OPINION
Petitioner-appellant Mose Stephens appeals the district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition for lack of jurisdiction. Stephens argues that because the remedy provided by 28 U.S.C. § 2255 is “inadequate or ineffective” to test his claim of “actual innocence” based on
Richardson v. United States,
I. Background
In 1987, after a jury trial in federal district court in Oklahoma, Stephens was convicted of (1) conspiring to possess and distribute heroin and cocaine in violation of 21 U.S.C. § 846, (2) conspiring to impede and impair the collection of federal income taxes in violation of 18 U.S.C. § 371, and (3) engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. Stephens was sentenced to forty years in prison. In 1988, his conviction was affirmed on direct appeal to the Tenth Circuit. 1
Stephens filed, and attempted to file, numerous motions under 28 U.S.C. § 2255 in the district court in Oklahoma and in the Tenth Circuit. On June 3, 1988, while his petition for a writ of certiorari on direct review was still pending in the Supreme Court, Stephens filed a motion under 28 U.S.C. § 2255 in the district court. The district court denied the motion as premature. On November 7, 1990, after the Supreme Court denied certiorari, Stephens filed another § 2255 motion. The district court denied the motion, and the Tenth Circuit affirmed in an unpublished opinion.
See United States v. Stephens,
No. 90-5251,
On August 29, 2003, Stephens filed a petition for habeas corpus in federal district court in California under 28 U.S.C. § 2241. A § 2255 motion must be filed in the district where the defendant was sentenced.
Hernandez v. Campbell,
In his § 2241 habeas petition, Stephens alleges “actual innocence” based on
Richardson v. United States,
II. Standard of Review
We review de novo the district court’s decision to deny a petition under 28 U.S.C. § 2241.
Benny v. U.S. Parole Com’n,
III. Discussion
The general rule is that a motion under 28 U.S.C. § 2255 is the exclusive means by which a federal prisoner may test the legality of his detention,
see Ivy v. Pontesso,
As described above, Stephens has filed multiple unsuccessful § 2255 motions in federal district court in Oklahoma. In order to file another § 2255 motion, he must first obtain authorization from the court of appeals. See 28 U.S.C. § 2244(b)(2) and (3). A court of appeals may authorize a second or successive § 2255 motion only if (1) “the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” or (2) “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence,” and “the facts underlying the claim ... would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have *898 found the applicant guilty of the underlying offense.” Id. § 2244(b)(2).
The claim Stephens seeks to present in his § 2241 motion is that his jury was given an erroneous instruction under 21 U.S.C. § 848. The instruction given in Stephens’s case did not require the jury to agree unanimously on the same three acts comprising the “series of violations” necessary to its finding that he had engaged in a “continuing criminal enterprise” within the meaning of § 848. Several years after the Tenth Circuit’s 1991 denial of Stephens’s § 2255 motion, the Supreme Court held in
Richardson v. United States,
Along with many of our sister circuits, 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 procedural shot” at presenting that claim.
Ivy,
Stephens satisfies the requirement of not having had an “unobstructed procedural shot” at presenting his claim under Richardson. He was convicted in 1987 of violating 21 U.S.C. § 848. The Tenth Circuit denied Stephens’s § 2255 motion in 1991. Richardson was not decided until eight years later. Because Stephens’s Richardson claim did not become available until after the Tenth Circuit denied his § 2255 motion, and because that claim does not satisfy the criteria of § 2244 for a second or successive § 2255 motion, Stephens has not had (and, indeed, will never get) an opportunity to present his Richardson claim in a § 2255 motion.
However, Stephens cannot satisfy the actual innocence requirement. 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,
*899
A
Richardson
claim is not, by itself, a claim of actual innocence. Rather, it is a claim that the jury has not been told that § 848 requires unanimous agreement on the three particular acts comprising the “series of violations.” A jury might conceivably convict an innocent person of violating § 848 because of an instruction given in violation of
Richardson,
but the mere fact of an improper instruction is not sufficient to meet the test for actual innocence. As the Sixth Circuit wrote in
Paulino v. United States,
We conclude that while Stephens can show that his jury was improperly instructed under Richardson, he cannot satisfy the test for actual innocence articulated in Bousley. At trial, the government presented testimony of two of Stephens’s alleged co-conspirators. One of them, Sam Williams, testified that Stephens had sold him heroin either eleven or twelve times. The jury could easily have found that each one of these sales was an act constituting a “violation.” Stephens argues that his co-conspirators’ testimony was unreliable because they were motivated to lie about the supposed sales, and because there was no evidence that the chemicals sold were illegal drugs. However, the evidence against Stephens was sufficiently strong that we cannot conclude that it is more likely than not that no reasonable juror, properly instructed as to the elements of the crime, would have found him guilty under § 848.
Conclusion
Because Stephens has not made out a claim of actual innocence, we conclude that he has not properly invoked the “escape hatch” exception of § 2255 that would permit him to file a petition for habeas corpus under § 2241. We therefore affirm the district court’s dismissal of his § 2241 petition for lack of jurisdiction.
AFFIRMED.
Notes
. Stephens’s sentence for his conviction under 21 U.S.C. § 846 was later vacated and dismissed by the district court on the ground that this conviction was for a lesser included offense under § 848.