. 
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
                        ALLEN V. IVES                         5

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 
(2013), and Mathis
v. United States, 
136 S. Ct. 2243 
(2016). Those retroactively
6                      ALLEN V. IVES

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
(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 
(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
)); 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.
                        ALLEN V. IVES                         7

    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.” Diss.
Op. at 20. 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 
(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
8                       ALLEN V. IVES

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
. “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.
    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
                       ALLEN V. IVES                         9

the Court in Descamps and Mathis, the Connecticut
marijuana statute under which he was convicted was
indivisible, and that his conviction was therefore not a
conviction for a “controlled substance offense” according to
the then-mandatory Guidelines. Under Bousley, this is a
claim of actual innocence of the mandatory increase in his
federal sentence.

     Allen was in a very different position from Bousley. He
did not claim “actual innocence” of his sentence because of
a “legal insufficiency” of the evidence in the record. He
claimed “actual innocence” because a predicate for his
mandatory increased sentence—the existence of a prior
conviction of a predicate crime—was missing. To impose the
mandatory increased sentence under the Guidelines, the
district court had to find as a fact that Allen had previously
been convicted of two predicate crimes. To determine
whether the Connecticut marijuana conviction was a
predicate crime, there is no need for the federal habeas court
to look beyond the existing record. That court need only look
at the definition of the crime under § 21a-277(a) and to apply
the analysis set forth in Taylor v. United States, 
495 U.S. 575
(1990). There is no additional evidence the Government can
offer on the point.

    Our dissenting colleague contends that so long as Allen
was previously convicted of some crime, it does not matter
under Bousley what the crime was. Our colleague writes,
“Allen’s claim here has nothing to do with whether his prior
conduct is still criminal, unlike in Bousley. . . . He remains
rightly convicted of his past crimes.” Diss. Op. at 22. But
the question under the mandatory sentencing Guidelines was
not whether Allen had been convicted of some crime. The
question was whether he had been convicted of a predicate
10                      ALLEN V. IVES

crime. Under the logic of our dissenting colleague, it would
not matter if the district court had used as a predicate crime
a prior conviction for jaywalking, so long as the petitioner
had been “rightly convicted of his past crime” of jaywalking.

    Bousley claimed innocence of the crime of conviction,
and Allen claimed actual innocence of the increased
mandatory sentence. But for purposes of “actual innocence”
under Bousley, the difference does not matter. Our colleague
does not contend that there is no such thing as actual
innocence of an increased mandatory sentence. A fact that
increases a mandatory sentence is an “element of the
offense.” 
Alleyne, 570 U.S. at 108
. A legal analysis is
necessary to determine whether a conviction for marijuana
possession—or for jaywalking—was a predicate offense for
purposes of a mandatory sentence under the Sentencing
Guidelines in effect at the time Allen was sentenced. But the
legal analysis leads to a determination of a fact: Allen’s
conviction under § 21a-277(a) either was, or was not, a
conviction for a predicate offense. If it was not a conviction
for a predicate offense, Allen is “actually innocent” of his
increased mandatory sentence.

     II. Petition Should Have Been Brought Under § 2255

   Our dissenting colleague argues that Allen had an
opportunity to assert his claim of actual innocence in an
application under § 2255. He writes:

         Allen’s first § 2255 motion in the Connecticut
         district court was denied in 2003. . . . He had
         an opportunity to bring the instant claim that
         he was not a career offender in that initial
         § 2255 motion but did not do so. As a result,
                       ALLEN V. IVES                      11

       he may not proceed by way of the escape
       hatch now.

Diss. Op. at 40 (citation omitted). That is, according to our
colleague, Allen had an “unobstructed procedural shot” at
presenting his claim of actual innocence in an application
under § 2255. Therefore, he cannot now seek habeas under
§ 2241.

    This argument ignores two things. First, Allen is in the
same position as Bousley. When Bousley was convicted,
“using” a firearm had an accepted definition. Only after the
Supreme Court clarified the definition of “using” five years
later in Bailey did Bousley have a claim of actual innocence.
That is, because of the incorrect definition of “using”
previously relied upon by the parties and the court, Bousley
had not had an “unobstructed procedural shot” at presenting
his claim of actual innocence under the correct definition.
Similarly, when Allen was sentenced, § 21a-277(a) was
believed to be severable under the accepted mode of analysis.
Under that analysis, an overbreadth argument was not
available. Only after the Supreme Court clarified the
severability analysis in Descamps and Mathis several years
later did Allen have an argument that § 21a-277(a) was
inseverable and a resulting claim of actual innocence. That
is, because of the incorrect severability analysis previously
relied upon by the parties and the federal district court in
Connecticut, Allen had not had an “unobstructed procedural
shot” at presenting his claim of actual innocence under the
correct analysis. In Bousley, where a later Supreme Court
decision clarified the law, the Court allowed a habeas claim
under § 2241. We did the same in Allen.
12                     ALLEN V. IVES

    Second, the Government conceded the point. The
Government did not argue that Allen had an unobstructed
procedural shot at bringing his actual innocence claim in an
application under § 2255. It conceded that if Allen had a
plausible claim of actual innocence of the increase in his
mandatory sentence he could seek habeas under § 2241.

