                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 28 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MIKHAEL CHARLES DORISE,                         No.    16-15822

                Petitioner-Appellant,           D.C. No.
                                                1:15-cv-01197-DAD-SKO
 v.

ANDRE MATEVOUSIAN, AKA Andre                    MEMORANDUM*
Mantevousian,

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Dale A. Drozd, District Judge, Presiding

                       Argued and Submitted May 17, 2017
                            San Francisco, California

Before: THOMAS, Chief Judge, MURGUIA, Circuit Judge, and MCCALLA,**
District Judge.

      Appellant Mikhael C. Dorise is a federal prisoner appealing from the district

court’s judgment dismissing his 28 U.S.C. § 2241 habeas petition. Dorise

specifically argues that he properly evoked the “escape hatch” provision under


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Jon P. McCalla, United States District Judge for the
Western District of Tennessee, sitting by designation.
§ 2255(e) in his § 2241 petition because his prior convictions for robbery under

Texas Penal Code § 29.02 were not “crimes of violence” for the purposes of the

career offender guideline, U.S.S.G. § 4B1.2. The district court concluded that

Dorise failed to demonstrate actual innocence of a sentencing enhancement, and

denied the petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and

we affirm.

      When § 2255 is “inadequate or ineffective to test the legality of [a

prisoner’s] detention,” a petitioner may file a § 2241 petition. 28 U.S.C. § 2255(e).

“[A] § 2241 petition is available under the ‘escape hatch’ of § 2255 when a

petitioner (1) makes a claim of actual innocence, and (2) has not had an

‘unobstructed procedural shot’ at presenting that claim.” Stephens v. Herrera, 464

F.3d 895, 898 (9th Cir. 2006) (quoting Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th

Cir. 2003)). The first element is dispositive here.

      Dorise argues he is “actually innocent” of his career offender status because

his two predicate robbery offenses constituted “crimes of violence” under the

Guidelines’ residual clause in § 4B1.2(a)(2), which he alleges is unconstitutionally

vague. Dorise relies on the Supreme Court’s decisions in Johnson v. United States,

135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016), which

retroactively invalidated the residual clause of the Armed Career Criminal Act as

unconstitutionally vague. Dorise also relies on the Supreme Court’s recent holding


                                          2
in Beckles v. United States, 137 S. Ct. 886, 897(2017), that an advisory sentencing

enhancement under the residual clause in § 4B1.2(a)(2) is not void for vagueness.

      Although this court found “a petitioner generally cannot assert a cognizable

claim of actual innocence of a noncapital sentencing enhancement[,]” it left open

“the question whether a petitioner may ever be actually innocent of a noncapital

sentence for the purpose of qualifying for the escape hatch.” Marrero v. Ives, 682

F.3d 1190, 1193 (9th Cir. 2012); see also Ezell v. United States, 778 F.3d 762, 765

n.3 (9th Cir. 2015).

      Even if we decided that the actual innocence exception applies to noncapital

sentencing cases, Dorise’s claim is not cognizable for the purpose of qualifying to

bring a § 2241 petition under the escape hatch. Although presented as an actual

innocence claim, Dorise’s real argument is that he was incorrectly categorized as a

career offender under U.S.S.G. § 4B1.1. As in Marrero, this claim is purely legal

and “has nothing to do with factual innocence.” 682 F.3d at 1193. Dorise has not

raised a constitutional claim, see, e.g., Gilbert v. United States, 640 F.3d 1293,

1321 (11th Cir. 2011) (“Gilbert’s claim that a sentencing guidelines was

misapplied to him is not a constitutional claim.”), and even without the career

offender enhancement, he was statutorily eligible for the sentence he received. See

18 U.S.C. §§ 922(g), 924(a)(2), 924(c)(1)(A)(i)–(ii) (2004); 18 U.S.C. § 2113 (a),

(d) (2002). Therefore, Dorise cannot bring his claim in a § 2241 petition.


                                          3
      We agree with the district court that Dorise has not established actual

innocence of a sentencing enhancement.

      AFFIRMED.1




1
  The Court GRANTS Dorise’s motion for judicial notice of federal court records
in United States v. Dorise, including his criminal and related appellate records.

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