In order “to
balance the societal interests in finality . . . and conservation of
scarce judicial resources with the individual interest in justice
that arises in the extraordinary case,” Schlup v. Delo, 513 U.S.
298, 324 (1995), the gateway standard is purposefully
“demanding” and was formulated to ensure that a successful
petitioner’s case is “truly extraordinary.” House, 547 U.S. at
537-38 (internal quotation marks omitted); see also
McQuiggin, 133 S. Ct. at 1928 (cautioning that “tenable actual-
innocence gateway pleas are rare”). A petitioner can meet this
standard “by demonstrating an intervening change in law that
rendered his conduct non-criminal.” Tyler, 732 F.3d at 246.
Failure to meet the gateway standard is sufficient to reject any
hypothetical freestanding actual innocence claim. Albrecht v.
Horn, 485 F.3d 103, 126 (3d Cir. 2007); see also House, 547
U.S. at 555 (noting that a freestanding actual innocence claim
would require “more convincing proof of innocence” than that
needed to meet the gateway standard).
        Because “‘actual innocence’ means factual innocence,
not mere legal insufficiency,” the Government “is not limited
to the existing record to rebut any showing that [the] petitioner



                                21
may make.” Bousley, 523 U.S. at 623-24. A habeas court is
therefore “not bound by the rules of admissibility that would
govern at trial,” but must instead “make its determination ‘in
light of all the evidence, including that alleged to have been
illegally admitted (but with due regard to any unreliability of
it) and evidence tenably claimed to have been wrongly
excluded or to have become available only after the trial.’”
Schlup, 513 U.S. at 327-28 (quoting Henry J. Friendly, Is
Innocence Irrelevant? Collateral Attack on Criminal
Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)). With this
broader array of evidence in view, the district court does not
exercise its “independent judgement as to whether reasonable
doubt exists”; rather, the actual innocence standard “requires
the district court to make a probabilistic determination about
what reasonable, properly instructed jurors would do.” Id. at
329. And it must be presumed, moreover, that a reasonable
juror “would consider fairly all of the evidence presented” and
“conscientiously obey the instructions of the trial court
requiring proof beyond a reasonable doubt.” Id.
        After Fowler, a conviction for witness tampering
murder requires the Government to prove: (1) the defendant
killed or attempted to kill a person; (2) the defendant was
motivated by a desire to prevent the communication between
any person and law enforcement authorities concerning the
commission or possible commission of an offense; (3) that
offense was actually a federal offense; and (4) a reasonable
likelihood that the person whom the defendant believes may
communicate with law enforcement would in fact make a
relevant communication with a federal law enforcement
officer. Tyler, 732 F.3d at 252. Bruce’s actual innocence claim
focuses solely on the reasonable likelihood element.
        Establishing a reasonable likelihood requires
“evidence—not merely argument of the witness’s cooperation



                              22
with law enforcement.” Id. (internal quotation marks omitted).
The statute nevertheless reaches conduct that “takes place
before the victim has engaged in any communication at all with
law enforcement officers—at a time when the precise
communication and nature of the officer who may receive it
are not yet known.” Fowler, 563 U.S. at 673. And in this
regard, the Government “need not prove that a federal
investigation was in progress at the time the defendant
committed a witness-tampering offense.” Tyler, 732 F.3d at
252 (brackets and internal quotation marks omitted). Nor must
the Government show that such a communication, “had it
occurred, would have been federal beyond a reasonable
doubt.” Fowler, 563 U.S. at 678. The Government need only
show that “the likelihood of communication to a federal officer
was more than remote, outlandish, or simply hypothetical.” Id.
This is a “relatively low bar.” Smith, 723 F.3d at 518.
       Of course, the bar is low for the Government at trial.
“Once a defendant has been afforded a fair trial and convicted
of the offense for which he was charged, the presumption of
innocence disappears.” Herrera, 506 U.S. at 399; see also
Schlup, 513 U.S. at 326 n.42 (A habeas petition asserting an
actual innocence claim “comes before the habeas court with a
strong—and in the vast majority of the cases conclusive—
presumption of guilt.”). So the Government’s low bar is
instead a high hurdle for Bruce. Compounded with the
extraordinary showing needed to establish his innocence,
Bruce’s burden of proof is a heavy one.
                              B
      Applying these principles, we now address whether it is
more likely than not that any reasonable juror would have
reasonable doubt that Gary Bruce killed Danny Vine and Della
Thornton to prevent them from communicating with a federal




