FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SETH MUTH,
Petitioner-Appellant, No. 10-35223
v.
D.C. No.
1:09-cv-00118-JDS
DWIGHT L. FONDREN, Warden,
Sandstone F.C.I., ORDER
Respondent-Appellee.
Appeal from the United States District Court
for the District of Montana
Jack D. Shanstrom, Senior District Judge, Presiding
Argued and Submitted
January 10, 2012—Seattle, Washington
Filed April 3, 2012
Before: Susan P. Graber, Raymond C. Fisher, and
Johnnie B. Rawlinson, Circuit Judges.
COUNSEL
David F. Ness, Assistant Federal Defender, Federal Defenders
of Montana, Great Falls, Montana, for the petitioner-
appellant.
J. Bishop Grewell, Assistant United States Attorney, Helena,
Montana, for the respondent-appellee.
3595
3596 MUTH v. FONDREN
ORDER
GRABER, Circuit Judge:
Petitioner Seth Muth appeals an order denying his request
for post-conviction relief and declining to grant him a certifi-
cate of appealability (“COA”). Because no reasonable jurist
would conclude that Petitioner has demonstrated actual inno-
cence, we decline to issue a COA and we affirm the judgment
of the district court.
In 2003, Petitioner pleaded guilty to using a firearm in rela-
tion to a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1)(A). The district court for the District of Montana
sentenced Petitioner to a five-year term for possession of
methamphetamine with intent to distribute, plus a consecutive
ten-year term for using a firearm in relation to an uncharged
drug trafficking offense. Petitioner was initially incarcerated
in Minnesota.
On December 10, 2007, the Supreme Court decided Watson
v. United States, 552 U.S. 74 (2007). Watson abrogated our
holding in United States v. Ramirez-Rangel, 103 F.3d 1501,
1506 (9th Cir. 1997), that a person who receives a firearm in
trade for drugs “uses” the firearm for the purposes of
§ 924(c)(1)(A). Under Watson, “a person does not ‘use’ a fire-
arm under § 924(c)(1)(A) when he receives it in trade for
drugs.” Watson, 552 U.S. at 83 (emphases added). Watson left
undisturbed the Supreme Court’s holding that one who sup-
plies a firearm in exchange for drugs “uses” the firearm for
the purposes of § 924(c). Id.; Smith v. United States, 508 U.S.
223 (1993).
More than a year after the Supreme Court issued the Wat-
son decision, Petitioner filed a petition for a writ of habeas
corpus in the district court for the District of Minnesota,
where he was then incarcerated. See Stephens v. Herrera, 464
F.3d 895, 897 (9th Cir. 2006) (“[A] § 2241 petition must be
MUTH v. FONDREN 3597
filed in the district where the petitioner is in custody.”). Peti-
tioner relied on 28 U.S.C. § 2241. He argued that Watson ren-
dered him “actually innocent” of violating § 924(c) and that
he was therefore eligible for relief under the “escape hatch”
of 28 U.S.C. § 2255.1
The Minnesota district court concluded that Petitioner’s fil-
ing was not properly brought under § 2241 and construed it
as a disguised § 2255 motion. Recognizing that jurisdiction
over § 2255 motions lies with the sentencing court, not the
custodial district, Stephens, 464 F.3d at 897, the Minnesota
district court transferred the case to the District of Montana.
The Montana district court then processed the § 2255 motion.
The court determined that Petitioner was not actually inno-
cent, dismissed the motion on the merits, and declined to
grant Petitioner’s request for a COA.
Petitioner timely appeals, arguing that his petition was
properly brought under § 2241 and should be granted. We
review de novo. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th
Cir. 2003).
A. Habeas Petitions Under the Escape Hatch of § 2255
A motion under § 2255 is generally the exclusive remedy
for a federal prisoner who seeks to challenge the legality of
confinement. See Stephens, 464 F.3d at 897 (“The general
rule is that a motion under 28 U.S.C. § 2255 is the exclusive
1
The “escape hatch” of § 2255 provides:
“An application for a writ of habeas corpus in behalf of a pris-
oner who is authorized to apply for relief by motion pursuant to
this section, shall not be entertained if it appears that the appli-
cant has failed to apply for relief, by motion, to the court which
sentenced him, or that such court has denied him relief, unless it
also appears that the remedy by motion is inadequate or ineffec-
tive to test the legality of his detention.”
