               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MICHAEL ALLEN,                           No. 18-35001
          Petitioner-Appellant,
                                         D.C. No.
               v.                   3:17-cv-00044-HZ

RICHARD IVES,
           Respondent-Appellee.           OPINION


    Appeal from the United States District Court
             for the District of Oregon
    Marco A. Hernandez, District Judge, Presiding

         Argued and Submitted April 10, 2019
                 Seattle, Washington

               Filed February 24, 2020

  Before: William A. Fletcher, Consuelo M. Callahan,
        and Morgan B. Christen, Circuit Judges.

            Opinion by Judge W. Fletcher;
             Dissent by Judge Callahan
2                          ALLEN V. IVES

                            SUMMARY*


                          Habeas Corpus

    The panel reversed the district court’s judgment
dismissing for lack of jurisdiction Michael Allen’s 28 U.S.C.
§ 2241 habeas corpus petition claiming that he is “actually
innocent” of his sentence as a career offender, and remanded
for consideration of the claim on the merits.

    Allen’s sentence was enhanced under the career offender
provisions of U.S.S.G. §§ 4B1.1 and 4B1.2 (1997) when the
sentencing guidelines were mandatory. In his 2017 § 2241
petition, Allen contended that Mathis v. United States, 136
S. Ct. 2243 (2016), and Descamps v. United States, 570
U.S. 254 (2013), retroactively established that under the
categorical approach of Taylor v. United States, 495 U.S. 575
(1990), his Connecticut state court marijuana conviction was
not a “controlled substance offense” as defined in § 4B1.2,
and that he was therefore innocent of being a career offender.
The district court concluded that Marrero v. Ives, 682 F.3d
1190 (9th Cir. 2012), squarely rejected jurisdiction under
§ 2241 to address career offender errors because such claims
are purely legal and have nothing to do with factual
innocence.

     The panel held that the appeal is not moot because there
is a nontrivial possibility that the sentencing court will reduce
Allen’s term of supervised release if the district court had


    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       ALLEN V. IVES                         3

jurisdiction over the § 2241 petition and Allen is held to be
actually innocent of having been a career offender.

    The panel held that Allen has made a claim of actual
innocence that permits jurisdiction over his § 2241 petition
under the 28 U.S.C. § 2255(e) “escape hatch,” which permits
a federal prisoner to file a § 2241 petition to contest the
legality of a sentence where his remedy under 28 U.S.C.
§ 2255 is inadequate or ineffective to test the legality of his
detention.

    The panel wrote that if Allen prevails on the merits of his
claim that his Connecticut marijuana conviction was not a
predicate conviction for career offender status, the factual
predicate for his mandatory sentencing enhancement did not
exist, and he is actually innocent of a noncapital sentence for
the purpose of qualifying for the escape hatch.

    The panel wrote that Allen did not have an unobstructed
procedural shot at presenting his claim of actual innocence
because (1) it was foreclosed by existing precedent at the time
of his direct appeal and § 2255 motion, and (2) his claim,
which is not based on the Constitution but on the
Mathis/Decamps interpretations of federal statutes, would not
satisfy the 28 U.S.C. § 2244 criteria for a second or
successive § 2255 motion.

    The panel clarified that Mathis and Decamps apply
retroactively when a court reviews a criminal judgment in the
course of addressing a § 2241 petition or a first § 2255
motion.
4                       ALLEN V. IVES

   Judge Callahan dissented because this court rejected a
similar effort to expand the § 2255(e) escape hatch in
Marrero, which is binding on this three-judge panel.


                         COUNSEL

Elizabeth G. Daily (argued), Assistant Federal Public
Defender, Federal Public Defender’s Office, Portland,
Oregon, for Petitioner-Appellant.

Amy Potter (argued) and Natalie K. Wight, Assistant United
States Attorneys; Kelly A. Zusman, Appellate Chief; Billy J.
Williams, United States Attorney, District of Oregon; United
States Attorney’s Office, Portland, Oregon; for Respondent-
Appellee.


                          OPINION

W. FLETCHER, Circuit Judge:

    Petitioner Michael Allen appeals the district court’s
dismissal of his 28 U.S.C. § 2241 habeas corpus petition for
lack of jurisdiction. Allen contends that he is “actually
innocent” of his sentence as a career offender; that the
remedy provided by 28 U.S.C. § 2255 is “inadequate or
ineffective” to test his claim of actual innocence; and that the
district court may therefore entertain his § 2241 petition. We
conclude that Allen’s claim of actual innocence is cognizable
under § 2241. We therefore reverse the district court’s
dismissal for lack of jurisdiction and remand.
                       ALLEN V. IVES                        5

                       I. Background

    In 1997, Allen pleaded guilty in federal district court in
Connecticut to conspiracy to possess with intent to distribute
cocaine and cocaine base in violation of 21 U.S.C.
§§ 841(a)(1) and 846; carrying a firearm in connection with
a drug trafficking offense in violation of 18 U.S.C. § 924(c);
and possession of a firearm as a felon in violation 18 U.S.C.
§ 922(g)(1) and 924(c). When Allen was sentenced, the
sentencing guidelines were mandatory. See United States v.
Booker, 543 U.S. 220, 245 (2005).

    Allen’s sentence was enhanced under the career offender
provisions of U.S.S.G. §§ 4B1.1 and 4B1.2 (1997). The
district court concluded that he was a career offender based
on two predicate “controlled substance offenses” for which he
had previously been convicted under Connecticut law. One
of the predicate offenses was a conviction for two sales of
marijuana on the same day, treated by the district court as a
single conviction for purposes of career offender status. The
other was a conviction for possession of narcotics. The
Connecticut conviction records are no longer available, but it
is clear from the sentencing transcript that at least the
marijuana offense was a conviction under Connecticut
General Statute 21a-277(a).

    Because Allen was found to be a career offender, his base
offense level for the conspiracy count increased from 36 to
37, increasing his sentencing range from 235 to 293 months
to 262 to 327 months. The district court sentenced Allen to
262 months on the conspiracy count, a mandatory
consecutive sentence of 60 months on the carrying-a-firearm
count, and a concurrent sentence of 120 months on the felon-
6                      ALLEN V. IVES

in-possession count. Allen was sentenced to a total term of
imprisonment of 322 months.

