                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                             File Name: 19a0245p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT



 WILLIAM ANDREW WRIGHT,                                           ┐
                                       Petitioner-Appellant,      │
                                                                  │
                                                                  >        No. 17-4257
          v.                                                      │
                                                                  │
                                                                  │
 STEPHEN SPAULDING, Warden,                                       │
                                      Respondent-Appellee.        │
                                                                  ┘
                             Appeal from the United States District Court
                           for the Northern District of Ohio at Youngstown.
                      No. 4:17-cv-02097—Christopher A. Boyko, District Judge.

                                          Argued: April 15, 2019

                                 Decided and Filed: September 19, 2019

               Before: SILER and THAPAR, Circuit Judges; HOOD, District Judge.*

                                            _________________

                                                 COUNSEL

ARGUED:        Angela M. Schaefer, BRADLEY ARANT BOULT CUMMINGS LLP,
Huntsville, Alabama, for Appellant. Segev Phillips, UNITED STATES ATTORNEY’S
OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Angela M. Schaefer, Scott Burnett
Smith, BRADLEY ARANT BOULT CUMMINGS LLP, Huntsville, Alabama, Edmund Scott
Sauer, BRADLEY ARANT BOULT CUMMINGS LLP, Nashville, Tennessee, for Appellant.
Segev Phillips, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, Joshua K.
Handell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Clark D. Cunningham, GEORGIA STATE UNIVERSITY COLLEGE OF LAW, Atlanta,
Georgia, for Amici Curiae. William A. Wright, Lisbon, Michigan, pro se.

        THAPAR, J., delivered the opinion of the court in which SILER, J., and HOOD, D.J.,
joined. THAPAR, J. (pp. 16–21), also delivered a separate concurring opinion.

        *The  Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
 No. 17-4257                            Wright v. Spaulding                              Page 2


                                       _________________

                                              OPINION
                                       _________________

       THAPAR, Circuit Judge. The circuits have extended habeas law far beyond the limits set
by Congress. How far? The simple answer is not far enough to help William Wright. The more
complicated answer follows.

                                                 I.

       First, a quick procedural history. As a felon in possession of a firearm, William Wright
would normally receive up to ten years in prison. But Wright had three prior convictions for
“serious drug offenses,” so he qualified as an armed career criminal. That meant at least
15 years’ imprisonment (and a maximum of life). A Maryland district judge accepted his plea
and gave him the minimum sentence. At the time, Wright did not dispute his status as an armed
career criminal, nor did he file an appeal.

       Instead, Wright challenged his sentence years later, after the Supreme Court handed
down Johnson v. United States, 135 S. Ct. 2551 (2015). That decision held the “residual clause”
of the Armed Career Criminal Act to be unconstitutionally vague. Id. at 2563; see 18 U.S.C.
§ 924(e)(2)(B)(ii). But Wright had a problem: his argument had nothing to do with Johnson or
the residual clause (which related to violent felonies, not drug offenses). So the Maryland
district court denied his § 2255 motion.

       Yet Wright was not done trying to challenge his sentence. He took another shot after the
Supreme Court handed down Mathis v. United States, 136 S. Ct. 2243 (2016). But this time he
faced a different problem: he couldn’t file a new motion in the sentencing court because the
habeas statutes limit “second or successive” motions. See 28 U.S.C. § 2255(h). Instead, Wright
filed a habeas corpus petition in the district court where he now happened to be imprisoned: the
Northern District of Ohio. The district court dismissed his petition. Wright appealed.
 No. 17-4257                             Wright v. Spaulding                               Page 3


                                                   II.

        This case is about two things: habeas and holdings. Under the system Congress enacted,
Wright’s habeas petition would be dead on arrival. Congress prescribed one venue to challenge
your sentence after appeal: the sentencing court. And it imposed limits on the number and
timing of challenges. But that system left some prisoners without a shot at relief. So courts, this
one included, used something known as the “saving clause” to create an escape hatch.

        Soon courts found themselves construing not just the law as written but also the law as
applied (and misapplied) by courts. Yet interpreting precedents is not always an easy business.
Especially when they add to, rather than implement, what Congress has done. To understand
what binds us, then, we must first know some basics. About the habeas system: what the
statutes say, where they came from, and what about them sent courts looking for a workaround.
And about how courts operate: by resolving concrete disputes and announcing the legal rules
essential to doing so. Those necessary decisions are the holdings that bind future courts. Not
dispensable dicta that sweep more broadly than the issue at hand. To ignore these principles is to
risk drifting far from any law enacted by Congress or decided by a court.

        Armed with these basics, we discover the law that governs Wright’s case. And that law
makes clear that Wright’s petition must be dismissed.

                                                   III.

        The general habeas statute empowers federal courts to grant the writ.           28 U.S.C.
§ 2241(a). Until 1948, any federal prisoner who wanted to challenge his detention relied on this
statute. But that created a problem for jurisdictions with many federal prisons, since prisoners
had to petition in the district in which they were housed. And that meant certain districts bore
the brunt of federal habeas litigation. To solve this problem, Congress enacted § 2255. The new
statute directed federal prisoners to challenge their sentences in the district where they were
sentenced, not the district of detention. See id. § 2255(a), (c); United States v. Hayman, 342 U.S.
205, 212–19 (1952) (discussing the history); Prost v. Anderson, 636 F.3d 578, 587–88 (10th Cir.
2011) (same). In other words, prisoners would file a motion under § 2255 in their sentencing
court, not a traditional habeas petition in the court of their prison district.
 No. 17-4257                            Wright v. Spaulding                                Page 4


          As the Supreme Court later explained, the “sole purpose” of § 2255 was to change the
venue for challenges to a sentence. Hayman, 342 U.S. at 219. Congress’s decision to redirect
sentencing back to the sentencing court made perfect sense. If the sentencing judge erred in
sentencing the defendant, then he or she should fix it. The best judge to fix a sentence is a judge
intimately familiar with the defendant, the case, and the local practices. Not a judge who has
never touched the case before.