                              23
law enforcement officer. Three sets of considerations to be
discussed demonstrate why, in our view, Bruce cannot make
this extraordinary showing.
        First, Bruce’s robbery and arson were undisputed
federal offenses. Vine ran an interstate shell buying business
out of his home. The mussel shells that Bruce and his cohorts
stole were later sold in Kentucky. And the ATF has authority
to investigate suspicious fires at commercial locations, see 18
U.S.C. §§ 844(i) and 846, as it eventually did in this very case.
        To be sure, “when a defendant acts in ways that violate
state criminal law, some or all of those acts will violate federal
criminal law as well.” Fowler, 563 U.S. at 676. Fowler gave
the enforcement of marijuana offenses as an example of
federal-state overlap. Id. at 677. But the armed robbery and
arson of an interstate business is a far cry from a marijuana
offense and even further afield from being a crime that would
raise significant federalism concerns. The Fowler Court
“certainly did not suggest that, when other evidence
demonstrated a reasonable likelihood of communication with
a federal officer, the fact that the underlying crime could have
been prosecuted under both state and federal law precluded
prosecution under” the witness tampering murder statute.
United States v. Ramos-Cruz, 667 F.3d 487, 498 (4th Cir.
2012); see also United States v. Veliz, 800 F.3d 63, 75 (2d Cir.
2015) (noting in the context of 18 U.S.C. § 1512(b)(3), the
materially identical witness tampering statute, that “the very
fact that communication with federal officials took place
months after [the defendant’s] solicitations lends some support
to a finding that the communications were reasonably likely at
the time of the solicitations”).
        Furthermore, the fact that a federal investigation
ultimately occurred after Vine and Thornton’s murder is
probative evidence of the likelihood that they would have



                               24
eventually communicated with a federal officer. Had either
survived, it is scarcely remote, outlandish, or simply
hypothetical that they would have communicated with one of
the FBI or ATF agents assigned to the investigation. And to
the extent TBI Special Agent Daniel and other Tennessee
officers participated in the investigation after federal
intervention, they too would count as federal officers. See 18
U.S.C. § 1515(a)(4) (for purposes of the witness tampering
murder statute a “law enforcement officer” includes “a person
authorized to act for or on behalf of the Federal Government or
serving the Federal Government as an adviser or consultant”).
        Bruce makes much of the two-year gap between the
crime and the involvement of federal authorities. He argues
that Fowler requires “objective proof that federal involvement
was reasonably likely at the time of the victim’s death,” and
that this proof must be “particular to the victim.” Bruce Br. 17
(emphasis deleted). But under Fowler temporal remoteness
has to do with the degree of likelihood of federal involvement.
Congress intended the statute to apply “where the defendant
killed the victim before the victim had decided to communicate
to law enforcement officers.” Fowler, 568 U.S. at 676. And
here, the very reason for the two-year interval is exactly why
federal involvement became necessary.
        That leads to the second consideration to be discussed.
The record from Bruce’s trial confirms that, consistent with the
Bruce family’s long-held history of violence, their campaign
of fear and witness intimidation stymied the state investigation,
making federal intervention essential. Indeed, Bruce admitted
as much while detained pre-trial at the McNary County,
Tennessee jail. There, Gary and Jerry Bruce got to know a
fellow inmate named James McGrogan. The two brothers
expressed to McGrogan their belief that they owned and ran
Benton County and that “nobody was supposed to interfere



