Alaimalo v. United States, 636 F.3d 1092

Alaimalo, a federal prisoner, challenged a §2241 habeas petition not accompanied by a COA.
He asserts actual innocence of the importation charge based on Cabaccang’s holding that transporting within U.S. territories is not importation.
He previously litigated via direct appeal and a first §2255 motion; Cabaccang changed the controlling law.
The district court dismissed his 2006 §2241 petition for lack of jurisdiction, and the Ninth Circuit affirmed in 2008.
In 2008–2009 he pursued another §2241 petition raising Cabaccang, which this panel now reviews.
The majority holds that the court has jurisdiction to review the petition without COA and proceeds to address jurisdiction, innocence, and related doctrines.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction to hear §2241 without COA	Alaimalo argues jurisdiction under the §2255(e) escape hatch.	United States contends lack of COA bars review.	Court has jurisdiction to review under the escape hatch.
Actual innocence and material change in law	Alaimalo shows actual innocence due to Cabaccang ruling.	Government does not contest innocence; focus is on availability of claim.	Alaimalo is actually innocent; Cabaccang changed controlling law.
Abuse of the writ and law of the case as bar to relief	Alaimalo argues neither doctrine precludes relief given manifest injustice.	Government argues both doctrines apply to bar successive petitions.	Neither abuse of writ nor law of the case precludes relief in light of injustice.
Whether law of the case applies to successive §2241 petitions	Law of the case should apply to successive petitions recognizing evolving law.	Law of the case may not apply to successive petitions; depends on precedent.	Law of the case can be considered but does not bar relief; dismissing would be manifestly unjust.

Harrison v. Ollison, 519 F.3d 952 (9th Cir. 2008) (savings clause criteria for §2255(e) escape hatch)
Cabaccang, 332 F.3d 622 (9th Cir. 2003) (en banc: transport across U.S. territories not importation)
Alaimalo v. United States, 317 F.3d 1188 (9th Cir. 2008) (unpublished; discusses prior §2241 denials and Cabaccang claim)
Davenport, 147 F.3d 605 (7th Cir. 1998) (material change in law may render claim unavailable)
Stanko v. Davis, 617 F.3d 1262 (10th Cir. 2010) (discusses AEDPA §2244(a) and gatekeeping for successive petitions)
Valona v. United States, 138 F.3d 693 (7th Cir. 1998) (AEDPA §2244(a) channeling of collateral attacks)
Barapind v. Reno, 225 F.3d 1100 (9th Cir. 2000) (application of §2244(a) to non-conviction challenges)
Love v. Menifee, 333 F.3d 69 (2d Cir. 2003) (savings clause limitations)
Engle v. Isaac, 456 U.S. 107 (1982) ( futility cannot excuse failure to raise claim)
Gomez v. Cabaccang, not applicable (—) ((not cited as official reporter; placeholder avoided))
Davis v. United States, 417 U.S. 333 (1974) (considerations on availability of relief)