                     III. Other Circuits

   Our dissenting colleague argues that our decision
conflicts with the decision of every other circuit except the
D.C. Circuit, “creat[ing] a new four-way circuit split and
maroon[ing] the Ninth Circuit on our own island of
§ 2255(e) jurisdiction.” Diss. Op. at 24. Our colleague
overstates the matter.

    Decisions by the Fifth, Eleventh and, possibly, the Tenth
Circuits conflict with our decision in Allen. See In re
Bradford, 
660 F.3d 226 
(5th Cir. 2011); McCarthan v.
Director of Goodwill Industries—Suncoast, Inc., 
851 F.3d
1076 
(11th Cir. 2017) (en banc); see also Sandlain v. English,
714 F. App’x 827 (10th Cir. 2017). However, decisions by
the Fourth, Sixth and Seventh Circuits agree with Allen,
though using somewhat different language. See Lester v.
Flournoy, 
909 F.3d 708
, 712 (4th Cir. 2018) (allowing a
§ 2241 habeas challenge to a mandatory sentence when
“misclassification as a career offender, which increased his
mandatory Guidelines range from a maximum of 151 months
to a minimum of 262, is an ‘error sufficiently grave to be
deemed a fundamental defect.’” (quoting United States v.
Wheeler, 
886 F.3d 415
, 429 (4th Cir. 2018), cert. denied,
139 S. Ct. 1318 
(2019)); Hill v. Masters, 
836 F.3d 591
, 600
(6th Cir. 2016) (allowing a § 2241 habeas challenge to a
mandatory sentence “because [petitioner] was sentenced
                        ALLEN V. IVES                        13

under the mandatory Guidelines Manual; is barred from filing
a successive § 2255 petition; and received the enhancement
based on a prior conviction that a subsequent, retroactive
change in Supreme Court jurisprudence [in Descamps]
reveals is not a predicate offense.”); Brown v. Caraway,
719 F.3d 583 
(7th Cir. 2013) (allowing a § 2241 habeas
challenge to a mandatory sentence after Begay v. United
States, 
553 U.S. 137 
(2008), clarified the definition of generic
arson, with the result that what had been thought a predicate
crime was no longer a predicate crime for career offender
status). The other circuits have not decided any cases directly
on point.

    We agree with our dissenting colleague’s argument that
there is a circuit split. We also agree with our dissenting
colleague’s implicit argument that the Supreme Court should
grant certiorari—in this or in some other case—to resolve the
circuit split. We disagree, however, with our colleague’s
argument that we are “marooned . . . on our own island.” We
are in the distinguished company of the Fourth, Sixth and
Seventh Circuits.

                       IV. Floodgates

    Finally, our dissenting colleague argues that our decision
in Allen “throws wide open an escape hatch reserved for the
rarest of occasions,” and “opens the floodgates to habeas
review of noncapital ‘actual innocence’ claims.” Diss. Op.
at 16, 23. We disagree. Our decision reaches only a small
and diminishing subset of § 2241 petitions. For other
petitioners to be similarly situated to Allen and to be actually
innocent of a mandatory sentence, they will have to show: (1)
they were convicted of prior offenses, at least one of which
was mistakenly deemed to qualify as a predicate offense; (2)
14                     ALLEN V. IVES

the mistake was later addressed by the Supreme Court in a
retroactive decision clarifying the applicable law; (3) they
received a mandatory sentence under a mandatory sentencing
scheme; and (4) all of this came to light after the opportunity
to raise it in a § 2255 motion had passed. See 
Hill, 836 F.3d
at 599
–600 (explaining that the Sixth Circuit’s holding only
applies to petitioners who received mandatory minimum
sentences pre-Booker, were unable to file a successive § 2255
petition, and who relied on Supreme Court authority that
retroactively disqualified a prior conviction from serving as
a predicate offense). Allen’s actual innocence claim was
cognizable under § 2241 because he was sentenced before the
Court decided Booker, which rendered the Sentencing
Guidelines advisory rather than mandatory. Booker was
decided more than fifteen years ago. The number of
remaining actual innocence claims under the pre-Booker
mandatory sentencing scheme, comparable to Allen’s, is
small and dwindling.