28 U.S.C. § 2255(e).
3598 MUTH v. FONDREN
means by which a federal prisoner may test the legality of his
detention, and that restrictions on the availability of a § 2255
motion cannot be avoided through a petition under 28 U.S.C.
§ 2241.” (citation omitted)). “The one exception to the gen-
eral rule is what we have called the ‘escape hatch’ of § 2255.”
Id. This lone exception permits a federal prisoner to file a
§ 2241 petition if his remedy under § 2255 is “inadequate or
ineffective to test the legality of his detention.” Id. (internal
quotation marks omitted).
Whether a petition is properly brought under § 2255 or
§ 2241 has two important implications. First, a petitioner who
wishes to appeal the dismissal of a § 2255 motion must obtain
a COA before doing so. 28 U.S.C. § 2253(c)(1). There is no
such requirement for appeals involving habeas corpus peti-
tions properly filed under § 2241. See Alaimalo v. United
States, 645 F.3d 1042, 1047 (9th Cir. 2011) (“Where a peti-
tion 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 v. Ollison,
519 F.3d 952, 958 (9th Cir. 2008) (“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 petition.”). Second,
§ 2241 petitions must be filed in the district where the peti-
tioner is confined, while § 2255 motions must be filed in the
district where the petitioner was sentenced. Stephens, 464
F.3d at 897.
Before proceeding to the merits of a § 2241 petition osten-
sibly brought pursuant to the “escape hatch” of § 2255, a dis-
trict court must resolve the threshold question whether a
petition was properly brought under § 2241 or whether the fil-
ing should instead be construed as a § 2255 motion. Her-
nandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (per
curiam). This determination ensures that the petitioner will
not be “deprived . . . of a ruling on the merits of his claim that
§ 2255 was an ‘inadequate or ineffective’ remedy.” Id. at 866.
MUTH v. FONDREN 3599
If the district court construes the filing as a § 2255 motion and
concludes that it therefore lacks jurisdiction, it may transfer
the case to the appropriate district.2 Id. at 864-65; Miller v.
Hambrick, 905 F.2d 259, 262 (9th Cir. 1990).
Under the law of the case doctrine, the transferee court
should not revisit the transferor court’s characterization of the
petition unless that characterization was “clearly erroneous”
or would result in “manifest injustice.” See Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 816-17 & n.5
(1988) (“Indeed, the policies supporting the doctrine apply
with even greater force to transfer decisions than to decisions
of substantive law; transferee courts that feel entirely free to
revisit transfer decisions of a coordinate court threaten to send
litigants into a vicious circle of litigation. . . . There is no rea-
son to apply law-of-the-case principles less rigorously to
transfer decisions that implicate the transferee’s jurisdiction.
Perpetual litigation of any issue—jurisdictional or
nonjurisdictional—delays, and therefore threatens to deny,
justice.” (citations omitted)). Thus, although Hernandez dic-
tates that some district court must address the threshold issue
whether a petition was properly brought under § 2241, it does
not require both the transferor court and the transferee court
to conduct a full analysis.3 Such a requirement would engen-
der redundant analysis and could result in a case bouncing
back and forth if the two districts disagree on the characteriza-
tion of the filing. See, e.g., id. (recognizing the risk of perpet-
ual litigation where both the transferor court and the
transferee court revisit the jurisdictional determination).
2
Of course, if the custodial court and the sentencing court are in the
same district, there is no need to transfer the case; the court may simply
resolve the § 2255 motion.
3
If, however, the transferor court failed to conduct the appropriate anal-
ysis before transferring the case, the transferee district court must do so.
See Hernandez, 204 F.3d at 866 (holding that, where the transferor court
had failed to address the issue, the transferee district court erred by not
resolving the jurisdictional question before proceeding to the merits).
3600 MUTH v. FONDREN
Here, the Minnesota district court conducted a thorough
analysis, held that the petition could not be brought under the
escape hatch, and construed the filing as a § 2255 motion.
Concluding that, as the custodial court, it lacked jurisdiction
to hear Petitioner’s § 2255 petition, the Minnesota court trans-
ferred the case to the sentencing court in Montana. Because
the Minnesota district court conducted the analysis required
by Hernandez, the Montana court was free to proceed directly
to the merits.