    The district court concluded, based on Allen’s status as a
career offender, that there was no legal basis for imposing a
sentence below the guideline range. The court concluded,
further, that Allen did not qualify for a downward departure
under U.S.S.G. § 5H1.3 because, despite being “persuaded
that the physical abuse to which [Allen] was subjected very
early in life is extraordinary,” and despite finding that Allen
had suffered emotional and sexual abuse, the court could not
find a sufficient nexus between Allen’s abusive upbringing
and the crimes of conviction.

    In 2003, the federal district court in Connecticut denied
Allen’s § 2255 motion to vacate his sentence. The Second
Circuit affirmed. In January 2017, Allen filed a petition
under 28 U.S.C. § 2241 in federal district court in Oregon,
where he was incarcerated. (A motion under § 2255 must be
filed in the district where the defendant was sentenced. A
petition under § 2241 must be filed in the district where the
petitioner is incarcerated.) Allen contended in his § 2241
petition that Mathis v. United States, 136 S. Ct. 2243 (2016),
and Descamps v. United States, 570 U.S. 254 (2013),
retroactively established that under the categorical approach
of Taylor v. United States, 495 U.S. 575 (1990), his
Connecticut state court marijuana conviction was not a
“controlled substance offense” as defined in U.S.S.G.
§ 4B1.2, and that he was therefore innocent of being a career
offender. Allen asked to be resentenced without the
enhancement based on career offender status.

    The district court in Oregon dismissed Allen’s § 2241
petition for lack of jurisdiction. The court concluded that our
                        ALLEN V. IVES                           7

decision in Marrero v. Ives, 682 F.3d 1190, 1193–95 (9th Cir.
2012), had “squarely rejected” jurisdiction under § 2241 to
address career offender errors because such claims are
“purely legal” and have “nothing to do with factual
innocence.” Because the court held that it lacked jurisdiction,
it did not address Allen’s contention that his Connecticut state
court conviction was not a predicate conviction for career
offender status. The district court granted a Certificate of
Appealability “as to whether 28 U.S.C. § 2241 habeas corpus
jurisdiction is appropriate.”

                         II. Mootness

    After we heard argument in this case, the district court in
Connecticut reduced Allen’s sentence under the First Step
Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), to time
served and ordered his immediate release. The court reduced
his period of supervised release to four years. The
government contends that Allen’s release and reduction in
sentence renders his appeal moot. We disagree.

    The district court in Connecticut was required under
21 U.S.C. § 841(b)(1)(B) to impose a sentence of supervised
release of “at least four years.” However, 18 U.S.C.
§ 3583(e) authorizes a district court to terminate the period of
supervised release after one year “if it is satisfied that such
action is warranted by the conduct of the defendant released
and the interest of justice.” Allen has a nontrivial argument
for reducing his supervised release period under § 3583(e).
If we hold that the district court in Oregon had jurisdiction
over Allen’s § 2241 petition, and if Allen is held to be
actually innocent of having been a career offender, there is a
nontrivial possibility that the district court in Connecticut will
reduce his term of supervised release under § 3583(e). See
8                       ALLEN V. IVES

Mujahid v. Daniels, 413 F.3d 991, 995 (9th Cir. 2005) (“The
‘possibility’ that the sentencing court would use its discretion
to reduce a term of supervised release under 18 U.S.C.
§ 3583(e)(2) was enough to prevent the petition from being
moot.”) (citing Gunderson v. Hood, 268 F.3d 1149, 1153 (9th
Cir. 2001)); see also United States v. D.M., 869 F.3d 1133,
1137 (9th Cir. 2017).

    Allen’s appeal therefore is not moot.

                   III. Standard of Review

    We review de novo a district court’s decision that it lacks
jurisdiction over a petition under 28 U.S.C. § 2241. Stephens
v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006).

                       IV. Discussion

    As a general rule, “a motion under 28 U.S.C. § 2255 is the
exclusive means by which a federal prisoner may test the
legality of his detention[.]” Stephens, 464 F.3d at 897
(internal citations omitted). An exception to the general rule,
termed the § 2255(e) “escape hatch,” permits a federal
prisoner to “file a habeas corpus petition pursuant to § 2241
to contest the legality of a sentence where his remedy under
§ 2255 is ‘inadequate or ineffective to test the legality of his
detention.’” Hernandez v. Campbell, 204 F.3d 861, 864–65
(9th Cir. 2000) (per curiam) (quoting § 2255(e)). We have
held that a remedy under § 2255 is inadequate where “the
prisoner ‘(1) makes a claim of actual innocence, and (2) has
not had an unobstructed procedural shot at presenting that
claim.’” Marrero, 682 F.3d at 1192 (quoting Stephens, 464
F.3d at 898).
                         ALLEN V. IVES                           9

                     A. Actual Innocence

    Allen contends under Mathis and Descamps that his
Connecticut marijuana conviction is not a predicate crime for
career offender status, and that he is therefore actually
innocent of being a career offender under the Sentencing
Guidelines. That is, he contends, he has a claim of actual
innocence cognizable under § 2241.

    In addressing claims of actual innocence under § 2241,
we have relied on “the standard articulated by the Supreme
Court in Bousley v. United States, 523 U.S. 614 (1998).”
Stephens, 464 F.3d at 899. A “petitioner must demonstrate
that, in light of all the evidence, it is more likely than not that
no reasonable juror would have convicted him.” Bousley,
523 U.S. at 623 (internal quotation marks omitted). At issue
in Bousley was a claim of actual innocence of the crime of
conviction for which a petitioner has been sentenced.

    The government conceded at oral argument that if a
petitioner is actually innocent of a predicate crime for career
offender status in the sense that he did not commit the state-
law crime of which he was convicted, Bousley applies. In
that event, the petitioner would have a claim of actual
innocence cognizable under § 2241. This would be the case,
for example, if the predicate crime were rape, and DNA
evidence later proved petitioner’s innocence. The question
before us, then, is not whether a petitioner who did not
commit a predicate crime of which he was convicted may
challenge his career offender status under § 2241. The
government has conceded that he may do so. Rather, it is the
closely related question whether a petitioner who committed
a crime that is not a predicate crime may challenge his career
offender status under § 2241.
10                      ALLEN V. IVES

    Allen does not challenge the validity of his conviction for
sales of marijuana under Connecticut General Statute 21a-
277(a). But he contends under Mathis and Descamps, which
apply retroactively, that his conviction under that statute is
not a conviction for a predicate crime. That is, Allen claims
that he is actually innocent of a crime that would qualify him
for career offender status, and is therefore actually innocent
of the sentence that was imposed.

