FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVE HARRISON, No. 06-55470
Petitioner-Appellant,
v. D.C. No.
CV-05-01465-DMS
DERRICK L. OLLISON, Warden,
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted
September 27, 2007—Pasadena, California
Filed March 20, 2008
Before: J. Clifford Wallace, Thomas G. Nelson, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
2633
2636 HARRISON v. OLLISON
COUNSEL
Kurt David Hermansen, Law Office of Kurt David Herman-
sen, San Diego, California, for the petitioner-appellant.
Carol C. Lam, United States Attorney; Bruce R. Castetter,
Lawrence E. Spong, Assistant United States Attorneys, San
Diego, California, for the respondent-appellee.
OPINION
IKUTA, Circuit Judge:
A federal prisoner challenging the legality of a sentence
must generally do so by a motion pursuant to 28 U.S.C.
§ 2255. However, when a motion under § 2255 is “inadequate
or ineffective to test the legality” of a prisoner’s detention, see
id., a prisoner may bring a habeas petition under 28 U.S.C.
§ 2241. This appeal requires us to determine whether the peti-
tioner, Dave Harrison, was entitled to bring his habeas peti-
tion under § 2241. Before reaching that question, we must
determine whether Harrison needs a certificate of appeala-
bility, see 28 U.S.C. § 2253(c), before he can appeal the dis-
trict court’s dismissal of his § 2241 petition for lack of
jurisdiction.
HARRISON v. OLLISON 2637
I
In 1988, Dave Harrison was charged with using a pipe
bomb to blow up a 1978 Volkswagen van and with burning
a 1974 Reinell cabin cruiser motorboat. Harrison pleaded
guilty in the district court for the Southern District of Califor-
nia to bombing and arson, in violation of 18 U.S.C. § 844(i).1
This federal arson statute includes an interstate commerce ele-
ment for purposes of establishing federal jurisdiction, namely,
that the arson must have affected a “building, vehicle, or other
real or personal property used in interstate or foreign com-
merce or in any activity affecting interstate or foreign com-
merce.” Id.
As part of the plea agreement, both Harrison and the gov-
ernment stipulated to the interstate commerce component of
§ 844(i). For the van, the parties stipulated:
[A]t the time the van was driven and used in the
commercial business which [Harrison’s wife] deliv-
ered, basically delivered cakes to many people[;]
those cakes have traveled in interstate commerce.
1
18 U.S.C. § 844(i) states:
Whoever maliciously damages or destroys, or attempts to damage
or destroy, by means of fire or an explosive, any building, vehi-
cle, or other real or personal property used in interstate or foreign
commerce or in any activity affecting interstate or foreign com-
merce shall be imprisoned for not less than 5 years and not more
than 20 years, fined under this title, or both; and if personal injury
results to any person, including any public safety officer perform-
ing duties as a direct or proximate result of conduct prohibited by
this subsection, shall be imprisoned for not less than 7 years and
not more than 40 years, fined under this title, or both; and if death
results to any person, including any public safety officer perform-
ing duties as a direct or proximate result of conduct prohibited by
this subsection, shall also be subject to imprisonment for any
term of years, or to the death penalty or to life imprisonment.
2638 HARRISON v. OLLISON
In addition, the van was fueled with gasoline that
had traveled in interstate and foreign commerce; and,
finally, the van itself had been manufactured in the
Republic of West Germany, having traveled in for-
eign commerce, had been sold here in California and
replacement parts necessary to repair the damage
that the defendant did will also travel in interstate
and foreign commerce.
The parties stipulated to the interstate commerce component
for the cabin cruiser motorboat as follows:
[T]he boat was manufactured in 1974 in the state of
Washington. It was traveling in interstate commerce
and was sold in California. At the time it was
destroyed had been [sic] many parts had traveled in
interstate commerce. The boat was licensed in the
state of Nevada and the owner of the boat paid a fee
to a business for the care and maintained and stored
the boat in the state of Nevada where it was moored
most of the time. The owner of the boat frequently
crossed state lines with it bringing it to California
and between Nevada and Arizona.
