Alaimalo v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

VAATAUSILI MARK ALAIMALO,  No. 08-56349
Petitioner-Appellant,
D.C. No.
v.
 2:08-cv-01090-GPS-
UNITED STATES OF AMERICA; J. L. JTL
NORWOOD,
OPINION
Respondents-Appellees,

Appeal from the United States District Court
for the Central District of California
George P. Schiavelli, District Judge, Presiding

Argued May 7, 2010
Submitted February 28, 2011
Pasadena, California

Filed February 28, 2011

Before: Betty B. Fletcher and Richard A. Paez, Circuit
Judges, and Edward R. Korman, Senior District Judge.*

Opinion by Judge B. Fletcher;
Dissent by Judge Korman

*The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for Eastern New York, Brooklyn, sitting by designation.

2933
2936 ALAIMALO v. UNITED STATES

COUNSEL

Ramiah Shanti Brien, Oakland, California, for the petitioner-
appellant.

Michael J. Raphael and Rosalind Wang, Office of the United
States Attorney, Los Angeles, California, for the respondent-
appellee.
 ALAIMALO v. UNITED STATES 2937
OPINION

B. FLETCHER, Circuit Judge:

Vaatausili Mark Alaimalo, a federal prisoner, appeals the
dismissal of his habeas corpus petition brought under 28
U.S.C. § 2241. We first must determine whether we have
jurisdiction to consider this petition, brought without a certifi-
cate of appealability (“COA”). Alaimalo has demonstrated
both actual innocence and that his actual innocence claim was
not available to him on direct appeal or when he filed his first
motion for habeas relief under 28 U.S.C. § 2255. We con-
clude that we have jurisdiction to consider his petition for
habeas relief brought under 28 U.S.C. § 2241 without a COA.

We must also determine whether we should give preclusive
effect, under either the law of the case or abuse of the writ
doctrines, to a prior panel’s denial on the merits of Alaimalo’s
October 2006 § 2241 petition. Because we hold that Alaimalo
is actually innocent and that failing to consider his habeas
petition would result in manifest injustice, we decline to do
so.

FACTS

Alaimalo was convicted in 1997 of three counts of import-
ing methamphetamine from California to Guam in violation
of 21 U.S.C. §§ 952(a) & 960 and three counts of possession
with intent to distribute methamphetamine in violation of 21
U.S.C. § 841(a). For each of his three importation convic-
tions, he received a life sentence; for the three possession con-
victions, he received two life sentences and one sentence of
360 months. All of his sentences run concurrently.

In the § 2241 habeas petition before this panel, Alaimalo
claims that he is actually innocent of importing methamphet-
amine from California to Guam. He argues that transporting
drugs from one location within the jurisdiction of the United
2938 ALAIMALO v. UNITED STATES
States (California) to another location within the jurisdiction
of the United States (Guam) was not “importation” prohibited
by 21 U.S.C. § 952(a).

Alaimalo first raised this claim of actual innocence on
direct appeal. The Ninth Circuit affirmed Alaimalo’s convic-
tions and sentences in an unpublished decision. See United
States v. Alaimalo, No. 97-10454, 1998 WL 852911 (9th Cir.
Dec. 2, 1998). The court did not address Alaimalo’s claim
that his conduct did not qualify as importation. Id.

In 1999, Alaimalo timely filed a motion for habeas relief
under 28 U.S.C. § 2255. Appearing pro se, Alaimalo argued
that his trial and appellate counsel were constitutionally inef-
fective. The district court denied the motion on the merits and
the Ninth Circuit affirmed in 2002. See United States v. Alai-
malo, 313 F.3d 1188 (9th Cir. 2002).

In 2003, a Ninth Circuit en banc court held that transport-
ing drugs from one location within the United States (Califor-
nia) to another (Guam) does not constitute importation within
the meaning of 21 U.S.C. § 952(a). United States v. Cabac-
cang, 332 F.3d 622, 623 (9th Cir. 2003) (en banc). Cabac-
cang overruled two previous decisions holding that
transporting drugs over or through international waters consti-
tuted importation. See Guam v. Sugiyama, 846 F.2d 570, 572
(9th Cir. 1988); United States v. Perez, 776 F.2d 797, 801 (9th
Cir. 1985); see also Cabaccang at 634-35.

In March 2005, relying on Cabaccang, Alaimalo filed a
habeas petition under 28 U.S.C. § 2241 in the Eastern District
of California. He argued that he was actually innocent of the
importation charges. The court found that Alaimalo was actu-
ally innocent, but that he could not proceed under § 2241
because he could have raised his innocence claim at sentenc-
ing, on direct appeal, and in his first § 2255 motion. The dis-
trict court dismissed the petition for lack of jurisdiction, and
Alaimalo’s appeal to the Ninth Circuit was dismissed in an
 ALAIMALO v. UNITED STATES 2939
unpublished order as untimely. Alaimalo v. Shultz, No. 06-
15658 (9th Cir. June 9, 2006).

In October 2006, Alaimalo filed a second § 2241 petition
in the Central District of California. Appearing pro se, he
raised, among other claims, an actual innocence claim based
on Cabaccang. The district court dismissed his petition for
lack of jurisdiction, holding that Alaimalo could have raised
his claims in an earlier § 2255 motion. Alaimalo appealed. In
September 2008, in a three paragraph unpublished disposi-
tion, the Ninth Circuit affirmed the dismissal of Alaimalo’s
October 2006 § 2241 petition. See Alaimalo v. United States,
317 F. App’x. 619 (9th Cir. 2008) (“Alaimalo II”).

In February 2008, while Alaimalo II was pending, Alaimalo
submitted another § 2241 habeas petition raising the Cabac-
cang argument to the Central District of California. The dis-
trict court dismissed the petition for lack of jurisdiction.
Alaimalo filed a timely notice of appeal. After the district
court declined to issue a COA, the Ninth Circuit resumed
jurisdiction and the appeal was submitted to this panel.

DISCUSSION

I. The Court Has Appellate Jurisdiction Despite the
Lack of a Certificate of Appealability

[1] At the threshold, we must determine whether we have
jurisdiction to consider Alaimalo’s appeal from the dismissal
of his February 2008 petition without a COA.1 As a general
1
We disagree with the dissent’s conclusion that 28 U.S.C. § 2244(a)
divests the district court of jurisdiction to consider a successive habeas
petition brought under § 2241 unless the petitioner has obtained prior-
approval pursuant to § 2244(b)(3). We agree with the Tenth Circuit’s con-
clusion that, by its terms, § 2244(a) “does not apply to claims that may be
brought under § 2255.” See Stanko v. Davis, 617 F.3d 1262, 1269 (10th
Cir. 2010). As we will discuss, because Alaimalo’s § 2241 petition is per-
mitted by the “escape hatch” of 28 U.S.C. § 2255(e), his failure to seek
prior-certification from the Court of Appeals did not divest the district
court of jurisdiction in this case.
2940 ALAIMALO v. UNITED STATES
rule, “[section] 2255 provides the exclusive procedural mech-
anism by which a federal prisoner may test the legality of his
detention.” Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir.
2003); Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000).
To challenge a sentence that was imposed “in violation of the
Constitution or laws of the United States,” a federal prisoner
may “move the court which imposed the sentence to vacate,
set aside or correct the sentence” pursuant to 28 U.S.C.
§ 2255. A prisoner may appeal the denial of a § 2255 motion
only if the Ninth Circuit or the district court issues a COA. 28
U.S.C. § 2253(c)(1)(B).

[2] However, a federal prisoner may file a habeas petition
under § 2241 if the remedy provided by § 2255 is “inadequate
or ineffective to test the legality of his detention.” 28 U.S.C
§ 2255(e); see also Harrison v. Ollison, 519 F.3d 952, 956
(9th Cir. 2008). This is called the “savings clause” or “escape
hatch” of § 2255. Harrison, 519 F.3d at 956. A petition meets
the escape hatch criteria where a petitioner “(1) makes a claim
of actual innocence, and (2) has not had an unobstructed pro-
cedural shot at presenting that claim.” Stephens v. Herrera,
464 F.3d 895, 898 (9th Cir. 2006) (internal quotation marks
omitted).

Where a petition purportedly brought under § 2241 is
merely a “disguised” § 2255 motion, the petitioner cannot
appeal the denial of that petition absent a COA; a valid § 2241
petition, however, must be considered, even absent a COA.
Harrison, 519 F.3d at 958-59. Because we “retain jurisdiction
to determine our jurisdiction,” we proceed to consider
whether “the district court was correct in determining that
[Alaimalo’s] pleading, framed as a § 2241 petition, did not
qualify for the escape hatch of § 2255.” Harrison, 519 F.3d
at 959 (quotation marks omitted). We review the dismissal of
a habeas petition de novo. Ivy, 328 F.3d at 1059.

A. Actual Innocence

[3] To establish actual innocence for the purposes of
habeas relief, a petitioner “must demonstrate that, in light of
 ALAIMALO v. UNITED STATES 2941
all the evidence, it is more likely than not that no reasonable
juror would have convicted him.” Stephens, 464 F.3d at 898
(quoting Boulsey v. United States, 523 U.S. 614, 623 (1998)).
A petitioner is actually innocent when he was convicted for
conduct not prohibited by law. See Reyes-Requena v. United
States, 243 F.3d 893, 904 (5th Cir. 2001) (summarizing the
tests employed by the circuit courts to determine actual inno-
cence).