          But § 2255 never replaced § 2241 in its entirety. From the beginning, § 2255 was
qualified by a saving clause—in non-legalese, an “unless.” A habeas petition by a federal
prisoner is barred “unless . . . the [§ 2255] remedy by motion is inadequate or ineffective to test
the legality of his detention.” 28 U.S.C. § 2255(e). In that case, a § 2241 petition might be
viable.

          The statute does not say when the motion remedy is “inadequate or ineffective[.]” But it
is easy to think of examples. By its terms, § 2255 only covers challenges to a sentence. See
id. § 2255(a) (authorizing motions “to vacate, set aside, or correct the sentence” “upon the
ground that the sentence was imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is otherwise subject to collateral attack”).
And an invalid sentence is hardly the only thing a federal prisoner might challenge. Imagine a
warden held a prisoner in a manner contrary to or not authorized by the sentence. In that case,
§ 2255 would be “inadequate or ineffective to test the validity of his detention,” and § 2241
would be the correct cause of action. Id. § 2255(e); see also Samak v. Warden, FCC Coleman-
Medium, 766 F.3d 1271, 1284–86 (11th Cir. 2014) (Pryor, J., concurring). Another example
would be if the sentencing court no longer exists. See Prost, 636 F.3d at 588; Witham v. United
States, 355 F.3d 501, 504–05 (6th Cir. 2004).

          That’s how courts read the saving clause for most of its history. The rule was simple:
§ 2255 for attacks on a sentence, § 2241 for other challenges to detention. See, e.g., Wright v.
U.S. Bd. of Parole, 557 F.2d 74, 77 (6th Cir. 1977). Then two events led to a judicial expansion
of the saving clause.
 No. 17-4257                            Wright v. Spaulding                                Page 5


          First, a case. The Supreme Court held that using a firearm required more than mere
possession, it required “active employment.” Bailey v. United States, 516 U.S. 137, 144 (1995).
This holding undid years of more expansive circuit precedent. See id. at 142–43.

          Second, a statute. Congress passed the Antiterrorism and Effective Death Penalty Act in
1996. AEDPA tried to curb what courts used to call “abuse of the writ”—the nonstop filing of
meritless habeas petitions. See Felker v. Turpin, 518 U.S. 651, 664 (1996). Under the statute,
“second or successive” motions by federal prisoners have had to rely on either (1) new and
convincing evidence that the prisoner is innocent or (2) a new and previously unavailable rule of
constitutional law that the Supreme Court has made retroactive. 28 U.S.C. § 2255(h).

          The one-two punch of Bailey and AEDPA raised a problem: what to do about prisoners
who (1) were convicted and sentenced under the expansive pre-Bailey definition of using a
firearm, (2) filed a § 2255 motion before Bailey, and (3) could not succeed before Bailey because
of then-binding circuit precedent. Bailey was not new evidence. Nor was it a new rule of
constitutional law. It was just a run-of-the-mill case of statutory interpretation. So Bailey did
those prisoners no good—they could not satisfy either of the § 2255(h) gateways for a second or
successive motion.

          This bothered courts. It seemed unfair to apply § 2255(h) to close the procedural door on
prisoners whose Bailey arguments might be winners. And so, one by one, circuits started to
devise a workaround: the saving clause. The Third Circuit led the way, holding that § 2255 did
not bar a § 2241 petition by someone in the “unusual position” of having had “no earlier
opportunity” to bring a Bailey argument. In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997).
The Second Circuit followed suit. Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997).
And the third court to speak, the Seventh Circuit, held that a prisoner had “no reasonable
opportunity” to challenge his sentence if binding precedent foreclosed such a challenge. In re
Davenport, 147 F.3d 605, 610 (7th Cir. 1998).            Since the prisoner had “no reasonable
opportunity,” § 2255 was not an adequate remedy. Id. at 611. Enter § 2241 through the saving
clause.
 No. 17-4257                           Wright v. Spaulding                               Page 6


       By making § 2241 a substitute for procedurally barred § 2255 motions, these cases
expanded the saving clause beyond its original function. Still, the expansion was not unbounded.
It was a fix for prisoners facing a specific problem: a new case proved their innocence but,
practically speaking, they could not obtain relief thanks to binding precedent in the past and
procedural barriers going forward. Was that what Congress meant by “inadequate or ineffective”
when it wrote the saving clause? Doubtful. But at least the doctrine that crystallized in these
earlier cases had a logic—and a limiting principle—of its own. And this logic soon spread to
most of the remaining circuits. See, e.g., Abdullah v. Hedrick, 392 F.3d 957, 960–63 (8th Cir.
2004); Ivy v. Pontesso, 328 F.3d 1057, 1059–60 (9th Cir. 2003); Reyes-Requena v. United States,
243 F.3d 893, 904 (5th Cir. 2001); In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000); Wofford v.
Scott, 177 F.3d 1236, 1244 (11th Cir. 1999), overruled by McCarthan v. Dir. of Goodwill Indus.-
Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017) (en banc).

                                               IV.

       Of course, what binds us here is not the precedent of other circuits but the precedent of
this one. And when this circuit joined the bandwagon, it followed the approach then in vogue,
letting prisoners use the saving clause to present (1) claims of actual innocence (2) that they
could not reasonably present sooner.

       But this case is about whether recent decisions have departed from the path laid out by
other circuits and our earlier caselaw. See, e.g., Hill v. Masters, 836 F.3d 591 (6th Cir. 2016).
And to make that determination, we first must understand what in our prior decisions is binding.
Unfortunately, the teachings of precedent are not always as clear as we might wish. Especially
in a complicated area like habeas.      Most of all when we are dealing with the “rococo
jurisprudence” that has built up around the saving clause. Prost, 636 F.3d at 596. So before we
take a stroll down precedent lane, we must consider some first principles: What do we look for
when we study precedents? What in them are we bound by? And how do we know?

                                               A.

       Like most circuits, this circuit follows the rule that the holding of a published panel
opinion binds all later panels unless overruled or abrogated en banc or by the Supreme Court.
 No. 17-4257                                   Wright v. Spaulding                                           Page 7


But only holdings are binding, not dicta. Scarber v. Palmer, 808 F.3d 1093, 1096 (6th Cir.
2015); see also Cohens v. Virginia, 19 U.S. 264, 399 (1821). So to know what binds us, we must
be able to separate holdings from dicta.