Harrison was sentenced by the district court for the South-
ern District of California to two consecutive ten-year prison
terms for the arson and bombing, which were to be followed
by a five-year probationary term for aiding and abetting the
interstate transportation of stolen property. Harrison is cur-
rently in state prison in the Central District of California and
will commence federal parole upon his release.2 For purposes
2
Following the federal conviction at issue in this case, Harrison was
convicted in California state court of the first degree murder of his former
wife. Due to the pending sentence of federal parole, Harrison is “in custo-
dy” for purposes of the federal habeas provisions, § 2241(c) and § 2255.
See Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 488-89 &
n.4 (1973) (petitioner may challenge future imposition of sentence for
which detainer has been lodged while in custody for earlier sentence of
different sovereign); Jones v. Cunningham, 371 U.S. 236, 242-43 (1963)
(parole “significantly restrain[s] petitioner’s liberty” sufficient to satisfy
“ ‘custody’ . . . within the meaning of the habeas corpus statute”).
HARRISON v. OLLISON 2639
of clarity, we will refer to the district court for the Southern
District of California, where Harrison was sentenced, as the
“sentencing court,” and the district court for the Central Dis-
trict of California, where Harrison is in custody, as the “custo-
dial court.”
Harrison filed a timely notice of appeal on March 1, 1989.
We dismissed the appeal for failure to prosecute on June 28,
1989. Apparently unaware of this dismissal, Harrison also
filed a motion for voluntary dismissal of his appeal on August
1, 1989.
Following his direct appeal, Harrison attempted to chal-
lenge his conviction and sentence by means of motions under
§ 2255 and petitions under § 2241. The history of Harrison’s
collateral challenges to his conviction must be understood in
the context of these two bases for collateral relief from federal
sentences, § 2255 and § 2241, and the limitations Congress
has imposed on these forms of relief.
A
As a general rule, Ҥ 2255 provides the exclusive proce-
dural mechanism by which a federal prisoner may test the
legality of detention.” Lorentsen v. Hood, 223 F.3d 950, 953
(9th Cir. 2000). Section 2255 allows a federal prisoner claim-
ing that his sentence was imposed “in violation of the Consti-
tution or laws of the United States” to “move the court which
imposed the sentence to vacate, set aside or correct the sen-
tence.” 28 U.S.C. § 2255. A prisoner may not bring a second
or successive § 2255 motion in district court unless “a panel
of the appropriate court of appeals” certifies that the motion
contains:
(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evi-
2640 HARRISON v. OLLISON
dence that no reasonable factfinder would have
found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroac-
tive to cases on collateral review by the Supreme
Court, that was previously unavailable.
28 U.S.C. § 2255. Nor may a prisoner appeal the denial of a
§ 2255 motion unless this court or the district court issues a
certificate of appealability under § 2253(c).3 28 U.S.C.
§ 2253(c)(B). Such a certificate may issue “only if the appli-
cant has made a substantial showing of the denial of a consti-
tutional right.” Id.
“Generally, motions to contest the legality of a sentence
must be filed under § 2255 in the sentencing court, while peti-
tions that challenge the manner, location, or conditions of a
sentence’s execution must be brought pursuant to § 2241 in
the custodial court.” Hernandez v. Campbell, 204 F.3d 861,
864 (9th Cir. 2000). There is an exception, however, set forth
in § 2255: A federal prisoner may file a habeas petition under
§ 2241 to challenge the legality of a sentence when the pris-
oner’s remedy under § 2255 is “inadequate or ineffective to
3
28 U.S.C. § 2253(c) states:
(1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals
from—
(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State
court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the denial
of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing
required by paragraph (2).
HARRISON v. OLLISON 2641
test the legality of his detention.” 28 U.S.C. § 2255. “We refer
to this section of § 2255 as the ‘savings clause,’ ” or the “es-
cape hatch.” Hernandez, 204 F.3d at 864 n.2; Stephens v.