[4] Alaimalo has made a showing of actual innocence. He
was convicted of importing methamphetamine from Califor-
nia to Guam, which Cabaccang held is not a crime. Cabac-
cang, 332 F.3d at 637. Further, we note that the government
does not contest Alaimalo’s actual innocence.

B. Prior Opportunities to Raise Actual Innocence
Claim

[5] We turn to the question of whether Alaimalo’s actual
innocence claim was unavailable to him during his direct
appeal and his first § 2255 motion. In making this determina-
tion, we consider “(1) whether the legal basis for petitioner’s
claim did not arise until after he had exhausted his direct
appeal and first § 2255 motion; and (2) whether the law
changed in any way relevant to petitioner’s claim after that
first § 2255 motion.” Harrison, 519 F.3d at 960 (internal quo-
tation marks omitted).

[6] An intervening court decision must “effect a material
change in the applicable law” to establish unavailability. Har-
rison, 519 F.3d at 960. See also In re Davenport, 147 F.3d
605, 607, 610 (7th Cir. 1998) (holding that the Supreme
Court’s decision in Bailey v. United States, 516 U.S. 137
(1995), effected a material change in the law because the cir-
cuit previously held that accessability of a firearm was
enough to support an inference that a firearm was used in a
drug crime, whereas Bailey required active employment of the
firearm); Triestman v. United States, 124 F.3d 361 (2d Cir.
2942 ALAIMALO v. UNITED STATES
1997); In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). In con-
trast, a decision that simply “provides further clarification” of
the statute of conviction without “materially vary[ing] from
the statutory construction set forth” in previous case law does
not effect such a change. See Harrison, 519 F.3d at 960 (hold-
ing that the Supreme Court’s decision in Jones v. United
States, 529 U.S. 848 (2000), did not effect a material change
in the law but only clarified a prior Supreme Court decision
and two Ninth Circuit opinions consistent with Jones’s hold-
ing).

[7] We hold that Cabaccang effected a material change in
the law applicable to Alaimalo’s case, such that the legal basis
for his actual innocence claim did not become available until
Cabaccang was decided. Prior to Cabaccang, the Ninth Cir-
cuit twice held that transporting drugs between Guam and
another United States territory constituted “importation”
because it required traveling through international waters or
airspace. See Sugiyama, 846 F.2d at 572; Perez, 776 F.2d at
801. Cabaccang expressly overruled settled law. 332 F.3d at
635 (“To the extent that Sugiyama and Perez address the
transport of drugs through international airspace on a nonstop
domestic flight, they are overruled.”).

[8] Alaimalo could not have raised his claim of innocence
in an effective fashion prior to Cabaccang, at which point he
had already exhausted his direct appeal and § 2255 motion.
See Triestman 124 F.3d at 379; Davenport, 147 F.3d at 610;
contra Harrison, 519 F.3d at 961 (noting that case law at the
time of petitioner’s direct appeal and first § 2255 “invited the
very argument” raised in the purported § 2241 petition); Abd-
ullah v. Hedrick, 392 F.3d 957, 958, 963 (8th Cir. 2004)
(holding that where petitioner’s § 2255 motion was still pend-
ing at the time the Supreme Court effected a material change
in the applicable law, he had an unobstructed chance to raise
his actual innocence claim in the pending petition).

The government argues that Alaimalo’s actual innocence
claim was available after 1996, when the First Circuit held
 ALAIMALO v. UNITED STATES 2943
that transporting drugs over international waters did not con-
stitute “importation” within the meaning of 21 U.S.C.
§ 952(a). See United States v. Ramirez-Ferrer, 82 F.3d 1131,
1144 (1st Cir. 1996) (en banc). We disagree. For the purposes
of determining whether a claim was unavailable under § 2241,
we look to whether controlling law in this circuit foreclosed
petitioner’s argument. See, e.g., In re Jones, 226 F.3d 328,
333-34 (4th Cir. 2000) (a claim is not available when “settled
law of this circuit or the Supreme Court established the legal-
ity of conviction . . . .”) (emphasis added); Davenport, 147
F.3d at 610 (holding that when “the law of the circuit was so
firmly against him,” petitioner did not have to raise an issue
to preserve it as a basis for collateral attack later on).

The mere possibility that the Ninth Circuit would overrule
its previous holdings en banc did not make Alaimalo’s actual
innocence claim “available” to him for the purposes of
§ 2241. If it did, there would be a legal basis for any actual
innocence claim that is currently foreclosed by binding Ninth
Circuit law, as there is always the infinitesimally small possi-
bility of sudden en banc reversal.2 Requiring a petitioner to
raise all theoretically possible actual innocence claims in his
first § 2255 motion would put an unreasonable burden on
petitioners and the courts. “It would just clog the judicial
pipes to require defendants, on pain of forfeiting all right to
benefit from future changes in the law, to include challenges
to settled law in their briefs on appeal and in postconviction
filings.” Davenport, 147 F.3d at 610.

[9] In sum, because Alaimalo did not have an unobstructed
chance to present his innocence claim in his first § 2255
motion, he may now raise that claim in a § 2241 petition with-
out a certificate of appealability. We have jurisdiction over
2
Of the 4,337 cases decided on the merits by the Ninth Circuit Court of
Appeals in 1998 (the year this court affirmed Alaimalo’s convictions on
direct appeal), only 16 were heard en banc.
2944 ALAIMALO v. UNITED STATES
Alaimalo’s appeal of the dismissal of his February 2008
§ 2241 petition.

II. Neither the Abuse of the Writ Doctrine Nor the Law
of the Case Precludes Consideration of Alaimalo’s
Successive § 2241 Petition

We next consider whether this court’s denial of Alaimalo’s
second § 2241 petition in Alaimalo II bars consideration of his
subsequent § 2241 petition for habeas relief. We consider two
common law doctrines that may apply here: abuse of the writ
and the law of the case. We conclude that neither doctrine
bars consideration of Alaimalo’s petition because failure to
entertain his claim of actual innocence would constitute mani-
fest injustice.

[10] The doctrine of abuse of the writ generally “forbids
the reconsideration of claims that were or could have been
raised in a prior habeas petition.” Calderon v. United States
Dist. Ct. (Kelly), 163 F.3d 530, 538 (9th Cir. 1998) (en banc),
overruled in part on other grounds by Woodford v. Garceau,
538 U.S. 202 (2003). Under the abuse of the writ doctrine, a
successive petition that raises identical grounds for relief as a
prior petition must be dismissed unless the petitioner can
show (1) cause for bringing a successive petition and that
prejudice would result or (2) that a fundamental miscarriage
of justice would result from failure to entertain the claim. See
McCleskey v. Zant, 499 U.S. 467, 494-95 (1991); Sanders v.
United States, 373 U.S. 1, 15 (1963). The government bears
the burden of pleading abuse of the writ, McCleskey, 499 U.S.
at 477, but it did not do so here. Even if the government had
met its burden, we conclude that the abuse of the writ doctrine
would not bar reconsideration of Alaimalo’s claim because
failure to entertain his claim would result in a fundamental
miscarriage of justice.

“The law of the case doctrine states that the decision of an
appellate court on a legal issue must be followed in all subse-
 ALAIMALO v. UNITED STATES 2945
quent proceedings in the same case.” In re Rainbow Maga-
zine, Inc., 77 F.3d 278, 281 (9th Cir. 1996). An appellate
court is not required to follow the law of the case; whether to
do so is discretionary. United States v. Lewis, 611 F.3d 1172,
1179 (9th Cir. 2010) (citing Messinger v. Anderson, 225 U.S.
436, 444 (1912). According to the doctrine, however, a prior
decision should be followed unless (1) the decision is clearly
erroneous and its enforcement would work a manifest injus-
tice; (2) intervening controlling authority makes reconsidera-
tion appropriate; or (3) substantially different evidence was
adduced at a subsequent trial. Hegler v. Borg, 50 F.3d 1472,
1475 (9th Cir. 1995).

Although it is clear that the law of the case doctrine applies
to subsequent proceedings on the same habeas petition, this
circuit has not applied it to claims in successive habeas peti-
tions. Compare Phelps v. Alameida, 569 F.3d 1120, 1140 n.23
(9th Cir. 2009) (recognizing that a previous panel’s review of
the same habeas petition is the law of the case) and United
States v. Garcia, 77 F.3d 274, 276 (9th Cir. 1996) (same),
with Barapind v. Reno, 225 F.3d 1100, 1110-12 (9th Cir.
2000) (considering the applicability of the abuse of the writ
doctrine, not the law of the case, to a habeas petition brought
under § 2241), and Farmer v. McDaniel, 98 F.3d 1548, 1557-
58 (9th Cir. 1996) (applying abuse of the writ to a third
habeas petition), abrogated on other grounds by Slack v.
McDaniel, 529 U.S. 473 (2000). We also note that there is a
split among our sister circuits as to whether to apply the law
of the case to successive habeas petitions. Compare Rosales-
Garcia v. Holland, 322 F.3d 386, 398 n.11 (6th Cir. 2003) (en
banc) (“Whether successive habeas petitions constitute stages
in a single, continuing lawsuit is a question that should be
carefully considered . . . [We] think it likely that each habeas
petition is a separate and distinct case.”), and Lacy v.
Gardino, 791 F.2d 980, 984 (1st Cir. 1986) (“It is by no
means clear that these two [successive] habeas petitions are
part of the same case”), with Shore v. Warden, Stateville
Prison, 942 F.2d 1117, 1123 (7th Cir. 1991) (applying the law
2946 ALAIMALO v. UNITED STATES
of the case doctrine to successive habeas petitions) and
Raulerson v. Wainwright, 753 F.2d 869, 875 (11th Cir. 1985)
(same).