R. NELSON, Circuit Judge, with whom CALLAHAN,
M. SMITH, IKUTA, BENNETT, BADE, COLLINS, LEE,
BRESS, BUMATAY, and VANDYKE, Circuit Judges, join,
and with whom HUNSAKER, Circuit Judge, joins as to Parts
II and IV, dissenting from the denial of rehearing en banc:

   This case has all the hallmarks worthy of en banc review.
The panel majority held that a challenge to a conviction based
on a subsequent change in legal classification of a crime
qualifies as a claim of “actual innocence” for purposes of
28 U.S.C. § 2255(e). The panel majority’s holding conflicts
with Supreme Court precedent in Bousley v. United States,
523 U.S. 614 
(1998); deepens a four-way circuit split; creates
                       ALLEN V. IVES                      15

an irreconcilable intra-circuit conflict with our holding in
Marrero v. Ives, 
682 F.3d 1190 
(9th Cir. 2012); and ignores
the statutory text by evading the limits of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). Not only
has every other circuit rejected the panel majority’s
reasoning, but 24 judges on this court—including 19 active
judges—have interpreted Marrero to preclude the panel
majority’s holding. See infra at 27 n.15. Yet today we allow
just two judges to overrule 19 active judges without en banc
review. The panel majority’s opinion and the court’s denial
of en banc review disregards the rule of law generally and
AEDPA specifically.

    The panel majority becomes the first panel to decide that
a petitioner legally misclassified as a career offender
under the Sentencing Guidelines has a claim of actual
innocence—ignoring Supreme Court precedent in Bousley
holding “‘actual innocence’ means factual innocence, not
mere legal 
insufficiency.” 523 U.S. at 623
–24 (citation
omitted). We now become the lone outlier among all of our
sister circuits on a question of exceptional importance. Even
our concurring colleagues agree that this case warrants
Supreme Court review. Concurrence at 13. Furthermore, we
directly contradict our precedent in Marrero, where we held
that “the purely legal argument that a petitioner was wrongly
classified as a career offender under the Sentencing
Guidelines is not cognizable as a claim of actual innocence
under the escape 
hatch.” 682 F.3d at 1195
. The panel
majority’s holding also ignores AEDPA’s statutory text. All
told, we now add the panel majority’s fundamental legal
16                          ALLEN V. IVES

error to the long list of errors we have made in habeas
jurisprudence.1

      The panel majority throws wide open an escape hatch
reserved for the rarest of occasions. By reading any legal
insufficiency as actual innocence, the panel majority invites
a massive influx of previously meritless habeas petitions.
Instead, we should “apply[] the law as Congress wrote it
. . . .” McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,
851 F.3d 1076
, 1080 (11th Cir. 2017). That means that “[t]o
invoke the savings clause, there must be something about the
initial § 2255 procedure that itself is inadequate or ineffective
for testing a challenge to detention.” Prost v. Anderson,
636 F.3d 578
, 589 (10th Cir. 2011) (Gorsuch, J.). Ultimately,
the panel majority fails in its charge “to apply, not amend,
the work of the People’s representatives.” Henson v.

     1
       See, e.g., Johnson v. Lee, 
136 S. Ct. 1802
, 1806 (2016) (per curiam)
(“The Ninth Circuit’s contrary reasoning is unpersuasive and inconsistent
with this Court’s precedents.”); Davis v. Ayala, 
576 U.S. 257
, 258 (2015)
(“The Ninth Circuit misunderstood the role of a federal court in a habeas
case.”); Waddington v. Sarausad, 
555 U.S. 179
, 194 (2009) (“The
reasoning of the Court of Appeals, which failed to review the state courts’
resolution of this question through the deferential lens of AEDPA, does
not convince us . . . .”); Evans v. Chavis, 
546 U.S. 189
, 200 (2006) (“[W]e
find the Ninth Circuit’s reasoning in conflict with our Saffold holding.”);
Mayle v. Felix, 
545 U.S. 644
, 662 (2005) (noting the “Ninth Circuit’s rule
would permit the ‘relation back’ doctrine to swallow AEDPA’s statute of
limitation”) (internal quotation marks and citation omitted); Brown v.
Payton, 
544 U.S. 133
, 147 (2005) (holding the Ninth Circuit “made this
. . . assumption, and it was in error to do so”); Woodford v. Garceau,
538 U.S. 202
, 205–06 (2003) (“Five Courts of Appeals have ruled that
AEDPA applies . . . while the Court of Appeals for the Ninth Circuit has
held it does not . . . . [W]e agree with the majority of the Courts of
Appeals.”) (internal quotation marks and citation omitted); Early v.
Packer, 
537 U.S. 3
, 10 (2002) (per curiam) (“[T]he Ninth Circuit erred by
relying on those nonconstitutional decisions.”).
                        ALLEN V. IVES                        17

Santander Consumer USA Inc., 
137 S. Ct. 1718
, 1726 (2017).
Accordingly, I respectfully dissent.