         The rule is grounded foremost in constitutional principle. Federal courts are limited to
deciding “Cases” and “Controversies.” U.S. Const. art. III, § 2; see also Valley Forge Christian
Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982)
(reminding courts that judicial power exists only “to adjudge the legal rights of litigants in actual
controversies” (cleaned up)). The federal courts have no power but judicial power. And by its
nature, the judicial power does not act on issues in the abstract. See, e.g., Muskrat v. United
States, 219 U.S. 346, 361–62 (1911). Rather, it “is capable of acting only when the [issue] is
submitted to it by a party who asserts his rights[.]” Osborn v. Bank of the U.S., 22 U.S. 738, 819
(1824). Only then does the issue “become[] a case” and “assume such a form that the judicial
power is capable of acting on it.” Id.; see also, e.g., Pacificus No. 1 (Alexander Hamilton), in
Letters of Pacificus and Helvidius 8 (Washington, Gideon 1845) (“The province of [the judicial]
department is to decide litigations in particular cases. It is indeed charged with the interpretation
of treaties, but it exercises this function only where contending parties bring before it a specific
controversy.”); 1 Baron de Montesquieu, The Spirit of Laws, in The Complete Works 198
(London 1777) (defining “the judiciary power” as that which “punishes criminals, or determines
the disputes that arise between individuals”).

         The idea of a case or controversy implies a few things.1 One thing it implies is “the
existence of present or possible adverse parties, whose contentions are submitted to the court for
adjudication.”      Muskrat, 219 U.S. at 357 (cleaned up).                 Another is that the court can do
something about the dispute. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); see also
Muskrat, 219 U.S. at 362 (explaining that, “[i]n a legal sense, the judgment” of an advisory


         1We   asked the parties to file supplemental briefs on the original meaning of Article III’s case-or-
controversy requirement, specifically whether the corpus of Founding-era American English helped illuminate that
meaning. A team of corpus linguistics researchers submitted two amicus briefs as well. We are grateful to both the
parties and the amici for their hard work. Here, we agree with the parties that corpus linguistics turned out not to be
the most helpful tool in the toolkit. See Wilson v. Safelite Grp., Inc., 930 F.3d 429, 445–46 (6th Cir. 2019) (Stranch,
J., concurring) (voicing some practical reservations about corpus linguistics); id. at 440 (Thapar, J., concurring in
part and concurring in the judgment) (agreeing that “corpus linguistics is one tool . . . but not the whole toolbox”).
 No. 17-4257                                   Wright v. Spaulding                                            Page 8


opinion “could not be executed”). So if the court’s answer to a legal question can make no
difference to the parties before it, that question is not part of the case. And outside a case, an
analysis of an issue can be many things—deliberate or hasty, compelling or unpersuasive,
thorough or thinly reasoned—but one thing it cannot be is an exercise of judicial power. Even
when it comes packaged in a judicial opinion.

         If constitutional principle were not enough, there are also good practical reasons to cabin
a precedent’s binding force to its holding. As Chief Justice Marshall explained in Cohens, “[t]he
question actually before the Court is investigated with care, and considered in its full extent.”
19 U.S. at 399. Collateral issues rarely receive the same treatment. See id. at 399–400. Thus,
dictum is less likely to reflect a court’s deliberate judgment. See United States v. Burris,
912 F.3d 386, 410 (6th Cir. 2019) (en banc) (Kethledge, J., concurring in the judgment)
(“[D]ictum is usually a bad idea, because judges think differently—more carefully, more
focused, more likely to think things through—when our words bring real consequences to the
parties before us.”). And they may be liable to misinterpretation with snowballing consequences.
See Cohens, 19 U.S. at 399–400; United States v. Rabinowitz, 339 U.S. 56, 75 (1950)
(Frankfurter, J., dissenting) (describing the “progressive distortion” by which “a hint becomes a
suggestion, is loosely turned into dictum and finally elevated to a decision”).

         We can now start to distill some working principles. For a court’s conclusion about an
issue to be part of its holding:

         •       The decision of the issue must contribute to the judgment: whether and
         why the court affirms, reverses, vacates, or remands. A legal conclusion that is
         necessary to the judgment qualifies. So might one sufficient to support the
         judgment but not strictly necessary in light of an independent and equally
         sufficient conclusion—that is, when there are two independent reasons for the
         ruling. See Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997, 2044
         (1994); Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L.
         Rev. 953, 1027–29 (2005).2 But a conclusion that does nothing to determine the
         outcome is dictum and has no binding force.

         2The   same may go for certain conclusions that, while not affecting the judgment by themselves, are
necessary to structure the court’s path to those conclusions that are decisive for the judgment. But this is a hard
question. Compare, e.g., Dorf, supra, at 2046 (arguing that a court’s “considered opinion” that an error occurred is
not dictum, even if the court holds that it was harmless, in part because “until the court passes on the substantive
question, it will not know exactly what the error is that it must test for harmlessness”), with Pierre N. Leval, Judging
 No. 17-4257                                  Wright v. Spaulding                                          Page 9


         •       As a corollary, it must be clear that the court intended to rest the judgment
         (if necessary) on its conclusion about the issue. Put another way, the court must
         have actively applied the conclusion to the case in front of it. This rule helps
         distinguish a case of true independent holdings (e.g., “two genuine issues of
         material fact independently blocked summary judgment”) from one in which a
         court decides one issue and merely opines about another (e.g., “because the
         drivers disagreed about the color of the light, summary judgment was improper;
         we also note that they disagreed about the time of day, which might matter”).
         •       Finally, it must be clear that the court considered the issue and consciously
         reached a conclusion about it. Carroll v. Carroll’s Lessee, 57 U.S. 275, 287
         (1853). This rule honors “the long-held standard that ‘questions which merely
         lurk in the record, neither brought to the attention of the court nor ruled upon, are
         not to be considered as having been so decided as to constitute precedents.’”
         Rinard v. Luoma, 440 F.3d 361, 363 (6th Cir. 2006) (alteration adopted) (quoting
         Nemir v. Mitsubishi Motors Corp., 381 F.3d 540, 559 (6th Cir. 2004)).

