Kurt Harrington v. J. Ray Ormond, 900 F.3d 246

Kurt Harrington was convicted in 2009 of drug offenses including conspiracy and distribution of heroin and cocaine base "resulting in death" and was sentenced to life imprisonment under 21 U.S.C. § 841(b)(1) based on a prior felony drug conviction.
In 2014 the Supreme Court decided Burrage v. United States, holding that the § 841(b)(1) "death-results" enhancement requires that the defendant’s distributed drug be a but-for cause of the victim’s death.
Harrington filed § 2241 habeas petitions asserting that Burrage undermines the death-results element of his conviction; the district court dismissed his second § 2241 petition on initial review without service.
The district court had reasoned Burrage’s retroactivity was unsettled and alternatively relied on Hill v. Masters, treating the claim as not cognizable under the § 2255 savings clause.
The Sixth Circuit (panel opinion) held Harrington’s claim is properly brought under § 2241 via the § 2255 savings clause because Burrage announced a new substantive interpretation that is retroactive and the claim is one of actual innocence.
Because the district court made no evidentiary findings and the respondent was not served, the court vacated the dismissal and remanded for service and an evidentiary hearing to determine whether, under Burrage, it is more likely than not that no reasonable juror would have convicted Harrington.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Burrage-created rule is retroactive on collateral review	Burrage narrows § 841(b)(1) and applies retroactively to collateral challenges	Gov initially contested but conceded retroactivity in this opinion	Burrage is retroactive for § 2241 savings-clause purposes
Whether Harrington may proceed under § 2241 via § 2255 savings clause	Harrington asserts actual innocence under Burrage, making § 2241 available	District court said Hill bars savings-clause relief here; Gov argued procedural limits	Harrington may invoke § 2241 through the savings clause because his claim is one of actual innocence
Whether Burrage created an "actual innocence" claim	Burrage changed an element (but-for causation) that must be proved to jury	District court viewed the claim as non-cognizable sentencing issue	Court: Burrage concerns a substantive element; claim properly characterized as actual innocence
Whether relief can be granted on current record	Harrington says Burrage likely would have prevented conviction; requests adjudication	Gov notes lack of developed record and contested factual causation	Court remanded for service and an evidentiary hearing to determine likelihood that no reasonable juror would convict under Burrage

Burrage v. United States, 571 U.S. 204 (2014) (but-for causation required for § 841(b)(1) death-results enhancement)
Wooten v. Cauley, 677 F.3d 303 (6th Cir.) (test for savings-clause actual-innocence claims)
Santillana v. Upton, 846 F.3d 779 (5th Cir.) (held Burrage retroactive on collateral review)
Krieger v. United States, 842 F.3d 490 (7th Cir.) (held Burrage retroactive on collateral review)
Hill v. Masters, 836 F.3d 591 (6th Cir.) (addressed limits of savings clause for pre-Booker sentencing-enhancement claims)
Schriro v. Summerlin, 542 U.S. 348 (2004) (substantive rules narrowing criminal statutes apply retroactively)
Bousley v. United States, 523 U.S. 614 (1998) (actual-innocence gateway for collateral review)
Tyler v. Cain, 533 U.S. 656 (2001) (discussed limits on lower-court retroactivity determinations)