                               I

     A brief background. A federal prisoner who seeks to
challenge his confinement must generally rely on a § 2255
motion to do so. See Stephens v. Herrera, 
464 F.3d 895
, 897
(9th Cir. 2006). Section 2255 has a “1-year period of
limitation[.]” § 2255(f). Section 2255 also restricts second
or successive petitions to claims involving either newly
discovered evidence that can clearly and convincingly
establish innocence or new rules of constitutional law made
retroactive by the Supreme Court. See § 2255(h). But the so-
called “escape hatch” or “savings clause” of § 2255(e) allows
a federal prisoner to file a § 2241 petition if the remedy under
§ 2255 is “inadequate or ineffective to test the legality of his
detention.” § 2255(e). In the Ninth Circuit, a § 2255 remedy
is “inadequate or ineffective” when the petitioner “(1) makes
a claim of actual innocence, and (2) has not had an
unobstructed procedural shot at presenting that claim.”
Stephens, 464 F.3d at 898 
(internal quotation marks omitted).
Allen’s claim centers on the definition of “actual innocence.”

    In this case, Petitioner Michael Allen pled guilty in 1997
to multiple drug and firearm offenses. 
Allen, 950 F.3d
at 1186
. Allen’s base offense level was 36.
 Id. The district
court 
applied a one-level upward adjustment because Allen
was a “career offender” under U.S. Sentencing Guideline
§ 4B1.1, due to two prior state court convictions for drug
offenses.
 Id. This adjustment increased 
the applicable
guideline range from 235 months to 262 months on the low
end, and from 293 months to 327 months on the high end.
 Id.
The district court 
sentenced Allen to 262 months on the
18                           ALLEN V. IVES

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, for
a total term of imprisonment of 322 months.
 Id. At the time
of sentencing, the Sentencing Guidelines were mandatory.
See United States v. Booker, 
543 U.S. 220
, 245 (2005).
Allen’s direct appeal was denied by the Second Circuit.
United States v. Perry, 
1998 WL 961120 
(2d Cir. 1998). He
then filed a § 2255 motion in the U.S. District Court for the
District of Connecticut, which was denied. 
Allen, 950 F.3d
at 1187
. The Second Circuit affirmed.
 Id.

    Allen filed the 
instant § 2241 petition in the U.S. District
Court for the District of Oregon in 2017, where he had been
incarcerated.2
 Id. Importantly, “Allen does 
not claim to be
actually innocent of the crimes for which he was sentenced.
Nor does Allen claim to be actually innocent of his prior
convictions that, at the time of his sentencing, qualified him
as a career offender under the Sentencing Guidelines.” Allen,


     2
      On April 26, 2019, Allen’s sentence was reduced to time served and
he was released under the First Step Act. 
Allen, 950 F.3d at 1187
. The
term of supervised release was reduced to 48 months. United States v.
Allen, 
384 F. Supp. 3d 238
, 244 (D. Conn. 2019). The panel majority and
dissent agree that this case has not been mooted by Allen’s release from
prison. 
Allen, 950 F.3d at 1187
–89, 1192 n.1. Because the career
offender enhancement potentially impacts the terms of Allen’s supervised
release, the case presents a live case and controversy. See Jones v.
Cunningham, 
371 U.S. 236
, 243 (1963) (“While petitioner’s parole
releases him from immediate physical imprisonment, it imposes
conditions which significantly confine and restrain his freedom; this is
enough to keep him in . . . ‘custody’ . . . within the meaning of the habeas
corpus statute . . . .”); see also Mujahid v. Daniels, 
413 F.3d 991
, 995 (9th
Cir. 2005) (“The ‘possibility’ that the sentencing court would use its
discretion to reduce a term of supervised release . . . was enough to
prevent the petition from being moot.”).
                        ALLEN V. IVES                        
19

950 F.3d at 1192 
(Callahan, J., dissenting). It’s undisputed
that he committed the two prior drug dealing offenses. 
Allen,
950 F.3d at 1188 
(“Allen does not challenge the validity of
his conviction for sales of marijuana . . . .”).