Herrera, 464 F.3d 895, 897 (9th Cir. 2006) (internal quotation
marks omitted). If a prisoner’s claims qualify for the escape
hatch of § 2255, the prisoner may challenge the legality of a
sentence through a § 2241 petition in the custodial court. Her-
nandez, 204 F.3d at 865.
B
In February 1992, Harrison filed his first § 2255 habeas
petition in the sentencing court. The sentencing court denied
the motion as procedurally barred due to Harrison’s failure to
pursue his direct appeal. We affirmed the district court’s rul-
ing in November 1994.
In August 1999, Harrison filed a second habeas petition in
the sentencing court to vacate his sentence under § 2255. The
judges of the Southern District of California recused them-
selves, and we assigned the case to Judge James K. Singleton,
of the District of Alaska.
While this petition was pending, the Supreme Court issued
its opinion in Jones v. United States, 529 U.S. 848 (2000),
holding that the phrase “used in an activity affecting com-
merce” for purposes of § 844(i) required “active employment
for commercial purposes, and not merely a passive, passing,
or past connection to commerce.” Jones, 529 U.S. at 855.
Applying this definition, the Court held that a defendant could
not be convicted of violating § 844(i) for damaging a private
residence “owned and occupied . . . for everyday family liv-
ing.” Id. at 859.
In September 2000, Judge Singleton dismissed Harrison’s
petition on the ground that it was a second or successive
motion, requiring Harrison to obtain a certificate pursuant to
2642 HARRISON v. OLLISON
§ 2255 before he could file it. We denied Harrison’s request
for certification of this petition in May 2001.
In July 2001, Harrison filed a petition pursuant to § 2241
in the sentencing court seeking to vacate his sentence in light
of Jones v. United States. Without analyzing whether Harri-
son could file a § 2241 petition pursuant to the savings clause
of § 2255, the sentencing court dismissed Harrison’s petition
for lack of jurisdiction.
Harrison thereupon filed his § 2241 petition in the custodial
court. As required by Hernandez v. Campbell, 204 F.3d 861,
864 (9th Cir. 2000), the custodial court first considered
whether Harrison’s petition should be deemed to be a petition
under § 2241 or a motion under § 2255. Because Harrison
contested the legality of his sentence in light of Jones, he had
to raise his claim by a § 2255 motion unless he met the
criteria for the escape hatch.
Upon reviewing Harrison’s § 2241 petition, the custodial
court determined that Harrison had failed to establish that his
remedies under § 2255 were inadequate or ineffective, and
therefore held that Harrison’s petition could not be filed under
§ 2241. Accordingly, the custodial court deemed Harrison’s
petition to be a motion under § 2255. Because jurisdiction
over such a motion would lie only in the sentencing court, the
custodial court transferred the case to the sentencing court.
After the petition had been transferred to the sentencing
court, it was reassigned to Judge Singleton. In May 2003,
Judge Singleton denied the petition and issued an order
instructing the clerk of the court to close the case and not to
accept any further filings from Harrison without a certificate
permitting a second or successive petition under § 2255.
In light of this certification requirement, Harrison requested
authorization in this court to file a second or successive
motion under § 2255. We denied the request “without preju-
HARRISON v. OLLISON 2643
dice to presentation of the issues raised in this application
through the filing of a 28 U.S.C. § 2241 habeas corpus peti-
tion in district court,” citing United States v. Lorentsen, 106
F.3d 278, 279 (9th Cir. 1997).
This language in our order sent Harrison on a second round
of efforts to raise his Jones claim. In July 2005, Harrison filed
a § 2241 petition in the sentencing court, again raising his
Jones and ineffective assistance of counsel claims. Pursuant
to Hernandez, 204 F.3d at 865, the sentencing court first con-
sidered whether Harrison’s petition was properly brought
under § 2241 or § 2255. Consistent with the prior ruling of the
custodial court, the sentencing court determined that Harrison
could not proceed under § 2241 because Harrison’s remedies
under § 2255 were not inadequate or ineffective. The sentenc-
ing court therefore construed Harrison’s petition under § 2241
to be a motion under § 2255. Noting that we had already
denied Harrison’s application to file a second or successive
motion under § 2255, the sentencing court accordingly dis-
missed Harrison’s petition for lack of jurisdiction.
