Over the dissent of twelve judges, the Ninth Circuit today denied en banc review of a divided panel decision from February (Allen v. Ives) in which Judge William Fletcher, writing for the majority, ruled that a habeas petitioner’s claim that he is “‘actually innocent’ of his sentence as a career offender” should have been entertained by the district judge. (I wondered back then whether Fletcher was butchering both the law and the English language.)
I don’t have time to go deep on this matter. Here is the opening of Judge Ryan Nelson’s 25+-page dissent from the denial of rehearing en banc (beginning on page 14 here; citations simplified):
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 (1998); deepens a four-way circuit split; creates an irreconcilable intra-circuit conflict with our holding in Marrero v. Ives (2012); and ignores the statutory text by evading the limits of the Antiterrorism and Effective Death Penalty Act of 1996. 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. 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.” 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. 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.” The panel majority’s holding also ignores AEDPA’s statutory text. All told, we now add the panel majority’s fundamental legal error to the long list of errors we have made in habeas jurisprudence.
The interested reader will also want to review Judge Fletcher’s response, in his concurrence in the denial of rehearing en banc (pp. 4-14).