    Rather, Allen claims he was “actually innocent” of being
classified as a career offender.
 Id. at 1186. 
He argues that
Mathis v. United States, 
136 S. Ct. 2243 
(2016), and
Descamps v. United States, 
570 U.S. 254 
(2013),
retroactively established that one of his two state law drug
offenses did not qualify as a federal predicate crime under the
Sentencing Guidelines, when applying the categorical
approach of Taylor v. United States, 
495 U.S. 575 
(1990).
 Id.
at 1187. 
Allen asserts that because one of his past crimes
should be legally reclassified, he would not meet the
sentencing standard for being a career offender.
 Id. The
district court 
dismissed the § 2241 petition for lack of
jurisdiction, relying on our opinion in Marrero.
 Id. The
district court 
did not reach the merits of Allen’s claim, but it
granted a certificate of appealability “as to whether 28 U.S.C.
§ 2241 habeas corpus jurisdiction is appropriate.”
 Id.

    The panel majority 
held that Allen “made a claim of
actual innocence that permits jurisdiction over his § 2241
petition,” meeting the stringent requirement under the
§ 2255(e) escape hatch.
 Id. at 1189. 
It reasoned that Allen’s
claim of innocence was factual in nature because the legal
classification of his crimes was a “factual predicate”
underlying his designation as a career offender.
 Id. Thus, it
held 
that he could be “actually innocent of a noncapital
sentence for the purpose of qualifying for the escape hatch”
due to the retroactive change in Mathis and Descamps.
 Id.
Judge Callahan dissented, 
stating that a claim of innocence
based on misclassification as a career offender is “purely
20                      ALLEN V. IVES

legal” and cannot support a claim of actual, factual
innocence.
 Id. at 1192–96 
(Callahan, J., dissenting).

                               II

    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
(citation omitted). Instead, the panel majority decided that a
petitioner may be “actually innocent” of being classified as a
career offender, even when he indisputably committed the
prior criminal acts. 
Allen, 950 F.3d at 1188
–89. It reshapes
Allen’s claim of legal insufficiency, calling the legal
classification of his crimes a “factual predicate” for his career
offender status.
 Id. at 1189.
    Actual, factual innocence is the touchstone here for Allen
to qualify for the escape hatch under Ninth Circuit precedent.
The standard for actual innocence is drawn from the Supreme
Court’s holding in Bousley and rests on whether the
underlying conduct was criminal (not the legal classification
of the crime). See also Muth v. Fondren, 
676 F.3d 815
, 822
(9th Cir. 2012) (“Thus, Petitioner was convicted of engaging
in conduct that remains criminal, and he is not actually
innocent.”) (emphasis added). The petitioner in Bousley had
pled guilty under 18 U.S.C. § 924(c)(1) to “using” a 
firearm.
523 U.S. at 616
. He then filed for habeas relief under § 2241,
claiming his guilty plea was unintelligent, and his habeas
petition was construed as a motion under § 2255.
 Id.
at 617–18. 
While that challenge was pending, the Supreme
Court decided Bailey v. United States, 
516 U.S. 137
, 144
(1995), which restrictively defined the term “using” in
§ 924(c)(1).
 Id. at 617. 
Bousley had not raised a challenge
to the notion that “using” meant “possessing” during direct
                         ALLEN V. IVES                         21

review.
 Id. at 622. 
To raise this procedurally defaulted issue
on collateral review, he had to demonstrate “cause and actual
prejudice . . . or that he [was] actually innocent.”
 Id. (internal
quotation marks 
and citations omitted).

    For purposes of habeas relief, the Supreme Court held that
“‘actual innocence’ means factual innocence, not mere legal
insufficiency.”
 Id. at 623–24 
(citation omitted). To establish
actual innocence, a petitioner had to show “in light of all the
evidence, it is more likely than not that no reasonable juror
would have convicted him.”
 Id. (internal quotation marks
and citation omitted). The Supreme Court remanded so
Bousley could try to show on an open record that his conduct
was not criminal—that he merely possessed a firearm, and
did not “use” it.
 Id. at 624. 
This showing would make a
cognizable claim of actual innocence and entitle his habeas
petition to be considered on the merits.
 Id.