         Like many legal standards, these principles will sometimes be easier to describe in theory
than to apply in practice. But without them, we are sure to fail in either or both of our
complementary duties: adhering to precedent when an issue has already been decided and
considering an issue with an open mind when it has not.

                                                         B.

         Now for a look at our own precedents on the saving clause. We joined the bandwagon
with Martin v. Perez, 319 F.3d 799 (6th Cir. 2003).3 Like Wright, Martin was a federal prisoner
convicted and sentenced by an out-of-circuit district court (the Southern District of Indiana), had
filed his initial § 2255 motion in that court (unsuccessfully), and then filed a § 2241 petition in
his district of confinement (the Eastern District of Kentucky). See id. at 801–02. Like the
prisoners in the post-Bailey cases, he claimed that a new Supreme Court decision proved his


Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1268 (2006) (condemning as dictum the
“error” part of “error, but harmless error”), and with Abramowicz & Stearns, supra, at 1065 (agreeing with Dorf, but
pinpointing “exactly why the harmless-error question is difficult, namely that one might dispute just how ordered the
test is”). And luckily, it is one we need not resolve here.
         3In  two earlier cases, this court denied saving-clause access while leaving it an open question whether it
would follow the other circuits’ approach. See United States v. Peterman, 249 F.3d 460, 462 (6th Cir. 2001);
Charles v. Chandler, 180 F.3d 753, 757 (6th Cir. 1999). And in a still earlier case, it opined that any procedural
barrier erected by AEDPA would make § 2255 inadequate or ineffective. See In re Hanserd, 123 F.3d 922, 929–30
(6th Cir. 1997). But that statement was clearly dictum because the court resolved the case on the simple ground that
AEDPA did not apply. See id. at 933–34.
 No. 17-4257                                   Wright v. Spaulding                                         Page 10


innocence by clarifying the elements of his crime of conviction. See id. at 804 (citing Jones v.
United States, 529 U.S. 848 (2000)). And like the prisoners in the post-Bailey cases, he would
have run into then-binding Seventh Circuit precedent had he raised his innocence argument in an
initial § 2255 motion.         See United States v. Prevatte, 300 F.3d 792, 795 (7th Cir. 2002)
(describing the circuit precedent Jones overruled).

         This court agreed that Martin could use the saving clause to pursue his innocence claim.
In doing so, it applied the Seventh Circuit’s reasoning in Prevatte. Martin, 319 F.3d at 804–05
(citing Prevatte, 300 F.3d at 800). And Prevatte, in turn, applied Davenport’s no-reasonable-
opportunity test to suggest that saving-clause relief might be available for prisoners in Martin’s
situation. See Prevatte, 300 F.3d at 798–800. In the same vein, the Martin panel pointed out
that “Jones was decided after [Martin] filed his first Section 2255 motion[.]” Martin, 319 F.3d at
805 (citing Prevatte, 300 F.3d at 800). Why? Because the panel thought it mattered that
Martin’s argument had been blocked by binding precedent until a new Supreme Court case
cleared the path.4

         So in this circuit, a federal prisoner who has already filed a § 2255 motion and cannot file
another one cannot access § 2241 just because a new Supreme Court case hints his conviction or
sentence may be defective. Rather, the prisoner must also show that binding adverse precedent
(or some greater obstacle) left him with “no reasonable opportunity” to make his argument any
earlier, “either when he was convicted and appealed or later when he filed a motion for
postconviction relief under section 2255[.]” Davenport, 147 F.3d at 610. Otherwise, § 2255 is
simply not inadequate or ineffective to test his claim.                    And nothing in this court’s later
precedents gainsays this principle.5


         4Martin  also “affirmed the authority” of Early v. Lamanna, an unpublished case that “more fully” laid out
the ideas underpinning Martin. 319 F.3d at 803 n.1 (citing No. 98-3892, 1999 WL 435156 (6th Cir. June 17, 1999)).
And Early was even clearer that to file a § 2241 petition through the saving clause, a prisoner must show
“circumstances that prevented him from asserting his claims at an earlier opportunity,” such as “an intervening
change in the law” of the kind Davenport, Triestman, and Dorsainvil all involved. 1999 WL 435156, at *5 (citing
Davenport, 147 F.3d at 611–12; Triestman, 124 F.3d at 377–80; Dorsainvil, 119 F.3d at 251–52); see also id. at *4,
6.
         5True,  some cases have glossed over this requirement. But not all. See Wooten v. Cauley, 677 F.3d 303,
307 (6th Cir. 2012) (noting in dicta that the petitioner “could not have raised [a case narrowing an element of the
crime] in his prior proceedings”). And the ones that do gloss over it hold nothing to the contrary; in those cases, the
 No. 17-4257                                 Wright v. Spaulding                                       Page 11


        That includes Hill v. Masters, the case Wright and the government emphasize here. In
Hill, the panel let a federal prisoner use the saving clause to challenge his pre-Booker sentence
under the career-offender sentencing guideline. 836 F.3d at 600; see United States v. Booker,
543 U.S. 220 (2005). And in doing so, it assumed that Hill did not have a previous opportunity
to present his claim.       Thus, Hill held nothing inconsistent with the reasonable-opportunity
standard.

        The parties do not focus on the reasonable-opportunity standard when they discuss Hill.
Instead, they debate which of two similar, but differently worded, three-part tests in the opinion
represents the holding of the case. Compare 836 F.3d at 599–600, with id. at 595. But framing
the question that way puts the cart before the horse. Hill’s real holding is narrower than either
party contends.

        The first three-part test, which Wright argues is the holding, comes from the beginning of
the opinion’s saving-clause discussion:

        When seeking to petition under § 2241 based on a misapplied sentence, the
        petitioner must show (1) a case of statutory interpretation, (2) that is retroactive
        and could not have been invoked in the initial § 2255 motion, and (3) that the
        misapplied sentence presents an error sufficiently grave to be deemed a
        miscarriage of justice or a fundamental defect.

