                                         PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                ________________

                      No. 13-4274
                   ________________

            UNITED STATES OF AMERICA

                            v.

                      JOHN DOE,
                              Appellant
                   ________________

       Appeal from the United States District Court
         for the Western District of Pennsylvania
      (D.C. Criminal Action No. 2-02-cr-00191-001)
      District Judge: Honorable Donetta W. Ambrose
                    ________________

                 Argued January 12, 2015

  Before: AMBRO, FUENTES, and ROTH, Circuit Judges

            (Opinion filed: September 2, 2015)

William C. Kaczynski, Esquire    (Argued)
1004 Manor Complex
564 Forbes Avenue
Pittsburgh, PA 15219
         Counsel for Appellant

David J. Hickton
   United States Attorney
Laura S. Irwin       (Argued)
   Assistant U.S. Attorney
Rebecca R. Haywood, Esquire
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219

         Counsel for Appellee

                             ________________

                       OPINION OF THE COURT
                          ________________

AMBRO, Circuit Judge

                              Contents
I. Introduction ..................................................................... 4
II. Procedural and Legal History .......................................... 4
III. Summary of Our Decision............................................. 11
IV. Standards of Review and Jurisdiction ........................... 13
   A. Mootness .................................................................. 13
   B. Jurisdiction to Grant a COA .................................... 14
   C. Should We Grant a COA? ....................................... 16
     1. Begay’s Arguably Constitutional Dimension ....... 19
     2. Doe’s Arguably Meritorious Begay Claim........... 21
     3. The District Court’s Arguably Wrong Procedural
         Holdings ............................................................... 23




                                          2
       4.  Conclusion With Respect to COA........................ 24
  D. Cognizability as a Jurisdictional Limit .................... 24
V. Did the 2008 Motion Count Such That Any Later
      Motion Was Second or Successive?.............................. 26
VI. Statute of Limitations .................................................... 27
VII. Was Doe Entitled to Rule 60 Relief? ............................ 29
VIII. Procedural Default ......................................................... 34
IX. Retroactivity .................................................................. 36
X. Cognizability ................................................................. 37
  A. Supreme Court Guidance ......................................... 37
  B. Seventh Circuit ........................................................ 39
  C. Fourth Circuit ........................................................... 40
  D. Eleventh Circuit ....................................................... 42
  E.     Eighth Circuit ........................................................... 42
  F.     Our Dicta ................................................................. 43
  G. The Government’s Argument .................................. 44
  H. Synthesis and Conclusion With Respect
         Cognizability............................................................ 45
XI. Savings Clause .............................................................. 48
XII. Conclusion ..................................................................... 49

            “The whole thing was a very cleverly planned jigsaw
            puzzle, so arranged that every fresh piece of
            knowledge that came to light made the solution of the
            whole more difficult.”—Agatha Christie, Murder on
            the Orient Express.

            “It’s like kind of complicated to me”—John Doe, on
            the withdrawal of his § 2255 motion.




                                           3
I.    Introduction

       John Doe, whose identity we protect because he is a
Government informant, appeals from the denial of (1) a 28
U.S.C. § 2255 motion filed in 2012 and (2) a request made in
2013 to reopen a § 2255 motion filed in 2008. Doe was
sentenced pursuant to the then-mandatory Sentencing
Guidelines as a “career offender” on the basis of two
convictions for simple assault in Pennsylvania. He argued in
his 2008 motion that his convictions were not “crimes of
violence” within the meaning of the Guidelines and thus he
was not a career offender. Our precedent foreclosed that
argument when he made it, but, in light of the Supreme Court
case Begay v. United States, 553 U.S. 137 (2008), we
reversed ourselves, and Doe’s argument became plausible.
He therefore filed another § 2255 motion, but it too was
denied.

        This case presents many procedural complexities of
first impression within this Circuit. If Doe can manage the
Odyssean twists and turns of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), including the Scylla of
the second-or-successive bar and the Charybdis of the statute
of limitations, he may find a meritorious claim at the end of
his journey. However, we do not definitively reach the merits
here and instead remand to let Doe’s case continue its
uncertain course.

II.   Procedural and Legal History

       In 1991 Doe pled guilty in Pennsylvania to cocaine
possession. In 1996 and 2000 (also in Pennsylvania), he pled
guilty to two simple assaults. In 2003, he pled guilty in
federal court to distribution and possession with intent to
distribute at least five grams of crack cocaine in violation of
21 U.S.C. § 841(a)(1) & (b)(1)(B)(iii) (2000). Doe was




                              4
sentenced to 262 months’ incarceration pursuant to the then-
mandatory Sentencing Guidelines and case law that has since
been overruled. This is the sentence he now attacks.

       The Sentencing Guidelines provide a significant
enhancement for “career offenders,” defined as those with “at
least two prior felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G.
§ 4B1.1(a)(3). Doe’s 1991 drug conviction was not relevant
to the career-offender designation because it occurred more
than 10 years before his federal conviction and did not result
in a sentence longer than one year and one month of
imprisonment.1 Thus Doe was a career offender only if both
of his prior assaults were “crime[s] of violence.” Id.
§ 4B1.1(a)(3). His sentence in 2003 occurred under our case
law categorically designating simple assault in Pennsylvania
as a crime of violence, and hence Doe was a career offender.
United States v. Dorsey, 174 F.3d 331, 333 (3d Cir. 1999).
He was sentenced to 262 months of imprisonment, the bottom
of the Guidelines range, and did not appeal. Without the
career-offender enhancement, Doe’s Guidelines’ range would



1
  See U.S.S.G § 4B1.2(c)(2) (offenses must be counted under
§ 4A1.1’s calculation of criminal history points in order to
count for career offender purposes); § 4A1.1 Commentary
(cross-referencing § 4A1.2 for instructions on how to
compute criminal history points); § 4A1.2(e)(2) (excluding
from calculation offenses for which the sentence received is
less than one year and a month and that occurred more than
ten years before the offense conduct to which the defendant is
being sentenced).




                              5
have been 110–137 months, with a mandatory minimum of
10 years.2 U.S.S.G. ch. 5 pt. A (2002).

       In 2004 the Government filed a motion to reduce
Doe’s sentence because he provided “substantial assistance”
to the Government in a different criminal investigation. Fed.
R. Crim. P. 35(b). The Government requested that the
District Court hold the motion in abeyance while the
investigation was ongoing, which the Court did. While the
Rule 35 motion was still pending, Doe filed a § 2255 motion
arguing in part that his simple assault convictions were not
crimes of violence and that he was therefore wrongly
sentenced as a career offender.

       On April 16, 2008, the Supreme Court decided Begay,
which held that a DUI conviction is not a “violent felony”
within the meaning of the Armed Career Criminal Act
(ACCA) because it does not involve “purposeful, violent, and
aggressive conduct.” 553 U.S. at 145. The words and
structure of the career-offender Sentencing Guideline are
similar to the ACCA’s. This holding thus significantly
strengthened Doe’s argument (which otherwise would have
certainly failed because of Dorsey), as the subsection of
Pennsylvania’s assault statute to which Doe pled guilty

2
  Doe faced a mandatory minimum sentence of 10 years
based on his 1991 conviction for cocaine possession. 21
U.S.C. § 841(b)(1)(B)(iii) (2000). Although, as explained
above, not relevant to his Guidelines calculation, Doe’s 1991
conviction set his minimum statutory sentence, as older
sentences for drug crimes involving small amounts of
contraband still count as prior convictions that trigger
mandatory minimums under the Controlled Substances Act.
Id.




                             6
proscribes intentional (i.e., purposeful), knowing and reckless
conduct. 18 Pa. Cons. Stat. § 2701(a)(1) & (a)(2). Yet,
panels of this Court continued to apply Dorsey in
nonprecedential opinions. E.g., United States v. Wolfe, 301 F.
App’x 134 (3d Cir. 2008).

       The District Court appointed the Federal Defenders to
represent Doe on collateral review. On April 16, 2009, one
year to the day from Begay (and thus the last day of
AEDPA’s limitations period within which Doe could make an
argument attacking his sentence based on that decision, see
28 U.S.C. 2255(f)), the District Court held an evidentiary
hearing on both the Rule 35(b) and the § 2255 motions.

       It indicated that it would grant Rule 35 relief but
would not vacate the sentence under § 2255, and Doe’s
counsel withdrew the § 2255 motion. Throughout the
hearing, a crucial factor for everyone was how to keep
confidential that Doe was cooperating with the authorities; if
his cooperation got out, he would have been in danger from
other inmates. The Court and counsel engaged in a lengthy
colloquy about whether they were proceeding on Doe’s
§ 2255 motion or the Government’s Rule 35 motion.
Eventually, Doe’s lawyer proposed the following.

      MR. LIVINGSTON [Doe’s counsel]: Your
      Honor, what I can do at sidebar is withdraw [the
      § 2255 motion], but when I was asking, for the
      public portion of this record, the reason I made
      that request and the reason why I said the things
      I said of public record were mostly for Mr.
      Doe’s[3] safety. When he explained—what he
3
 We do not note in this opinion where we have altered Doe’s
name.




                              7
      explained to me is that he is fully expecting that
      the Court is going to enter a sentence today that
      is greater than time served and that he’s going
      to go back to the federal place from which he
      came, and that inmates there, if they find out
      that he is now serving a lesser term of
      imprisonment will suspect that he came in here
      on a 35(b) motion. So, without of record
      formally withdrawing the motion, what I can
      say at sidebar is that Mr. Doe is not expecting
      relief under the 2255 vehicle.