    In Marrero, we held that a prisoner seeking resentencing
based on non-retroactive changes to the treatment of related
predicate crimes under the Sentencing Guidelines did not
present a claim of actual innocence. 682 F.3d at 1194.
Marrero did not contend that he was innocent of the felonies
that qualified as crimes of violence or controlled substance
offenses under U.S.S.G. § 4B1.2. Nor did he contend that he
was improperly classified as a career offender at the time he
was sentenced. Rather, he claimed that he was “‘actually
innocent’ of being a career offender” because under non-
retroactive amendments to the Sentencing Guidelines, two of
his prior convictions would now be treated as related, rather
than separate, predicate crimes. Id. at 1193. We held that the
fact that his two prior offenses might be related under non-
retroactive current law “ha[d] nothing to do with factual
innocence.” Id.

    In Marrero, we left open the “question whether a
petitioner may ever be actually innocent of a noncapital
sentence for the purpose of qualifying for the escape hatch.”
Id. at 1193. We now reach that question and hold that Allen
has made a claim of actual innocence that permits jurisdiction
over his § 2241 petition. If Allen prevails on the merits of his
claim that his Connecticut marijuana conviction was not a
predicate conviction for career offender status under the
                       ALLEN V. IVES                        11

Guidelines, the factual predicate for his mandatory sentencing
enhancement did not exist. That is, he is actually innocent of
the enhancement. In that case, it is beyond dispute that he is
not, and was not, a career offender. See Stephens, 464 F.3d
at 899.

    Some of the decisions cited by Marrero restricted actual
innocence claims to cases in which the sentence exceeded
what would otherwise have been the statutory maximum. But
the advisory nature of the post-Booker guidelines was
important to the reasoning in those decisions. See, e.g., Gibbs
v. United States, 655 F.3d 473, 479 (6th Cir. 2011) (“While
the sentencing guidelines are used as a starting point for
determining where within the statutorily set range a
prisoner’s sentence should fall, the guidelines themselves are
advisory. A challenge to the sentencing court’s guidelines
calculation, therefore, only challenges the legal process used
to sentence a defendant and does not raise an argument that
the defendant is ineligible for the sentence she received.”).
For prisoners sentenced under the mandatory Guidelines, we
doubt such a restriction can survive the Supreme Court’s
holding in Alleyne v. United States, 570 U.S. 99, 107–08
(2013), that a fact that increases a mandatory minimum
sentence is an “element” of the offense. See 570 US. 99,
107–08 (2013). In the case before us, the finding that Allen
was a career offender increased his minimum sentence under
the mandatory Guidelines from 235 months to 262 months
and disqualified him from receiving an otherwise available
downward departure.

    At least one circuit has recognized an actual innocence
claim where the petitioner contended that a prior
conviction did not qualify as a predicate offense. In United
States v. Maybeck, 23 F.3d 888, 890–91 (4th Cir. 1994),
12                     ALLEN V. IVES

the sentencing court determined that Maybeck’s prior
conviction for burglary was a crime of violence based on a
mischaracterization in his presentencing interview. In fact,
his prior conviction was for third-degree burglary, not armed
burglary. The Fourth Circuit concluded that “[t]here is no
question . . . Maybeck [wa]s actually innocent of being a
career offender” because “Maybeck has only one prior felony
conviction that was a crime of violence, and he has none that
were controlled substance offenses.” Id. at 892 (footnote
omitted). We find this reasoning persuasive.

    The dissent relies on language from Bousley, 523 U.S.
at 623, that actual innocence means more than “mere legal
insufficiency.” But consistent with Bousley, and our cases
applying Bousley, a retroactive intervening change in the law
may render a petitioner factually innocent of a predicate
crime. The basis for the claim in Bousley was that
intervening retroactive case law had defined “use” of a
firearm differently than the definition given by the sentencing
court at the time of petitioner’s guilty plea. See id. at 616.
The Court instructed that on remand, the petitioner could
establish actual innocence by showing that he did not make
“use” of a firearm within the meaning of the statute of
conviction. Id. at 623–24. Petitioner could be factually
innocent if, on the facts of the case, his conduct did not
legally amount to “use” of a firearm. See, e.g., Alaimalo v.
United States, 645 F.3d 1042, 1047 (9th Cir. 2011) (petitioner
showed actual innocence where statute of conviction was
subsequently interpreted not to reach petitioner’s conduct).

    We read Marrero as consistent with a claim of actual
innocence in this case. In Marrero, petitioner’s claim of
actual innocence failed because his claim to actual innocence
was based on a non-retroactive interpretation of the
                        ALLEN V. IVES                        13

Guidelines, and he made no claim to factual innocence of the
crimes of which he had been convicted. In this case, by
contrast, Allen’s claim of actual innocence is based on a
retroactive change of law, which transformed his Connecticut
marijuana conviction from a predicate crime into a non-
predicate crime. In other words, Allen claims that his prior
conviction is not a conviction for a predicate crime, that he is
therefore actually innocent of a predicate crime, and that he
is thus actually innocent of the mandatory sentencing
enhancement. If Allen is correct under Mathis and Descamps
that his Connecticut marijuana conviction is not a conviction
for a controlled substance offense, he is “actually innocent of
a noncapital sentence for the purpose of qualifying for the
escape hatch.” Marrero, 682 F.3d at 1193.

              B. Unobstructed Procedural Shot

    When deciding whether a petitioner has had an
“unobstructed procedural shot,” we consider “(1) whether the
legal basis for petitioner’s claim did not arise until after he
had exhausted his direct appeal and first § 2255 motion; and
(2) whether the law changed in any way relevant to
petitioner’s claim after that first § 2255 motion.” Harrison v.
Ollison, 519 F.3d 952, 960 (9th Cir. 2008) (internal quotation
marks omitted). If an intervening court decision after a
prisoner’s direct appeal and first § 2255 motion “effect[s] a
material change in the applicable law[,]” then the prisoner did
not have an unobstructed procedural shot to present his claim.
Alaimalo, 645 F.3d at 1047–48 (prisoner lacked unobstructed
procedural shot where circuit precedent foreclosed his actual
innocence claim when he brought his § 2255 motion); see
Stephens, 464 F.3d at 898 (prisoner lacked unobstructed
procedural shot where Supreme Court precedent foreclosed
14                     ALLEN V. IVES

his actual innocence claim when he brought his § 2255
motion).