[11] Ultimately, we need not resolve whether the law of
the case applies to successive petitions for habeas relief under
§ 2241. Even assuming that the law of the case applies here,
we do not follow Alaimalo II, which was clearly wrong as a
matter of law, because failure to entertain Alaimalo’s claim
would result in manifest injustice. The Supreme Court has
made clear that federal courts must be mindful of the “ends
of justice” before dismissing a successive habeas petition. See
Kuhlmann v. Wilson, 477 U.S. 436, 451 (1986) (plurality
opinion, Powell, J., joined by Burger, Rehnquist, and
O’Connor, J.J.); id. at 468-69 (Brennan, J., dissenting); id. at
476-77 (Stevens, J., dissenting). Alaimalo’s convictions and
punishment on the importation charges “are for an act that the
law does not make criminal. There can be no room for doubt
that such a circumstance inherently results in a complete mis-
carriage of justice.” Boulsey, 523 U.S. at 626 (quoting Davis
v. United States, 417 U.S. 333, 346-347 (1974)) (quotation
marks omitted); see also Engle v. Isaac, 456 U.S. 107, 135
(1982) (stating that the principles of comity and finality “must
yield to the imperative of correcting a fundamentally unjust
incarceration”).

It is probable that vacating Alaimalo’s convictions for
importation of methamphetamine will not reduce the length of
his confinement; vacating these convictions, however,
removes the possibility that he will be subject to their adverse
collateral consequences. See Ball v. United States, 470 U.S.
856, 864-65 (1985) (“[A] separate conviction, apart from the
concurrent sentence, has potential adverse collateral conse-
quences that may not be ignored.”) (emphasis in original);
Spencer v. Kemna, 523 U.S. 1, 12 (1998) (presuming signifi-
cant collateral consequences in the context of criminal convic-
tions); United States v. Kincaid, 898 F.2d 110, 112 (9th Cir.
1990). Cf . Holloway v. United States, 393 F.2d 731, 732 (9th
 ALAIMALO v. UNITED STATES 2947
Cir. 1968) (“Coram nobis must be kept available as a post-
conviction remedy to prevent ‘manifest injustice’ even where
the removal of a prior conviction will have little present effect
on the petitioner.”).

[12] We REVERSE and REMAND to the district court
with instructions to issue the writ of habeas corpus, vacate
Alaimalo’s convictions for importation, and resentence Alai-
malo on the remaining counts.

KORMAN, District Judge, dissenting:

This appeal from the denial of a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, however
decided, will have no practical consequence. While the major-
ity orders the district court to issue the writ, it will not result
in the release of petitioner, a serial drug dealer, who is serving
a life sentence for distribution of methamphetamines. The life
sentence was mandatory because of two prior drug convic-
tions in California. The judgment of conviction for the offense
on which he is serving the foregoing life sentence and the
judgments of conviction for the predicate offenses are final
and concededly not subject to challenge.

Nevertheless, the majority orders the district court to grant
the petition with respect to three counts of importing metham-
phetamines into the United States from Guam—a ground for
relief that was considered and rejected in two prior petitions
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Peti-
tioner did not timely file an appeal from the denial of his first
petition, and the appeal was dismissed. Alaimalo v. Shultz,
No. 06-15658 (9th Cir. June 9, 2006). The denial of his sec-
ond petition was unanimously affirmed in an unpublished
memorandum that expressly “note[d] that . . . even if Alai-
malo were successful in his actual innocence claim, his life
sentence would not be affected.” Alaimalo v. United States,
2948 ALAIMALO v. UNITED STATES
317 F. App’x 619, 620 (9th Cir. 2008). In sum, while we may
all agree that “the principle[ ] of . . . finality ‘must yield to the
imperative of correcting a fundamentally unjust incarcera-
tion,’ ” Majority Op. at 2946 (quoting Engle v. Isaac, 456
U.S. 107, 135 (1982)), the writ the majority orders the district
court to issue on his fourth § 2241 petition is a meaningless
piece of paper that will provide Alaimalo with no relief.

A holding having no practical effect would not normally
invite a dissenting opinion. Nevertheless, the holding of the
majority that a habeas corpus petitioner may commence an
unending number of successive petitions pursuant to 28
U.S.C. § 2241 until he succeeds, even where success amounts
to nothing, makes bad law in an easy case. Such a precedent
should not go unchallenged.

BACKGROUND

In United States v. Cabaccang, 332 F.3d 622 (9th Cir.
2003) (en banc), by a six to five vote, over a compelling dis-
senting opinion of Judge Kozinski, this court overruled two
previous panel decisions, Guam v. Sugiyama, 846 F.2d 570
(9th Cir. 1988), and United States v. Perez, 776 F.2d 797 (9th
Cir. 1985), and held that transporting controlled substances
over international waters by plane from Guam to the conti-
nental United States did not constitute the importation of a
controlled substance. Petitioner here, Vaatausili Alaimalo,
had raised this issue on his direct appeal from the judgment
of conviction. The conviction was affirmed, without discus-
sion of the issue, presumably because of the then-binding
Ninth Circuit precedent. United States v. Alaimalo, No. 97-
10454, 1998 WL 852911 (9th Cir. Dec. 2, 1998). Alaimalo
then filed a motion pursuant to 28 U.S.C. § 2255, challenging
his conviction on a number of grounds, although not on the
ground that his conviction for three counts of conspiracy to
import methamphetamine into the United States was invalid.

I pause here to provide the overlapping chronology of that
challenge and the Cabaccang appeal, because it provides nec-
 ALAIMALO v. UNITED STATES 2949
essary background relevant to a discussion of one of the prin-
cipal issues on this appeal. Alaimalo filed his § 2255 motion
on December 2, 1999, eighteen days before the first of the
three Cabaccang defendants filed his brief on appeal raising
the issue on which they would ultimately prevail. The petition
was denied on February 15, 2000. Alaimalo v. United States,
No. 99-cv-106 (D. Guam Feb. 15, 2000). On July 5, 2001,
while Alaimalo’s appeal was pending, we affirmed the con-
viction in Cabaccang on all issues except one sentencing
issue not relevant here. United States v. Cabaccang, 16 F.
App’x 566 (9th Cir. 2001).

Subsequently, apparently sua sponte, we ordered the parties
to address the issue whether the case should be heard en banc
with respect to whether transporting drugs from California to
Guam constituted importation within the meaning of 21
U.S.C. § 952. This order was entered on August 2, 2002,
shortly after we had filed a supplemental memorandum
addressing the one issue left unresolved in the earlier order
affirming the conviction. United States v. Cabaccang, 36 F.
App’x 234 (9th Cir. 2002). Then, on November 6, 2002, two
days after Alaimalo’s appeal was argued, an order was
entered directing that the Cabaccang case be reheard en banc.
United States v. Cabaccang, No. 98-10203 (9th Cir. Nov. 6,
2002) (order granting en banc rehearing). We affirmed the
denial of Alaimalo’s petition on December 20, 2002, United
States v. Alaimalo, 313 F.3d 1188 (9th Cir. 2002), eleven days
before the en banc hearing in Cabaccang. Coincidentally,
Alaimalo was represented on his appeal by Sarah Courageous,
the attorney who represented Roy Cabaccang, one of the
defendants in that case. Nevertheless, she did not file any
motion on Alaimalo’s behalf seeking to stay the proceedings
in his appeal pending the outcome of the en banc hearing in
Cabaccang.

Alaimalo filed his first petition for habeas corpus pursuant
to 28 U.S.C. § 2241 in March 2005. The district court denied
the petition on the ground that Alaimalo could have raised the
2950 ALAIMALO v. UNITED STATES
Cabaccang issue in his previous § 2255 petition. Alaimalo v.
Shultz, No. 05-cv-300 (E.D. Cal. Sept. 29, 2005). Conse-
quently, he could not take advantage of § 2255(e), which
compels a federal prisoner to file a collateral attack on his
conviction pursuant to § 2255, unless the remedy there pro-
vided was “inadequate or ineffective to test the legality of his
detention.” The latter clause is known as the so-called “escape
hatch,” which permits a prisoner to file an application for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. Alai-
malo’s appeal of the denial of his first petition was dismissed
on the ground that it was not timely filed. Alaimalo v. Shultz,
No. 06-15658 (9th Cir. June 9, 2006). Undeterred, on October
27, 2006, Alaimalo filed a second petition for a writ of habeas
corpus pursuant to § 2241 raising the same ground as his first
petition. This second petition was likewise denied on the same
ground as the first. Alaimalo v. United States, No. 06-cv-6872
(C.D. Cal. Sept. 25, 2007). This time, Alaimalo filed a timely
appeal. A panel composed of Judges Tashima, Silverman and
N.R. Smith unanimously affirmed in an unpublished memo-
randum. Alaimalo v. United States, 317 F. App’x 619 (9th
Cir. 2008). Specifically addressing Alaimalo’s argument on
appeal, the panel held:

Alaimalo contends that the district court erred in fail-
ing to address on the merits his claim that under
United States v. Cabaccang, 332 F.3d 622 (9th Cir.
2003) (en banc), he is actually innocent of importa-
tion because the methamphetamine involved in the
offenses had traveled inside United States territory
between California and Guam. The district court cor-
rectly concluded that 28 U.S.C. § 2255 was not an
inadequate or ineffective remedy so as to allow Alai-
malo to proceed under § 2241. See Harrison v. Olli-
son, 519 F.3d 952, 959 (9th Cir. 2008) (stating that
§ 2255 escape hatch criteria met when petitioner
claims actual innocence and he has not had unob-
structed procedural shot at presenting that claim).
We note that, as stated in the answering brief, even
 ALAIMALO v. UNITED STATES 2951
if Alaimalo were successful in his actual innocence
claim, his life sentence would not be affected.

