Allen v. Ives

950 F.3d 1184

Michael ALLEN, Petitioner-Appellant,

v.Richard IVES, Respondent-Appellee.

No. 18-35001

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 2019 Seattle, Washington

Filed February 24, 2020

W. FLETCHER, Circuit Judge:

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

I. Background

In 1997, Allen pleaded guilty in federal district court in Connecticut to conspiracy to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846 ; carrying a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c) ; and possession of a firearm as a felon in violation 18 U.S.C. § 922(g)(1) and 924(c). When Allen was sentenced, the sentencing guidelines were mandatory. See United States v. Booker , 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

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

Because Allen was found to be a career offender, his base offense level for the conspiracy count increased from 36 to 37, increasing his sentencing range from 235 to 293 months to 262 to 327 months. The district court sentenced Allen to 262 months on the conspiracy count, a mandatory consecutive sentence of 60 months on the carrying-a-firearm count, and a concurrent sentence of 120 months on the felon-in-possession count. Allen was sentenced to a total term of imprisonment of 322 months.

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

In 2003, the federal district court in Connecticut denied Allen’s § 2255 motion to vacate his sentence. The Second Circuit affirmed. In January 2017, Allen filed a petition under 28 U.S.C. § 2241 in federal district court in Oregon, where he was incarcerated. (A motion under § 2255 must be filed in the district where the defendant was sentenced. A petition under § 2241 must be filed in the district where the petitioner is incarcerated.) Allen contended in his § 2241 petition that Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016), and Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), retroactively established that under the categorical approach of Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), his Connecticut state court marijuana conviction was not a "controlled substance offense" as defined in U.S.S.G. § 4B1.2, and that he was therefore innocent of being a career offender. Allen asked to be resentenced without the enhancement based on career offender status.

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

II. Mootness

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

The district court in Connecticut was required under 21 U.S.C. § 841(b)(1)(B) to impose a sentence of supervised release of "at least four years." However, 18 U.S.C. § 3583(e) authorizes a district court to terminate the period of supervised release after one year "if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice." Allen has a nontrivial argument for reducing his supervised release period under § 3583(e). If we hold that the district court in Oregon had jurisdiction over Allen’s § 2241 petition, and if Allen is held to be actually innocent of having been a career offender, there is a nontrivial possibility that the district court in Connecticut will reduce his term of supervised release under § 3583(e). See Mujahid v. Daniels , 413 F.3d 991, 995 (9th Cir. 2005) ("The ‘possibility’ that the sentencing court would use its discretion to reduce a term of supervised release under 18 U.S.C. § 3583(e)(2) was enough to prevent the petition from being moot.") (citing Gunderson v. Hood , 268 F.3d 1149, 1153 (9th Cir. 2001) ); see also United States v. D.M. , 869 F.3d 1133, 1137 (9th Cir. 2017).

Allen’s appeal therefore is not moot.

III. Standard of Review

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

IV. Discussion

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

A. Actual Innocence

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

In addressing claims of actual innocence under § 2241, we have relied on "the standard articulated by the Supreme Court in Bousley v. United States , 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)." Stephens , 464 F.3d at 899. A "petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley , 523 U.S. at 623, 118 S.Ct. 1604 (internal quotation marks omitted). At issue in Bousley was a claim of actual innocence of the crime of conviction for which a petitioner has been sentenced.

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

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

In Marrero , we held that a prisoner seeking resentencing based on non-retroactive changes to the treatment of related predicate crimes under the Sentencing Guidelines did not...