Id. at 595. Under this test, a prisoner must cite a new, retroactive decision and show that it
“could not have been invoked in the initial § 2255 motion[.]” Id. To our ears, that sounds like a
paraphrase of the no-reasonable-opportunity test that this court inherited from other circuits.
Tracing the Hill test to its roots confirms our suspicion. See id. (citing Brown v. Caraway,
719 F.3d 583, 586 (7th Cir. 2013); Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332,
1343 (11th Cir. 2013)); Brown, 719 F.3d at 586 (basing the test on Davenport, 147 F.3d at 611);
id. at 587 (holding that “Brown could not have raised his current argument in his first section
2255 motion because it was foreclosed by binding precedent at the time”); Williams, 713 F.3d at


issue was not considered nor would it have changed any outcomes. See Harrington v. Ormond, 900 F.3d 246, 249
(6th Cir. 2018) (approving § 2241 petition by prisoner who was sentenced in Iowa and relied on a Supreme Court
case overruling adverse Eighth Circuit precedent); Paulino v. United States, 352 F.3d 1056, 1061 (6th Cir. 2003)
(dismissing § 2241 petition not based on actual innocence); Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir. 2003)
(same).
 No. 17-4257                            Wright v. Spaulding                                    Page 12


1343 (basing the test on Davenport, 147 F.3d at 611, and its Eleventh Circuit offspring Wofford,
177 F.3d at 1244); id. (“[T]he only sentencing claims that may conceivably be covered by the
saving[] clause are those based upon a retroactively applicable Supreme Court decision
overturning circuit precedent.” (quoting Wofford, 177 F.3d at 1245)); id. (explaining that a
“necessary” and “essential” condition of the saving clause “is that the Supreme Court decision
must have overturned a circuit precedent that squarely resolved the claim so that the petitioner
had no genuine opportunity to raise it at trial, on appeal, or in his first § 2255 motion”).

       The Hill panel did not select this test on its own. Rather, the parties “agreed upon” the
test that the two other circuits had “set out[.]” 836 F.3d at 595. In other words, all Hill did was
apply the law the parties provided.

       That was not all the parties agreed on. They also “agree[d]” that Hill “established the
first and second conditions[.]” Id. at 595. Unsurprisingly, the panel did not analyze those issues.
It just noted, where relevant, that the government “concede[d]” them. Id. at 595–96, 599.

       The only point of controversy in Hill was the third element in the parties’ test: whether
the error in Hill’s sentence was a “fundamental defect.” Id. at 595. After considering that issue
and the parties’ arguments on both sides, the panel said it was. See id. at 596–99. So Hill’s
§ 2241 petition got to pass through the saving clause. Id. at 600.

       At no point did the Hill panel consider and consciously decide whether Hill’s claim had
previously been unavailable. Again, the government conceded that issue and the opinion did not
discuss it except to note the concession. Id. at 595. There was no “application of the judicial
mind” to that question, so there was no “decision” about it. Carroll, 57 U.S. at 287.

       Our hands are not tied in a later case just because, in an earlier one, a party conceded an
issue and the panel took that concession at face value. A court’s primary duty is to resolve the
dispute in front of it. And in our adversarial system, courts chiefly rely on the parties to give
them not just the facts but the law and the issues as well. See Carducci v. Regan, 714 F.2d 171,
177 (D.C. Cir. 1983) (Scalia, J.) (“[A]ppellate courts do not sit as self-directed boards of legal
inquiry and research, but essentially as arbiters of legal questions presented and argued by the
parties before them.”). It would be at least imprudent, and maybe improper, to make binding
 No. 17-4257                                   Wright v. Spaulding                                          Page 13


precedent out of a court’s simple acquiescence in the parties’ concessions and assumptions.
See Cohens, 19 U.S. at 399–400; cf. Massachusetts v. United States, 333 U.S. 611, 639–40
(1948) (Jackson, J., dissenting) (“I see no reason why I should be consciously wrong today
because I was unconsciously wrong yesterday.”).

         The law of issue preclusion provides a helpful analogy. Under that doctrine, only issues
“actually litigated” in a prior case are considered closed in a later one. Restatement (Second) of
Judgments § 27 (Am. Law Inst. 1982). And that does not include issues the parties conceded or
stipulated to. Id. § 27 cmt. (e); accord United States v. Kasler Elec. Co., 123 F.3d 341, 349 n.13
(6th Cir. 1997). It would be absurd if the rule for stare decisis, which binds our whole circuit,
were more sweeping than the rule for issue preclusion, which binds only the parties.6

         Ultimately, defining the outer limit of Hill’s holding is a question for another day. So too
the government’s argument that Hill conflicts with yet earlier precedent. Here, it is enough to
say that Hill changed absolutely nothing about the reasonable-opportunity requirement that
Martin inherited from other circuits. We therefore hold that a federal prisoner cannot bring a
claim of actual innocence in a § 2241 petition through the saving clause without showing that he
had no prior reasonable opportunity to bring his argument for relief.

                                                          V.

         Finally, we can turn to this case. Wright bases his habeas petition on Mathis, the 2016
case in which the Supreme Court clarified how to identify ACCA predicate offenses.
(The technical name for the method is the “categorical approach.” See Mathis, 136 S. Ct. at
2248.) But as the government points out, Wright’s claim never needed Mathis. To be sure,


         6To  be clear, we are not taking a hard line on the complicated issue of whether, or to what extent, or in
what circumstances, parties can “stipulate the law.” See generally Gary Lawson, Stipulating the Law, 109 Mich. L.
Rev. 1191 (2011). Courts clearly have the power to determine the governing law independent of the parties’
representations. See U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446–48 (1993). But,
just as clearly, they do not always exercise that power. See, e.g., Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd., 561 U.S. 477, 483 (2010) (“The parties do not ask us to reexamine any of these precedents, and we
do not do so.”); id. at 487 (“The parties agree that [SEC] Commissioners [are not removable at will], and we decide
the case with that understanding.” (citations omitted)). For example, in Free Enterprise Fund, when the Supreme
Court assumed (based on the parties’ agreement) that SEC commissioners are only removable for cause and
“decide[d] the case with that understanding,” it surely did not create binding precedent to that effect. Id. at 487. The
same principle applies to this court’s decisions.
 No. 17-4257                                  Wright v. Spaulding                                         Page 14