B. Petitioner’s Claim is Not a Legitimate § 2241 Petition
We have held that “a § 2241 petition is available under the
‘escape hatch’ of § 2255 when a petitioner (1) makes a claim
of actual innocence, and (2) has not had an ‘unobstructed pro-
cedural shot’ at presenting that claim.” Stephens, 464 F.3d at
898. Thus, for Petitioner’s claim to be a legitimate § 2241
petition, he must satisfy both of those requirements. He can-
not, because he has not plausibly shown actual innocence.
Petitioner claims that the Watson decision rendered him
“actually innocent” of violating § 924(c) because his conduct
did not involve “us[ing]” a firearm in relation to a drug traf-
ficking crime. 18 U.S.C. § 924(c)(1)(A). “In this circuit, a
claim of actual innocence for purposes of the escape hatch of
§ 2255 is tested by the standard articulated by the Supreme
Court in Bousley v. United States, 523 U.S. 614[, 623] (1998):
‘To establish actual innocence, petitioner must demonstrate
that, in light of all the evidence, it is more likely than not that
no reasonable juror would have convicted him.’ ” Stephens,
464 F.3d at 898. “ ‘[A]ctual innocence’ means factual inno-
cence, not mere legal insufficiency.” Bousley, 523 U.S. at
623.
Under Watson, a person who receives a firearm in a drugs-
for-firearms trade does not “use” the firearm for the purposes
of § 924(c). Watson, 552 U.S. at 83. But, under Smith, a per-
son who supplies a firearm in a drugs-for-firearms trade does
MUTH v. FONDREN 3601
indeed “use” the firearm for the purposes of § 924(c). Smith,
508 U.S. at 228-29. The question, then, is whether Petitioner’s
conduct falls under Watson or Smith.
Both parties agree that the factual basis underlying the
§ 924(c) plea was a trade between Petitioner and Joseph
Michael involving 1.5 grams of methamphetamine and a
Norinco SKS semi-automatic assault weapon. The parties
now dispute, however, which way the trade went—in other
words, Petitioner now claims that he was convicted of having
supplied Michael with 1.5 grams of methamphetamine and
having received the firearm as payment. That is the situation
addressed in Watson. The government contends that the trade
went the other way—Petitioner supplied Michael with the
firearm and received 1.5 grams of methamphetamine. In those
circumstances, Smith would apply.
Three parts of the record shed light on the direction of the
trade: the indictment, the plea agreement, and Petitioner’s
own statements under oath at the plea colloquy. The indict-
ment contains three counts:
COUNT I
That in on or about April 2001, at Glendive and
Billings, in the State and District of Montana, the
defendant, SETH MUTH, did knowingly, intention-
ally, and unlawfully possess with intent to distribute
over 50 grams of a mixture containing methamphet-
amine, a Schedule II controlled substance, in that,
the defendant, SETH MUTH, picked up metham-
phetamine in Billings, Montana, and delivered it to
Thomas Jones in Glendive, Montana, in violation of
21 U.S.C. § 841(a)(1).
COUNT II
That in on or about July 24, 2001, at Glendive, in
the State and District of Montana, the defendant,
3602 MUTH v. FONDREN
SETH MUTH, did knowingly, intentionally, and
unlawfully distribute, and did aid the distribution of,
approximately 1.5 grams of a mixture containing
methamphetamine, a Schedule II controlled sub-
stance, to Joseph Michael, in violation of 21 U.S.C.
§ 841(a)(1).
COUNT III
On or about July 24, 2001, at Glendive, in the
State and District of Montana, the defendant, SETH
MUTH, knowingly and unlawfully used or carried a
firearm, that is, a Norinco SKS semi-automatic
assault weapon, serial number 24000003, during and
in relation to a drug trafficking crime, namely, distri-
bution of a mixture containing methamphetamine, a
Schedule II controlled substance, as set forth in 21
U.S.C. § 841(a)(1) and as charged in Count II, in
that, the defendant, SETH MUTH, exchanged the
Norinco firearm for approximately 1.5 grams of
methamphetamine, in violation of 18 U.S.C.
§ 924(c)(1).
(Emphasis added.) Petitioner pleaded guilty to Counts I and
III, and the government dropped Count II.