      THE COURT: But I think we have a problem
      then, I do, because I’m not going to grant the
      relief under 2255. I’m glad to grant it under
      35(b) and I’m glad to keep that under seal, but I
      am not finding today that he’s not a career
      offender and that his criminal history
      calculation in the presentence report
      overrepresented the actual severity of his past
      criminal history. So, I mean I think to do that, I
      almost have to say then that he’s really not a
      career offender because I have to give those
      past offenses less weight and take him out of
      that status, and I don’t find that to be true.

             So I don’t know how we accomplish that
      because that’s the basis of my relief today. The
      basis of my relief is . . . the government having
      filed a 35(b) motion and telling me what they
      have told me today.

There followed further discussion on how to seal proceedings,
and the Court addressed the defendant:




                              8
      THE COURT: Mr. Doe, do you have any
      questions at all about what we’ve just been
      talking about here?

      THE DEFENDANT:              It’s like kind of
      complicated to me.

      THE COURT: If you want to have a little bit of
      time to speak with Mr. Livingston, you
      certainly can.

      THE DEFENDANT: I would appreciate that.

      (Whereupon, there was a brief pause in the
      proceedings.)

      MR. LIVINGSTON: I’ve had an opportunity to
      discuss the procedures that we’ve just been
      going through here with Mr. Doe, and on his
      behalf, what I’m going to do formally is move
      to withdraw his pro se 2255.

The Court then granted the Rule 35(b) motion and reduced
Doe’s sentence by about seven years.

       On May 5, 2009, Doe appealed from the grant of the
Rule 35(b) motion, arguing that he was entitled to further
reduction because of his wrongful classification as a career
offender under the Guidelines. While that appeal was
pending, we decided United States v. Johnson, 587 F.3d 203
(2009), which overruled Dorsey in light of Begay and held
that courts must inquire into the part of the statute to which
the defendant actually pled guilty in order to determine
whether the career-offender enhancement applies. If the
defendant pled guilty to “an intentional or knowing violation
of” Pennsylvania’s assault statute, he has committed “a crime
of violence” within the meaning of the career-offender




                              9
sentencing guideline. Id. at 212. In looking to the part of the
statute to which a defendant pled, courts are restricted to the
“Shepard materials,” namely, “the statutory definition,
charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to
which the defendant assented.” Shepard v. United States, 544
U.S. 13, 16 (2005).

       Shortly after our Court’s decision in Johnson, Doe
filed a motion to remand his appeal to the District Court,
which we denied. When we ruled on the merits of his appeal,
we erroneously stated that Doe would be able to bring his
Begay claim in a timely § 2255 motion based on our mistaken
conclusion that the statute of limitations does not begin to run
until a new right is deemed retroactive on collateral review.
United States v. Doe, No. 09-2265, slip op. at 11 (3d. Cir.
2012) (sealed). In fact, the statute begins to run from the date
the new right is recognized. Dodd v. United States, 545 U.S.
353, 360 (2005). In any event, we affirmed the sentence and
held that Rule 35 was not an appropriate means for Doe to
attack his underlying sentence.
        After our opinion on appeal from the Rule 35
proceedings, in 2012 Doe filed a § 2255 motion, again raising
his Begay argument. The statute of limitations for a § 2255
motion is one year, and, as stated above, begins to run the
date a new right is recognized. Therefore, the statute of
limitations on Doe’s Begay argument expired on April 16,
2009, the day his lawyer withdrew his 2008 § 2255 motion.
The District Court concluded that there was no basis to toll
the limitations period for the 2012 motion and, in the
alternative, that the 2012 motion was an impermissible
second § 2255 motion.          Doe filed a motion for
reconsideration, arguing that the withdrawal in 2009 of his
2008 § 2255 motion was involuntary due to ineffective
assistance of counsel. The District Court appointed new




                              10
counsel, who in 2013 filed a “supplemental” § 2255 motion
and requested that the District Court either reinstate the 2008
pro se motion or equitably toll the statute of limitations for
the 2012 motion. (The parties treat the 2012 motion and the
2013 supplemental motion collectively as one motion filed in
2012, and we do the same.) The District Court again held
that there was no basis for equitable tolling and also
concluded that, because § 2255 counsel was not deficient
under Strickland, the 2008 motion should not be reinstated.

       Doe appeals.

III.   Summary of Our Decision

        Doe’s case is unusually complex, even in the already
intricate and technical areas of law under § 2255 and its
cousin habeas corpus. We therefore begin with an overview
of the questions we face and our bottom-line holdings.
Readers uninitiated in the mysteries of collateral review will
find the following paragraphs opaque; we hope the rest of our
opinion clarifies them.

        To reiterate, Doe’s central claim is that he was
sentenced as a career offender on the basis of two convictions
for assault that should not have been considered. When he
first raised this claim, our case law labeled it a loser, but the
argument gained strength after the Supreme Court ruled in
Begay v. United States.

        Although Doe has been released from prison, we first
hold that Doe’s case is not moot, as it is possible that, if he
wins, the District Court will shorten his term of supervised
release. Next, we consider whether Doe has made the
substantial showing of the denial of a constitutional right that
entitles him to appeal even though Begay was not explicitly a
constitutional decision.      We conclude that we have




                               11
jurisdiction to issue a certificate of appealability (COA); we
then issue one on three threshold issues. We further decide
that even though Doe’s claim is arguably not cognizable on
collateral review, we have jurisdiction over the case, as
cognizability is not always a jurisdictional limit.

        Secure in our jurisdiction, we turn to the issues on
which we grant the COA and assume without deciding that
Doe’s 2012 § 2255 motion is not a second or successive
motion over which the District Court lacked jurisdiction. We
do so because, even if the 2008 motion did not count as Doe’s
first, the 2012 motion would have been untimely and the
circumstances of this case do not call for tolling the statute of
limitations.

       Then we consider whether Doe was entitled to
reinstate his 2008 motion under Federal Rule of Civil
Procedure 60. Concluding that this is a question properly left
to the District Court’s sound discretion, we remand on this
ground.

       To make sure that our remand is not a waste of time,
we consider other potential bars to collateral relief. We hold
that Doe has not procedurally defaulted his claim and that in
any event the Government has waived this affirmative
defense. We then accept the Government’s concession that
Begay applies retroactively. Next, we hold that claims of
Begay error are cognizable on collateral review at least where
they are not defaulted and the § 2255 movant was sentenced
under the mandatory Guidelines. Finally, we acknowledge
the possibility that, even if Doe is unsuccessful in reinstating
his 2008 § 2255 motion, he may be able to pursue the rare
petition for a writ of habeas corpus under 28 U.S.C. § 2241.

       We proceed to put some flesh on these bones.




                               12
IV.    Standards of Review and Jurisdiction

       We review legal determinations de novo, factual
findings for clear error, and matters committed to the District
Court’s discretion for abuse thereof.

        There are four jurisdictional questions in this case.
First, the Government argues that Doe’s appeal is moot
because he is currently serving the supervised release portion
of his sentence, which may not be reduced even if Doe
prevails on the merits. The next question is whether we have
jurisdiction to grant a COA. If we do, we reach the third
question, which is whether we should in fact grant a COA so
that we have jurisdiction over the merits of the case. Finally,
we raise nostra sponte (that is, on our own) the question of
whether, if Begay error is not cognizable in a § 2255
proceeding, the District Court lacked jurisdiction.

       A.     Mootness

       The Government has moved to dismiss Doe’s appeal
as moot because, under 21 U.S.C. §§ 841(b)(1)(B)(iii) and
851, he must serve eight years of supervised release
regardless of the merits of his appeal. Even if it turns out that
he was incarcerated too long, the Government argues that no
relief is available to him because removing the career-
offender designation will not affect his supervised release.

       In circumstances similar to this case, where a § 2255
movant on supervised release appealed the length of his
imprisonment, we observed that the District Court could
credit him with the time served in prison exceeding a lawful
sentence and reduce the length of his supervised release by
that amount. United States v. Wright, 642 F.3d 148, 155 n.7
(3d Cir. 2011). Likewise here, that Doe’s eight-year
supervised release term is statutorily required is no obstacle to




                               13
our jurisdiction because Federal Rule of Criminal Procedure
35(b), under which Doe was sentenced, “authorizes a district
court to reduce any aspect of a defendant’s [otherwise
statutorily mandated] sentence, including supervised release
terms.” United States v. Spallone, 399 F.3d 415, 424 (2d Cir.
2005). Because the District Court may reduce the duration of
Doe’s supervised release if he prevails, the case is not moot.

       B.     Jurisdiction to Grant a COA

       The motions panel that referred Doe’s COA request to
our (merits) panel directed the parties to brief whether we
have jurisdiction to issue a COA. This phrasing bundles two
distinct questions: whether we have jurisdiction to entertain
Doe’s request for a COA; and, if we grant a defective COA,
whether that would deprive us of jurisdiction over the appeal.

        We clearly have jurisdiction to consider Doe’s
application for a COA, as an appeal may be taken to a court
of appeals if “a circuit justice or judge issues a certificate of
appealability.” 28 U.S.C. § 2253(c)(1). A COA is a
“jurisdictional prerequisite” to an appeal on the merits.
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). “The COA
statute establishes procedural rules and requires a threshold
inquiry into whether the circuit court may entertain an
appeal.” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 482
(2000), and Hohn v. United States, 524 U.S. 236, 248 (1998)).
Section 2253 unambiguously gives us jurisdiction—as a panel
or individually as circuit judges—over the threshold inquiry.
Gonzalez v. Thaler, 132 S. Ct. 641, 649 (2012) (“Congress
placed the power to issue COAs in the hands of a ‘circuit
justice or judge.’” (quoting 28 U.S.C. § 2253(c)(1)).