    Allen did not have an unobstructed procedural shot at
presenting his claim of actual innocence because it was
foreclosed by existing precedent at the time of his direct
appeal and § 2255 motion. Under the law at the time of his
§ 2255 motion, his conviction under Connecticut law would
have been analyzed under the modified categorical approach
because the statute of conviction—Connecticut General
Statute § 21a-277—would have been deemed divisible. See
United States v. Beardsley, 691 F.3d 252, 265 (2d Cir. 2012)
(statute was “not divisible into predicate and non-predicate
offenses” because it did not list these offenses “in separate
subsections or a disjunctive list”). Under that approach,
Allen’s claim would have failed.

    Based on the Supreme Court’s later decisions in Mathis
and Descamps, Allen is now able to argue that (1) the
categorical approach should apply to Connecticut General
Statute § 21a-277, and (2) his conviction for marijuana
possession is not a “controlled substance offense” under the
categorical approach. See United States v. Savage, 542 F.3d
959, 965–66 (2d Cir. 2008) (definition of “sale” as used in
§ 21a-277 includes “mere offer[s]” to sell controlled
substances, thereby criminalizing “more conduct than falls
within the federal definition of a controlled substance
offense”). The legal basis for this argument arose only after
Allen had appealed and after he had filed his § 2255 motion.

    Nor would a second or successive § 2255 motion be
adequate to test the legality of Allen’s detention. “A second
or successive [2255] motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals to
                       ALLEN V. IVES                        15

contain . . . (1) newly discovered evidence . . . or (2) a new
rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” § 2255(h). Both the Ninth Circuit and the
Second Circuit have held that the decisions in Mathis and
Descamps do not meet the standard for a second or successive
§ 2255 motion because they interpreted federal statutes, not
the Constitution. See Arazola-Galea v. United States,
876 F.3d 1257, 1259 (9th Cir. 2017); Ezell v. United States,
778 F.3d 762, 766 (9th Cir. 2015); Washington v. United
States, 868 F.3d 64, 66 (2d Cir. 2017) (per curiam).

    Because Allen’s claim under Mathis and Descamps “did
not become available until after the [Second] Circuit denied
his § 2255 motion, and because that claim does not satisfy the
criteria of § 2244 for a second or successive § 2255 motion,
[Allen] has not had (and, indeed, will never get) an
opportunity to present his . . . claim in a § 2255 motion” that
his prior convictions were not for predicate crimes under the
standard in Mathis and Descamps. Stephens, 464 F.3d at 898.
Thus, Allen has not had an unobstructed procedural shot at
presenting his actual innocence claim.

                      C. Retroactivity

    Our holding that Allen has made a cognizable claim of
actual innocence, and that he did not have an unobstructed
procedural shot at presenting that claim, resolves the question
of statutory jurisdiction in this case. We take the opportunity
to clarify that Mathis and Descamps apply retroactively when
a court reviews a criminal judgment in the course of
addressing a § 2241 petition or a first § 2255 motion.
16                      ALLEN V. IVES

      New rules of criminal law do not always apply
retroactively on collateral review of criminal judgments. See
Teague v. Lane, 489 U.S. 288, 299 (1989) (plurality opinion).
“A new rule applies retroactively in a collateral proceeding
only if (1) the rule is substantive or (2) the rule is a watershed
rule of criminal procedure implicating the fundamental
fairness and accuracy of the criminal proceeding.” Whorton
v. Bockting, 549 U.S. 406, 416 (2007) (internal quotation
marks omitted). “A rule is substantive rather than procedural
if it alters the range of conduct or the class of persons that the
law punishes.” Welch v. United States, 136 S. Ct. 1257,
1264–65 (2016) (quoting Schriro v. Summerlin, 542 U.S. 348,
353 (2004)).

     Our dissenting colleague contends that neither Mathis nor
Descamps announced a new rule at all. If this is so, there is
no dispute about whether they apply retroactively. It is black-
letter law that they do. Decisions that do not announce a new
rule apply retroactively on collateral review whether
substantive or procedural. See Whorton, 549 U.S. at 416.

    To the extent that Mathis and Descamps may be thought
to have announced a new rule, we have no trouble concluding
that the rule is one of substance rather than procedure. Like
other decisions interpreting the reach of federal sentencing
enhancements, the rule from Mathis and Descamps alters “the
range of conduct . . . that the law punishes” and not “only the
procedures used to obtain the conviction.” Welch, 136 S. Ct.
at 1266. The Supreme Court in Welch expressly rejected the
argument—an argument reiterated today by our dissenting
colleague—that a new rule may not be deemed substantive
merely “because it does not limit Congress’ power” to punish
certain conduct. Id. at 1267. We have previously recognized
that decisions that alter the substantive reach of a federal
                        ALLEN V. IVES                        17

statute apply retroactively in § 2241 proceedings under the
escape hatch. See, e.g., Alaimalo, 645 F.3d 1042. The
Supreme Court’s decisions in Mathis and Descamps therefore
will apply retroactively to a review of Allen’s sentence on
remand.

                         Conclusion

    We hold that Allen has made a cognizable claim that he
is “actually innocent of a noncapital sentence for purposes of
qualifying for the escape hatch,” and that he has not had an
“unobstructed procedural shot at presenting the claim.” He
may therefore file a petition for habeas corpus under § 2241.
We reverse the district court’s dismissal of his § 2241 petition
for lack of jurisdiction and remand for consideration of
Allen’s claim on the merits.

    REVERSED and REMANDED.



CALLAHAN, Circuit Judge, dissenting:

    Allen does not claim to be actually innocent of the crimes
for which he was sentenced. Nor does Allen claim to be
actually innocent of his prior convictions that, at the time of
his sentencing, qualified him as a career offender under the
Sentencing Guidelines. Rather, Allen claims that he is
“actually innocent” of his career offender designation based
on the intervening Supreme Court decisions in Descamps v.
United States, 570 U.S. 254 (2013), and Mathis v. United
States, 136 S. Ct. 2243 (2016). On that basis, he asserts that
he may file a petition pursuant to 28 U.S.C. § 2241 under the
escape hatch provision of 28 U.S.C. § 2255(e).
18                          ALLEN V. IVES

    We squarely rejected a similar effort to expand the
§ 2255(e) escape hatch in Marrero v. Ives, 682 F.3d 1190 (9th
Cir. 2012), and our holding in Marrero is binding on this
three-judge panel. See Hart v. Massanari, 266 F.3d 1155,
1171 (9th Cir. 2001) (“[A] later three-judge panel considering
a case that is controlled by the rule announced in an earlier
panel’s opinion has no choice but to apply the earlier-adopted
rule; it may not any more disregard the earlier panel’s opinion
than it may disregard a ruling of the Supreme Court.”). Thus,
I dissent from the majority’s erroneous conclusion that Allen
raises a cognizable “actual innocence” claim for purposes of
the escape hatch.1 The majority’s expansion of actual
innocence jurisdiction is inconsistent with both Supreme
Court and Ninth Circuit precedent. I would affirm the district
court’s dismissal of Allen’s petition under 28 U.S.C. § 2241
for lack of jurisdiction.