Petitioner argues that, because Count III explicitly refer-
ences Count II, Count III necessarily incorporates the factual
allegations contained in Count II. According to Petitioner,
Count II alleges that he gave the methamphetamine to
Michael and thereby suggests that he must have received the
firearm in trade. Petitioner therefore concludes that, by plead-
ing guilty to Count III, he was convicted only of receiving the
firearm and supplying the methamphetamine.
Petitioner’s argument is belied by the text of Count III:
“SETH MUTH, exchanged the Norinco firearm for approxi-
mately 1.5 grams of methamphetamine, in violation of 18
MUTH v. FONDREN 3603
U.S.C. § 924(c)(1).” (Emphasis added.)4 Count III references
Count II only to define the “drug trafficking” crime in relation
to which the firearm was used: “distribution of a mixture con-
taining methamphetamine, a Schedule II controlled substance,
as set forth in 21 U.S.C. § 841(a)(1) and as charged in Count
II.” Count III, to which Petitioner pleaded guilty, unambigu-
ously alleges that Petitioner supplied the firearm and received
the methamphetamine in exchange.
The written plea agreement, on the other hand, states that
Petitioner received the firearm and in turn supplied Michael
with methamphetamine:
Defendant Muth acknowledges that on or about July
24, 2001, he distributed approximately 1.5 grams of
methamphetamine to Joe Michael and in exchange,
Joe Michael gave him a Norinco SKS semi-
automatic assault weapon, serial number 24000003.
Although the distribution of 1.5 grams of metham-
phetamine from Muth to Michael is not formally
charged, it is a separate underlying federal criminal
drug felony.
The indictment and the plea agreement thus offer contradic-
tory accounts of the direction of the trade. The indictment
unambiguously alleges that Petitioner supplied the firearm,
while the plea agreement clearly states that Petitioner received
the firearm.
At the plea colloquy, Petitioner resolved this factual incon-
sistency in favor of the crime as alleged in Count III, and he
4
Interpreting Counts II and III of the indictment to provide contradictory
factual accounts poses no threat to the validity of the indictment or the
conviction on one of the counts. Indeed, prosecutors are allowed to indict
in the alternative, and Petitioner was convicted only of Count III. See
Douglas v. Long, 661 F.2d 747, 749 (9th Cir. 1981) (per curiam) (holding
that a defendant may be indicted for inconsistent crimes, although he can-
not be convicted of them).
3604 MUTH v. FONDREN
disavowed the mistake in the plea agreement. During the
change of plea hearing, Petitioner testified under oath: “It says
here that I distributed approximately 1.5 grams of metham-
phetamine to Joe Michael. In exchange, Joe Michael gave me
a Norinco SKS assault rifle. The facts are actually that Joe
Michael delivered the methamphetamine to me in exchange
for the rifle. I delivered the rifle to him.” Petitioner’s lawyer
also confirmed this version of events.
Petitioner’s sworn statements at the plea colloquy carry a
strong presumption of truth. See Blackledge v. Allison, 431
U.S. 63, 73-74 (1977) (“[T]he representations of the defen-
dant [at a plea hearing] . . . constitute a formidable barrier in
any subsequent collateral proceedings. Solemn declarations in
open court carry a strong presumption of verity.”); United
States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008)
(“Statements made by a defendant during a guilty plea hear-
ing carry a strong presumption of veracity in subsequent pro-
ceedings attacking the plea.”); United States v. Morrison, 113
F.3d 1020, 1021 (9th Cir. 1997) (“Any attempt to contradict
the factual basis of a valid plea must fail.”); United States v.
Anderson, 993 F.2d 1435, 1438 (9th Cir. 1993) (“Statements
made by a criminal defendant contemporaneously with his
plea should be accorded great weight because solemn declara-
tions made in open court carry a strong presumption of veri-
ty.” (internal quotation marks and brackets omitted)).