Id. at 620.

While that appeal was pending, Alaimalo filed a third peti-
tion pursuant to § 2241 on September 27, 2007. This petition
made no mention of the Cabaccang argument. The petition
was dismissed for lack of jurisdiction, Alaimalo v. Norwood,
No. 07-cv-6313 (C.D. Cal. May 9, 2008), and we denied a
motion for a certificate of appealability, Alaimalo v. Nor-
wood, No. 08-56128 (9th Cir. Apr. 1, 2009). Finally, before
his appeal from his second § 2241 petition was decided and
before his third petition was denied by the district court, Alai-
malo filed his fourth petition pursuant to § 2241, again raising
the Cabaccang issue, and which is the subject of this appeal.

DISCUSSION

The foregoing chronology spares the reader any discussion
of the numerous motions pursuant to § 2255 and Rule 60(b)
that Alaimalo filed while he was bombarding various district
court judges with his § 2241 petitions. Nevertheless, it pro-
vides a sufficient backdrop for the threshold issues presented
in this case, namely, whether Alaimalo could raise the Cabac-
cang issue in a petition for a writ of habeas corpus pursuant
to § 2241 and whether he could continue to file successive
petitions after his initial petition was denied—a ruling from
which he failed to take a timely appeal.

I. The Jurisdiction of the District Court

I address first the issue of the jurisdiction of the district
court to consider Alaimalo’s third successive petition without
a certificate issued by the Court of Appeals authorizing him
to do so. While the issue is “not free from doubt,” Wofford v.
Scott, 177 F.3d 1236, 1241(11th Cir. 1999), I accept for pres-
ent purposes the majority’s holding that Alaimalo was entitled
2952 ALAIMALO v. UNITED STATES
to file a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 without obtaining such a certificate. This he
has already done. The issue here turns on the jurisdiction of
the district court to entertain his fourth petition raising the
same issue as two of his previous petitions, without a certifi-
cate authorizing its filing. Section 2244 provides that:

No circuit or district judge shall be required to enter-
tain an application for a writ of habeas corpus to
inquire into the detention of a person pursuant to a
judgment of a court of the United States if it appears
that the legality of such detention has been deter-
mined by a judge or court of the United States on a
prior application for a writ of habeas corpus, except
as provided in section 2255.

28 U.S.C. § 2244(a) (emphasis added).

On its face and subject to the “except clause,” § 2244(a)
would appear to grant a district judge discretion to decline a
successive application for a writ of habeas corpus, although
it does not compel him to do so. Indeed, the Supreme Court
so held in Sanders v. United States 373 U.S. 1, 12 (1963),
although it did so in the context of an earlier version of
§ 2244(a), amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), which did not contain the
“except as provided in section 2255” clause. Instead, the dis-
cretion of the district court to decline to entertain a second or
successive petition raising the same claim was conditioned on
a finding that “the ends of justice” would not be served by a
consideration of the merits of the petition. 28 U.S.C.
§ 2244(a) (1994) (amended 1996).

The specific provision of AEDPA that deleted the “ends of
justice” clause in § 2244(a), expressly stated that it was mak-
ing a “conforming amendment” to § 2244(a) to add a cross-
reference to § 2255. See AEDPA, 104 P.L. 132, § 106(a), 110
Stat. 1214, 1220 (1996). Significantly, AEDPA amended
 ALAIMALO v. UNITED STATES 2953
§ 2255 to delete a provision, comparable to the opening
clause of § 2244(a), which gave the sentencing court discre-
tion to decline to “entertain a second or successive petition for
similar relief on behalf of the same prisoner,” and it added the
requirement of a certificate of authorization for second or sub-
sequent petitions, contained in 28 U.S.C. § 2255(h). See
AEDPA, 104 P.L. 132, § 105, 110 Stat. 1214, 1220 (1996).

These changes suggest that Congress intended to compel a
district judge to entertain a second or successive application
pursuant to § 2241 that challenges a judgment of conviction
only when the petitioner had obtained a certificate of authori-
zation of the kind that § 2255(h) requires as a condition to the
filing of a second or successive petition pursuant to that sec-
tion. Moreover, the fact that § 2255(h) applies by its terms to
successive motions brought pursuant to § 2255 is not determi-
native because Congress incorporated the certificate of autho-
rization requirement by reference in the “except as provided”
clause of § 2244(a).

A contrary holding, which would allow the filing of a sec-
ond or successive challenge to a judgment of conviction pur-
suant to § 2241, without a certificate of authorization, would
lead to an extraordinarily anomalous, if not absurd, result.
This is so because the normal, if not exclusive, procedure for
a federal prisoner to challenge the validity of a judgment of
conviction is by a motion pursuant to § 2255. A second or
successive § 2255 petition may not be considered by the dis-
trict court unless petitioner obtains a certificate authorizing
the district court to do so. 28 U.S.C. § 2255(h). The scope of
the § 2241 remedy, as it relates to challenges to the validity
of a judgment of conviction, is the same as the scope of the
§ 2255 remedy. Compare 28 U.S.C. § 2241(c)(3) with 28
U.S.C. § 2255(b); and see Kinder v. Purdy, 222 F.3d 209, 214
(5th Cir. 2000); Wofford, 177 F.3d at 1239. Indeed, the
Supreme Court has held that § 2255 “was intended simply to
provide in the sentencing court a remedy exactly commensu-
rate with that which had previously been available by habeas
2954 ALAIMALO v. UNITED STATES
corpus in the court of the district where the prisoner was con-
fined.” Hill v. United States, 368 U.S. 424, 427 (1962). “[T]he
sole purpose [of § 2255] was to minimize the difficulties
encountered in habeas corpus hearings by affording the same
rights in another and more convenient forum.” United States
v. Hayman, 342 U.S. 205, 219 (1952). Under these circum-
stances, there would be no logical reason for Congress to dis-
tinguish between § 2255 motions and § 2241 habeas corpus
applications for the purpose of permitting a prisoner to file a
second or successive petition challenging his conviction with-
out a certificate of authorization. See Sanders v. United States,
373 U.S. 1, 15 (1963) (“Since the motion procedure [pursuant
to § 2255] is the substantial equivalent of federal habeas cor-
pus, we see no need to differentiate the two for present pur-
poses.”).

Consistent with this analysis, the Court of Appeals for the
Seventh Circuit has held that the effect of the changes made
by AEDPA, particularly the addition of the “except as pro-
vided by section 2255” clause to 2244(a), is to “channel[ ] all
successive collateral attacks on a federal court’s conviction or
sentence into the prior-approval mechanism of § 2244(b)(3).
Collateral attacks that do not address the conviction or sen-
tence are unaffected by this channeling apparatus (although
§ 2244(a) bars successive petitions under § 2241 directed to
the same issue concerning execution of a sentence).” Valona
v. United States, 138 F.3d 693, 695 (7th Cir. 1998) (Easter-
brook, J.).

Significantly, in Barapind v. Reno, 225 F.3d 1100 (9th Cir.
2000), we applied the Seventh Circuit’s analysis in Valona in
the course of holding that § 2244(a) did not bar a § 2241
habeas petition filed by an INS detainee. We observed that,
“[a]s noted by the Seventh Circuit, § 2244(a) prevents a fed-
eral inmate from using § 2241 ‘to call into question the valid-
ity of a conviction or sentence that has already been subject
to collateral review.’ ” Barapind, 225 F.3d at 1111 (quoting
Valona, 138 F.3d at 694). Barapind’s challenge to a decision
 ALAIMALO v. UNITED STATES 2955
of the BIA was not precluded because it did not call into ques-
tion the validity of a conviction or sentence and “because
§ 2244(a) [only] bars successive petitions seeking review of
the propriety of a detention ‘pursuant to a judgment of a court
of the United States.’ ” Id. at 1111 (quoting 28 U.S.C.
§ 2244(a)).

Subsequently, the Court of Appeals for the Tenth Circuit
appeared to have adopted the holding in Valona. See Acker-
man v. Novak, 483 F.3d 647 (10th Cir. 2007) (per curiam).
Thus, it observed:

The reference to § 2255 in the AEDPA-amended
version of § 2244(a) appears to incorporate the
appellate pre-authorization gatekeeping requirements
of § 2255[h], which sets forth the grounds upon
which a circuit court may authorize a second or suc-
cessive § 2255 motion, and, in turn, incorporates the
pre-authorization procedures in § 2244(b)(3).