                                    I.

    In general, the “exclusive procedural mechanism” by
which a federal prisoner may challenge the legality of his
detention is a habeas petition under 28 U.S.C. § 2255. Ivy v.
Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003) (citation
omitted). Restrictions on the availability of a § 2255 motion
generally cannot be avoided through a petition under
28 U.S.C. § 2241. Stephens v. Herrera, 464 F.3d 895, 897
(9th Cir. 2006). The only exception to that rule—termed the

     1
       I agree with the majority that, even though Allen has been released
and his sentence reduced to time served pursuant to § 404 of the First Step
Act, the certified issue before us is not moot given Allen’s current
supervised release status. See Mujahid v. Daniels, 413 F.3d 991, 995 (9th
Cir. 2005) (“The ‘possibility’ that the sentencing court would use its
discretion to reduce a term of supervised release . . . was enough to
prevent the petition from being moot.”).
                       ALLEN V. IVES                        19

§ 2255(e) “escape hatch” or “savings clause”—permits a
federal prisoner to “file a habeas corpus petition pursuant to
§ 2241 to contest the legality of a sentence where his remedy
under § 2255 is ‘inadequate or ineffective to test the legality
of his detention.’” Hernandez v. Campbell, 204 F.3d 861,
864–65 (9th Cir. 2000) (per curiam) (quoting 28 U.S.C.
§ 2255(e)).

     “Along with many of our sister circuits, we have held that
a § 2241 petition is available under the ‘escape hatch’ of
§ 2255 when a petitioner (1) makes a claim of actual
innocence, and (2) has not had an ‘unobstructed procedural
shot’ at presenting that claim.” Stephens, 464 F.3d at 898
(quoting Ivy, 328 F.3d at 1060) (also citing several other
circuit cases). In this circuit, a petitioner’s claim of actual
innocence for purposes of the escape hatch of § 2255 must
meet the standard articulated by the Supreme Court in
Bousley v. United States, 523 U.S. 614 (1998): “To establish
actual innocence, petitioner must demonstrate that, in light of
all the evidence, it is more likely than not that no reasonable
juror would have convicted him.” Stephens, 464 F.3d at 898
(quoting Bousley, 523 U.S. at 623).

    Under the Bousley standard, “[a]ctual innocence means
factual innocence, not mere legal insufficiency.” 523 U.S. at
623. Accordingly, we held in Marrero that “the purely legal
argument that a petitioner was wrongly classified as a career
offender under the Sentencing Guidelines is not cognizable as
a claim of actual innocence under the escape hatch.” 682
F.3d at 1195. Allen’s argument that he is “actually innocent”
of being a career offender under the Sentencing Guidelines
due to the intervening Supreme Court decisions in Descamps
and Mathis is a “purely legal” claim that is essentially no
different than the one we rejected in Marrero. As such, Allen
20                      ALLEN V. IVES

fails to raise a cognizable actual innocence claim for purposes
of the escape hatch, and the district court properly dismissed
his § 2241 petition for lack of jurisdiction. This should be the
end of the matter under our authority as a three-judge panel.

                              II.

    In spite of Marrero’s unequivocal holding, the majority
makes several attempts to evade its reach, none of which are
persuasive. The majority first contends that Allen’s actual
innocence claim is different from the claim we rejected in
Marrero because “Marrero did not contend that he was
innocent of the felonies that qualified as crimes of violence or
controlled substance offenses” under the applicable career
offender provision in the Sentencing Guidelines.

    But Allen, too, does not claim to be actually innocent of
any of his underlying predicate offenses, which, at the time of
sentencing, qualified him as a career offender under the
Sentencing Guidelines; nor does Allen otherwise challenge
the validity of any of his predicate convictions. Rather, like
Marrero, Allen claims that his predicate convictions no longer
qualify him for the career offender designation due to an
intervening change in law. Such a claim, like Marrero’s, “is
a purely legal claim that has nothing to do with factual
innocence.” Marrero, 682 F.3d at 1193. Put differently,
whether Allen’s prior convictions constitute “controlled
substance offenses” to qualify him as a career offender under
the Sentencing Guidelines is as much of a “purely legal”
question as whether two of Marrero’s prior convictions were
“related” offenses for the purposes of qualifying for the same
career offender designation under the Guidelines. That Allen
dresses his claim in slightly more direct “actual innocence”
terms does not hide the true nature of his legal argument.
                        ALLEN V. IVES                        21

    The majority further attempts to distinguish Marrero on
the ground that Allen’s claim is based on retroactive Supreme
Court case law, whereas Marrero’s claim was based on a non-
retroactive change in the Sentencing Guidelines. This
distinction, however, does not place Allen’s claim beyond the
control of Marrero. Our ruling in Marrero was not based on
any distinction between retroactive and non-retroactive
changes in the law, or even on the merits of Marrero’s claim.
Rather, our conclusion that challenges to wrongful career
offender designations are not claims of actual innocence was
based entirely on the standard adopted in our circuit for actual
innocence claims—which, consistent with the Supreme
Court’s position in Bousley, hinges on factual innocence, and
not mere legal insufficiency. See Marrero, 682 F.3d at 1193
(“Whatever the merits of Petitioner’s argument that he would
not qualify as a career offender were he to be sentenced under
the post-2007 Guidelines, his claim is not one of actual
innocence. ‘In this circuit, a claim of actual innocence for
purposes of the escape hatch of § 2255 is tested by the
standard articulated by the Supreme Court in Bousley . . . .’”).