    This makes sense, 
and the same reasoning should apply
to our actual innocence exception under the escape hatch.
Habeas relief is not available where a defendant would win
post-conviction relief based on a legal technicality, see
Sawyer v. Whitley, 
505 U.S. 333
, 339 (1992), and the same
must be true under § 2255(e). Just like the Bousley petitioner,
a petitioner invoking § 2255(e) cannot win or lose merely
because the record contains no evidence of his guilt, due to
his guilty 
plea. 523 U.S. at 624
. Instead, he must show on an
open record that he, in fact, did not engage in the criminal
conduct.
 Id. Until now, we 
have faithfully applied the
Supreme Court’s definition of the term “actual innocence.”
For example, in Alaimalo v. United States, the petitioner had
a cognizable actual innocence claim when he was convicted
for conduct which was later held to be legal. 
645 F.3d 1042
,
1047 (9th Cir. 2011). Likewise, in United States v. Avery, the
22                      ALLEN V. IVES

petitioner qualified for the escape hatch after a Supreme
Court decision clarified that his conduct in fact wasn’t illegal
under the convicting statute. 
719 F.3d 1080
, 1082–83 (9th
Cir. 2013). These cases stand for the proposition that actual,
factual innocence requires that the petitioner’s conduct was
not illegal (not just legally misclassified) under the convicting
statute.

    Allen’s claim here has nothing to do with whether his
prior conduct is still criminal, unlike in Bousley. Allen
concedes that he committed the criminal conduct that
supported his state law convictions. 
Allen, 950 F.3d at 1188
.
He never claims he was factually innocent under Bousley or
our caselaw. Rather, Allen argues that his state court
conviction—as a legal matter—is no longer a categorical
match with the federal predicate crime.
 Id. at 1187. 
Thus, he
essentially claims his conviction is legally insufficient for the
career offender sentencing enhancement based on a
superseding change in law. The change in law here—the
Supreme Court’s decisions in Mathis and Descamps—didn’t
make Allen’s past conduct noncriminal. He remains rightly
convicted of his past crimes.

    But the panel majority turns the concept of actual, factual
innocence on its head. The panel majority validates Allen’s
claim of actual innocence because the “retroactive change of
law . . . transformed his Connecticut marijuana conviction
from a predicate crime into a non-predicate crime.” 
Allen,
950 F.3d at 1190
. The panel majority recognizes that Bousley
allowed the petitioner to establish actual innocence only by
showing his conduct was not criminal under the convicting
statute. See
 id. But the panel 
majority essentially reframes
a purely legal classification as a “factual predicate,”
                       ALLEN V. IVES                       23

contradicting the Supreme Court’s precedent in Bousley and
our holding in Marrero. See 
Allen, 950 F.3d at 1189
.

    The panel majority’s definition stretches the meaning of
the word “factual” beyond any meaning in legal parlance.
Whether Allen’s prior crime is a predicate crime is purely a
legal question—it would never be submitted to a jury for trial
as a fact question. A “question of fact” means an “issue
involving the resolution of a factual dispute and hence within
the province of the jury in contrast to a question of law.”
Question of fact, Black’s Law Dictionary 1246 (6th ed. 1990).
But a “question of law” is an “issue which involves the
application or interpretation of a law and hence within the
province of the judge and not the jury.” Question of law,
Black’s Law Dictionary 1246 (6th ed. 1990). The panel
majority’s rationale means that any change in how a crime is
legally classified now qualifies as “factual innocence,”
despite the Supreme Court’s direction to the contrary in
Bousley.

    The panel majority’s application of actual innocence
allows any petitioner to seek relief from career-offender
sentencing enhancements based on retroactive changes;
transforms what is a quintessential claim of “legal
insufficiency” into a claim of “factual innocence;” and flouts
the Supreme Court’s general admonition that “‘actual
innocence’ is a very narrow exception[.]” 
Sawyer, 505 U.S.
at 341
. Rather than affect a mere “small and diminishing
subset,” Concurrence at 13, the panel majority’s opinion
opens the floodgates to habeas review of noncapital “actual
innocence” claims.
24                          ALLEN V. IVES

                                   III

    Apparently the existing deep three-way circuit conflict on
this issue was not enough. The panel majority’s decision
creates a new four-way circuit split and maroons the Ninth
Circuit on our own island of § 2255(e) jurisdiction. It
accomplishes this feat almost without comment and ignores
a wealth of precedent on this issue, nearly all of which would
compel dismissing Allen’s petition for lack of jurisdiction. In
one set of cases, the First,3 Second,4 Third,5 Fifth,6 and