       As a COA is a jurisdictional prerequisite to an appeal,
it was until recently arguable that a defective COA fails to
give a court jurisdiction over the merits of a case. United




                               14
States v. Cepero, 224 F.3d 256 (3d Cir. 2000) (en banc),
overruled by Gonzalez, 132 S. Ct. 641. A COA is defective if
it is issued where the applicant has made no “substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Here, Doe’s most substantial claim is that the
sentencing Court applied an incorrect (but not in itself
unconstitutional) interpretation of the Sentencing Guidelines.
Therefore, the case could be made that any COA here would
be defective, as Doe has failed to make the required showing
of the denial of a constitutional right.4 Under Cepero, if the
COA were defective, we would lack jurisdiction over the
appeal. However, in Gonzalez the Supreme Court clarified
that § 2253(c)(2) is not a jurisdictional statute. 132 S. Ct. at
649. Therefore, even if we issued a defective COA, it would
still give us jurisdiction over the appeal.

        We thus have jurisdiction to decide whether to grant
the COA. It is also settled that we should not grant the COA
unless Doe has made a substantial showing of the denial of a
constitutional right. Furthermore, even if we erroneously
granted a COA over a non-constitutional issue, we would still
have jurisdiction over the appeal. The next question is
whether we should in fact grant the COA, giving us
jurisdiction over the merits of the appeal.



4
   As discussed immediately below in Part III.C, it was
arguably unconstitutional to sentence Doe according to the
erroneous interpretation of the Guidelines because it is
unconstitutional to punish someone more severely than the
law allows; however, if the Guidelines in fact meant what the
sentencing Court thought they did, there would be no
constitutional infirmity in Doe’s sentence.




                              15
      C.     Should We Grant a COA?

       Section 2253(c)(2) provides that “[a] certificate of
appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”
(emphasis added). The Supreme Court has held that, as here,

      [w]hen the district court denies a habeas
      petition[5] on procedural grounds without
      reaching       the      prisoner’s     underlying
      constitutional claim, a COA should issue when
      the prisoner shows, at least, that jurists of
      reason would find it debatable whether the
      petition states a valid claim of the denial of a
      constitutional right and that jurists of reason
      would find it debatable whether the district
      court was correct in its procedural ruling.

Slack, 529 U.S. at 484.

        Perhaps surprisingly, there is some debate as to
whether      “constitutional”    in   § 2253(c)(1)     means
“constitutional” or “federal.” 2 Randy Hertz & James S.
Liebman, Federal Habeas Corpus Practice and Procedure
§ 35.4b[i] & n.33 (6th ed. 2011) [hereinafter FHCPP]
(collecting cases). This is because, pre-AEDPA, to obtain a
certificate of probable cause to appeal (the term for what is
now a COA), an applicant needed to make a substantial

5
  There are significant overlaps between the law of habeas
corpus and motions to vacate, set aside, or correct sentences
under 28 U.S.C. § 2255. In quoting cases from the habeas
context, we do not address the differences from § 2255 law
except where they are relevant to this appeal.




                             16
showing of the denial of a federal right. Barefoot v. Estelle,
463 U.S. 880, 893 (1983). The Supreme Court since held, in
Slack v. McDaniel, that § 2253(c) codified that standard. 529
U.S. at 483. In doing so, the Slack Court expressed “due note
for the substitution of the word ‘constitutional’” for “federal.”
Id. However, the Court did not engage in extended
discussion about whether the change was meaningful. See
Medellín v. Dretke, 544 U.S. 660, 678 (2005) (per curiam)
(O’Connor, J., dissenting). We have held that the change was
meaningful. Marshall v. Hendricks, 307 F.3d 36, 80–81 (3d
Cir. 2002); Cepero, 224 F.3d at 265–68. Hence, to obtain a
COA, Doe must make a substantial showing of the denial of a
constitutional right; a mere federal right will not do.6


6
  Cepero went further than saying we may not hear appeals
from denials of collateral relief when the appellant only
brings federal claims that are non-constitutional; we also held
that we may not hear an appeal on any such claim even when
the appellant has made a substantial showing of the denial of
an independent constitutional right (for example, under
Cepero, if a § 2255 movant makes a substantial showing of
both a Brady violation and a non-constitutional sentencing
error, the movant may appeal only the Brady issue). But see
Ramunno v. United States, 264 F.3d 723, 725 (7th Cir. 2001)
(“If the case presents a substantial constitutional question,
then an independently substantial statutory issue may come
along for the ride. This is one holding of Slack.”).
        We need not decide whether this aspect of Cepero
survives Gonzalez. Our case held that we have no jurisdiction
over appeals from denials of statutory claims.             After
Gonzalez, we clearly have jurisdiction, but it is still an open
question whether § 2253(c)(1) bars appellants without any




                               17
       One important qualification is in order: even though an
appellant must make a substantial showing of the denial of a
constitutional right to get a COA, this aspect of our threshold
inquiry is satisfied even if the claim is only debatably
constitutional. In Hunter v. United States, 559 F.3d 1188,
1190 (11th Cir. 2009), the Eleventh Circuit denied a COA
because Begay was not a constitutional decision. However,
the Supreme Court vacated that judgment in light of the
position in the Solicitor General’s brief, which argued the
proper approach would “encompass[] review of ‘debatably
constitutional’ claims.” See Br. of Solicitor General 9,
Hunter v. United States, No. 09-122, 2009 WL 4099534
(Nov. 25, 2009); Hunter v. United States, 558 U.S. 1143
(2010). The Solicitor General’s position is consistent with
Slack’s characterization of the decision to grant or deny a
COA as a threshold inquiry. The contrary stance, requiring
the claim at issue to be constitutional beyond debate, would in
close cases require something approaching a merits decision
at the supposedly threshold COA phase. In this context, we
hold that Doe may be granted a COA even if Begay is only
arguably (to be clear, plausibly or subject to good faith
debate) a decision of constitutional dimension. See United
States v. Martin, 226 F.3d 1042, 1046 (9th Cir. 2000) (issuing

constitutional claims or bars all non-constitutional claims on
appeal even if a constitutional claim is alongside. On this
point Cepero is difficult to reconcile with Slack (which held
that a petitioner may appeal from an adverse non-
constitutional procedural decision, 529 U.S. 483–84), and
Gonzalez may be read to undermine Cepero significantly, but
Doe’s case does not actually present the question because his
only substantial claim is the Begay violation; either the Begay
claim is constitutional or it’s not, and we need not decide
whether it can “tag along” with a clearly constitutional claim.




                              18
a COA because, at the time defendant’s § 2255 motion was
filed, the constitutional issue was debatable, even though by
the time of appeal the Supreme Court had resolved it against
defendant’s position); see also Hunter, 558 U.S. 1143.

       So we come to another threshold question in this case:
is Doe entitled to a COA? There are three predicate
questions: could jurists of reason debate whether (1) Begay is
constitutional as applied through the Sentencing Guidelines;
(2) Doe has stated a valid claim of Begay error; and (3) the
District Court rightly decided Doe’s motion?

              1.     Begay’s   Arguably         Constitutional
                     Dimension

       Debate is currently fervid across the circuits on
whether Begay is a constitutional decision; we have yet to
weigh in. Supporting Doe’s position are Narvaez v. United
States, 674 F.3d 621 (7th Cir. 2011), and Whiteside v. United
States, 748 F.3d 541, 548 (4th Cir.), rev’d on other grounds,
775 F.3d 180 (4th Cir. 2014) (en banc), cert. denied, 135 S.
Ct. 2890 (2015), both of which held that erroneously
classifying someone as a career criminal under the mandatory
Sentencing Guidelines arguably violates the Due Process
Clause by conferring a longer sentence than the law allows.
The Government argues that in this case Doe’s classification,
even if erroneous, did not result in an illegally long sentence
(and thus comported with due process) because the top of the
relevant statutory sentencing range (life imprisonment) is
higher than the sentence he received (262 months). Narvaez
rejected that argument, as the career offender enhancement

      created a legal presumption that [Narvaez] was
      to be treated differently from other offenders
      because he belonged in a special category
      reserved for the violent and incorrigible. No




                              19
       amount of evidence in mitigation or extenuation
       could erase that branding or its effect on his
       sentence. . . .       The sentencing court’s
       misapplication of the then-mandatory § 4B1.1
       career offender categorization in Mr. Narvaez’s
       case was the lodestar to its guidelines
       calculation.

674 F.3d at 629 (emphasis in original).

       A panel of the Fourth Circuit held that
miscategorization as a career offender worked a “complete
miscarriage of justice” without deciding whether it also
violated the Due Process Clause. Whiteside, 748 F.3d at 548.
In granting the COA, however, the Court made a threshold
inquiry about whether the erroneous designation worked a
constitutional deprivation and was “satisfied that . . . it [was]
at least debatable that erroneous application of the career
offender enhancement deprived Whiteside of his liberty in
violation of his due process rights.” Id. at 555.

       By contrast, the Eighth Circuit, sitting en banc, held in
Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011)
(en banc), that: Begay’s analysis of the language used in
U.S.S.G. § 4B1.1 presented an “ordinary question[] of
[G]uideline interpretation;” because Sun Bear’s sentence was
within the District Court’s statutory authority to impose, “no
miscarriage of justice is at issue;” and the claim, far from
being constitutional, was not even cognizable in a § 2255
case. The District Court in Sun Bear had granted a COA, and
neither the panel nor the en banc Circuit Court discussed
whether the COA was defective.