Wright could not cite Mathis, specifically, before it existed. But a claim for habeas relief is more
than the talismanic force of a new case name. A new case matters only, if at all, because of the
new legal arguments it makes available.7

        Labels aside, here is the substance of Wright’s claim: properly analyzed under the
categorical approach, the Maryland crime he was convicted of in 1989 was not an
ACCA-predicate “serious drug offense” because the maximum penalty for that crime was less
than ten years in prison. See 18 U.S.C. § 924(e)(2)(A)(ii). Mathis bolsters this argument given
that it clarifies the categorical approach. But Mathis did not invent the categorical approach.
See Mathis, 136 S. Ct. at 2251 (explaining that Taylor v. United States held that “[a]ll that counts
. . . are ‘the elements of the statute of conviction’” (quoting 495 U.S. 575, 601 (1990))); id. at
2257 (“For more than 25 years, we have repeatedly made clear that application of ACCA
involves, and involves only, comparing elements.”). In fact, it did not even break new ground.
See id. at 2257 (“Our precedents make this a straightforward case.”); In re Conzelmann, 872 F.3d
375, 376 (6th Cir. 2017) (“The Court’s holding in Mathis was dictated by prior precedent (indeed
two decades worth).”).

        Nor did Wright need Mathis to clear a path through erroneous Fourth Circuit precedent.
Wright has identified only one binding Fourth Circuit case (pre- or post-Mathis) that held that his
statute of conviction was a serious drug offense. See United States v. Washington, 629 F.3d 403
(4th Cir. 2011). Washington came before Wright’s § 2255 motion but well after his sentencing,




        7Sometimes     courts have phrased the saving-clause test in terms of whether a Supreme Court case
announced a “new rule.” See, e.g., Chazen v. Marske, — F.3d —, —, 2019 WL 4254295, at *8–9 (7th Cir. 2019)
(noting confusing variations in how the Seventh Circuit’s precedents have stated the test); id. at —, 2019 WL
4254295, at *12–13 (Barrett, J., concurring) (same). Yet this phrasing risks confusing the test for saving-clause
access with Teague v. Lane’s “new rule” test for retroactivity, a separate habeas-related doctrine. See 489 U.S. 288,
301 (1989). This “new rule” concept is ubiquitous in habeas law—both because Teague is an important habeas
doctrine and because some AEDPA provisions incorporate it by reference. See, e.g., 28 U.S.C. § 2255(h)(2). So
courts sometimes fall back on this familiar “new rule” language in the context of saving-clause cases. But luckily
our circuit has avoided this mistake. The post-Bailey-and-AEDPA saving-clause caselaw is not based on Teague.
Nor does it interpret any provisions of AEDPA. (On the contrary, it exists to circumvent AEDPA.) Rather than
mirroring Teague’s “new rule” test, the central idea of the post-Bailey-and-AEDPA saving-clause cases is “whether
an intervening case of statutory interpretation opens the door to a previously foreclosed claim.” Chazen, — F.3d at
—, 2019 WL 4254295, at *9.
 No. 17-4257                                   Wright v. Spaulding                                         Page 15


his opportunity to appeal, and his chance to file a § 2255 motion on any ground within a year of
his conviction.8 See 28 U.S.C. § 2255(f)(1).

         Wright also points to United States v. Mason, 954 F.2d 219 (4th Cir. 1992). But there,
the Fourth Circuit only decided that ACCA does not require a defendant to be convicted of one
predicate crime before he commits the next one. Id. at 221. The court did not consider whether
the Maryland drug statute was an ACCA predicate in the first place; evidently, that was taken for
granted. Thus, under the principles we have already explained, Mason held nothing about that
issue. (And, in fact, no court has ever cited Mason as if it did.) In short, Wright has not shown
that anything prevented or foreclosed him from making his argument at his sentencing, on direct
appeal (had he appealed), or in an initial § 2255 motion.

         Thus, Wright had several opportunities to raise his so-called “Mathis claim,” free of any
procedural impediments or hostile precedents. That he failed to seize them does not mean that
§ 2255 was “inadequate or ineffective” to test his sentence. 28 U.S.C. § 2255(e). Having missed
those chances, he cannot now use the saving clause to get another bite at the apple.

         We affirm.




         8What’s  more, Washington complies with Mathis and all other Supreme Court caselaw. The Fourth Circuit
in Washington used the “modified categorical approach,” which involves looking at certain state-court records to pin
down a conviction under a “divisible” statute—one that defines multiple crimes with distinct sets of elements. See
629 F.3d at 408, 413–14. And the Maryland “possession with intent to distribute” statute was divisible. It laid out
sentencing ranges with maximum prison terms that varied depending on the schedule of the controlled substance.
See id. at 408. Which means that the identity of the substance (or at least that it belonged to a schedule matching the
right sentencing range) was an element of the offense. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Which means, in turn, that the statute was divisible and the Fourth Circuit correctly applied the modified categorical
approach. See Mathis, 136 S. Ct. at 2248–49.
 No. 17-4257                          Wright v. Spaulding                              Page 16


                                     _________________

                                      CONCURRENCE
                                     _________________

       THAPAR, Circuit Judge, concurring. Whom should we trust to fix a law that may be
broken? The people’s representatives? Or unelected judges? To the framers and ratifiers of the
Constitution, this was an easy question. Our Founders, who knew that “public Virtue is the only
Foundation of Republics,” believed in the greatness of the American people. Letter from John
Adams to Mercy Warren (Apr. 16, 1775), in 1 The Founders’ Constitution 670, 670 (Philip B.
Kurland & Ralph Lerner eds., 1987).       They trusted the people’s representatives to weigh
competing interests and make difficult policy choices. That’s why they tasked Congress with
making the laws and gave life-tenured judges the more modest job of applying them.

