I confess that I’m not up to speed on all the ways that various judges work to evade limitations on granting habeas relief. But sometimes ugly and ungrammatical locutions give the game away.
In a divided Ninth Circuit decision today in Allen v. Ives, Judge William Fletcher, writing for the majority, addresses Allen’s claim that he is (in Fletcher’s summary) “‘actually innocent’ of his sentence as a career offender.” Elsewhere in his opinion, he speaks of being “actually innocent of the enhancement.” He tries to recast both concepts as being “actually innocent of being a career offender.”
But Allen isn’t making the factual claim that he didn’t commit the state-law crime that served as the predicate crime for career offender status. He is instead making the legal argument that the crime for which he was convicted doesn’t qualify as a predicate crime. Fletcher evidently can’t entertain that claim without butchering both the law and the English language.
In her dissent, Judge Callahan faults the majority for an “expansion of actual innocence jurisdiction [that] is inconsistent with both Supreme Court and Ninth Circuit precedent.” She also expresses alarm that the majority “opens the proverbial floodgate for habeas petitions under the [actual-innocence] escape hatch.”
Mark this one for en banc rehearing.