       The Supreme Court has stressed that the decision to
grant a COA is a “threshold inquiry” into whether “jurists of
reason could disagree with the district court’s resolution




                               20
. . . or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Given the
live debate in several circuits about whether Begay error in a
sentencing case violates the Constitution, a debate that has
resulted in a circuit split and at least two rehearings en banc,
we join the Fourth and Seventh Circuits in holding that,
whatever the final outcome, Begay error is debatably
constitutional, and therefore the word “constitutional” in
§ 2253(c)(2) is no bar to a COA in this case.

              2.      Doe’s Arguably Meritorious          Begay
                      Claim

       Next, we must analyze whether “jurists of reason
would find it debatable whether [Doe’s motion] states a valid
claim of” Begay error. Slack, 529 U.S. at 484. This is easy—
Doe was sentenced as a career offender because of two
simple assault convictions. A career offender is someone
who has been convicted of at least two crimes of violence.
U.S.S.G. § 4B1.1. Simple assault is not categorically a crime
of violence under the Sentencing Guidelines; rather, only
knowing or intentional assaults are. Johnson, 587 F.3d at
210–211 & n.8.7 In deciding whether a defendant pled guilty

7
  Because the Government conceded in Johnson that reckless
assault did not qualify as a crime of violence, we saw no need
to decide whether Begay overruled our prior holding that
“purely reckless crimes may count as predicate offenses for
purposes of career offender guideline.” Dorsey, 174 F.3d at
333. We did, however, note that “Begay . . . made plain that
only ‘purposeful, violent, and aggressive conduct’ may
constitute a violent felony . . . [and] distinguished that sort of
conduct from . . . ‘a crime of negligence or recklessness.’”




                               21
to a knowing or intentional assault, we are “generally limited
to examining the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the
defendant assented.” Shepard, 544 U.S. at 16. We have also
held that a Presentence Investigation Report (PSR) can be a
Shepard document when the defendant does not object to a
factual account of a crime therein. United States v. Siegel,
477 F.3d 87, 93 (3d Cir. 2007).8

       The Shepard materials in the record before us do not
establish that Doe pled guilty to knowing or intentional
conduct. We have the statutory definition of simple assault,
the criminal information for Doe’s first assault, the plea
colloquies for both of Doe’s assaults, and Doe’s PSR in this
case to which he did not object. A person is guilty of simple
assault in Pennsylvania if he “attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to
another” or if he “negligently causes bodily injury to another
with a deadly weapon.” 18 Pa. Cons. Stat. § 2701(a)(1) &
(a)(2). To be guilty of intentional or knowing assault, the


Johnson, 587 F.3d at 211 n.8 (quoting Begay, 553 U.S. at
144–46). The Government also concedes here that reckless
conduct is not a crime of violence, Gov’t Br. at 70, and we
agree for the reasons quoted from Begay in Johnson.
8
   In Johnson, 587 F.3d at 212, n.10, we declined, despite
Siegel, to consider factual matter in an unobjected-to PSR on
the ground that the document provided no basis to determine
the defendant’s mens rea. We need not attempt to resolve
any tension between Johnson and Siegel, as the description of
Doe’s actions here does not provide an adequate basis to hold
that he pled guilty to knowing or intentional assault.




                             22
defendant must “intend[] to impair the victim’s physical
condition or cause her substantial pain.” Johnson, 587 F.3d at
212. Doe’s information tracks the language of the statute’s
first subsection and says that he “intentionally, knowingly or
recklessly caused injury to another, namely David Amon to
wit: by spitting on him in the face and slapping him in the left
cheek area causing pain, redness and swelling to the left
cheek area.” App. 51. At the plea colloquy, the only
reference to Doe’s conduct was a question by the prosecutor,
“Do you admit that you did strike him,” and Doe’s answer,
“Yes.” Tr. 12:17–19, App. 64. The PSR, to which Doe did
not object, states roughly the same set of facts for Doe’s
second assault conviction as the information that Doe slapped
the victim in the face and spat on him (the PSR adds that he
spat a second time). This factual recitation is insufficient to
hold that Doe’s conduct was knowing or intentional.
Slapping someone in the face and spitting are not violent
enough for us to conclude that Doe must have intended to
“impair the victim’s physical condition or cause [him]
substantial pain.” Johnson, 587 F.3d at 212. Therefore, it
appears that Doe has at most one conviction for a crime of
violence within the meaning of the Sentencing Guidelines.

        For these reasons, Doe likely was not a career
offender, and, at a minimum, jurists of reason would at least
find it debatable whether Doe has stated a valid Begay claim.

              3.     The District Court’s Arguably Wrong
                     Procedural Holdings

       Third, we must determine whether jurists of reason
would find it debatable that the District Court correctly
dismissed Doe’s motion as second or successive, denied his
request for equitable tolling of the statute of limitations, and
denied Rule 60 relief that would have reinstated Doe’s timely
2008 motion that also challenged his career offender status.




                              23
The District Court evaluated all three issues through the lens
of an ineffective-assistance-of-counsel claim, deciding that,
because counsel was not ineffective in withdrawing the 2008
motion, the 2012 motion was a second motion, and neither
equitable tolling nor Rule 60 relief was available. We explore
these points in greater detail below, but for the threshold
COA question it is enough to note that the District Court
engaged in the wrong analysis. Whether the 2012 motion was
a second motion depends on why the 2008 motion was
withdrawn, not on whether it was a legitimate strategic
choice. See Thai v. United States, 391 F.3d 491, 495 (2d Cir.
2004) (per curiam). As for equitable tolling and Rule 60,
both require courts to inquire into the totality of the
circumstances; counsel’s ineffectiveness may be one factor,
but it is not necessarily determinative.

              4.     Conclusion With Respect to COA

       For the reasons discussed above, we grant Doe a COA
on whether the District Court properly ruled that (1) his 2012
motion was his second, (2) he was not entitled to equitable
tolling on his 2012 motion, and (3) he was not entitled to
reinstate his 2008 motion.

      D.      Cognizability as a Jurisdictional Limit

        The Government contends that Begay error is not
cognizable on collateral review because it is not of
constitutional magnitude. Assuming for the moment the
Government is correct, we do not believe (nor does the
Government argue) that this sort of cognizability limitation is
also a jurisdictional one. But, as we have a duty to be sure we
have power to decide the case, we pause to consider any
potential jurisdictional implications.




                              24
        Sometimes habeas petitioners and § 2255 movants
bring claims that are not cognizable on collateral review, and
judges conclude they lack jurisdiction over those claims.
E.g., Palma-Salazar v. Davis, 677 F.3d 1031, 1038 (10th Cir.
2012); Trinidad y Garcia v. Thomas, 683 F.3d 952, 1009 (9th
Cir. 2012) (per curiam) (en banc) (Kozinski, J. dissenting).
Other courts have indicated that cognizability is not
jurisdictional. United States v. Fung, 935 F.2d 276, mem. at
2 (9th Cir. 1991) (not precedential) (per curiam). These
strands of case law are harmonized when we recognize that
collateral review courts lack jurisdiction if applicants seek
unavailable remedies. A habeas court may lack jurisdiction
over a claim that does not challenge the fact, duration, or
conditions of confinement because the court is powerless to
afford the proper remedy for the claim, like damages (as
available collateral remedies are generally release or vacating
a conviction or sentence, or some combination of the
foregoing, see 2 FHCPP § 33.1). In Article III terms, certain
claims are not redressable on collateral review, and thus the
Court lacks jurisdiction over them. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992).

        Doe’s claim is not the sort of non-redressable claim
over which collateral courts lack jurisdiction. He seeks to
correct his sentence, and therefore he is properly proceeding
under § 2255. If his claim is not cognizable, then he has
failed to state a claim on which relief may be granted, but he
properly invoked the District Court’s jurisdiction. Bell v.
Hood, 327 U.S. 678, 681 (1946). This distinction is not all
that important to Doe’s case, but as a general matter it is more
than semantic because, were cognizability always
jurisdictional, courts would have to raise the issue sua sponte.
If a movant brings a non-cognizable sentencing issue and the
Government only argues that the movant loses on the merits,
a court may afford relief (if the movant’s position is correct)
regardless whether the Government could have persuasively




                              25
argued that the claim was non-cognizable. By contrast, if a
habeas petitioner seeks damages, notwithstanding the
Government’s position, a district court would lack authority
to redress the claimed harm.

        Because cognizability is not a jurisdictional bar in this
case, it is discussed below after other procedural hurdles.

V.     Did the 2008 Motion Count Such That Any Later
       Motion Was Second or Successive?

        In general, federal defendants get two conceptual bites
at the apple of relief from criminal charges: first at trial (and
appeal therefrom), and second by a motion to vacate, set
aside, or correct a sentence under 28 U.S.C. § 2255, the first
step in what is known as “collateral review” of a trial and
pretrial proceedings (the appeal from a guilty verdict is
“direct review”). After an unsuccessful § 2255 motion, there
is very little a defendant may plausibly ask a court to do;
particularly relevant here, a defendant may not present a court
with a second or “successive” (i.e., third, fourth, etc.) § 2255
motion except in rare circumstances. Thus, the next threshold
question in this case is whether Doe’s 2012 § 2255 motion is
an impermissible second or successive one.

       AEDPA (and, to a lesser extent, pre-AEDPA case law)
puts a very high barrier between movants and relief on “[a]
claim presented in a second or successive” motion. 28 U.S.C.
§§ 2244(a), (b) & 2255(h). To oversimplify, relief on a
second or successive motion is only available when the
Supreme Court makes a new rule of constitutional law
retroactive to cases on collateral review or when newly
discovered evidence clearly shows the movant is factually
innocent of the crime of which he was convicted. Doe meets
neither condition; hence he cannot file a second or successive
§ 2255 motion.