In March 2006, Harrison appealed this second denial of his
§ 2241 petition. The Ninth Circuit Appellate Commissioner
subsequently remanded the case to the sentencing court for
the limited purpose of granting or denying a COA under
§ 2253. In May 2006, the sentencing court denied Harrison’s
motion requesting a COA. The sentencing court reasoned that
it had dismissed Harrison’s petition for lack of jurisdiction
because Harrison “was not entitled to proceed with habeas
relief under § 2241,” and no reasonable jurist could have con-
cluded otherwise.
In a July 2006 order, we granted Harrison’s subsequent
motion for leave to file an oversized request for a COA, noted
his prior request for a COA, and also stated that we had not
yet determined whether the COA requirement is applicable to
an appeal from dismissal of a habeas petition brought in good
faith under § 2241 pursuant to the savings clause of § 2255.
2644 HARRISON v. OLLISON
Therefore, we directed the parties to brief: (1) whether the
COA requirement in § 2253 applied to an appeal from the
denial of a § 2241 habeas petition filed by a federal prisoner
challenging his conviction or sentence under the savings
clause of § 2255, and (2) whether the sentencing court prop-
erly dismissed Harrison’s § 2241 habeas petition for lack of
jurisdiction.
We now have before us Harrison’s March 2006 appeal
from the denial of his § 2241 petition as well as his motion
requesting a COA. We have jurisdiction over the district
court’s denial of a § 2241 petition pursuant to 28 U.S.C.
§ 1291, and have jurisdiction over the request for a COA pur-
suant to § 2253. Fed. R. App. P. 22(b); see Valerio v. Craw-
ford, 306 F.3d 742, 763-64 (9th Cir. 2002) (en banc). We
review the district court’s denial of a habeas petition de novo.
Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006).
II
As a threshold matter, we must determine whether we can
consider Harrison’s appeal without a COA.
[1] Where a petition purportedly brought under § 2241 is
merely a “disguised” § 2255 petition, the petitioner cannot
appeal from the denial of that petition without a COA. Porter
v. Adams, 244 F.3d 1006, 1006-07 (9th Cir. 2001). In Porter,
a petitioner brought a § 2241 petition that, on its face,
“raise[d] the same or similar claims that were raised in his
original 28 U.S.C. § 2255 motion filed in the district court.”
Id. at 1006. We determined that the petitioner’s pleading was
merely a successive § 2255 motion disguised as a § 2241 peti-
tion. Id. at 1007. We concluded that where “[i]t is apparent
from the face” of the § 2241 petition that the petitioner “raises
previously unsuccessful claims attacking only the legality of
his conviction and not the execution of his sentence,” the peti-
tioner cannot appeal the denial of a § 2241 petition without a
COA. Id. Therefore, if Harrison’s purported § 2241 petition is
HARRISON v. OLLISON 2645
a § 2255 motion in disguise, we lack jurisdiction to consider
it absent a COA.
[2] However, Porter did not address the exceptional case,
where the petitioner’s pleading qualifies for the escape hatch
of § 2255, and can legitimately be brought as a § 2241 peti-
tion. As we noted in our July 2006 order, it is an open ques-
tion in our circuit whether the COA requirement is applicable
to an appeal from dismissal of a habeas petition brought in
good faith under § 2241. Therefore, we must consider
whether we can require a petitioner to obtain a COA as a con-
dition to our exercise of jurisdiction over an appeal of the
denial of a § 2241 petition that qualifies for the escape hatch
of § 2255.
[3] We see no basis for imposing such a requirement. The
plain language of § 2253(c)(1) does not require a petitioner to
obtain a COA in order to appeal the denial of a § 2241 peti-
tion. Forde v. U.S. Parole Comm’n, 114 F.3d 878, 879 (9th
Cir. 1997). Nor is there any other statutory basis for imposing
a COA requirement on legitimate § 2241 petitions. Although
state prisoners proceeding under § 2241 must obtain a COA,
see § 2253(c)(1)(A), there is no parallel requirement for fed-
eral prisoners. “Where Congress includes particular language
in one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts inten-
tionally and purposely in the disparate inclusion or exclu-
sion.” Russello v. United States, 464 U.S. 16, 23 (1983)
(internal quotation marks omitted); see also United States v.