       But sometimes we exceed that modest role. Take the saving clause. Section 2255 is not
“inadequate or ineffective to test the legality of [a prisoner’s] detention” just because binding
circuit precedent is against him at the time of his conviction or his first motion. 28 U.S.C.
§ 2255(e).     Applying AEDPA in such cases may seem unfair.          Yet in enacting AEDPA,
Congress weighed error correction against finality and made some difficult policy judgments.
See Prost v. Anderson, 636 F.3d 578, 582–83 (10th Cir. 2011) (noting the real-world benefits of
finality “to victims, their families, to future potential victims, to the government, and to the
courts”). And for us to second-guess those judgments is to usurp Congress’s role.

       Not all usurpation is willful. Sometimes it happens almost by accident. For instance, this
court followed other circuits without once stopping to think whether it was taking a wrong turn.
We started by assuming that the out-of-circuit cases might be right.       See United States v.
Peterman, 249 F.3d 458, 462 (6th Cir. 2001); Charles v. Chandler, 180 F.3d 753, 757 (6th Cir.
1999). Soon, we assumed they were right. See Martin v. Perez, 319 F.3d 799, 803–04 (6th Cir.
2003). But at no point did we stop to study the text of the statute itself. Justice Frankfurter’s
lament comes to mind: “a hint becomes a suggestion, is loosely turned into dictum and finally
elevated to a decision.” United States v. Rabinowitz, 339 U.S. 56, 75 (1950) (Frankfurter, J.,
dissenting).
 No. 17-4257                                  Wright v. Spaulding                                         Page 17


         Within the last decade, one circuit unencumbered by precedent took a fresh look at the
saving clause and declined to follow the herd. See Prost, 636 F.3d 578. A second broke ranks
after years of struggling to apply its old rule coherently. See McCarthan v. Dir. of Goodwill
Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017) (en banc); see also id. at 1100–01 (Carnes,
C.J., concurring). Those opinions and a few others explain in detail why restarting the collateral-
review process every time the Supreme Court overturns circuit precedent is atextual, illogical,
and unworkable. See United States v. Surratt, 797 F.3d 240, 251–55, 257–263 (4th Cir. 2015),
vacated on grant of reh’g en banc, appeal dismissed as moot, 855 F.3d 218 (4th Cir. 2017);
Samak v. Warden, FCC Coleman-Medium, 766 F.3d 1271, 1279–93 (11th Cir. 2014) (Pryor, J.,
concurring); Brown v. Caraway, 719 F.3d 583, 597–600 (7th Cir. 2013) (Easterbrook, C.J.,
statement concerning the circulation under Circuit Rule 40(e)). There is plenty to read for those
who want the full argument. No need to rehash everything here. Instead, I will just expand on
two points. First, a word about practicality. Second, a word about precedent.

         Practicality. Judicial solutions often beget judicial problems. The way courts have
kludged the saving clause is a perfect example. Using § 2241 to replace procedurally barred
§ 2255 motions channels federal prisoners’ postconviction challenges back into the traditional
habeas system. And that means resurrecting the very problems § 2255 was supposed to put to
rest. See John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70,
84 (2006) (“[T]extualists recognize that the relevant context for a statutory text includes the
mischiefs the authors were addressing.”). Concentrating “an inordinate number of habeas corpus
actions” in districts with large prison populations? United States v. Hayman, 342 U.S. 205, 213–
14 (1952). Check.1 Asking district courts to review each other’s proceedings—often without
access to the witnesses, the sources of evidence, or other local information that may be critical?
See id. at 213. Check again.


         1Seven  federal districts house more than 20% of all federal inmates: the Eastern District of Kentucky, the
Southern District of Mississippi, the Eastern District of North Carolina, the Western District of Oklahoma, the
Middle District of Pennsylvania, and the Northern and Southern Districts of West Virginia. See Federal Bureau of
Prisons, Population Statistics, https://www.bop.gov/about/statistics/population_statistics.jsp (last visited Sept. 18,
2019); Federal Bureau of Prisons, Map of our Locations, https://www.bop.gov/locations/map.jsp (last visited Sept.
18, 2019). But those seven courts account for only about 5% of the nation’s seats for active district judges. See
Administrative Office of the United States Courts, Additional Authorized Judgeships–Since 1960,
https://www.uscourts.gov/sites/default/files/districtauth.pdf (last visited Sept. 18, 2019).
 No. 17-4257                            Wright v. Spaulding                               Page 18


         All this was bad enough to begin with. But it became even worse after Hill v. Masters,
which expanded the saving clause to cover not just invalid sentences but miscalculated ones too.
See 836 F.3d 591 (6th Cir. 2016). In the former case, the remedy is usually simple: an order for
the prisoner’s release. But in the latter, only a resentencing will do. Query how the Great Writ
of habeas corpus—an order served on the respondent personally to determine the validity of his
custody over the petitioner—can be transmuted into a resentencing vehicle at all. See Braden v.
30th Judicial Circuit Court of Ky., 410 U.S. 484, 494–95 (1973). But even bracketing that
conundrum, how exactly is a district judge in Kentucky supposed to know the right sentence for
a South Carolinian who conspired to traffic drugs in Charleston? District judges must weigh
several sentencing factors in the scales of justice. 18 U.S.C. § 3553(a). And many of those
factors can only be weighed meaningfully if the judge knows something about the defendant, the
case, and the local community. No wonder, then, that Congress directed sentencing challenges
to the sentencing court.