                               26
       Doe’s is literally his second § 2255 motion, but
“second or successive” is a term of art; the second-or-
successive bar does not apply to all § 2255 motions that are
filed after an initially filed motion. Panetti v. Quarterman,
551 U.S. 930, 943–44 (2007) (“[‘Second or successive’] takes
its full meaning from our case law, including decisions
predating [AEDPA].”). To figure out whether the 2012
motion, numerically Doe’s second, was also legally his
second, we need to decide whether the 2008 motion
“counted” as his first even though it was withdrawn. We do
not have a precedential opinion addressing the precise
question here: when does a voluntarily withdrawn § 2255
motion or habeas petition “count” so that a numerically
second motion or petition will be deemed a “second or
successive” filing within the meaning of § 2244?

        Even though the second-or-successive bar is
jurisdictional, see Burton v. Stewart, 549 U.S. 147, 157
(2007), we need not decide whether Doe’s 2012 motion was
his second because, even if it was, AEDPA’s statute of
limitations bars the motion. See Olson v. United States, 953
F. Supp. 2d 223, 229 (D.D.C. 2013) (relying on Sinochem
Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431
(2007)), to dismiss case on statute-of-limitations grounds
without deciding jurisdictional issue). As such, we assume
the 2012 motion was Doe’s first, and he hops out of the
second-or-successive frying pan into the statute-of-limitations
fire.

VI.   Statute of Limitations

        The limitations period ran in 2009, one year after the
Supreme Court decided Begay, and Doe’s motion was filed in
2012. See Dodd v. United States, 545 U.S. 353, 360 (2005).
Therefore, the motion is barred unless the limitations period
is tolled.




                              27
       The District Court erroneously analyzed the equitable
tolling question, concluding that, because Doe’s § 2255
counsel was not ineffective within the meaning of Strickland,
equitable tolling was inappropriate. The correct standard is
that equitable tolling is available when a movant shows “(1)
that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and
prevented timely filing.” Holland v. Florida, 560 U.S. 631,
649 (2010) (internal quotation marks omitted).

        Doe has diligently pursued his rights. He filed his
Begay claim one month before the case came down; he
withdrew his § 2255 motion without any obvious indication
that he was abandoning the Begay claim. He raised Begay on
appeal; when we issued Johnson, he sought remand to the
District Court to litigate his Begay claim. We denied that
relief, telling Doe he could file a timely § 2255 motion; four
and a half months after our mandate issued in his appeal from
the Rule 35 motion, he filed the 2012 motion. Doe has taken
every possible opportunity to press his case and thus satisfies
the first prong of equitable tolling.
        As for the second prong, the question is whether his
attorney’s error in dismissing his 2008 motion as meritless is
the sort of “extraordinary circumstance” that entitles Doe to
equitable tolling. We have “rejected the argument that an
attorney’s mistake in determining the date a habeas petition is
due constitutes extraordinary circumstances for purposes of
equitable tolling.” Johnson v. Hendricks, 314 F.3d 159, 163
(3d Cir. 2002). The failure of Doe’s lawyer to anticipate
Dorsey’s overruling is far less negligent than the error in
Johnson v. Hendricks by a lawyer who miscalculated a well-
established deadline. Indeed, Doe’s lawyer was not negligent
at all. And the failure to anticipate the change in the law did
not impede Doe from directing his lawyer not to withdraw the
motion; the colloquy at Doe’s Rule 35 hearing where Doe’s




                              28
attorney withdrew the timely § 2255 motion to move forward
with the Rule 35 relief suggests that Doe agreed with his
lawyer’s     strategy,   although      without    completely
comprehending the consequences of that assent.           Not
anticipating a legal development, assuming it can even be
considered a “mistake,” is just the sort of ordinary mistake
that courts have held insufficient for equitable tolling.
Johnson, 314 F.3d at 163 (collecting cases).

       Moreover, while we regret misstating on his appeal
from the Rule 35 hearing that Doe could file a timely § 2255
motion after our remand, it is beside the point because, even
at the time of our decision, the limitations period had long
passed. This is a case where a lawyer failed to foresee
developments in the law, a circumstance far from
extraordinary. Therefore, even if we deem Doe’s 2012
§ 2255 motion his first, it must be dismissed as untimely, and
Doe can only win by obtaining Rule 60 relief from the
withdrawal of his 2008 motion.

VII.   Was Doe Entitled to Rule 60 Relief?

        The District Court denied Doe’s request to reinstate his
pro se motion on the ground that, because counsel was not
ineffective in withdrawing the 2008 motion, Doe was not
entitled to relief. We believe the Court should have treated
Doe’s request as a Rule 60 motion, and then should have
asked whether the Rule 60 motion was a disguised second or
successive motion and, if it was not, whether extraordinary
circumstances justified granting relief.9


9
  Except in supplemental briefing we ordered, Doe does not
bring up Rule 60 on appeal (he does argue that the pro se
motion should have been reinstated, Opening Br. at 37, 38 &




                              29
      The question whether the Rule 60 motion is second or
successive is close. The Supreme Court has held that when a

42). The Government in its supplemental letter brief does not
contend that a Rule 60 argument is waived, and we believe
Doe may pursue it on remand. Doe sought reinstatement of
the 2008 motion in his brief in support of his 2013
supplemental § 2255 motion.          The Court had granted
reconsideration of its denial of the 2012 motion because Doe
argued his lawyer had been ineffective in withdrawing the
§ 2255 motion in 2008; the Court allowed Doe to present his
arguments through new counsel (in support of the 2012
§ 2255 motion).       The Court also ordered briefing on
“ineffective assistance of counsel, as it relates to the grounds
for denial of Defendant’s [2012 § 2255] Motion via this
Court’s March 14 [2013] Order.” ECF No. 82 at 1–2. But
Doe’s Motion for Reconsideration attacked counsel’s
performance in 2008, and in any event counsel’s
ineffectiveness has never been particularly relevant in this
case, as Doe has no legitimate Strickland claim, nor has he
defaulted any claim that ineffectiveness could overcome. Cf.
Martinez v. Ryan, 132 S. Ct. 1309 (2012). Because the
confusion about the proper basis for reinstating the 2008
§ 2255 motion may well have occurred at least in part
because of the District Court’s order, we do not consider the
Rule 60 argument waived.
       Doe also argues that the pro se motion was in fact
reinstated when the Court granted reconsideration of its
denial of his 2012 § 2255 motion in order to appoint new
counsel, but this argument is plainly wrong: the Court granted
reconsideration only to allow Doe to present his arguments
through a counsel he had not accused of inefficacy.




                              30
motion asserts that “a subsequent change in substantive law is
a reason justifying relief from the previous denial of a claim
. . . [,] such a pleading, although labeled a Rule 60(b) motion,
is in substance a successive habeas petition and should be
treated accordingly.” Gonzalez v. Crosby, 545 U.S. 524, 531
(2005). At first glance, it would appear that Gonzalez
forecloses Doe’s motion, for it arguably “attacks the federal
court’s previous resolution of a claim on the merits.” Id. at
532 (emphasis removed). However, in Cox v. Horn we read
Gonzalez to hold that a change in the law “without more” is
an inadequate basis for Rule 60 relief. 757 F.3d 113, 124 (3d
Cir. 2014). The approach in Cox calls for a remand to the
District Court to determine if the “more” exists.

        “The fundamental point of 60(b) is that it provides a
grand reservoir of equitable power to do justice in a particular
case.”     Id. at 122 (internal quotation marks omitted).
“[C]ourts are to dispense their broad powers under 60(b)(6)
only in extraordinary circumstances where, without such
relief, an extreme and unexpected hardship would occur.” Id.
at 120. And just as “we have not embraced any categorical
rule that a change in decisional law is never an adequate basis
for Rule 60(b)(6) relief,” id. at 121, it would be nonsensical to
hold as a categorical matter that a person with constitutionally
adequate counsel can never qualify for Rule 60(b) relief.
“We have not taken that route. Instead, we have long
employed a flexible, multifactor approach to Rule 60(b)(6)
motions . . . that takes into account all the particulars of a
movant’s case.” Id. at 122.

       The most relevant factor in this case is the change in
law from Dorsey to Johnson. But a change in decisional law,
without more, is not enough to warrant Rule 60 relief. Cox,
757 F.3d at 115. It is nonetheless an important factor, as is
the significance of that change. Johnson changed the
interpretation of the Sentencing Guidelines in an important




                               31
way, but it was not an obviously constitutional decision nor a
decision that made any conduct or activity legal that had
previously been illegal. That the law changed in a significant
way cuts in favor of granting Rule 60 relief, but Doe will still
need to show “much more” to get relief. Cox, 757 F.3d at
115. (internal quotation marks omitted).

       Doe’s diligence is also an “important factor” under
Rule 60(b). Id. at 126. For the reasons discussed above in
Part VI with respect to equitable tolling, Doe has been
diligent in pursuing his rights.10

      Doe’s underlying claim’s merit is relevant, too. Id. at
124. For the reasons discussed above in connection with his

10
   The Government in its supplemental brief argues that if
Doe’s 2012 motion is construed as a Rule 60 motion, it would
be “untimely.” Gov’t Supp. Br. at 4. That contention is
clearly wrong. First, Rule 60(b)(6) has no built-in time limit.
Second, the Government tries to argue that the 2012 motion
was filed at an unreasonable time because it came 72 months
after Begay, but the Government ignores that Doe first argued
he was not a career offender before Begay came down and
that he has since made repeated arguments both in the District
Court and this Court to the same effect. Finally, the
Government claims that a five-month delay (here it is actually
less) between our mandate on appeal from Doe’s Rule 35
motion and his 2012 motion is unreasonable. We disagree
that, even if the Government were correct about the facts, five
months to make a critical motion in a highly complex case is
categorically unreasonable, particularly when the motion
makes the same meritorious argument Doe has been making
for years to no avail.