                               25
with them [or] their family.” J.A. 694. Were any witnesses to
testify against the Bruces “they would be sorry.” Id. The
brothers also explained how they hoped that “other members
of their family would be able to frighten some people” so their
case “would never come to trial.” J.A. 701. And just before
Gary Bruce began his escape from the jail, “his last words were
that there wouldn’t be any witnesses or their fucking families.”
J.A. 708.
        Several key witnesses testified at Bruce’s trial that they
were too scared to cooperate until the federal investigation
began. Ralph Sentell, Jr. owned the gas station where Gary,
Jerry, and Robert Bruce filled several containers of gasoline
the night of the murders. Sentell initially did not cooperate
with state investigators because, having known Gary Bruce for
twenty years, he was scared of the Bruces’ “reputation and
what they were capable of doing.” J.A. 649-50. After Sentell
testified to the federal grand jury, Gary Bruce tried to
intimidate Sentell by lingering around the gas station. This
scared Sentell, who began carrying a pistol and asked the FBI
and TBI at least twenty times if he could be placed in a witness
protection program.
        Patricia Odham hosted a party at her trailer the day
before the murders. It was there that Bruce and others agreed
they would rob Vine’s shell camp. Odham knew the Bruce
family well and was afraid she would be killed if she
cooperated with the investigation. When Odham was first
interviewed by Special Agent Daniel, she did not say anything
about the party. Despite this, suspicious things began
happening at her property; after Odham had her then-boyfriend
Mike Franklin speak to Bruce, the events stopped. Odham
eventually moved to Alabama with Franklin and did not
cooperate until at least a year and a half after the murders.
        Ira Travis is a first cousin of the Bruces who has known



                               26
the family his entire life. He was present when the robbery
was planned at Odham’s trailer, but declined to participate in
its execution. Travis initially told Special Agent Daniel that he
knew nothing. Due to his familiarity with the Bruces and
“what they do,” Travis feared for his and his family’s safety.
J.A. 544. He eventually fled Tennessee for nearly five years,
and did not cooperate with authorities until he met with federal
investigators in January 1996.
        Tammy Rayburn was offered money from Robert Bruce
to supply an alibi for the murders. Rayburn, who had
previously dated Robert, did not come forward with this
information for several years because she was scared of the
Bruces. Rayburn’s fear was due in part to stalking by Kathleen
Bruce, who would park her car next door to Rayburn’s house
and stare at Rayburn.
        John Norrell saw David Riales speed away from Vine’s
house in Vine’s truck the night of the murders. Due to hearing
“rumors of people being murdered and threatened,” Norrell did
not approach the authorities with this information for a year
and a half. J.A. 751. When Norrell learned of Gary Bruce’s
pre-trial escape from jail, he feared for his life and considered
entering a witness protection program. He was instead given
$4,000 from the FBI to move out of state.
        Other testimony from Bruce’s trial detailed the Bruce
family’s efforts to intimidate witnesses. Shannon Irwin was
dating Robert Bruce at the time of the murders and later
married Jerry Bruce. After Special Agent Daniel interviewed
Irwin, Kathleen Bruce began to follow her around town. Later,
Gary Bruce told Irwin that “he could kill [Irwin] and his
momma right there and it would never be on his conscience.”
J.A. 789-90.
        Wayne Decker spoke with Special Agent Daniel after
the federal grand jury investigation started. Decker had known