Id. at 650.

More recently, however, in Stanko v. Davis, 617 F.3d 1262
(10th Cir. 2010), the Tenth Circuit declined to follow Acker-
man because it involved a challenge to a military court martial
and a military court is not a “court of the United States,” as
the term is used in § 2244(a). “As a consequence, § 2244(a)
did not apply to the § 2241 petition before [the panel], which
challenged a military court-martial conviction.” Stanko, 617
F.3d at 1266. And Ackerman’s discussion of the pre-
authorization issue was dicta. Id.

Significantly, Stanko did not involve a collateral attack on
a judgment of conviction or sentence of the kind that Valona
and Barapind held required a certificate of authorization.
Instead, Stanko alleged that the Bureau of Prisons had
improperly determined that he was not qualified to participate
in a residential drug abuse program and that, consequently, he
2956 ALAIMALO v. UNITED STATES
was not eligible for a one-year reduction in his sentence under
18 U.S.C. § 3621(e)(2)(B). This relief “challenges the execu-
tion of a federal prisoner’s sentence,” Jiminian v. Nash, 245
F.3d 144, 146 (2d Cir. 2001), rather than the validity of the
judgment of conviction and sentence. Consequently, there
was no reason why Congress would have prescribed a certifi-
cate of authorization for such challenges. Indeed, the condi-
tions under which a certificate of authorization may be issued,
see § 2255(h), simply do not lend themselves to challenges to
the execution of a federal sentence, which generally relate to
“such matters as the administration of parole, computation of
a prisoner’s sentence by prison officials, prison disciplinary
actions, prison transfers, type of detention and prison condi-
tions.” Jiminian, 245 F.3d at 146.

Under these circumstances, all that was necessary to
resolve the issue of the necessity of prior appellate authoriza-
tion for Stanko’s petition was to say that the relief sought was
not the kind of relief, namely, a collateral attack on a judg-
ment of conviction, for which Congress intended to impose
the prior-authorization requirement. Indeed in Antonelli v.
Warden, U.S.P. Atlanta, 542 F.3d 1348 (11th Cir. 2008), the
Eleventh Circuit so held in a run-of-the-mill case in which a
federal prisoner filed a successive petition challenging a deci-
sion of the Parol Commission on the same ground that he had
raised unsuccessfully in an earlier petition. Just as in Stanko,
the habeas corpus application in Antonelli raised claims tradi-
tionally cognizable under § 2241. Id. at 1352. Thus, “it was
not subject to gatekeeping in [the Eleventh Circuit].” Id. Nev-
ertheless, it was subject to dismissal, as a second or succes-
sive petition because “[s]uccessive § 2241 petitions by federal
prisoners are subject to threshold dismissal in the district
court . . . .” Id.

Instead of such a common-sense disposition of the case,
Stanko engaged in a protracted discussion of the issue why the
“except” clause did not apply to any petition filed pursuant to
§ 2241. Before proceeding to dissect this analysis, I pause to
 ALAIMALO v. UNITED STATES 2957
emphasize the fact that the holding in Stanko compels the dis-
missal of Alaimalo’s petition, even if he was not required to
obtain authorization to file his fourth § 2241 application seek-
ing relief on grounds identical to those presented in two of his
three prior applications. Thus, Stanko expressly held that
“[t]he statutory limitations on a federal inmate’s ability to file
multiple § 2241 petitions are contained in 28 U.S.C.
§ 2244(a),” 617 F.3d at 1266, and that those limitations
invariably require the dismissal of repetitive § 2241 applica-
tions that raise no new issues, id. at 1270. Indeed, Stanko
acknowledged that:

When Congress amended § 2244(a) in 1996 as part
of AEDPA, it removed the provision that had previ-
ously excepted from the statutory bar petitions rais-
ing new claims. In its current form, the plain
language of § 2244(a) applies both to petitions that
present a claim previously raised and adjudicated
and those that raise a new claim. As currently
worded, § 2244(a) could be read to bar any second
or subsequent habeas petition that challenges ‘the
legality of [the petitioner’s] detention’ if a court has
previously determined that the detention was legal.
This could include claims that were raised but not
adjudicated in a previous petition and even those that
could not have been raised in a previous petition.

Id.

Notwithstanding its recognition that Ҥ 2244(a) could be
read to bar any second or subsequent habeas petition,” Stanko
held, for reasons that are not relevant here, that second or suc-
cessive petitions that raise claims that had not previously been
decided were not subject to such a preclusive reading. Consis-
tent with this holding, Stanko upheld the dismissal of four of
the six claims that Stanko raised on the ground that they
asserted the same legal grounds as a prior petition. Id. at
1270; accord Antonelli, 542 F.3d at 1352. Nevertheless,
2958 ALAIMALO v. UNITED STATES
Stanko held that § 2244(a) did not preclude Stanko from rais-
ing the “two remaining claims [that] appear[ed] to be new,”
617 F.3d at 1270, although those claims were subject to dis-
missal under the common law doctrine of the abuse of the
writ, id. at 1272. Thus, Stanko clearly holds that § 2241 appli-
cations raising claims that have been rejected in prior such
applications are barred by § 2244(a) and, because the subsec-
tion authorizing the filing of successive petitions without
authorization does not apply to such applications, they are
precluded altogether. As noted above, this holding, if applied
here, would require the dismissal of Alaimalo’s third succes-
sive application.

Nevertheless, the majority ignores the holding in Stanko
and its implications for the present case. Instead, it focuses on
one aspect of Stanko’s holding, namely, that § 2244(a) does
not require authorization by the appropriate court of appeals
for a second or successive application pursuant to § 2241
challenging a judgment of conviction. The majority expressly
adopts Stanko’s analysis of the “except” clause of § 2244(a)
and holds, without any discussion, much less consideration of
either Valona or Barapind, that “because Alaimalo’s § 2241
petition is permitted by the ‘escape hatch’ of 28 U.S.C.
§ 2255(e), his failure to seek prior-certification from the Court
of Appeals did not divest the district court of jurisdiction in
this case.” Majority Op. at 2939, n.1.

This holding conflates two separate issues. The first is
whether an application for a writ of habeas corpus pursuant
to § 2241 may be filed notwithstanding the general prohibi-
tion against such petitions contained in § 2255(e). The second
is whether, assuming he may file such a petition at all, a pris-
oner may file successive applications pursuant to § 2241 after
his initial application was denied—and, as in the present case,
the denial was not timely appealed. The fact that § 2255(e)
may permit an initial application pursuant to § 2241 does not
answer the question whether he may file successive petitions
without the authorization of a court of appeals.
 ALAIMALO v. UNITED STATES 2959
Nor does Stanko provide persuasive grounds for holding
that the “except” clause of § 2244(a) does not incorporate the
certificate of authorization requirement of § 2255(h). First,
Stanko correctly observed that “the plain language of
§ 2255(h) applies only to § 2255 motions.” Specifically,
“[s]ubsection (h) states that ‘[a] second or successive motion
must be certified as provided in section 2244 by a panel of the
appropriate court of appeals.’ ” 617 F.3d at 1266 (quoting
§ 2255(h)). Nevertheless, as previously noted, the fact that
§ 2255(h) applies by its terms to successive motions brought
pursuant to § 2255 is not determinative because the certificate
of authorization requirement is incorporated by reference in
the “except as provided in § 2255” clause of § 2244(a).
Indeed, this drafting method—incorporation by cross-
reference—was used by Congress in § 2255(h) to incorporate
the prior-authorization requirement “as provided in section
2244.”

Second, Stanko ignores the plain language of § 2244(a) pre-
ceding the “except” clause, which confers discretion on the
district court to decline or, conversely, to entertain a second
or successive petition for a writ of habeas corpus pursuant to
§ 2241, “except as provided in § 2255.” This clause plainly
operates to limit the exercise of that discretion. Thus, if it
means anything, it must mean that, just as in the case of
§ 2255, the district court judge must dismiss a petition chal-
lenging a judgment of conviction under § 2241 unless a certif-
icate of authorization is granted by the appropriate court of
appeals.

Third, Stanko assumed erroneously that, if the “except”
clause of § 2244(a) is construed to require a certificate of
authorization, that requirement would apply to any motion for
a writ of habeas corpus that could be brought pursuant to 28
U.S.C. § 2241, many of which Congress could not possibly
have intended to restrict in this way. See Stanko, 617 F.3d at
1267. But this argument simply ignores the fact that, as we
held in Barapind, § 2244(a) operates only to “prevent[ ] a fed-
2960 ALAIMALO v. UNITED STATES
eral inmate from using § 2241 to call into question the valid-
ity of a conviction or sentence that has already been subject
to collateral review.” 225 F.3d at 1111 (internal quotation
marks omitted); see also Vasquez v. Parrott, 318 F.3d 387,
391-92 (2d Cir. 2003) (“It is manifest that in designing the
standards under which a second or successive petition would
be allowed, Congress was contemplating only petitions that
challenged the lawfulness of the conviction . . . .”); In re
Cain, 137 F.3d 234, 235 (5th Cir. 1998) (noting that “section
2244—one of the gatekeeping provisions of the AEDPA—
was enacted primarily to preclude prisoners from repeatedly
attacking the validity of their convictions and sentences.”).