                              32
COA, it appears to us (at least from the record on appeal) that
the Begay claim has merit. Other relevant factors are the time
between the dismissal of Doe’s § 2255 motion and his Rule
60 motion and the nature of his sentence; here, it has been six
years since the 2008 motion was dismissed (though the lapse
is largely due to the courts and not Doe), and he has been
released from prison. Yet his motion is not moot, as
discussed above. A final relevant factor is the allegation—
which will be for the District Court to credit or not—that Doe
disagreed with his 2008 counsel on the subject of whether to
withdraw the motion and allowed him to do so only because
he was confused about the proceedings.

       These factors suggest that it would be within the
District Court’s discretion to grant Rule 60 relief, but it is not
so obvious that Doe deserves relief that we would direct that
Court to do so. We therefore vacate the denial of Doe’s
request to reinstate his 2008 § 2255 motion and remand for
consideration of all the relevant factors, including those
factors the parties care to brief that we have not just
discussed.
        But there are still more threshold issues that we must
resolve to guarantee that remand is not a fool’s errand in case
there is a bar to relief independent of everything discussed so
far.11


11
   In a letter and response pursuant to Fed. R. App. P. 28(j),
the parties dispute whether the Supreme Court’s recent
decision in Johnson v. United States, 135 S. Ct. 2551 (2015)
(holding that the ACCA is unconstitutionally vague), applies
to the career offender provision of the Sentencing Guidelines,
which uses very similar language to the ACCA. We believe




                               33
VIII. Procedural Default

        The Government argues that Doe defaulted his claim
by not raising it on appeal when its legal basis did not exist.
We disagree. If a claim is defaulted, the default may be
overcome by a showing of cause and prejudice. When the
“legal basis for a claim was not reasonably available to
counsel,” Coleman v. Thompson, 501 U.S. 722, 753 (1991),
there is “cause” for a procedural default; here prejudice is
clear if the Begay claim is valid. See English v. United States,
42 F.3d 473, 479 (9th Cir. 1994) (failure to object in the face
of a “solid wall of circuit authority” contrary to movant’s
position did not work a default); 2 FHCPP § 41.4[a] (“[T]his
procedural bar is inapplicable to claims that could not have
been raised on direct appeal.”).

       The Government also concedes that it did not rely on
procedural default below, but it argues that we may reach the
issue on our own accord. For that proposition it cites Sweger
v. Chesney, 294 F.3d 506, 521 (3d Cir. 2002), a § 2254 case
stating, among other things, that, in determining whether to
consider an alleged default the Government has not raised,
courts should consider “comity, federalism, judicial

this issue is properly decided by the District Court in the first
instance, assuming Doe obtains Rule 60 relief. If the District
Court reinstates his timely 2008 motion, Doe may seek to
amend it to include the Johnson argument. Because the need
to decide whether that case invalidated the career-offender
provision depends on the interpretation of a very recent
Supreme Court opinion and on how the District Court will
exercise its discretion over any amendment that is sought, we
believe it sensible to remand this case without addressing
Johnson.




                               34
efficiency, and the ends of justice.” Id. (internal quotation
marks omitted). At the outset, Sweger and decisions from
other circuits holding that courts may raise procedural default
sua sponte are in some tension with the Supreme Court’s
statement in Gray v. Netherland, 518 U.S. 152, 165–66
(1996), a § 2254 case, that “procedural default is an
affirmative defense for the [Government]. If the . . . claim
was addressed at some stage of federal proceedings, the
[Government] would have been obligated to raise procedural
default as a defense, or lose the right to assert the defense
thereafter.” And regardless of Sweger, § 2254 is sufficiently
different from § 2255, where comity and federalism are
irrelevant, that we join those circuits that have allowed courts
to hold that the federal Government has waived or forfeited
procedural default defenses. See, e.g., United States v.
Cannady, 126 F.3d 352, 359 (2d Cir. 1997); Rogers v. United
States, 1 F.3d 697, 699 (8th Cir. 1993) (per curiam); Shukwit
v. United States, 973 F.2d 903, 904 (11th Cir. 1992) (per
curiam); United States v. Drobny, 955 F.2d 990, 995 (5th Cir.
1992); see also 2 FHCPP § 41.7[b] n.20 (“Although some
court decisions in the section 2254 context assert that
considerations of comity may justify sua sponte judicial
invocation of a procedural default even when the state’s
representative fails to assert a default in a timely manner,
such a rationale would appear to be inapplicable to section
2255 proceedings.” (citations omitted)).            One crucial
difference between §§ 2254 and 2255 is that § 2254(b)(3)
expressly forbids federal courts from deeming the related
exhaustion defense waived, and there is no parallel
prohibition in § 2255, suggesting that in the § 2255 context
Congress intended courts to use their traditional rules of
waiver and forfeiture.

       Doe spills a great deal of ink arguing that
ineffectiveness of his collateral review counsel can excuse
any procedural default. Br. at 43–53. Because the claim is




                              35
not defaulted and the Government waived this affirmative
defense, Doe’s argument need not be addressed in much
detail. But we note that his attorney’s performance could not
excuse a procedural default (if there were a default), as we
have held that failing to predict a change in the law is not
deficient performance. Sistrunk, 96 F.3d at 672. We also
point out that, to the extent Doe argues that ineffectiveness of
collateral-review counsel can be an independent Sixth
Amendment violation, see Br. at 53, this claim is a nonstarter.
Coleman, 501 U.S. at 752 (“There is no constitutional right to
an attorney in state post-conviction proceedings.
Consequently, a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings.”
(citations omitted)).

       In any event, the claim is not defaulted, and, even if it
were, the Government waived the defense of procedural
default.

IX.    Retroactivity

       Begay was decided after Doe was sentenced, and
therefore he can only benefit from the decision if it applies
retroactively, meaning that those sentenced before Begay was
decided may avail themselves of the rule of that case. The
Government concedes that it does, and we agree. Gov’t Br. at
64; see Narvaez, 674 F.3d at 625.12

12
   The Government argues that Begay is not “retroactively
applicable” to Doe’s 2012 § 2255 motion because it is his
second and is thus not allowed. Gov’t Br. at 64–65. This
phrasing confuses two distinct issues, (1) whether a new rule
of law is retroactive generally (usually because it is
“substantive” or a “watershed rule of criminal procedure,” see




                              36
X.     Cognizability

       The Government argues that Doe’s Guidelines claim is
not cognizable because it is neither constitutional nor the sort
of “fundamental defect” that can be remedied under § 2255.
Hill v. United States, 368 U.S. 424, 428 (1962). This is a
difficult question and one that has divided the circuits. We
hold that it is cognizable.

       A.     Supreme Court Guidance

        Before delving into the narrow question whether a
challenge to the career-offender enhancement may be brought
in a § 2255 motion that has no procedural defects, we review
the Supreme Court’s guideposts for non-constitutional claims
that are cognizable in a § 2255 proceeding. As in many
situations, the polar cases are easy.


Whorton v. Bockting, 549 U.S. 406, 416 (2007) (describing
doctrine derived from Teague v. Lane, 489 U.S. 288 (1989)),
and (2) whether in a particular case a prisoner may benefit
from new law in a second or successive motion, see 28 U.S.C.
§ 2255(h)(2). Under Teague, either a rule is retroactive or it
is not. By contrast, § 2255(h) imposes an independent bar for
relief to the category of prisoners who have already filed one
§ 2255 motion, and in the context of the second-or-successive
bar the language of “retroactivity” is confusing and unhelpful.
Our difference with the Government on this point may be
semantic, but in this technical area of law it is best to be as
clear as possible. We agree with the Government that if
Doe’s 2012 motion is second or successive, he cannot clear
the § 2255(h)(2) hurdle, but, as discussed above, we assume
that the 2012 motion was Doe’s first.




                              37
        In Davis v. United States, an interpretation of the law
handed down after the defendant’s conviction and appeal (the
same interpretation Davis had advanced on the appeal that he
lost) rendered the defendant’s conduct no longer punishable,
and therefore the Supreme Court held the conviction and
sentence could be challenged via § 2255. 417 U.S. 333, 343
(1974). By contrast, in Peguero v. United States, 526 U.S. 23
(1999), a district court failed to inform a criminal defendant
of his right to appeal, as required by the Federal Rules of
Criminal Procedure; Peguero did not appeal, and he sought to
have his appellate rights reinstated on collateral review.
Despite his failure to appeal and his lawyer’s lack of advice
on that right, record evidence made it clear that the defendant
had independent knowledge of his right to appeal. The
Supreme Court held that the District Court’s noncompliance
with the formal requirements of the Federal Rules of Criminal
Procedure could not support a basis for collateral relief when
the movant failed to bring his claim on direct appeal, and, in
any event, he suffered no prejudice from the error. Id. at 27–
28.

