Allen v. Ives

976 F.3d 863 (Mem)

Michael ALLEN, Petitioner-Appellant,

v.Richard IVES, Respondent-Appellee.

No. 18-35001

United States Court of Appeals, Ninth Circuit.

Filed September 22, 2020

ORDER

Judge W. Fletcher and Judge Christen have voted to deny Respondent-Appellee's petition for rehearing en banc, filed June 8, 2020 (Dkt. Entry 54). Judge Callahan has voted to grant the petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35(f).

The petition for rehearing en banc is DENIED .

W. FLETCHER, Circuit Judge, with whom CHRISTEN, Circuit Judge, joins, concurring in the denial of the Petition for Rehearing En Banc:

Our colleague called this case en banc, but the call failed to gain the approval of a majority of the active judges on our court. We write to respond to our colleague and to explain why we believe we reached the correct decision.

The question presented in this case was fairly straightforward. Petitioner Allen sought a writ of habeas corpus under 28 U.S.C. § 2241. In Marrero v. Ives , 682 F.3d 1190, 1192 (9th Cir. 2012), we held that relief may be sought under § 2241 if a petitioner "(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." (internal quotation marks omitted). The government did not contest that Allen "ha[d] not had an unobstructed procedural shot" at presenting his claim. The only question was whether Allen was "mak[ing] a claim of actual innocence."

Marrero recognized that a habeas petitioner in a capital case could be "actually innocent" of his capital sentence, but left open the question whether a petitioner could be actually innocent of a non-capital sentence for purposes of § 2241. Id. at 1193. In Allen , we answered the question left open in Marrero . We held that Allen made a cognizable claim of actual innocence of his non-capital sentence and that he properly sought relief under § 2241. See Allen v. Ives , 950 F.3d 1184 (9th Cir. 2020).

Our dissenting colleague argues that our decision in Allen is contrary to Marrero , but the two cases are quite different. As we explained in our opinion, Allen's claim relied on retroactively applicable Supreme Court case law. The claim at issue in Marrero , by contrast, was based on a non-retroactive interpretation of the Sentencing Guidelines.

Allen pleaded guilty in federal district court to three drug and firearm-related crimes in 1997. His minimum sentence under the then-mandatory Sentencing Guidelines was increased based on the district court's finding that he had two prior state-law convictions for "controlled substance offenses" that were predicate crimes under the Guidelines. If Allen had previously been convicted of only one "controlled substance offence," and thus only one predicate crime, his mandatory minimum Guideline sentence would have been lower. At sentencing, the district judge stated that if the mandatory minimum sentence had not been increased by the two prior convictions for predicate crimes he would have sentenced Allen to a substantially shorter term.

One of Allen's two prior state-law convictions was based on a guilty plea for a marijuana offense under Conn. Gen. Stat. § 21a-277(a). Some of the conduct prohibited under § 21a-277(a) was a "controlled substance offense" within the meaning of the Guidelines, but some of the conduct was not. The federal district court believed that § 21a-277(a) was divisible, and that its overbreadth could therefore be ignored for purposes of determining whether it was a "controlled substance offense." The court concluded that the marijuana conviction under § 21a-277(a) was for a controlled substance offense, and thus for a predicate crime.

After the deadline for filing a motion pursuant to 28 U.S.C. § 2255 had passed, the Supreme Court decided Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016). Those retroactively applicable decisions clarified the divisibility analysis. Under Descamps and Mathis , it is very likely that § 21a-277(a) was indivisible rather than divisible. If § 21a-277(a) was indivisible, Allen's marijuana conviction under that statute was not a conviction for a "controlled substance offense."

Under Alleyne v. United States , 570 U.S. 99, 107–08, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), a fact that increases a mandatory minimum sentence is an "element of the offense." If an element of an offense is not established, a defendant is necessarily innocent of that offense. See Bousley v. United States , 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ; United States v. Geozos , 870 F.3d 890, 896 (9th Cir. 2017), abrogated on other grounds by Ward v. United States , 936 F.3d 914 (9th Cir. 2019) ("[A]ny ‘fact increasing either end of [a sentencing] range produces a new penalty and constitutes an ingredient of the offense.’ " (second alteration in original) (quoting Alleyne , 570 U.S. at 112, 133 S.Ct. 2151 )); Brown v. Caraway , 719 F.3d 583, 588 (7th Cir. 2013) ("For a prisoner serving a sentence imposed when the guidelines were mandatory, a § 2241 habeas petition raising a guidelines error ‘tests the legality of his detention’ within the meaning of the savings clause, § 2255(e), because the guidelines had the force and effect of law; the only lawful sentence was a guidelines sentence."). If Allen is right that his conviction under § 21a-277(a) was not for a "controlled substance offense," and thus was not a conviction for a predicate crime, he is "actually innocent" of the increased mandatory element of his sentence and is eligible for habeas relief under § 2241.