Fourth, Stanko suggested that, “if the bar erected by
§ 2244(a) incorporated the gatekeeping provisions of
§ 2255(h), federal inmates bringing § 2241 petitions would
inexplicably be subject to far greater restrictions than would
other types of inmates who might bring § 2241 petitions.” 617
F.3d at 1268. This argument inexplicably ignores the fact that
AEDPA “incorporates reforms to curb the abuse of the statu-
tory writ of habeas corpus, and to address the acute problems
of unnecessary delay and abuse in capital cases.” H.R. Rep.
No. 104-518, at 111 (1996), reprinted in 1996 U.S.C.C.A.N.
944. Consequently, it is not surprising that “AEDPA is
designed primarily to preclude petitions brought by prisoners
seeking to escape the consequences of their criminal behavior
by challenging the validity . . . of their convictions or sen-
tences.” In re Cain, 137 F.3d at 235 n.1.

Finally, Stanko argued that subjecting second or successive
petitions pursuant to § 2241 to the gatekeeping mechanism to
which all collateral attacks on judgments of conviction are
subject would somehow impede the ability of prisoners to
obtain habeas corpus relief pursuant to § 2241 if they came
within the escape hatch of § 2255. This argument, as I have
already observed, simply conflates the issue of the availability
of the escape hatch, as a means of filing an initial petition,
 ALAIMALO v. UNITED STATES 2961
with the analytically separate issue of the number of times
such a petition may be filed. See Stanko, 617 F.3d at 1268.

In sum, a federal prisoner is barred from challenging his
conviction in a second or successive habeas corpus applica-
tion pursuant to § 2241, without a certificate of authorization,
even if the first petition was properly filed pursuant to § 2241.
Alaimalo failed to obtain a certificate authorizing him to file
his third successive petition pursuant to § 2241, the denial of
which is the subject of this appeal. Nor could he meet the rel-
evant condition for obtaining such a certificate because his
petition does not rely on “a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” 28 U.S.C.
§ 2255(h)(2). Nor is it based on newly-discovered evidence of
the kind prescribed there. Under these circumstances, the dis-
trict court did not have jurisdiction to entertain the petition
and we have no jurisdiction to hear the appeal. Burton v.
Stewart, 549 U.S. 147, 152-53 (2007); United States v. Lopez,
577 F.3d 1053, 1061 (9th Cir. 2009).

II. Other Impediments to The Availability of Relief Pur-
suant to § 2241

While the majority relies on Stanko v. Davis, 617 F.3d
1262 (10th Cir. 2010), for its holding that the district court
had jurisdiction to entertain Alaimalo’s third successive peti-
tion, Majority Op. at 2939 n.1, it ignores both the holding in
Stanko that § 2244(a) bars second or successive § 2241 peti-
tions raising previously rejected claims and the dismissal of
the successive application in Stanko that raised such a claim.
Nevertheless, the majority does at least recognize two possi-
ble impediments to Alaimalo’s current petition: the abuse of
the writ doctrine and the law of the case doctrine. Although
it suggests that neither of these doctrines are applicable here,
it avoids resolving that issue because it concludes that both of
those doctrines contain an exception where relief is necessary
to remedy a “fundamental miscarriage of justice,” Majority
2962 ALAIMALO v. UNITED STATES
Op. at 2944, or a “manifest injustice,” id. at 2945. The major-
ity holds that this exception to both doctrines is satisfied here.
I disagree.

I first address this threshold issue, because it relates both to
the law of the case and the abuse of the writ doctrines. I then
go on to address separately the other arguments made by the
majority with respect to each of those doctrines, namely, that
the law of the case established in Alaimalo v. United States,
317 F. App’x 619 (9th Cir. 2008), was clearly erroneous and
that the law of the case doctrine is not applicable here,
because the law of the case was not made in the same case as
the present proceeding. And then, finally, I address the major-
ity’s objection to the application of the abuse of the writ doc-
trine.

A. The Threshold Issue: “Manifest Injustice”

We have had occasion to observe that “[t]he existence of
special circumstances is required before a finding of manifest
injustice . . . . At a minimum, the challenged decision should
involve a significant inequity or the extinguishment of a right
before being characterized as manifestly unjust.” Jeffries v.
Wood, 114 F.3d 1484, 1492 (9th Cir. 1997) (en banc) (inter-
nal citations omitted). Of course, for reasons already indicated
at the outset, the earlier denials of the writ in this case do not
satisfy this test because the only relief of which they deprived
Alaimalo was a meaningless piece of paper. Indeed, the
majority concedes that the writ it orders the district court to
grant will have no effect on Alaimalo’s sentence. Majority
Op. at 2946. Nevertheless, the majority suggests that it is nec-
essary to vacate the challenged counts of conviction in order
to remove “the possibility that [Alaimalo] will be subject to
their adverse collateral consequences.” Id. These conse-
quences are not specified.

More significantly, the cases on which the majority relies
provide no support for the proposition that failing to eliminate
 ALAIMALO v. UNITED STATES 2963
the possibility of any of these consequences would constitute
a “fundamental miscarriage of justice” or a “manifest injus-
tice.” Instead, those cases arose in an area of law—namely,
the “case or controversy” inquiry, under Article III, § 2 of the
Constitution—in which the Supreme Court has accepted “the
most generalized and hypothetical consequences as sufficient
to avoid mootness in challenges to [a] conviction.” Spencer v.
Kemna, 523 U.S. 1, 10 (1998). Such speculative possibilities
may be sufficient to overcome the doctrine of mootness, see
id., or even the concurrent sentence doctrine, see Ball v.
United States, 470 U.S. 856, 865 (1985). Nevertheless, the
suggestion that they constitute a “fundamental miscarriage of
justice” or a “manifest injustice” renders those terms mean-
ingless.

Indeed, in Spencer v. Kemna, the Supreme Court began a
retreat from “its earlier willingness to presume adverse conse-
quences sufficient to defeat a claim of mootness.” 7 WAYNE
R. LAFAVE ET AL., CRIMINAL PROCEDURE § 27.5(a) (3d ed.
2007). Specifically, it held that the possibility that a parole
violation conviction could be used to impeach the defendant’s
testimony in a subsequent criminal prosecution was “purely a
matter of speculation,” and insufficient to permit him to chal-
lenge a revocation of parole after he had served his sentence,
Spencer, 523 U.S. at 16, implicitly overruling dictum in Ball,
470 U.S. at 865. Similarly, in Maleng v. Cook, 490 U.S. 488
(1989), the Supreme Court held that a defendant who had
completed serving his sentence could not obtain habeas cor-
pus relief with respect to that conviction merely because it
could possibly be used to enhance his sentence if he commit-
ted a subsequent crime, id. at 492, although it held open the
possibility of a challenge to an actual subsequent sentence so
enhanced, id. at 494. Indeed, even before Spencer or Maleng,
the Supreme Court had decided that, while challenges to cer-
tain remaining counts of an indictment were not moot, it
would “decline as a discretionary matter” to rule on their
validity. Barnes v. United States, 412 U.S. 837, 848 n.16
(1973).
2964 ALAIMALO v. UNITED STATES
B. The Law of the Case Doctrine

1. The Definition of “Clearly Erroneous”

The foregoing consideration aside, as the majority recog-
nizes, Majority Op. at 2944-45, 2946, under the law of the
case doctrine, to the extent here relevant, a prior decision
should be followed unless it was clearly erroneous and its
enforcement would work a manifest injustice. Hegler v. Borg,
50 F.3d 1472, 1475 (9th Cir. 1995); see also Arizona v. Cali-
fornia, 460 U.S. 605, 618 n.8 (1983) (“Under law of the case
doctrine, as now most commonly understood, it is not
improper for a court to depart from a prior holding if con-
vinced that it is clearly erroneous and would work a manifest
injustice.”). The phrase “clearly erroneous” suggests some-
thing more than simple error. As the Court of Appeals for
Seventh Circuit put it:

[U]nder the clearly-erroneous standard, we cannot
meddle with the prior decision of this or a lower
court simply because we have doubts about its wis-
dom or think we would have reached a different
result. To be clearly erroneous, a decision must
strike us as more than just maybe or probably wrong;
it must, as one member of this court recently stated
during oral argument, strike us as wrong with the
force of a five-week-old, unrefrigerated dead fish.

Parts and Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d
228, 233 (7th Cir. 1988). In sum, to be clearly erroneous, the
prior panel’s decision “must be dead wrong.” Id. This strin-
gent standard “rests on good sense and the desire to protect
both court and parties against the burdens of repeated reargu-
ment by indefatigable diehards.” 18B CHARLES A. WRIGHT ET
AL., FEDERAL PRACTICE AND PROCEDURE § 4478 (2d ed. 2002).