Gonzales, 520 U.S. 1, 5 (1997). In the absence of a statutory
COA requirement for federal prisoners bringing legitimate
§ 2241 petitions, we cannot require one as a condition for our
exercise of jurisdiction. “[F]ederal courts lack the authority to
abstain from the exercise of jurisdiction that has been con-
ferred,” New Orleans Pub. Serv., Inc. v. Council of New Orle-
ans, 491 U.S. 350, 358 (1989).4 Our conclusion that we must
4
The limited exceptions to our duty to exercise our jurisdiction are inap-
plicable in this situation. See New Orleans Pub. Serv., Inc., 491 U.S. at
358-59.
2646 HARRISON v. OLLISON
consider the appeal of a district court’s denial of a § 2241
petition that qualifies for the escape hatch of § 2255 and thus
is properly before us is consistent with decisions in the Fifth,
Tenth and Eleventh Circuits. Sawyer v. Holder, 326 F.3d
1363, 1364 n.3 (11th Cir. 2003); Jeffers v. Chandler, 253 F.3d
827, 829-30 (5th Cir. 2001); Bradshaw v. Story, 86 F.3d 164,
166 (10th Cir. 1996).
This conclusion raises something of a jurisdictional quan-
dary, however. If Harrison’s petition is a disguised § 2255
motion, we lack jurisdiction to hear it absent a COA. Phelps
v. Alameda, 366 F.3d 722, 726 (9th Cir. 2004); Porter, 244
F.3d at 1005. If Harrison’s petition is a legitimate § 2241 peti-
tion brought pursuant to the escape hatch of § 2255, we must
exercise our jurisdiction to hear it. Because we “retain juris-
diction to determine our jurisdiction,” however, we proceed to
consider whether the district court was correct in determining
that Harrison’s pleading, framed as a § 2241 petition, did not
qualify for the escape hatch of § 2255. See Laing v. Ashcroft,
370 F.3d 994, 999 (9th Cir. 2004).
III
[4] We have held that a motion meets the escape hatch
criteria of § 2255 “when a petitioner (1) makes a claim of
actual innocence, and (2) has not had an unobstructed proce-
dural shot at presenting that claim.” Stephens, 464 F.3d at 898
(9th Cir. 2006) (internal quotation marks omitted). In Ste-
phens, the petitioner claimed that the district court had failed
to instruct the jury that it must unanimously identify the three
acts comprising the series of predicate violations to his “con-
tinuing criminal enterprise” conviction under 21 U.S.C. § 848.
Stephens, 464 F.3d at 898. We held that this claim did not
become available until the Supreme Court interpreted § 848
as requiring jury unanimity on the predicate offenses in Rich-
ardson v. United States, 526 U.S. 813 (1999). Id. Because
Richardson was decided several years after the Tenth Circuit
had denied the petitioner’s first § 2255 motion, we held that
HARRISON v. OLLISON 2647
the petitioner never had an unobstructed procedural shot to
raise his jury instruction claim. Id. Moving on to consider the
“actual innocence” prong of the escape hatch, we concluded
that the petitioner could not satisfy this requirement and thus
could not raise his claim by § 2241 petition. 464 F.3d at 898-
99.
Harrison argues that because he is making a claim of actual
innocence, and has not had an unobstructed procedural shot
at presenting that claim, the district court erred in holding that
he did not qualify to bring a petition pursuant to § 2241. Har-
rison contends that under the Supreme Court’s interpretation
of § 844(i) in Jones, the conduct for which he was convicted
no longer violates the statute because the boat and van he
destroyed were not used in and did not affect interstate com-
merce. Therefore, Harrison claims he is actually innocent.
Moreover, he contends that he did not have “an unobstructed
procedural shot” at presenting his claim because his claim
was not available until Jones was decided in 2000, years after
Harrison’s first § 2255 motion in 1992.