    Under this standard, a retroactive change in the law that
arguably undercuts the legal correctness of a petitioner’s
sentence, but does not render him factually innocent of the
convictions underlying his sentence (or sentence
enhancement), cannot serve as the basis for a cognizable
actual innocence claim. A change in the law, even if
retroactively applicable, generally cannot and does not
change the facts of the past. Applied to Allen, the Supreme
Court decisions in Descamps and Mathis, while retroactive in
nature, do not undo his criminal acts on which his sentence
was based. Whether Allen’s prior convictions qualify him for
a career offender enhancement under the Sentencing
Guidelines is a legal matter that is unrelated to any question
22                        ALLEN V. IVES

of Allen’s factual innocence of his convictions, and thus does
not create a cognizable claim of actual innocence for
purposes of the escape hatch.

    In fact, we rejected on Marrero grounds a near-identical
claim to Allen’s in Dorise v. Matevousian, 692 F. App’x 864,
865 (9th Cir. 2017), cert. denied, 138 S. Ct. 1023 (2018).2
There, Dorise claimed that he was “actually innocent” of his
career offender designation because his two predicate robbery
offenses no longer constituted “crimes of violence” under the
Sentencing Guidelines based on the intervening Supreme
Court decisions in Johnson v. United States, 135 S. Ct. 2551
(2015), and Welch v. United States, 136 S. Ct. 1257 (2016).
Like Allen, Dorise alleged “actual innocence” on the ground
that his predicate offenses no longer qualified him as a career
offender due to a change in law triggered by new Supreme
Court decisions with retroactive application. The panel in
Dorise rejected the claim, concluding that

         Dorise’s claim is not cognizable for the
         purpose of qualifying to bring a § 2241
         petition under the escape hatch. Although
         presented as an actual innocence claim,
         Dorise’s real argument is that he was
         incorrectly categorized as a career offender
         under U.S.S.G. § 4B1.1. As in Marrero, this
         claim is purely legal and “has nothing to do
         with factual innocence.”




     2
      An unpublished memorandum disposition may not be precedential,
but its existence rebuts the assertion that this is an issue of first
impression.
                          ALLEN V. IVES                             23

Dorise, 692 F. App’x at 865. Like Marrero and Dorise,
Allen’s real claim is that he was incorrectly categorized as a
career offender under the Sentencing Guidelines, which is a
“purely legal” claim that is not cognizable “for the purpose of
qualifying to bring a § 2241 petition under the escape hatch.”
Id.

                                 III.

    The majority’s endeavor to reach the question left open in
Marrero—which is, “whether a petitioner may ever be
actually innocent of a noncapital sentence for the purpose of
qualifying for the escape hatch”—is likewise misguided.
682 F.3d at 1193–94. In Marrero, we noted that other
circuits “have recognized exceptions” to this general rule, and
briefly summarized three general categories of exceptions,
the second of which is the suggestion by some courts that “a
petitioner may qualify for the escape hatch if he received a
sentence for which he was statutorily ineligible.” Id. at 1194.
The majority suggests that this exception extends to Allen’s
claim—which Marrero did not endorse for our court, but
merely recognized from a few extra-circuit cases—because
his career offender designation “increased his minimum
sentence under the mandatory Guidelines from 235 months to
262 months and disqualified him from receiving an otherwise
available downward departure.” As the majority admits,
however, the cases defining this exception have limited it to
claims that the petitioner received a sentence that exceeded
the statutory maximum, rather than simply an incorrect
sentencing range calculation under the Guidelines.3 And


    3
      See Gibbs v. United States, 655 F.3d 473, 479 (6th Cir. 2011) (“A
challenge to the sentencing court’s guidelines calculation . . . only
challenges the legal process used to sentence a defendant and does not
24                          ALLEN V. IVES

here, Allen received a sentence for which he was eligible,
regardless of whether his career offender designation was
correct.4

    The majority justifies its leap of logic by contending that
this restriction of Marrero’s “second exception” turned
largely on “the advisory nature of the post-Booker
guidelines.” Thus, according to the majority, this restriction
does not apply to prisoners, like Allen, who were sentenced
under the mandatory guidelines, particularly after Alleyne v.
United States, 570 U.S. 99 (2013). But Alleyne said nothing
about the meaning of an “actual innocence” claim or the
§ 2255 escape hatch, and the majority’s proposition lacks any
direct legal support from Marrero or any other relevant cases.
Furthermore, if the majority is correct, any challenge to a
sentencing factor that increased the petitioner’s minimum
sentence under the pre-Booker guidelines—which is,
essentially, any garden-variety challenge to a court’s pre-
Booker sentencing range calculation—would qualify as an
“actual innocence” claim for purposes of the escape hatch.


raise an argument that the defendant is ineligible for the sentence she
received. The Supreme Court did not intend the ‘actual innocence’
exception to save such procedural claims.”); Gilbert v. United States,
640 F.3d 1293, 1323 (11th Cir. 2011) (en banc) (declining to decide
whether a petitioner could bring a § 2241 petition under the savings clause
if “he was sentenced to a term of imprisonment exceeding the statutory
maximum”).
     4
     At the time of sentencing, Allen was sentenced to 262 months on his
conspiracy count, which was the minimum sentence at the bottom of the
Guideline range based on his career offender designation. If he had not
been designated a career offender, his applicable Guideline range on the
conspiracy count would have been 235 to 293 months—meaning, he
would have still been eligible for the 262-month sentence he received.
Accordingly, Allen would not qualify for relief under this exception.
                             ALLEN V. IVES                               25

Under the majority’s reasoning, an exception that the
Supreme Court reserved for the “extraordinary case” seems
not so extraordinary anymore. See Schlup v. Delo, 513 U.S.
298, 321 (1995) (“To ensure that the fundamental miscarriage
of justice exception would remain ‘rare’ and would only be
applied in the ‘extraordinary case,’ while at the same time
ensuring that the exception would extend relief to those who
were truly deserving, this Court explicitly tied the miscarriage
of justice exception to the petitioner’s innocence.”).

                                    IV.

     I also take exception to the majority’s holding that “to the
extent that Mathis and Descamps may be thought to have
announced a new rule . . . the rule is one of substance rather
than procedure.” First, there is no need to reach the question
of the retroactivity of Descamps and Mathis under Teague v.
Lane, 489 U.S. 288 (1989),5 in this case. Neither party raised
this issue (either before us or below), and regardless of
whether Teague applies here, Allen is still unable to meet the
first requirement of an “actual innocence” claim for escape
hatch jurisdiction.