The prior holding of two district court judges, and three
judges of the Ninth Circuit that “28 U.S.C. § 2255 was not an
 ALAIMALO v. UNITED STATES 2965
inadequate or ineffective remedy so as to allow Alaimalo to
proceed under § 2241,” Alaimalo v. United States, 317 F.
App’x 619, 620 (9th Cir. 2008), was not clearly erroneous.
Indeed, although we need not go that far to decide this case,
the prior holdings were not error at all. Specifically, a motion
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 may
be entertained notwithstanding the petitioner’s “fail[ure] to
apply for relief, by motion [pursuant to 28 U.S.C. § 2255], to
the court which sentenced him, or that such court has denied
him relief [if] the remedy by motion is inadequate or ineffec-
tive to test the legality of his detention.” 28 U.S.C. § 2255(e).
Alaimalo did initially file a petition for relief “to the court
which sentenced him,” although he did not challenge his con-
viction on the counts of importation on the ground on which
Cabaccang ultimately prevailed. Nor, if he had raised the
issue, could he have obtained relief from the district court
because Ninth Circuit law had not changed since he unsuc-
cessfully raised the issue on direct appeal. Cf. Davis v. United
States, 417 U.S. 333, 341-42 (1974) (where Court of Appeals
decision changed the law since petitioner’s trial and appeal,
law of the case doctrine did not bar a new hearing on a legal
issue previously determined against him). Nevertheless, it is
not so clear, as the majority suggests, that this circumstance
rendered the remedy by motion, pursuant to 28 U.S.C. § 2255,
“inadequate or ineffective to test the legality of his detention.”

First, nothing would have precluded Alaimalo from seeking
a change in applicable Ninth Circuit law. Indeed, at the time
he filed his first petition, the Court of Appeals for the First
Circuit had already ruled in an opinion that would be relied
upon in Cabaccang, that a defendant’s conduct in transporting
drugs from one location within the United States to another,
despite traveling over international waters, did not constitute
“importation” within the meaning of 21 U.S.C. § 952(a). See
United States v. Ramirez-Ferrer, 82 F.3d 1131, 1144 (1st Cir.
1996) (en banc). While the district court could not have
granted Alaimalo’s petition, because it was without power to
alter prior Ninth Circuit precedent or the law of the case
2966 ALAIMALO v. UNITED STATES
established on direct appeal, see Davis, 417 U.S. 341-42, the
Ninth Circuit could have granted such relief. Indeed, Alai-
malo’s appeal was working its way through the Ninth Circuit,
almost in lockstep with Cabaccang, and Cabaccang suc-
ceeded. Under these circumstances, relief by motion pursuant
to 28 U.S.C. § 2255 was no more inadequate or ineffective to
test the legality of Alaimalo’s detention than a direct appeal
was to test the identical challenge raised by Cabaccang.

Significantly, in analogous circumstances, the Supreme
Court has held that a procedural forfeiture occasioned by the
failure of a state prisoner to make a timely objection was not
excused by the alleged futility of such a timely objection.
Engle v. Issac, 456 U.S. 107, 130 (1982). As Justice
O’Connor wrote for the Supreme Court:

If a defendant perceives a constitutional claim and
believes it may find favor in the federal courts, he
may not bypass the state courts simply because he
thinks they will be unsympathetic to the claim. Even
a state court that has previously rejected a constitu-
tional argument may decide, upon reflection, that the
contention is valid.

Id. (footnote omitted); see also Bousley v. United States, 523
U.S. 614, 623 (1998) (“As we clearly stated in Engle v. Isaac,
456 U.S. 107 (1982), futility cannot constitute cause if it
means simply that a claim was unacceptable to that particular
court at that particular time.”) (internal quotation marks and
parallel citation omitted).

The change of law that Justice O’Connor suggested was
possible actually occurred here during the pendency of Alai-
malo’s appeal, at the behest of another defendant who raised
the same claim. Indeed, it would not be farfetched to suggest
that Alaimalo might have prevailed had he first raised the
issue on appeal from the denial of his § 2255 motion and
moved to stay his appeal, after it became apparent that we
 ALAIMALO v. UNITED STATES 2967
were prepared to consider the Cabaccang claim en banc.
While we generally do not consider claims raised for the first
time on appeal, an application to add the Cabaccang claim
would have come within the criteria we have adopted for
invoking our discretion to review such a claim, including,
inter alia, “when a new issue arises while appeal is pending
because of a change in the law . . . .” Cold Mountain v. Gar-
ber, 375 F.3d 884, 891 (9th Cir. 2004) (O’Scannlain, J.)
(quoting Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir.
1985)).

In sum, it was hardly clear error to hold that Alaimalo
could have raised his claim in a proceeding pursuant to 28
U.S.C. § 2255. Indeed, the district court judges who dismissed
Alaimalo’s petitions pursuant to § 2241 expressly relied on
the unique facts discussed above to demonstrate that the rem-
edy provided by § 2255 was adequate and effective to test
Alaimalo’s claim. See Alaimalo v. Shultz, No. 05-cv-300
(E.D. Cal. Sept. 29, 2005); Alaimalo v. United States, No. 06-
cv-6872 (C.D. Cal. Sept. 25, 2007). The three judges of the
Ninth Circuit presumably did the same when they affirmed
the denial of the writ of habeas corpus. See Alaimalo v.
United States, 317 F. App’x 619 (9th Cir. 2008).

Moreover, even in the absence of such unique circum-
stances, the inadequacy of the remedy afforded by § 2255 is
not as clear cut as the majority suggests. First, the Court of
Appeals for the Fifth, Seventh, and Eleventh Circuits have
held that the so-called “escape-hatch clause” or “savings
clause” of 28 U.S.C. § 2255(e) applies to a claim that was or
could have been brought pursuant to § 2255 only when:

1) that claim is based on a retroactively applicable
Supreme Court decision; 2) the holding of that
Supreme Court decision establishes the petitioner
was convicted for a nonexistent offense; and, 3) cir-
cuit law squarely foreclosed such a claim at the time
2968 ALAIMALO v. UNITED STATES
it otherwise should have been raised in the petition-
er’s trial, appeal, or first § 2255 motion.

Wofford v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999);
accord Reyes-Requena v. United States, 243 F.3d 893, 904
(5th Cir. 2001) (following Wofford); In re Davenport, 147
F.3d 605, 611 (7th Cir. 1998). Moreover, in Love v. Menifee,
333 F.3d 69, 73 (2d Cir. 2003), the Second Circuit held that
“Section 2255 is ‘inadequate or ineffective,’ however, only
when a ‘failure to allow for collateral review would raise seri-
ous constitutional questions’ . . . “ (quoting Triestman v.
United States, 124 F.3d 361, 377 (2d Cir. 1997)).

These extraordinary limitations underscore the fact that
“[t]he savings clause and habeas corpus writs . . . exist in a
delicate balance.” Reyes-Requena, 243 F.3d at 901 n.19.
Because “[s]ection 2255 is the primary collateral relief mech-
anism for federal prisoners,” caselaw is clear that “the savings
clause cannot create a detour around § 2255.” Id.; see also
Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per
curiam) (“the dismissal of a subsequent § 2255 motion pursu-
ant to 28 U.S.C. § 2244(b) does not render federal habeas
relief an ineffective or inadequate remedy.”). So, for example,
§ 2255(f) contains a one-year statute of limitation and
§ 2255(h) provides that a second or successive motion can
only be filed if it is based on newly discovered evidence that
would have resulted in a not guilty verdict or if it is based on
“a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” Obviously, a prisoner’s inability to comply with
these conditions does not render the remedy pursuant to
§ 2255 “inadequate or ineffective to test the legality of his
detention.” See Love, 333 F.3d at 73 (Section 2255 is not “in-
adequate or ineffective” simply because “its gatekeeping pro-
visions bar review of a petitioner’s claim.”). Otherwise, the
substantive and procedural barriers contained in § 2255 would
be rendered meaningless and “Congress would have accom-
plished nothing at all in its attempts—through statutes like
 ALAIMALO v. UNITED STATES 2969
AEDPA—to place limits on federal collateral review.” Triest-
man v. United States, 124 F.3d 361, 376 (2nd Cir. 1997)
(Calabresi, J.).

Another reason for the extremely narrow construction of
the savings clause is that it was originally intended to encom-
pass only “practical difficulties” that a petitioner might have
encountered in complying with the directive in § 2255 that a
petition must be filed in the district court “which imposed the
sentence.” See United States v. Hayman, 342 U.S. 205, 219
(1952). Nevertheless, while “[t]he question is not free from
doubt,” after an exhaustive analysis of the legislative history,
the Eleventh Circuit concluded that the savings clause had
somehow morphed into a vehicle that “is concerned with
more than the practical difficulties.” Wofford, 177 F.3d at
1241. This conclusion represents the prevailing view of the
savings clause.

In order to give the language of the savings clause some
effect, and yet avoid a construction of the savings clause that
would render meaningless the constraints placed upon the
issuance of a § 2255 writ, it has generally been construed to
permit the filing of a habeas corpus petition pursuant to
§ 2241 only when a change in statutory construction adopted,
and made retroactive, by the Supreme Court established that
the petitioner had been found guilty of what turned out to be
a non-existent offense. See e.g., In re Davenport, 147 F.3d
605, 611 (7th Cir. 1998). As the Seventh Circuit explained,
“[b]ecause Congress may have overlooked the possibility that
new and retroactive statutory decisions [by the Supreme
Court] could support collateral review, we held in Davenport
that for this small class of situations § 2255 is ‘inadequate or
ineffective to test the legality of [the] detention.’ ” Taylor v.
Gilkey, 314 F.3d 832, 835 (7th Cir. 2002) (alteration in origi-
nal) (quoting 28 U.S.C. § 2255(e)).

