Sunday, March 08, 2020

Case o' The Week: An Element-ary Outcome - Allen and Actual Innocence Exception to Habeas bars

News flash: if an element is missing, the defendant is “actually innocent.”
The Hon. Judge William Fletcher
  (Oh, that crazy Ninth).
Allen v. Ives, 2020 WL 878523 (9th Cir. Feb. 24, 2020), decision available here.

Players: Thoughtful decision by Judge W. Fletcher, joined by Judge Christen. Dissent by Judge Callahan. 
  Admirable win for D. Oregon AFPD Elizabeth Daily.  

Facts: In the 90’s Allen pleaded guilty to gun and drug charges. He was sentenced to 322 months (!?!) as a Career Offender under the mandatory guidelines. Id. at *2. In 2017, he filed a § 2241 claim. Id. He argued that Mathis and Decamps were retroactive, and that his marijuana sales predicate no longer counted. Id. He thus argued that he was “innocent of being a Career Offender.” Id.
  The court rejected the petition for lack of jurisdiction, finding that career offender errors were “purely legal” and had “nothing to do with factual innocence.” Id.

Issue(s): “[  ] 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.” Id. at *1. “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 . . . . 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.” Id. at *4.

Held: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.” Id. at *1. “In Marrero, we left open the question whether a petitioner may ever be actually innocent of a noncapital sentence for the purpose of qualifying for the escape hatch. . . . We now reach that question and hold that Allen has made a claim of actual innocence that permits jurisdiction over his § 2241 petition. If Allen prevails on the merits of his claim that his . . . marijuana conviction was not a predicate conviction for career offender status under the Guidelines, the factual predicate for his mandatory sentencing enhancement did not exist. That is, he is actually innocent of the enhancement. In that case, it is beyond dispute that he is not, and was not, a career offender.” Id. at *4.

Of Note: Nice win, but not a surprising result. This decision of first impression in the Ninth hews closely to the lead of the – drum roll please – that zany Fourth Circuit! Id. at *5. 
  As Judge Fletcher correctly explains, it is hard to imagine a different outcome for a mandatory Guideline case, after SCOTUS’s decision in Alleyne (holding that a fact that increases a mandatory minimum sentence is an ‘element’ of the offense.”) Id. at *4.

How to Use: Another nice holding? “We take the opportunity to clarify that Mathis and Descamps apply retroactively when a court reviews a criminal judgment in the course of addressing a § 2241 petition or a first § 2255 motion.” Id. at *6. 
  Tuck that welcome nugget away, for use on another habeas day.
For Further Reading: Since Tuesday of last week, the Federal custodial facility at FDC SeaTac has been locked down for visiting, on coronavirus fears. See summary here
   The WD Wa District Court is now effectively closed. See order here

  The Ninth has cancelled all en banc arguments in S.F. next week. See notice here
  An FBI employee of the S.F. field division just tested positive for COVID-19. See article here
   San Francisco Mayor Breed just issued “aggressive” recommendations to reduce the spread of COVID-19 – including cancelling the St. Patrick’s Day parade. See News Release here
   Today it was announced that Oakland will be the port receiving the Grand Princess cruise ship, carrying over 3,500 passengers and cruise members, twenty-one of whom are positive for COVID-19. See article here. 
  Senator Kamela Harris is very interested in how the Feds are dealing (or not dealing) with  COVID-19 in the jail and prison populations. See Senator Harris Letter here
  So, when will COVID-19 hit Santa Rita Jail, and impact the ND Cal District Court? 
   For a sobering piece on the custodial “petri dish” in which our NorCal clients are detained, see a SacBee article here 

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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