The district court rejected this argument, holding that Har-
rison’s procedural shot was not obstructed—he could have
raised the argument that the government failed to prove the
interstate commerce element of § 844(i) on direct appeal.
Although Jones had not yet been decided, the district court
noted that the same issue had been raised in United States v.
Monholland, 607 F.2d 1311 (10th Cir. 1979), over ten years
before Harrison was sentenced. According to the district
court, Harrison’s failure to raise this claim was not caused by
procedural obstructions, but by his own defaults: Harrison
failed to raise this argument on direct appeal, voluntarily dis-
missed his appeal, and then was procedurally barred from
raising the claim in his initial § 2255 motion. Moreover, the
district court noted, the ban on raising this claim in second or
successive petitions “does not mean that § 2255’s remedy was
‘inadequate or ineffective.’ ” Ivy v. Pontesso, 328 F.3d 1057,
1061 (9th Cir. 2003). See also Stephens, 464 F.3d at 897.
2648 HARRISON v. OLLISON
Accordingly, the district court ruled that Harrison was not
denied an unobstructed procedural shot to pursue his claim.
[5] We agree with the district court. In determining whether
a petitioner had an unobstructed procedural shot to pursue his
claim, we ask whether petitioner’s claim “did not become
available” until after a federal court decision. Stephens, 464
F.3d at 898. In other words, 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. Ivy, 328 F.3d at 1060-61.
Harrison argues that the legal basis for his claim did not
arise until Jones was decided. We disagree with this analysis,
because Jones did not effect a material change in the applica-
ble law. The Supreme Court first construed the interstate com-
merce element of § 844(i) in Russell v. United States, 471
U.S. 858 (1985). After reviewing the legislative history of this
provision, the Court acknowledged that Congress intended “to
exercise its full power under the Commerce Clause” to protect
business property “as well as some additional property that
might not fit that description, but perhaps not every private
home.” Id. at 859, 862. The Court contrasted Congress’s
intent with the plain language of the statute, stating, “[b]y its
terms, however, the statute only applies to property that is
‘used’ in an ‘activity’ that affects commerce.” Id. at 862. The
Court concluded that the “rental of real estate is unquestion-
ably such an activity.” Id.
[6] Although Jones provided further clarification of the key
words identified in Russell, and expressly rejected the govern-
ment’s argument that Congress intended to invoke its full
authority under the Commerce Clause, it did not materially
vary from the statutory construction set forth in Russell. The
Court noted (as it had in Russell) that the statute “contains the
qualifying words ‘used in’ a commerce-affecting activity,”
Jones, 529 U.S. at 854, and interpreted “used” as “most sensi-
HARRISON v. OLLISON 2649
bly read to mean active employment for commercial pur-
poses, and not merely a passive, passing, or past connection
to commerce.” Id. at 855. Accordingly, the Court held that
§ 844(i) did not apply to a private, owner-occupied residence.
Russell had already flagged that private homes might not be
covered by § 844(i) even under Congress’s expansive defini-
tion. See 471 U.S. at 862. Stressing that its holding in Jones
was consistent with Russell, the Court noted that “Russell did
not rest its holding on the expansive interpretation advanced
by the Government both in Russell and in this case.” Jones,
529 U.S. at 856 n.8.
[7] We decided two cases interpreting the interstate com-
merce component of § 844(i) before Harrison filed his direct
appeal in 1989 and his first § 2255 motion in 1992, both of
which were consistent with Russell and Jones. See United
States v. Andrini, 685 F.2d 1094 (9th Cir. 1982); United
States v. Keen, 508 F.2d 986, 990 (9th Cir. 1974). In Keen,
we held that a boat was covered by § 844(i) because “the boat
was used in commercial fishing” and such commercial fishing
“is an industry affecting interstate commerce.” Keen, 508
F.2d at 990. Although Andrini quoted legislative history and
noted that the term “affecting (interstate or foreign) commerce
(in 844(i)) represents the fullest jurisdictional breadth consti-
tutionally permissible under the Commerce Clause,” we
emphasized that the “building or property” covered by
§ 844(i) must have “some relationship to an activity of com-
mercial nature.” Andrini, 685 F.2d at 1095-96 (internal cita-
tions and quotation marks omitted). Moreover, reviewing the
decisions of other circuits, we distinguished Monholland on
the ground that the property at issue in Monholland was not
of a commercial nature. Id. at 1096; see Monholland, 607
F.2d at 1315-16 (the government failed to prove the “use”
prong of § 844(i) where the truck the defendants conspired to
blow up was not actively used in interstate commerce).