         It should be no surprise when judicial creativity begets chaos. Judges are not cut out for
legislative craftsmanship. The Founders understood this. In fact, they rejected the Council of
Revision, a proposal to give the judiciary a veto over the laws, for this very reason. Simply put,
they did not trust judges to make policy. See 1 The Records of the Federal Convention of 1787
97–98 (Max Farrand ed., 1911) (Elbridge Gerry, June 4) (“It was quite foreign from the nature of
[the judicial] office to make them judges of the policy of public measures.”); 2 id. at 73
(Nathaniel Gorham, July 21) (“As Judges they are not to be presumed to possess any peculiar
knowledge of the mere policy of public measures.”); id. at 76 (Luther Martin, July 21)
(“A knowledge of Mankind, and of Legislative affairs cannot be presumed to belong in a higher
[ ] degree to the Judges than to the Legislature.”); see also John F. Manning, Textualism and the
Equity of the Statute, 101 Colum. L. Rev. 1, 61 (2001) (noting that the Founders’ “sharp
separation of legislative and judicial powers was designed, in large measure, to limit judicial
discretion”). But if courts can’t resist tinkering with the law, the least they can do is to spare a
thought for the consequences. Not just for the present case, but also for future cases and for how
later courts will have to implement the tinkering as a precedent. Which brings me to my next
point.
 No. 17-4257                                  Wright v. Spaulding                                         Page 19


        Precedent. Precedent matters. This case shows that in more ways than one. Indeed, it’s
what launched this whole saving-clause misadventure in the first place. Think back to In re
Davenport. 147 F.3d 605 (7th Cir. 1998). The premise of that case was that court proceedings
are “inadequate or ineffective to test the legality of” a conviction or sentence if binding-but-
wrong precedent dictates the outcome—at least, at the district-court and panel levels. 28 U.S.C.
§ 2255(e). In Davenport’s words, binding precedent leaves defendants without “a reasonable
opportunity to obtain a reliable judicial determination” of their case, without “any opportunity
for judicial rectification” of mistakes. 147 F.3d at 609, 611.

        There’s some appeal to this reasoning. No one wants prisoners to stay in prison longer
than the law says they should. And there does seem to be something unfair about a circuit
court—the last court to which a defendant can appeal as of right—closing its ears to what should
be a winning argument in deference to a precedent that is just plain wrong.2

        But here’s the problem: In our system, litigants are bound by precedent all the time.
Even precedent that we later recognize was incorrect. In this circuit, when our precedent cuts
against a party, we expect that party to (1) distinguish it, (2) persuade us to overrule it en banc, or
(3) persuade the Supreme Court to correct our error. In the meantime, we go on applying it.
And an overruling down the line does not blot out final judgments based on that precedent back
when it was binding.3 Does this mean that our entire justice system (in which, again, precedent
is ubiquitous) is “inadequate or ineffective” to test the rights of parties? Surely not. And if it
somehow did, the problem would not at all be specific to criminal law.


        2One  more reason why it is so important for courts to understand what prior decisions actually held. See
Maj. Op., supra, at 7–10.
        3In  exceptional circumstances, courts may cut a party some slack based on intervening changes in caselaw.
For example, habeas petitioners can sometimes revive forfeited arguments too novel to be reasonably available at
the time of their forfeiture. Thus, novelty may satisfy the “cause” half of the cause-and-prejudice test to cure a
procedural default. See Reed v. Ross, 468 U.S. 1, 16 (1984). But even Reed’s generous exception is not as generous
as the majority approach to the saving clause: under Reed, futility stemming from adverse circuit precedent is not
“cause.” See Bousley v. United States, 523 U.S. 614, 623 (1998); Smith v. Murray, 477 U.S. 527, 534–37 (1986). In
the Supreme Court’s words, “futility cannot constitute cause if it means simply that a claim was unacceptable to that
particular court at that particular time.” Bousley, 523 U.S. at 623 (cleaned up). The Court adopted this view
precisely because it recognized that courts can, and do, rethink their own precedents. See Smith, 477 U.S. at 534–
35; Engle v. Isaac, 456 U.S. 107, 130 (1982). Courts seem to have forgotten this basic point in the post-AEDPA
world.
 No. 17-4257                           Wright v. Spaulding                               Page 20


        So whatever pull Davenport’s reasoning may have, it is not an argument for how courts
have construed § 2255(e). The saving clause originally stood for a simple idea: while § 2255
governs attacks on the sentence, § 2241 still governs attacks on its execution. When Congress
added AEDPA’s second-and-successive limitations without touching the text of § 2255(e), did it
implicitly amend the saving clause to now stand for the unrelated (and radical) idea that binding
precedent alone is enough to strip a full round of judicial process—trial, appeal, and one free
collateral attack—of its basic adequacy? Of course not. See Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts § 39, at 255 (2012) (“This would be repealer by
the weakest of implications; and repeals by implication are disfavored[.]”); see also id. § 40, at
256 (discussing objective statutory history’s relevance to meaning). Talk about elephants in
mouseholes.

        Section 2255 is not that complicated. A federal prisoner can attack his sentence with a
motion to correct or vacate it under § 2255—subject to the limitations Congress has imposed,
including the restrictions on second or successive motions. Or he can challenge the manner of
his detention with a habeas petition under § 2241—just as the saving clause of § 2255(e) allows.
But we have jerry-rigged the saving clause to let § 2255 motions masquerade as § 2241 petitions,
evading Congress’s chosen limits on collateral review. This even though “judgments about the
proper scope of the writ are normally for Congress to make.” Felker v. Turpin, 518 U.S. 651,
664 (1996) (cleaned up). And we are bound by our mistakes in this area until we fix them en
banc.

        Or until the Supreme Court intervenes. If this circuit and others fail to course-correct on
our own, then the Court should step in. And I would respectfully submit that sooner may be
better than later. The circuits are already split. The rift is unlikely to close on its own. What’s
more, so long as it lasts, the vagaries of the prison lottery will dictate how much postconviction
review a prisoner gets. A federal inmate in Tennessee can bring claims that would be thrown out
were he assigned to neighboring Alabama. Like cases are not treated alike.

        Maybe worst of all, Congress can hardly deliberate about whether the law should change
if no one has a clear idea of what the law is now. Which is one more reason the judiciary should
stay in its lane. When we apply the law as written, we show Congress the results of its work and
 No. 17-4257                           Wright v. Spaulding                         Page 21


allow it to decide whether they are satisfactory. By doing our job—and nothing more—we most
help the people’s representatives to do theirs. Exactly as the Framers intended.