        The lead case for filling in the space between these
poles is Reed v. Farley, 512 U.S. 339 (1994). Although Reed
was a § 2254 case, it was pre-AEDPA, when the cognizable
claims under §§ 2254 and 2255 were coextensive. Davis, 417
U.S. at 343. Under Reed, § 2255 relief is available for
nonconsitutional claims to remedy “a fundamental defect
which inherently results in a complete miscarriage of justice
[or] an omission inconsistent with the rudimentary demands
of fair procedure,” 512 U.S. at 348 (alteration in original), or
when “aggravating circumstances” make “the need for the
remedy afforded by the writ of habeas corpus . . . apparent,”
id. at 350. Examples of “aggravating circumstances” include
“[v]iolations of statutes as to which nationally uniform
interpretation is particularly important” and “[p]rejudice to
important interests of the incarcerated petitioner.” 1 FHCPP




                              38
§ 9.1 (internal quotation marks omitted). For example, in
Peguero, 526 U.S. at 24–28, the Supreme Court held that
because of the “general rule, that a court’s failure to give a
defendant advice required by the Federal Rules is a sufficient
basis for collateral relief only when the defendant is
prejudiced by the court’s error,” a “district court’s failure to
advise a defendant of his right to appeal as required by the
Federal Rules of Criminal Procedure” can “provide[] a basis
for collateral relief” only if the movant “suffered . . .
prejudice from the omission.”

       With these guideposts in mind, we turn to the circuit
courts that have faced the same question presented here:
whether a challenge to the career-offender Guidelines
enhancement is cognizable in a § 2255 motion.

       B.     Seventh Circuit

        In Narvaez v. United States, 674 F.3d 621 (2011), with
facts similar to those here, a defendant was classified as a
career offender under the Sentencing Guidelines. Because
that classification was no longer valid after Begay, Narvaez
brought a § 2255 motion. The Seventh Circuit acknowledged
the “general rule” that sentencing errors are not cognizable on
collateral review yet held that the case before it “present[ed] a
special and very narrow exception: A postconviction
clarification in the law has rendered the sentencing court’s
decision unlawful.” Id. 674 F.3d at 627. The Court surveyed
the five cases where the Supreme Court had considered “the
issue of whether a non-constitutional, non-jurisdictional error
is a miscarriage of justice on collateral review,” id. at 627
n.11. In four of the cases, procedural error did not amount to
a miscarriage of justice, but in Davis (the case where a
subsequent change in decisional law rendered defendant’s
conduct lawful) the Supreme Court held that “[t]here can be
no room for doubt that such a circumstance inherently results




                                39
in a complete miscarriage of justice and present[s]
exceptional circumstances that justify collateral relief under
§ 2255.” 417 U.S. at 346–47 (alteration in original) (internal
quotation marks omitted).

        For the Seventh Circuit, the difference between Davis
and the other key cases meant that new procedural rules could
not support a § 2255 claim, while new substantive ones could.
Narvaez relied on Welch v. United States, 604 F.3d 408, 415
(7th Cir. 2010)—a case that held Begay retroactive because
its new interpretation of the ACCA was “substantive”—to
extend the reasoning in Davis to Narvaez’s case. In
particular, the Narvaez Court held that the difference between
a ruling that limits the amount of punishment that can
lawfully be imposed for given conduct and a ruling that
makes punishment impermissible altogether is “one of
degree, not one of kind.” Narvaez, 674 F.3d at 628. The
Court also analogized the situation of Narvaez to one who has
been sentenced on the basis of materially false information, a
well-established due-process violation. Townsend v. Burke,
334 U.S. 736, 741 (1948). The Court concluded, “To classify
Mr. Narvaez as belonging to this group [career offenders] and
therefore to increase, dramatically, the point of departure for
his sentence is certainly as serious as the most grievous
misinformation that has been the basis for granting habeas
relief.” Narvaez, 674 F.3d at 629. Narvaez has been limited
to cases decided (as occurred to Doe) under the mandatory
Guidelines. Hawkins v. United States, 706 F.3d 820, 822–23
(7th Cir. 2013).

      C.      Fourth Circuit

       In Whiteside v. United States, a panel of the Fourth
Circuit reached the same conclusion as the Seventh Circuit.
748 F.3d 541, 543–54 (4th Cir. 2014), rev’d on other
grounds, 775 F.3d 180 (2014) (en banc). The Whiteside




                               40
Court first reasoned that the defendant’s failure to take a
direct appeal of his career-offender designation did not
foreclose collateral review. It acknowledged that Whiteside
“would likely be entitled to a vacated sentence” were the case
now on direct appeal, id. at 554, but at the time of
Whiteside’s conviction pre-Begay Circuit precedent would
have barred his argument and rendered direct appeal fruitless.
That the procedural posture of Whiteside’s case depended
less on the presentation of his claims than on the timing of the
Court’s own decisions “contribute[d] to the conclusion that
denial of review [on collateral review would] operate[] a
complete miscarriage of justice.” Id. As the Court put it,
“[Whiteside] should not be punished—and we mean literally
punished, as in additional time spent in federal prison, time
which the law does not countenance—for th[e] fact” that he
was sentenced pursuant to case law that the Court only
repudiated after the time for a direct appeal had elapsed. Id.

       Next, the Court relied on Peugh v. United States, 133
S. Ct. 2072 (2013), which held that application of a later
edition of advisory Guidelines recommending a higher
sentence than the edition in print at the time of the crime
violated the Constitution’s Ex Post Facto Clause. The
Whiteside Court cited Peugh for the propositions that
Guidelines challenges can be constitutional (thus cognizable
on collateral review) and that principles of fairness and justice
should inform whether a defendant “was subject to a
fundamental miscarriage of justice.” Whiteside, 748 F.3d at
554. The Court concluded that, because of Begay, Whiteside
was “not a career offender, and he should not serve a sentence
that was based on his classification as one.” Indeed, such a
sentence is a fundamental miscarriage of justice. Id. The en
banc Fourth Circuit reversed the Whiteside panel but did not
address cognizability. 775 F.3d 180.




                               41
       D.     Eleventh Circuit

         The panel decision in Gilbert v. United States, 609
F.3d 1159, 1165 (11th Cir. 2010), rev’d on other grounds,
640 F.3d 1293 (11th Cir. 2011) (en banc), used yet another
line of reasoning to conclude that wrongful career-offender
enhancements are cognizable on collateral review,
considering the enhancement to be in substance a crime: “For
federal sentencing purposes, the act of being a career offender
is essentially a separate offense, with separate elements (two
. . . convictions[] for violent felonies), which must be proved,
for which separate and additional punishment is provided.”
(The Seventh Circuit echoed this reasoning in determining
that challenges to career-offender status are cognizable under
28 U.S.C. § 2241. Brown v. Caraway, 719 F.3d 583 (7th Cir.
2013).) Because Gilbert was “actually innocent” of being a
career offender, he could challenge his sentence collaterally.
Gilbert, 609 F.3d at 1165. The Eleventh Circuit en banc
reversed the panel’s decision, as it concluded the motion in
question was a second or successive one, but it expressly
reserved whether Gilbert’s claim could have been brought in
a first § 2255 motion. Gilbert v. United States, 640 F.3d
1293, 1306 & n.13 (11th Cir. 2011) (en banc).

       E.     Eighth Circuit

       Although a panel of the Eighth Circuit also held that
Begay error was cognizable on collateral review (following a
similar line of reasoning as did the Seventh Circuit), the en
banc Court reversed. Sun Bear v. United States, 611 F.3d
925, 931 (8th Cir. 2010), rev’d, 644 F.3d 700 (8th Cir. 2011)
(en banc). The en banc decision is straightforward: because
the defendant’s sentence was statutorily authorized, there was
no miscarriage of justice, and his claim was not cognizable on
collateral review (even though he was sentenced pursuant to
the mandatory Guidelines). Sun Bear, 644 F.3d at 705.




                               42
       F.     Our Dicta

        In Cepero, we faced a question of Guidelines
interpretation and held that we lacked jurisdiction over the
appeal because it was not a constitutional issue. We then
“confront[ed] the specter that Congress has now differentiated
between the type of § 2255 petition that may be filed in
district court and the type that may be appealed to this court.”
Cepero, 224 F.3d at 265. We acknowledged that “[s]ection
2255 petitioners may allege and have adjudicated non-
constitutional issues in district court.” Id. In coming to this
conclusion, we relied on the statute providing that “[a]
prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States . . . may move the
court which imposed the sentence to vacate, set aside or
correct the sentence.” Id. (emphasis in original); accord
United States v. Gordon, 172 F.3d 753, 754 (10th Cir. 1999)
(“Congress, in enacting § 2253(c)(2), differentiated between
the type of petition that can be filed and the type that can be
appealed. Petitions may be filed in district court alleging
violations of the Constitution or federal law. The claims may
only be appealed, however, if they involve the denial of
constitutional rights.” (citation omitted) (emphases in
original)). Even if the advisory Guidelines are arguably not
“law,” there is no doubt the mandatory Guidelines were.
United States v. Booker, 543 U.S. 220, 234 (2005). The
discussions in Cepero and Gordon strongly suggest that any
violation of the “laws of the United States” is cognizable (and
therefore that Guidelines error is too), but the analyses are
dicta, as those cases turned on the appealability of claims
rather than their cognizability in the district courts.




