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Ninth Circuit Opens Door for Savings Clause Relief, Recognizes ‘Actual Innocence’ for Mandatory Career Offender Sentences

by Dale Chappell

Finally answering a question that had been left open in the Circuit, the U.S. Court of Appeals for the Ninth Circuit held on February 24, 2020, that a person may be “actually innocent” of an erroneous mandatory career offender sentence, opening the door for relief under the savings clause.

In yet another case expanding the reach of the so-called savings clause, Michael Allen brought a challenge to his mandatory career offender sentence in the U.S. District Court for the District of Oregon, arguing that he was “actually innocent” of the sentence imposed on him over 20 years ago. Allen pleaded guilty in 1997 to federal drug and firearm charges and was sentenced to just short of 27 years, the minimum the court could have imposed under the then-mandatory U.S. Sentencing Guidelines.

Allen did challenge his sentence under 28 U.S.C. § 2255 in 2003, but that was denied. Out of options when the law changed much later on, Allen turned to the “escape hatch” of § 2255, as the Ninth Circuit calls it, filing a habeas corpus petition in the district court where he was being held in prison, and not where he was sentenced, as the savings clause requires. This petition, though, was dismissed for lack of jurisdiction because the court ruled that Allen could not meet the criteria for relief under the savings clause in the Ninth Circuit. The court, however, never reached the merits of Allen’s claim about his wrongful sentence.

Allen appealed, and the Ninth Circuit agreed to hear oral argument on whether he could meet the savings clause criteria by being actually innocent of a career offender sentence. But while that appeal was pending, Allen’s sentencing court, the U.S. District Court for the District of Oregon, reduced his sentence to “time served” under the First Step Act and ordered his immediate release. The question before the Court then became whether Allen’s appeal was moot because of his release.

Allen’s Appeal Was Not Moot Because of His Release

The Government argued that Allen’s appeal was moot because he was released from prison. After all, the point of a habeas corpus petition under the savings clause is to “test the legality of [someone’s] detention.” But supervised release counts as “detention,” and Allen was on supervised release after his release. If the Court were to grant his petition, he could have his supervised release reduced, the Court said, because as a career offender, Allen had a minimum four-year term to serve on supervised release. Without the career offender penalty, the sentencing court could go lower or terminate his supervised release. “Allen has a nontrivial argument for reducing his supervised release period under [18 U.S.C.] § 3583(e),” the Court said. “Allen’s appeal therefore is not moot.”

The Savings Clause Criteria

The “exclusive” method by which a federal prisoner may test the legality of his detention is by § 2255. However, § 2255(e) provides an exception to this method, by allowing a classic habeas corpus petition under 28 U.S.C. § 2241 when § 2255 would be “inadequate or ineffective” to raise the challenge.

But when Congress wrote § 2255(e), it failed to define what “inadequate or ineffective” meant. Instead, courts have interpreted and reinterpreted what they think it means, severely dividing the circuits and sometimes the district courts within a circuit. And to date, the Supreme Court has repeatedly refused to take a savings clause case to settle the dispute.

In the Ninth Circuit, the requirement to obtain savings clause relief has two prongs: (1) “a claim of actual innocence” and (2) no “unobstructed procedural shot at presenting that claim.” Stephens v. Herrera, 464 F.3d 895 (9th Cir. 2006). In other words, the savings clause requires a showing of innocence that could not have been raised earlier for whatever reason.

The savings clause as we know it today was created in the mid-1990s when the Supreme Court interpreted a federal firearm statute in Bailey v. United States, 516 U.S. 137 (1995), which left hundreds of federal prisoners “actually innocent” of their firearms convictions.

The problem, however, was that many of these prisoners had already used their one shot at a § 2255 motion, and Bailey, while clearly a substantive rule that applies retroactively, is not a constitutionaldecision to allow a second or successive motion under the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) strict limits on filing more than one motion. For a discussion on the history of the savings clause in light of Bailey, review Triestman v. United States, 124 F.3d 361 (2d Cir. 1997). The AEDPA allows another § 2255 motion based on a new Supreme Court decision only if it is a constitutional decision. Over the years, courts have modified the savings clause numerous times in an effort to shoehorn the cases before them to fit within the clause.

Allen Was ‘Actually Innocent’ of Being a Career Offender

While the Ninth Circuit’s actual innocence criterion for the savings clause was originally premised on a case where the petitioner was innocent of his conviction, the question in Allen’s case was whether he could be innocent of a sentencing enhancement. The Court posed the question this way: “Whether a petitioner who committed a crime that is not a predicate crime may challenge his career offender status under § 2241.” To clarify, the Court was not saying that Allen was innocent of his prior conviction (the predicate crime) but only that it if it did not qualify that he could be deemed “actually innocent” of it being a predicate offense for federal sentencing purposes.

The Ninth Circuit held that Allen being sentenced under the mandatory career offender guideline was no different from being sentenced under a statute. The Court cited Alleyne v. United States, 570 U.S. 99 (2013), in which the Supreme Court held that a fact that increases the mandatory minimum sentence is an “element” of the offense that must be found by a jury. That is exactly what the career offender penalty did in Allen’s case – requiring a minimum sentence the court had to impose, without anything more than the judge finding the facts to support it. This was a violation of Alleyne, the Ninth Circuit suggested.

Allen Did Not Have an Unobstructed Shot at Presenting His Claim Earlier

In the Ninth Circuit, a person can prove he didn’t have an unobstructed shot at presenting his claim earlier by showing (1) the legal basis for the claim did not arise until after the direct appeal and first § 2255 motion, and (2) the law changed relevant to the claim, opening the door for a proper challenge now. “If an intervening court decision after a petitioner’s direct appeal and first § 2255 motion effects a material change in the applicable law, then the prisoner did not have an unobstructed procedural shot to present his claim,” the Court explained. In the present case, the change in law was the Descamps and Mathis cases that made Allen’s claim possible.


With Allen meeting the savings clause requirements, the Court concluded that he had made a “cognizable claim” for the savings clause and that he in fact may have been “actually innocent” of his career offender sentence.

Accordingly, the Court reversed the district court’s dismissal for lack of jurisdiction and remanded for consideration of Allen’s claims “on the merits.” See: Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020).

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Allen v. Ives



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