     3
     Damon v. United States, 
732 F.3d 1
, 6 (1st Cir. 2013) (“Because
Damon contests only the categorization of his prior conviction as a crime
of violence, he has not pleaded ‘actual innocence’ as defined in
Bousley.”).
    4
      Poindexter v. Nash, 
333 F.3d 372
, 382 (2d Cir. 2003) (affirming
dismissal of a § 2241 petition based on career offender misclassification
because “whatever the merit of the contention that the Guidelines were
misapplied in the treatment of Poindexter’s three undisputed prior
convictions, his claim that the three crimes should have been treated as
one crime is not cognizable as a claim of actual innocence”).
     5
       Okereke v. United States, 
307 F.3d 117
, 120–21 (3d Cir. 2002)
(holding that the petitioner could not qualify for the escape hatch where
he brought an Apprendi challenge to his sentence and did not claim factual
innocence of the underlying crime of conviction); Scott v. Shartle, 574 F.
App’x 152, 155 (3d Cir. 2014) (applying Okereke to deny a challenge to
the application of the career offender enhancement by way of a § 2241
petition).
     6
      In re Bradford, 
660 F.3d 226
, 230 (5th Cir. 2011) (per curiam) (“[A]
claim of actual innocence of a career offender enhancement is not a claim
of actual innocence of the crime of conviction and, thus, not the type of
claim that warrants review under § 2241.”).
                             ALLEN V. IVES                               25

Eighth7 Circuits would dismiss the petition by relying on the
definition of “actual innocence” as laid out in Bousley.8 On
a second view, the Tenth9 and Eleventh10 Circuits do not
incorporate an “actual innocence” exception in their
§ 2255(e) escape hatch jurisprudence. They would instead
dismiss the petition as successive under § 2255 because there
was an opportunity to raise the issue in the first petition, even
if the issue was foreclosed by Supreme Court precedent at the
time.




    7
      Sun Bear v. United States, 
644 F.3d 700
, 705–06 (8th Cir. 2011) (en
banc) (affirming denial of motion to vacate based on an allegedly unlawful
career offender enhancement because there was no allegation “that the
conduct for which petitioner had been convicted and sentenced” had not
occurred).
    8
      Our concurring colleagues accuse us of misunderstanding Bousley.
Concurrence at 7. To the contrary, our understanding of Bousley is
consistent with every circuit, including our decision in Marrero, that relies
on the Bousley “actual innocence” standard.
    9
      
Prost, 636 F.3d at 584
, 590 (Gorsuch, J.) (holding that a petitioner
cannot use a § 2241 petition to challenge his sentence where he could have
raised the same claim in his initial § 2255 motion, even if the claim was
foreclosed at the time by binding circuit or Supreme Court precedent);
Sandlain v. English, 714 F. App’x 827, 831 (10th Cir. 2017) (applying
Prost to deny a challenge to the application of the career offender
enhancement by way of a § 2241 petition).
    10
       
McCarthan, 851 F.3d at 1089 
(“A prisoner has an adequate
procedure to raise any claim attacking his sentence, even if that claim is
foreclosed by circuit precedent.”).
26                          ALLEN V. IVES

    On the third side, that leaves the Fourth,11 Sixth,12 and
Seventh13 Circuits as the only circuits that could theoretically
find jurisdiction for Allen’s habeas claim, but under a
completely different standard. Like the Tenth and Eleventh
Circuits, they also do not incorporate an actual innocence
exception to qualify for the escape hatch. See 
Allen, 950 F.3d
at 1199 
(Callahan, J., dissenting). Rather, they demand an
“error sufficiently grave to be [] a fundamental defect” to
allow a petition under the § 2255(e) savings clause. See
Lester, 909 F.3d at 712 
(citation omitted). This equitable
consideration in their escape hatch jurisprudence requires
significant disparities between the “but for” and “imposed”
sentences to qualify for relief.14 But even they would likely


     11
        Lester v. Flournoy, 
909 F.3d 708
, 716 (4th Cir. 2018) (“Where, as
here, an erroneous career offender designation raises a defendant’s
mandatory prison term from a maximum of 12 ½ years to a minimum of
almost 22, the resulting sentence is fundamentally defective” and can give
rise to jurisdiction under § 2241.).
     12
       Hill v. Masters, 
836 F.3d 591
, 600 (6th Cir. 2016) (“Hill’s
challenge to his misapplied career-offender enhancement is properly
brought under § 2241 because he was sentenced under the mandatory
Guidelines Manual; is barred from filing a successive § 2255 motion; and
received the enhancement based on a prior conviction that a subsequent,
retroactive change in Supreme Court jurisprudence reveals is not a
predicate offense.”).
     13
       Brown v. Caraway, 
719 F.3d 583
, 588 (7th Cir. 2013) (“[T]he
misapplication of the sentencing guidelines, at least where (as here) the
defendant was sentenced in the pre-Booker era, represents a fundamental
defect that constitutes a miscarriage of justice corrigible in a § 2241
proceeding.”).
     14
       See, e.g., 
Lester, 909 F.3d at 716 
(misapplied sentencing
enhancement adding almost ten years); 
Hill, 836 F.3d at 593 
(misapplied
sentencing enhancement adding up to an additional nine years); Brown,
                            ALLEN V. IVES                              27

not find jurisdiction in this case. Here, Allen only received
a sentence 29 months above the top end of the range that
would have applied absent the career offender enhancement.
Allen, 950 F.3d at 1186
–7. In conclusion, not a single circuit
uses the erroneous definition of “actual innocence” that the
panel majority adopts, and not a single court would likely
find jurisdiction under § 2255(e).