Other circuits have confronted the question whether a peti-
tioner may rest a collateral challenge on allegations that
directly contradict the petitioner’s sworn statements and have
held that, ordinarily, such petitions must fail. See United
States v. Peterson, 414 F.3d 825, 827 (7th Cir. 2005) (“Judges
need not let litigants contradict themselves so readily; a
motion that can succeed only if the defendant committed per-
jury at the plea proceedings may be rejected out of hand
unless the defendant has a compelling explanation for the
contradiction.”); United States v. Lemaster, 403 F.3d 216,
220-21 (4th Cir. 2005) (“When deciding whether an evidenti-
MUTH v. FONDREN 3605
ary hearing is necessary to resolve a § 2255 motion contesting
a guilty plea, first a court must determine whether the peti-
tioner’s allegations, when viewed against the record of the
Rule 11 plea hearing, were so palpably incredible, so patently
frivolous or false as to warrant summary dismissal. . . . [I]n
the absence of extraordinary circumstances, allegations in a
§ 2255 motion that directly contradict the petitioner’s sworn
statements made during a properly conducted Rule 11 collo-
quy are always palpably incredible and patently frivolous or
false.” (citations and internal quotation marks omitted));
Lasiter v. Thomas, 89 F.3d 699, 703 (10th Cir. 1996) (“[The
petitioner] [i]s bound by his solemn declarations in open court
and his unsubstantiated efforts to refute that record [a]re not
sufficient to require a hearing. This case does not involve the
most extraordinary circumstances.” (internal quotation marks
omitted)); Ouellette v. United States, 862 F.2d 371, 377-78
(1st Cir. 1988) (holding that an evidentiary hearing is not
required when a petitioner’s uncorroborated allegations are
directly contradicted by his testimony at the plea colloquy).
We agree with those general principles.
Here, Petitioner offers no explanation for the contradiction
between his sworn statements at the plea colloquy and his cur-
rent claim that he received the firearm, rather than supplied it.
Instead, Petitioner asserts that the indictment was ambiguous
and that the written plea agreement governs. He asks us to
ignore the fact that he himself declared the plea agreement
factually erroneous and corrected it in open court. Indeed,
Petitioner does not appear to affirmatively allege that he actu-
ally received the firearm in the trade; he simply claims that he
was convicted of receiving the firearm. But a claim of actual
innocence requires that the petitioner show factual innocence
—mere legal insufficiency is not enough. Bousley, 523 U.S.
at 623. That deficiency alone could sink Petitioner’s actual
innocence claim. Even if it does not, the indictment unam-
biguously alleged that Petitioner supplied the firearm, and
Petitioner is bound by his sworn admission that he did so.
3606 MUTH v. FONDREN
Because Petitioner supplied the firearm and received the
methamphetamine, his conduct is not covered by the Supreme
Court’s decision in Watson. Instead, Petitioner’s conduct falls
squarely within the purview of Smith, which dictates that a
person who supplies a firearm in return for drugs “uses” the
firearm for the purposes of § 924(c). Thus, Petitioner was
convicted of engaging in conduct that remains criminal, and
he is not actually innocent.
C. Certificate of Appealability
Because Petitioner’s filing was properly construed as a
§ 2255 motion, a COA is required. 28 U.S.C. § 2253(c)(1)(B).
The district court and we both have the authority to issue a
COA. Id. § 2253(c)(1); Valerio v. Crawford, 306 F.3d 742,
763 (9th Cir. 2002) (en banc). The district court denied Peti-
tioner’s request for a COA, so Petitioner must obtain one
from this court before he can proceed with his appeal. 28
U.S.C. § 2253(c)(1). We decline to grant a COA.
In order to obtain a COA, Petitioner must make “a substan-
tial showing of the denial of a constitutional right.” Id.
§ 2253(c)(2). To do so, Petitioner “must demonstrate that the
issues are debatable among jurists of reason; that a court
could resolve the issues in a different manner; or that the
questions are adequate to deserve encouragement to proceed
further.” Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir.
2000) (internal quotation marks and brackets omitted). Peti-
tioner need not demonstrate that his appeal will prevail. See
id. at 1025 n.4 (“[T]he showing a petitioner must make to be
heard on appeal is less than that to obtain relief.”); Wilson v.
Belleque, 554 F.3d 816, 826 (9th Cir. 2009) (“[T]he Supreme
Court has made clear that the standard for obtaining a COA
is not a particularly exacting one.”).
Because we have concluded that Petitioner plainly is not
actually innocent, his § 2255 petition presents no issues that
are “debatable among jurists of reason” or “adequate to
MUTH v. FONDREN 3607
deserve encouragement to proceed further.” We therefore
decline to issue a COA.
Certificate of Appealability DENIED. Appeal DIS-
MISSED.