    5
      In Teague, the Supreme Court laid out a framework for “determining
whether a rule announced in one of [its] opinions should be applied
retroactively to judgments in criminal cases that are already final on direct
review.” Whorton v. Bockting, 549 U.S. 406, 416 (2007). “Under the
Teague framework, an old rule applies both on direct and collateral
review, while a new rule is generally applicable only to cases that are still
on direct review.” Id. A new rule is one that “breaks new ground,”
“imposes a new obligation on the States or the Federal Government,” or
was not “dictated by precedent existing at the time the defendant’s
conviction became final.” Teague, 489 U.S. at 301 (emphasis in original).
26                        ALLEN V. IVES

    Second, the majority’s holding is wrong because
Descamps and Mathis neither issued a “new rule” nor “one of
substance rather than procedure.” To start, the majority’s
holding that these Supreme Court decisions issued a “new
rule” is directly contradicted by prior precedent, in which we
have held otherwise. See Ezell v. United States, 778 F.3d
762, 766 (9th Cir. 2015) (“The Supreme Court did not
announce a new rule in Descamps. Descamps did not impose
a new obligation nor did it break new ground.”); Arazola-
Galea v. United States, 876 F.3d 1257, 1259 (9th Cir. 2017)
(“We now join our sister circuits in definitively holding that
Mathis did not establish a new rule of constitutional law.”).
Rather than issuing a new rule, both Descamps and Mathis
simply clarified existing precedent regarding the application
of the categorical and modified categorical approach under
the Armed Career Criminal Act (ACCA). See Descamps,
570 U.S. at 260 (“Our caselaw explaining the categorical
approach and its ‘modified’ counterpart all but resolves this
case.”); Mathis, 136 S. Ct. at 2257 (“Our precedents make
this a straightforward case. For more than 25 years, we have
repeatedly made clear that application of ACCA involves,
and involves only, comparing elements.”); United States v.
Martinez-Lopez, 864 F.3d 1034, 1039 (9th Cir. 2017)
(“Mathis did not change the rule stated in Descamps; it only
reiterated that the Supreme Court meant what it said when it
instructed courts to compare elements.”); United States v.
Quintero-Junco, 754 F.3d 746, 751 (9th Cir. 2014) (“As the
Supreme Court recently clarified in Descamps, courts may
employ the modified categorical approach only when the
statute of conviction is ‘divisible . . . .’”). 6


     6
      Because Descamps and Mathis did not announce a new rule, Allen’s
Descamps/Mathis claim is not necessarily governed by the Teague
doctrine. But whether or not Teague applies in this case still has no
                             ALLEN V. IVES                               27

    Furthermore, even if we were to assume that Descamps
and Mathis announced a “new rule” for the purposes of
Teague, the majority errs in characterizing the rule as
substantive rather than procedural. A rule is “substantive
rather than procedural if it alters the range of conduct or the
class of persons that the law punishes.” Schriro v.
Summerlin, 542 U.S. 348, 353 (2004). Substantive rules
include “decisions that narrow the scope of a criminal statute
by interpreting its terms, as well as constitutional
determinations that place particular conduct or persons
covered by the statute beyond the State’s power to punish.”
Id. at 351–52 (citations omitted); see also Saffle v. Parks,
494 U.S. 484, 494 (1990) (“The [substantive rule] exception
permits the retroactive application of a new rule if the rule
places a class of private conduct beyond the power of the
State to proscribe, or addresses a ‘substantive categorical
guarante[e] accorded by the Constitution,’ such as a rule
‘prohibiting a certain category of punishment for a class of
defendants because of their status or offense.’” (citations
omitted)).

    “Procedural rules, by contrast, ‘regulate only the manner
of determining the defendant’s culpability,’” and “alter ‘the
range of permissible methods for determining whether a
defendant’s conduct is punishable.’” Welch, 136 S. Ct.
at 1265 (quoting Summerlin, 542 U.S. at 353 (emphasis in
original)). “They do not produce a class of persons convicted
of conduct the law does not make criminal, but merely raise
the possibility that someone convicted with use of the



bearing on whether Allen can raise his claim in a § 2241 petition given
that it fails to qualify as a claim of “actual innocence” for purposes of the
§ 2255 escape hatch.
28                          ALLEN V. IVES

invalidated procedure might have been acquitted otherwise.”
Id.

    Descamps and Mathis did not issue a substantive rule
because these decisions did not modify the elements of an
offense as defined in a criminal statute, and thereby “alter the
range of conduct the statute punishes”—such as the rule
recognized in Bousley.7 See Summerlin, 542 U.S. at 354 (“A
decision that modifies the elements of an offense is normally
substantive rather than procedural. New elements alter the
range of conduct the statute punishes, rendering some
formerly unlawful conduct lawful or vice versa.”). Nor did
Descamps and Mathis issue “constitutional determinations
that place particular conduct or persons covered by the statute
beyond the State’s power to punish,” id. at 352, such as the
Eighth Amendment rules recognized in Penry v. Lynaugh,
492 U.S. 302 (1989).8 Instead, Descamps and Mathis merely
instructed sentencing courts how to apply the “categorical
approach” set forth in Taylor v. United States, 495 U.S. 575
(1990), in determining whether a defendant’s prior state




     7
      In Bousley, the Court concluded that petitioner’s Bailey claim was
not barred by Teague because Bailey issued a substantive, rather than
procedural, new rule. The new rule announced in Bailey was that a
conviction for use of a firearm under § 924(c)(1) requires the government
prove “active employment of the firearm,” and not mere possession.
Bailey, 516 U.S. at 144.
     8
       In Penry, the Supreme Court noted that its prior decisions holding
“that the Eighth Amendment, as a substantive matter, prohibits imposing
the death penalty on a certain class of defendants because of their status,
or because of the nature of their offense,” fell within the Teague
“substantive rule” exception. 492 U.S. at 329–30 (citations omitted).
                             ALLEN V. IVES                                 29

conviction meets a predicate offense under the ACCA.9 In
that way, Descamps and Mathis “regulate[d] only the manner
of determining” a defendant’s qualification for a sentencing
enhancement: specifically, by clarifying the circumstances
under which a sentencing court could look to extra-statutory
documents in its analysis (i.e., the modified categorical
approach) as opposed to only the statutory elements (i.e., the
categorical approach). Welch, 136 S. Ct. at 1265 (quoting
Summerlin, 542 U.S. at 353). Thus, like other procedural
rules, the holdings in Descamps and Mathis did “not produce
a class of persons convicted of conduct the law does not make
criminal,” but only altered “the range of permissible methods
for determining” whether a defendant’s predicate convictions
qualify him for a sentencing enhancement. Id.