                                   IV

    The panel majority’s decision also creates an intra-circuit
conflict with our previously uniform case law expressly
foreclosing Allen’s claim that he is “actually innocent” of his
career offender classification. In Marrero, we held that “the
purely legal argument that a petitioner was wrongly classified
as a career offender under the Sentencing Guidelines is not
cognizable as a claim of actual innocence under the escape
hatch.” 682 F.3d at 1195
.

   Over the last eight years, all relevant decisions of this
court have uniformly interpreted Marrero to preclude the
panel majority’s holding here.15 For those counting, 
that


719 F.3d at 586 
(misapplied sentencing enhancement adding between
33 to 98 months).
    15
        
Marrero, 682 F.3d at 1191 
(Thomas, C.J.; Graber, J., Schroeder,
J.); Dorise v. Matevousian, 692 F. App’x 864, 865 (9th Cir. 2017)
(Thomas, C.J.; Murguia, J.; Mccalla, D.J.) (“Although presented as an
actual innocence claim, Dorise’s real argument is that he was incorrectly
categorized as a career offender under U.S.S.G. § 4B1.1. As in Marrero,
this claim is purely legal and has nothing to do with factual innocence.”
(internal quotation marks omitted)); Rios-Vizcarra v. Wigen, 669 F. App’x
886, 887 (9th Cir. 2016) (Kleinfeld, J.; Tashima, J.; M. Smith, J.) (“Rios-
Vizcarra does not allege that he was factually innocent of the state
conviction, nor was Rios-Vizcarra statutorily ineligible to receive his
28                          ALLEN V. IVES

means that prior to the en banc vote 15 judges on this court
and one judge sitting by designation—including 10 active
judges eligible to vote en banc—had already rejected the
panel majority’s holding in clear language in six separate
cases and the Allen panel’s dissent. True, the panel majority
was not bound by the five unpublished decisions. But
hopefully judges on those panels meant what they wrote.
And if so, 19 active judges on this court have now rejected
the panel majority’s holding under Marrero.

    I briefly review Marrero. The petitioner was convicted
in 2001 of two counts of interference with interstate
commerce by threat or violence and a firearm offense.
Marrero v. United States, 
2007 WL 914313
, at *1 (N.D. Ill.
Mar. 21, 2007). The district court classified Marrero as a
career offender based on several prior convictions and
sentenced him to 324 months of imprisonment. 
Marrero,
682 F.3d at 1192
. Marrero’s direct appeal was denied, as was
his first § 2255 motion.
 Id.


sentence, either with 
or without the enhancement.”); United States v.
Meeks, 616 F. App’x 335, 336 (9th Cir. 2015) (Goodwin, J.; Gould, J.;
Ikuta, J.) (“The district court did not err when it concluded that Meeks
failed to satisfy the requirement of the § 2255(e) escape hatch because
Meeks has not plausibly shown that he was actually innocent of the career
offender sentencing enhancement under the Armed Career Criminal Act
. . . .”); Rith v. Rios, 514 F. App’x 684, 685 (9th Cir. 2013) (Wallace, J.;
McKeown, J.; Ikuta, J.) (noting petitioner’s “argument that he was
innocent of his career offender status for sentencing purposes is not
cognizable as a claim of actual innocence” (internal quotation marks
omitted)); Green v. Thomas, 485 F. App’x 888, 889 (9th Cir. 2012)
(Rawlinson, J.; Murguia, J.; Watford, J.) (“[Petitioner] contends that he is
actually innocent of being a career offender under U.S.S.G. § 4B1.1 and
therefore he should be allowed to proceed with his section 2241 petition
under the ‘escape hatch’ of 28 U.S.C. § 2255(e). This contention is
foreclosed [by Marrero].”).
                        ALLEN V. IVES                        29

     Marrero then filed a § 2241 petition in 2008 making two
separate claims of actual innocence.
 Id. First, Marrero “may
have intended to raise the claim that he was factually innocent
of his crimes of conviction. But he introduced no evidence
tending to show that he did not commit the robberies
underlying his convictions,” dooming his first claim of
factual innocence.
 Id. Second, he also 
argued that “two of
his prior offenses should no longer be considered ‘related’”
due to the 2007 amendments to the Sentencing Guidelines.