Nevertheless, in granting Alaimalo relief pursuant to the
savings clause of § 2255(e), the majority ignores altogether
2970 ALAIMALO v. UNITED STATES
the carefully crafted limitations on the availability of habeas
corpus relief. Indeed, a detailed analysis of the narrow scope
of the savings clause is not to be found in the cases cited by
the majority, see Majority Op. at 2940, only because they held
that the petitioners were not otherwise entitled to relief pursu-
ant to the savings clause. See Stephens v. Herrera, 464 F.3d
895 (9th Cir. 2006); Ivy v. Pontesso, 328 F.3d 1057 (9th Cir.
2003); Lorentsen v. Hood, 223 F.3d 950 (9th Cir. 2000). The
present case is the first Ninth Circuit case to grant relief pur-
suant to the savings clause of § 2255(e), and it does so in a
case where the petitioner is unable to meet the stringent con-
ditions that other circuits have adopted. In so doing, it need-
lessly creates a clear conflict among the circuits in a case in
which the relief it orders will give petitioner nothing.

2. The Majority’s “Same Case” Dictum

The majority suggests, without expressly holding, that the
law of the case doctrine does not apply here because each of
Alaimalo’s petitions were separate and were not part of the
same case. See Majority Op. at 2945-46. The idea that
repeated attacks on the same judgment of conviction seeking
identical relief are not part of the same case is simply wrong.
See, e.g., DiGuglielmo v. Smith, 366 F.3d 130, 135 (2d Cir.
2004); Shore v. Warden, Statesville Prison, 942 F.2d 1117,
1123 (7th Cir. 1991); Raulerson v. Wainwright, 753 F.2d 869,
875 (11th Cir. 1985). Indeed, the savings clause in § 2255(e)
on which the majority relies to permit the filing of a petition
pursuant to § 2241 is simply a way of avoiding the limitations
on petitions pursuant to § 2255 in very narrow circumstances.
The scope of the remedies provided by these two statutes is
the same. Compare 28 U.S.C. § 2241(c)(3) with 28 U.S.C.
§ 2255(a); see Kinder v. Purdy, 222 F.3d 209, 214 (5th Cir.
2000); Wofford v. Scott, 177 F.3d 1236, 1241 (11th Cir.
1999). And § 2255 petitions have always been regarded as
part of the underlying criminal case. See United States v. Mar-
tin, 226 F.3d 1042, 1047 n.7 (9th Cir. 2000); Grady v. United
 ALAIMALO v. UNITED STATES 2971
States, 929 F.2d 468, 470 (9th Cir. 1990). There is no logical
reason for treating § 2241 petitions differently.

Nevertheless, the majority claims to find support in Ninth
Circuit caselaw for the proposition that the law of the case
doctrine has not been applied “to claims in successive habeas
petitions.” Majority Op. at 2945-46. What the majority does
not, and cannot, say is that we have held that the law of the
case doctrine cannot apply to such claims. On the contrary,
the only cases it cites are those in which we have applied the
law of the case doctrine to habeas corpus petitions following
a panel’s review of the case on direct appeal. See id. (citing
Phelps v. Alameida, 569 F.3d 1120, 1140 n.23 (9th Cir.
2009), and United States v. Garcia, 77 F.3d 274, 276 (9th Cir.
1996)). The reason that we have not applied it to claims in
successive petitions is that we have had no occasion to do so.
Indeed, two of the cases that the majority cites for the propo-
sition that “this circuit has not applied [the law of the case
doctrine] to claims in successive habeas petitions” did not
even involve the law of the case doctrine. See id. at 2945 (cit-
ing Barapind v. Reno, 225 F.3d 1100, 1110-12 (9th Cir.
2000), and Farmer v. McDaniel, 98 F.3d 1548, 1557-58 (9th
Cir. 1996)).

Moreover, there is no basis for the majority’s suggestion
“that there is a split among out sister circuits as to whether to
apply the law of the case to successive habeas petitions.”
Majority Op. at 2945. While the Second, Seventh, and Elev-
enth Circuits have applied the law of the case doctrine to suc-
cessive habeas petitions, DiGuglielmo v. Smith, 366 F.3d 130,
135 (2d Cir. 2004); Shore v. Warden, Statesville Prison, 942
F.2d 1117, 1123 (7th Cir. 1991); Raulerson v. Wainwright,
753 F.2d 869, 875 (11th Cir. 1985), the two cases that the
majority cites as holding to the contrary contain language that
barely rises to the level of dictum. Rosales-Garcia v. Holland,
322 F.3d 386, 398 n.11 (6th Cir. 2003) (en banc) (“Whether
successive habeas petitions constitute stages in a single, con-
tinuing lawsuit is a question that should be carefully consid-
2972 ALAIMALO v. UNITED STATES
ered[, a]lthough we do not decide the question . . . .”) (internal
citation omitted); Lacy v. Gardino, 791 F.2d 980, 985 (1st
Cir. 1986) (“We need not decide . . . whether the two habeas
petitions are the same or different cases requiring the applica-
tion of either the law of the case doctrine or stare decisis.”).
Thus, while there does not presently exist a circuit split on the
issue, the majority opinion goes a long way towards creating
one.

C. Abuse of the Writ Doctrine

On the assumption that the abuse of the writ doctrine may
otherwise be applicable here, the majority suggests that “[t]he
government bears the burden of pleading abuse of the writ,
. . . but it did not do so here.” Majority Op. at 2944 (internal
citation omitted). The abuse of the writ, as it is generally
understood, applies “where a prisoner files a petition raising
grounds that were available but not relied upon in a prior peti-
tion, or engages in other conduct that disentitle[s] him to the
relief he seeks.” Schlup v. Delo, 513 U.S. 298, 318 n.34
(1995) (internal quotation marks omitted). While the govern-
ment generally bears the burden of pleading abuse of the writ,
there is also general agreement that the abuse of the writ may
be raised sua sponte. Indeed, in Stanko v. Davis, 617 F.3d
1262 (10th Cir. 2010), upon which the majority exclusively
relies in holding that Alaimalo could file multiple petitions
pursuant to § 2241 without any statutory restraint, the Tenth
Circuit sua sponte invoked the abuse of the writ doctrine and
dismissed Stanko’s successive habeas corpus petition. Id. at
1270-72. Accord United States v. Talk, 158 F.3d 1064, 1067
(10th Cir. 1998) (holding court may raise procedural default
sua sponte “if doing so will further the interests of judicial
efficiency, conservation of scarce judicial resources, and
orderly and prompt administration of justice”) (internal quota-
tion marks omitted), abrogated on other grounds by Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003); Femia v. United States,
47 F.3d 519, 522-23 (2d Cir. 1995); United States v. Fallon,
992 F.2d 212, 213 (8th Cir. 1993); Andre v. Guste, 850 F.2d
 ALAIMALO v. UNITED STATES 2973
259, 261-62 (5th Cir. 1988); cf. Barapind v. Reno, 225 F.3d
1100, 1111 n.6 (9th Cir. 2000).

These holdings reflect the obvious fact that successive peti-
tions implicate more than just the interests that one party may
have in preserving the result of an earlier proceeding. As Pro-
fessors Wright and Miller observe with respect to the closely
analogous context of the failure to plead preclusion, the doc-
trine

goes beyond the interest of at least one party in
repose and avoiding the burden of relitigation.
Courts share these interests, and are concerned as
well with avoiding inconsistent decisions. As courts
became increasingly concerned with their own inter-
ests in forestalling repetitive litigation, it has become
increasingly common to raise the question of preclu-
sion on the court’s own motion.

18 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 4405 (2d ed. 2002). Indeed, we have had occa-
sion to observe that the “[p]reclusion doctrine encompasses
vindication of both public and private interests. . . . [T]he
most purely public purpose served by preclusion rules is that
of preserving the acceptability of judicial dispute resolution
against the corrosive disrespect that would follow if the same
manner were twice litigated to inconsistent results.” Clements
v. Airport Auth., 69 F.3d 321, 330 (9th Cir. 1995) (internal
quotation marks and citation omitted). The public purpose is
implicated for yet another reason in habeas corpus cases for,
as Judge Friendly observed, “the most serious single evil with
today’s proliferation of collateral attack is its drain upon the
resources of the community—judges, prosecutors, and attor-
neys appointed to aid the accused. . . . Today of all times we
should be conscious of the falsity of the bland assumption that
these are in endless supply.” Henry J. Friendly, Is Innocence
Irrelevant? Collateral Attack on Criminal Judgment, 38 U.
Chi. L. Rev. 142, 148 (1970).
2974 ALAIMALO v. UNITED STATES
CONCLUSION

The history of this case involves a terrible abuse of the writ
in more than just its technical legal definition. The majority
today sanctions a system in which a prisoner can bring end-
less petitions for a writ of habeas corpus for no apparent pur-
pose until he finds two judges, as petitioner has here, who are
willing to overthrow the work of three district court judges
and three judges of the Ninth Circuit. In his seminal article on
the writ of habeas corpus, from which I quoted above, Judge
Friendly observed that “[t]he proverbial man from Mars
would surely think we must consider our system of criminal
justice terribly bad if we are willing to tolerate such efforts at
undoing judgments of conviction.” Id. at 145. Because I am
not as tolerant of such efforts as my two colleagues, I respect-
fully dissent.