                              43
       G.     The Government’s Argument

       The Government has an impressively long string cite
for the proposition that “federal appellate courts . . . faced
with the question of whether an error in calculating the
Guidelines is cognizable on post-conviction collateral
review[] have ruled consistently that they are not.” Br. at 37.
Surprisingly, only two of the twelve cases the Government
cites—Sun Bear, 644 F.3d at 704 & United States v.
Williamson, 183 F.3d 458, 462 (5th Cir. 1999)—actually
support this proposition. The others are not relevant, as either
they do not discuss the cognizability of sentencing errors in
§ 2255 motions before district courts, United States v.
Manigault, 395 F. App’x 831, 834 (3d Cir. 2010), or they
stand for the proposition that sentencing errors that were
defaulted at sentencing or on direct appeal may not be
brought for the first time in a § 2255 motion. Graziano v.
United States, 83 F.3d 587, 589–90 (2d Cir. 1996) (per
curiam) (“Insofar as claims regarding a sentencing court’s
error in failing to properly apply the Sentencing Guidelines
are neither constitutional nor jurisdictional, we join several
other circuits in holding that, absent a complete miscarriage
of justice, such claims will not be considered on a § 2255
motion where the defendant failed to raise them on direct
appeal.”); Scott v. United States, 997 F.2d 340, 340 (7th Cir.
1993) (“In 1990 Phillip D. Scott was sentenced to 57 months’
imprisonment. He did not appeal.”); Hill, 368 U.S. at 425
(“There was no appeal.”); Knight v. United States, 37 F.3d
769, 771 (1st Cir. 1994) (“Knight did not appeal from his
federal sentence.”); United States v. Mikalajunas, 186 F.3d
490, 492 (4th Cir. 1999) (“Neither Mikalajunas nor Largent
pursued an appeal.”); United States v. Kinder, 69 F.3d 536
(5th Cir. 1995) (not precedential) (per curiam) (unclear
whether Kinder appealed his career offender designation, see
United States v. Kinder, 980 F.2d 961, 962 (5th Cir. 1992));
Gibbs v. United States, 655 F.3d 473, 475 (6th Cir. 2011)




                              44
(“Gibbs acknowledges that he failed to raise his U.S.S.G.
§ 4B1.1 claim on direct appeal and that the claim is therefore
procedurally defaulted.”); Burke v. United States, 152 F.3d
1329, 1331 (11th Cir. 1998) (“[T]he appeal was dismissed
pursuant to Burke’s motion for voluntary dismissal.”); United
States v. Coley, 336 F. App’x 933, 936 (11th Cir. 2009) (per
curiam) (“Coley did not raise this issue on direct appeal. In
fact, it appears that he filed no direct appeal at all.”). For the
reasons discussed above, Doe has not defaulted his Begay
claim, and therefore the Government’s cases (with the
exception of Sun Bear and Williamson) are not on point.

       The Government also strenuously argues that there is
no reason to think that Doe would receive a reduction in his
sentence were he resentenced because the Government filed
an information pursuant to 21 U.S.C. § 851 that enhanced
Doe’s statutory sentencing range based on his prior drug
conviction to a mandatory minimum of 10 years and a
maximum of life. But the Government ignores that Doe was
sentenced at the bottom of the mandatory Guidelines range
(262 months) and that the Court at sentencing expressed its
regret that the Guidelines forced it to impose such a high
sentence. Tr. 13:15–19, S. App. 155 (“[T]here is not much
room for discretion here. There is a guideline sentence that I
am required to follow under the law and it’s a very stringent
sentence. It is very strict and it’s very, very difficult to
impose.”). Even though it is theoretically possible that Doe
could receive the same sentence on remand, the available
facts suggest it is highly unlikely.

       H.     Synthesis and Conclusion With Respect to
              Cognizability

       The Government does not seriously grapple with the
precise issue here, which is whether erroneous sentencing as a
career offender is cognizable on collateral review, not




                               45
whether any Guidelines error can be raised on § 2255. We
have no precedential opinion on either question (though, as
noted above, dicta from Cepero supports Doe), and there is a
circuit split on the former one.

       We hold that the claim is cognizable, at least in cases
arising under the mandatory Guidelines. In reaching that
conclusion, we do not adopt wholesale the reasoning of any
of the circuit courts that have so held; instead, we start from
the Supreme Court’s guidance in Reed and Peguero. The
former case stands for the proposition that a nonconstitutional
error can be cognizable in the presence of “aggravating
factors.” Peguero allows for claims attacking a district
court’s failure to comply with the Federal Rules of Criminal
Procedure when those claims prejudice the defendant. We
believe the incorrect computation of a mandatory Guidelines
range based on misclassification of the defendant as a career
offender is at least as serious as the error discussed in
Peguero and thus should also be cognizable where the
mistake prejudices the defendant.

        This holding is consistent with the dicta of Cepero.
We further agree with the Narvaez Court that substantive
error, like more time in prison, is doubtless more serious than
procedural error, like failure by a court to advise someone of
appellate rights (the claim in Peguero). And as Narvaez
recognizes, § 4B1.1 “involves the classifying of an individual
as belonging to a subgroup of defendants, repeat violent
offenders, that traditionally has been treated very differently
from other offenders.” 674 F.3d at 629. However, unlike
Narvaez, we do not read the Supreme Court’s cases as having
drawn a bright line between, on the one hand, procedural
(therefore not cognizable) claims, and, on the other,
substantive (hence cognizable) ones.




                              46
       Further, the Whiteside Court was correct to draw some
support from Peugh. Although, as a direct appeal about an ex
post facto challenge to wrongful calculation of the advisory
Guidelines, Peugh is entirely distinguishable from Doe, the
case does acknowledge the importance, even the primacy, of
the Sentencing Guidelines to criminal defendants.
Specifically, the Supreme Court cautioned courts that
“sentencing decisions are anchored by the Guidelines,”
Peugh, 133 S. Ct. at 2083, that “[t]he Sentencing Guidelines
represent the Federal Government’s authoritative view of the
appropriate sentences for specific crimes,” id. at 2085, and
that “the range is intended to, and usually does, exert
controlling influence on the sentence that the court will
impose.” Id. This description carries even greater force in
the context of mandatory Guidelines because before Booker
the Guidelines “ha[d] the force and effect of laws,” United
States v. Booker, 543 U.S. 220, 234 (2005).

        Booker and Peugh render implausible the en banc
Eighth Circuit’s analysis that if a sentence is statutorily
authorized, even if not allowed by the mandatory Guidelines,
it is categorically legal and therefore cannot be challenged on
collateral review. We look to the actual world of sentencing,
which before Booker and even today relied far more heavily
on the Guidelines than on statutory ranges. Moreover, and
more importantly, the Supreme Court has not taken such a
categorical approach to cognizablility on collateral review, as
it has strongly suggested, if not held, that collateral challenges
to applications of the Federal Rules of Criminal Procedure are
permitted where the movant has been prejudiced. In short,
Reed’s recognition that nonconstitutional error may be
cognizable       in      § 2255     proceedings,        Peguero’s
acknowledgement that prejudicial violations of the Rules of
Criminal procedure are cognizable, Cepero’s dicta that any
violation of the “laws of the United States” may be corrected
on collateral review, Booker’s emphasis that the mandatory




                               47
Guidelines are law, Peugh’s understanding that even the
advisory Guidelines exert considerable force over sentencing,
and the significance of a career-offender designation, lead us
to conclude that misapplication of the mandatory career-
offender Guideline, when such a misapplication prejudices
the Defendant, results in a sentence substantively not
authorized by law and is therefore subject to attack on
collateral review where the claim is not defaulted.

       Our holding is narrow, and we do not consider
challenges to the advisory Guidelines, procedural Guidelines
error, provisions other than career-offender designation,
defaulted claims, or Guidelines errors that do not cause
prejudice.

XI.    Savings Clause

        We note one final issue that the parties do not brief:
§ 2255 is not a complete substitute for a petition for a writ of
habeas corpus under 28 U.S.C. § 2241. Section 2255(e),
referred to as the “savings clause,” provides that “[a]n
application for a writ of habeas corpus on behalf of a prisoner
who is authorized to apply for relief by motion pursuant to
this section[] shall not be entertained . . . unless it . . . appears
that the remedy by motion is inadequate or ineffective to test
the legality of his detention.”

        We do not decide here whether Doe could properly
petition for a writ of habeas corpus, but we note that Doe’s
situation seems to fall between two of our cases. Compare In
re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997) (prisoner
may petition for habeas when intervening Supreme Court
case rendered conduct of which he was convicted no longer
criminal), with Okereke v. United States, 307 F.3d 117, 120
(3d Cir. 2002) (prisoner may not petition for habeas where




                                 48
intervening Supreme Court case changed the identity of
factfinder and burden of proof on facts affecting sentence).

        The Seventh Circuit in a case with factual similarities
to this one held that the second-or-successive bar rendered
§ 2255 inadequate to challenge a sentence after Begay when
the petitioner’s first § 2255 motion was brought at a time
when our Third Circuit precedent foreclosed his argument.
Brown, 719 F.3d at 588. (Seventh Circuit law governed the
§ 2241 petition because Brown was incarcerated in Indiana;
the § 2255 motion was governed by our law, as Doe was
convicted in Pennsylvania.) However, the Eleventh Circuit
rejected the same argument in Gilbert. 640 F.3d at 1295. We
do not decide which of these cases we believe is correct.

XII.   Conclusion

       Doe argued that he was not a career offender before
Begay came down. He was right when his lawyer, the
District Court, and our Court were wrong. After the Supreme
Court clarified the law, the District Court, our Court, and
Doe’s lawyer persevered in our error. We caused unfortunate
and unwarranted hope by informing Doe in his appeal from
the Rule 35 motion that he could still bring a timely § 2255
motion. We regret that this case proves wrong Justice
Holmes’s optimistic statement that collateral review “cuts
through all forms and goes to the very tissue of the structure.
It comes in from the outside, not in subordination to the
proceedings, and although every form may have been
preserved, opens the inquiry whether they have been more
than an empty shell.” Frank v. Mangum, 237 U.S. 309, 346
(1915) (Holmes, J. dissenting).       AEDPA’s procedural
obstacles hobble the meritorious and frivolous claims alike;
while they have not stopped Doe, they may yet, and in any
event they have slowed his progress considerably. We vacate




                              49
the judgment of the District Court and remand for further
proceedings.




                           50