[8] Thus, in both Keen and Andrini, we emphasized the
requirement that the property at issue be “commercial” in
2650 HARRISON v. OLLISON
nature. These cases, together with the Supreme Court’s deci-
sion in Russell, provided an ample basis for Harrison to argue
that the government must prove a nexus between the property
destroyed and an activity of commercial nature. We cannot
say that Harrison’s claim “did not become available until
after” the Supreme Court’s decision in Jones. Stephens, 464
F.3d at 898. In fact, five years before Jones was decided,
another defendant presented this court with precisely the same
jurisdictional argument Harrison makes today, and we
reversed her conviction under § 844(i). See United States v.
Pappadapoulos, 64 F.3d 522 (9th Cir. 1995) (reasoning par-
tially abrogated by Jones, 529 U.S. at 856-58). Accordingly,
the case law, as it stood at the time that Harrison pleaded
guilty, failed to prosecute his direct appeal, and filed his first
motion under § 2255, invited the very argument that Harrison
attempts to raise many years later through collateral attack.
While Jones gave additional encouragement for defendants
to argue that property at issue in a § 844(i) case was not
“used” in interstate commerce, we cannot say such further
support constitutes a change in the law creating a previously
unavailable legal basis for petitioner’s claim. See Ivy, 328
F.3d at 1060. Nor did the ruling in Jones so change the law
that it clearly placed Harrison’s conduct outside the sweep of
§ 844(i). Harrison had stipulated that the van was “driven and
used in the commercial business,” which would be sufficient
to bring the property within the scope of § 844(i) under Jones.
At most, therefore, Jones could have given Harrison addi-
tional encouragement to argue that the boat damaged by Har-
rison was not used in an activity affecting commerce, an issue
not specifically resolved by Jones.
[9] Accordingly, we conclude that Harrison cannot estab-
lish that he “has not had an unobstructed procedural shot” at
presenting his claim, Stephens, 464 F.3d at 898 (internal quo-
tation marks omitted), and thus cannot qualify for the escape
hatch. Because Harrison has not demonstrated that “the rem-
edy by motion [under § 2255] is inadequate or ineffective to
HARRISON v. OLLISON 2651
test the legality of his detention,” we affirm the district court’s
determination that Harrison could not bring his claim as a
§ 2241 petition.
IV
Because Harrison has not established that his petition is a
legitimate § 2241 petition brought pursuant to the escape
hatch of § 2255, we do not have jurisdiction under § 2241 to
hear his appeal. See United States v. Reyes, 358 F.3d 1095,
1097 (9th Cir. 2004) (per curiam). Harrison’s pleading must
be characterized as a disguised § 2255 motion. As the district
court noted, because Harrison has filed multiple § 2255
motions, he cannot proceed with a successive § 2255 motion
without an order of this court authorizing this successive peti-
tion. 28 U.S.C. § 2244(b)(3)(A). As we held in our order of
June 21, 2005, and as Harrison concedes, he is not entitled to
file a successive § 2255 motion. His claim under Jones does
not present “newly discovered evidence” or “ a new rule of
constitutional law.” Id. § 2255; see United States v. Prevatte,
300 F.3d 792, 798 (7th Cir. 2002); In re Dorsainvil, 119 F.3d
245, 247-48 (3d Cir. 1997). Accordingly, we affirm the deci-
sion of the district court dismissing Harrison’s petition for
lack of jurisdiction.5
AFFIRMED
5
We dismiss Harrison’s request for a COA as moot.