   The majority cursorily asserts that Descamps and Mathis
announced a substantive rule because, like “other decisions


    9
        The Taylor categorical approach requires sentencing courts to
“look[] only to the statutory definitions of the prior offenses, and not to the
particular facts underlying those convictions.” Taylor, 495 U.S. at 600.
If the statutory elements under which a defendant was convicted “are the
same as, or narrower than, those of the generic offense,” the prior
conviction qualifies as a predicate offense under the ACCA. Descamps,
570 U.S. at 257. “But if the statute sweeps more broadly than the generic
crime, a conviction under that law cannot count as an ACCA predicate,
even if the defendant actually committed the offense in its generic form.”
Id. at 261. The Supreme Court has “approved a variant of this
method—labeled (not very inventively) the ‘modified categorical
approach’—when a prior conviction is for violating a so-called ‘divisible
statute,’” which is, a statute that “sets out one or more elements of the
offense in the alternative.” Id. at 257. Under the “modified categorical
approach,” sentencing courts may look beyond the statutory elements and
“consult a limited class of documents, such as indictments and jury
instructions, to determine which alternative formed the basis of the
defendant’s prior conviction.” Id.
30                     ALLEN V. IVES

interpreting the reach of federal sentencing enhancements,”
they “altered ‘the range of conduct . . . that the law
punishes,’” citing to Welch and Alaimalo v. United States,
645 F.3d 1042 (9th Cir. 2011). But neither of these cases
support the majority’s contention. In Welch, the Supreme
Court held that its decision in Johnson—which ruled that the
residual clause of the ACCA was unconstitutionally vague
under due process principles—announced a new substantive
rule. 136 S. Ct. at 1268. The rule announced in Johnson was
substantive, however, because it fell within the category of
“constitutional determinations that place particular conduct or
persons covered by the statute beyond the State’s power to
punish.” Summerlin, 542 U.S. at 352. In contrast, Descamps
and Mathis did not make any constitutional determinations
whatsoever. See Ezell, 778 F.3d at 766 (“But even if the
Supreme Court did announce a new rule in Descamps, that
rule is not constitutional.        Descamps is a statutory
interpretation case . . . .”). Alaimalo is likewise inapposite
here. The “new rule” considered in that case came from the
Ninth Circuit decision in United States v. Cabaccang,
332 F.3d 622, 623 (9th Cir.2003) (en banc), which “held that
transporting drugs from one location within the United States
(California) to another (Guam) does not constitute
importation within the meaning of 21 U.S.C. § 952(a).”
Alaimalo, 645 F.3d at 1046. This rule from Cabaccang was
substantive because it fell squarely within the category of
“decisions that narrow the scope of a criminal statute by
interpreting its terms.” Summerlin, 542 U.S. at 351.
Descamps and Mathis, in contrast, did not narrow the
substantive elements of a federal criminal statute or otherwise
“place[] a class of private conduct beyond the power of the
State to proscribe.” Parks, 494 U.S. at 494.
                        ALLEN V. IVES                         31

    In short, the majority errs in concluding that, to the extent
Descamps and Mathis announced a new rule under the
Teague framework, it qualifies as a substantive one. But
there is simply no need for the majority to reach this question
where the issue has not been raised or contested by any party
in this case, and it has no impact on Allen’s inability to raise
his claim in a § 2241 petition given his failure to allege a
claim of actual innocence.

                               V.

    A few final remarks. First, I do not deny the possibility
that a petitioner might qualify for the escape hatch by raising
a claim of actual innocence based on a new interpretation of
the law. For instance, if Allen claimed that he was actually
innocent of one of his predicate convictions that triggered his
career offender designation because an intervening Supreme
Court decision held that the conduct for which he was
convicted was not actually criminal, we might have
jurisdiction under the escape hatch. See Alaimalo, 645 F.3d
at 1047 (holding that the petitioner “made a showing of actual
innocence” because he was convicted of conduct that a later
court decision held was “not a crime”); see also Bousley, 523
U.S. at 620 (“[D]ecisions of this Court holding that a
substantive federal criminal statute does not reach certain
conduct . . . necessarily carry a significant risk that a
defendant stands convicted of ‘an act that the law does not
make criminal.’” (citations omitted)). But Allen presents no
such case here. An actual innocence claim, even if derived in
part from a new interpretation of the law, remains focused on
the facts pertaining to the underlying conduct or conviction
challenged. Whether Allen’s predicate crimes qualify him for
the career offender designation under the Sentencing
Guidelines is a legal conclusion, not a fact of which Allen can
32                      ALLEN V. IVES

be “actually innocent” for the purposes of the escape hatch.
Because Allen’s claim is controlled by Marrero, the district
court properly dismissed Allen’s § 2241 petition.

    Second, I recognize that there is currently a circuit split
on this issue. Some other circuits have allowed sentencing
challenges similar to Allen’s under the escape hatch. See,
e.g., United States v. Wheeler, 886 F.3d 415, 419 (4th Cir.
2018); Hill v. Masters, 836 F.3d 591 (6th Cir. 2016); Brown
v. Caraway, 719 F.3d 583 (7th Cir. 2013); United States v.
Wheeler, 886 F.3d 415, 419 (4th Cir. 2018); Hill v. Masters,
836 F.3d 591 (6th Cir. 2016). But these circuits, unlike ours,
do not read § 2255(e) to require a petitioner to bring an actual
innocence claim in order to be entitled to escape hatch
jurisdiction. Thus, if we want to follow these circuits in their
treatment of claims like Allen’s, we would need to abandon
the actual innocence requirement clearly set forth in our own
controlling precedent—which we cannot do as a three-judge
panel. The majority’s use of the “actual innocence” rubric
does not disguise its blunt and unpersuasive departure from
both Ninth Circuit and Supreme Court precedent.

    Finally, I fear the majority’s expansion of actual
innocence jurisdiction opens the proverbial floodgate for
habeas petitions under the escape hatch. Numerous federal
prisoners may be encouraged to file challenges under
28 U.S.C. § 2241 on the ground that some post-sentence
development in the law—whether it be by legislation, judicial
opinion, or a revision of the Sentencing Guidelines—has
rendered them “actually innocent” of a sentencing
enhancement that they received. Allowing them to do so
                       ALLEN V. IVES               33

undoubtedly circumvents and flouts Congress’ intent in
establishing the “exclusive procedural mechanism” in
28 U.S.C. § 2255.

   I respectfully dissent.