                               27
the Bruces for more than thirty years. After observing Daniel
serve Decker with a subpoena, Gary and Robert Bruce
confronted Decker. Knowing “the way [the Bruces] operate
and the way they live,” Decker lied to the Bruces about what
he had told Daniel so as to not “put [himself] in danger.” J.A.
818, 822.
       Danny Vine’s father Larry Vine was also subject to the
Bruces’ intimidation. A couple months after the murders, Gary
and Jerry Bruce ran Larry Vine off the road with their truck.
Another time, Jerry Bruce cut Larry Vine off at an intersection
and stared him down. Other members of the Bruce family
would make obscene gestures at Larry Vine anytime they saw
him around Camden.
       Gary Bruce even threatened Special Agent Daniel.
Prior to federal intervention, when Tennessee authorities
executed a search warrant on Bruce’s property, Bruce made
several violent taunts threatening to kill Daniel. Among other
things, Bruce told Daniel: “Had I known you were coming, I
would have met you down the road with a rifle, and you would
have never made it up on the property.” J.A. 837.
       Third and finally, additional evidence outside of
Bruce’s trial record confirms that federal involvement was
necessary and inevitable. Mike Franklin was present at
Patricia Odham’s trailer when Bruce and others planned to rob
Vine’s shell camp. Franklin was dating Odham at the time and
was close with Gary Bruce. At the April 1995 trial of Bruce’s
codefendants, he testified that he and Odham moved to
Alabama because they were nervous about things in Benton
County. Franklin did not cooperate with authorities until he
and Odham reached out to Special Agent Daniel about a year
and a half after the murders. Also at the 1995 trial, Ralph
Sentell testified that Gary Bruce tried to intimidate him into
lying about whether the Bruces bought gas at Sentell’s station



                              28
the night of the murders. And ATF Special Agent Mark
Teufert likewise explained that, despite efforts from authorities
in multiple states, Ira Travis could not be located in time for
the 1995 trial.
        At Jerry Bruce’s September 1994 bond hearing, Benton
County sheriff’s deputy Robert Weller testified about the
Bruce family’s reputation. He detailed how the Bruces
attempted to intimidate Special Agent Daniel to “slow up the
possibility of gaining new evidence.” J.A. 181. Weller also
explained that “[i]t’s hard to investigate the family” because
sheriff’s deputies were “scared of them.” J.A. 194, 201. For
local law enforcement, the approach was: “If you’re going to
stop a Bruce, make sure you have backup. If you’re going to
call, make sure you have somebody else with you. And,
generally, if you don’t have to mess with them, don’t mess with
them.” J.A. 176.
        The federal nature of Bruce’s crimes, the evidence
produced by the Government at his trial, and additional record
evidence all clearly establish that the Bruce family had a long-
standing history of violence that was well-known to members
of the community before the murders. The Bruces’ reputation
manifested itself later as witnesses were intimidated from
cooperating until after federal authorities became involved.
Much of the evidence in this case consists of post-offense acts
of Gary Bruce and his codefendants that demonstrate a
continuous plan to avoid prosecution for the events of January
16, 1991. These facts defeat Bruce’s present assertion that the
two-year interval between the murders and the involvement of
federal authorities undermines the reasonable likelihood that
Vine and Thornton would have made a “relevant
communication with a federal law enforcement officer.” Tyler,
732 F.3d at 252. It should be noted, however, that post-offense
acts are appropriately considered here given the wide-open



                               29
evidentiary universe that attends this actual innocence
proceeding. While evidence of post-offense acts can certainly
be relevant to any reasonable likelihood determination, the
weight of such evidence may present a different question at
trial, when constraints on the admissibility of evidence are in
play. That question is not considered in this case.
        In sum, the Court holds that any reasonable juror faced
with “‘all the evidence,’” Schlup, 513 U.S. at 328 (quoting
Friendly, 38 U. Chi. L. Rev. at 160), would conclude that, had
Danny Vine and Della Thornton survived, the likelihood that
they would have communicated with a federal officer was
more than remote, outlandish, or simply hypothetical. It
therefore follows that any reasonable juror would convict
Bruce of witness tampering murder.
                       *      *      *
        Charles Gary Bruce has now been afforded a
meaningful opportunity to demonstrate his innocence in light
of the Supreme Court’s decision in Fowler. For the reasons
stated, that is an extraordinary showing he cannot make. The
judgment of the District Court will be affirmed.




                              30