Our dissenting colleague does not disagree with our holding that a habeas petitioner can be "actually innocent" of a non-capital sentence for purposes of § 2241. He argues only that, on the facts of this case, Allen is not actually innocent of his sentence.

Our colleague makes essentially four arguments. First, he argues that we have misapplied the Supreme Court's decision in Bousley . Second, he argues that Allen should have applied for habeas under 28 U.S.C. § 2255 rather than § 2241. Third, he argues that our decision conflicts with decisions in all of the other circuits except the D.C. Circuit. Finally, he argues that our decision opened the proverbial floodgates. We take each argument in turn.

I. Bousley

Our colleague's most important argument is that we have misapplied Bousley , the foundation case explaining the meaning of "actual innocence" under § 2241. He writes, "The panel majority disregarded the Supreme Court's holding in Bousley that ‘ "actual innocence" means factual innocence, not mere legal insufficiency.’ 523 U.S. at 623–24, 118 S.Ct. 1604." Diss. Op. at 872. Our colleague argues that actual innocence of a predicate crime, and resulting innocence of a mandatory element of a sentence, is a "mere legal insufficiency" rather than "actual innocence." He misunderstands Bousley .

Habeas petitioner Bousley pleaded guilty to "using" a firearm in violation of 18 U.S.C. § 924(c)(1). Bousley did not challenge his conviction on direct appeal, and he allowed the one-year limitation period under § 2255 to lapse. Five years after his conviction, in Bailey v. United States , 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the Supreme Court clarified, with retroactive effect, the definition of "using." Based on the Court's decision in Bailey , Bousley sought habeas under § 2241 on the ground that he had not understood the meaning of "using" when he entered his plea. The Court allowed Bousley to seek habeas under § 2241, provided he could demonstrate "actual innocence." We have previously applied Bousley to grant relief in Alaimalo v. United States , 645 F.3d 1042, 1047–48 (9th Cir. 2011) (holding that a § 2241 petitioner had a claim of actual innocence under Bousley when a later en banc decision narrowed the interpretation of "importation" so as not to reach petitioner's conduct), and United States v. Avery , 719 F.3d 1080, 1085 (9th Cir. 2013) (holding that a § 2255 petitioner had a claim of actual innocence under Bousley when a later Supreme Court decision narrowed the definition of "honest services" so as not to reach petitioner's conduct).

The Court wrote in Bousley , "It is important to note ... that ‘actual innocence’ means factual innocence, not mere legal insufficiency." Bousley , 523 U.S. at 623, 118 S.Ct. 1604. "Mere legal insufficiency," as used by the Court, meant insufficiency of the evidence of Bousley's guilt in the existing record. That is, Bousley could not demonstrate his "actual innocence" simply by pointing to the "mere legal insufficiency" of the evidence in the record made in connection with his guilty plea. Rather, Bousley had to show, on an open record, that he was actually innocent. The Court wrote, "[O]n remand, the Government should be permitted to present any admissible evidence of petitioner's guilt even if that evidence was not presented during petitioner's plea colloquy ...." Id. at 624, 118 S.Ct. 1604.

Allen did not allege "mere legal insufficiency" in the sense used in Bousley . The issue was not the legal insufficiency of the evidence to support Allen's guilt in the state-law marijuana case under § 21a-277(a). He did not contest his guilt in that case. The issue, rather, was whether in that case Allen had been convicted of a "controlled substance offense" within the meaning of the then-mandatory Guidelines. In Descamps and Mathis the Supreme Court retroactively clarified the divisibility analysis for criminal statutes. Allen contended that under the law as clarified by the Court in Descamps and Mathis , the Connecticut marijuana statute under which he was convicted was indivisible,...