Alaimalo

Opinion by Judge B. FLETCHER; Dissent by Judge KORMAN.

OPINION

Vaatausili Mark Alaimalo, a federal prisoner, appeals the dismissal of his habeas corpus petition brought under 28 U.S.C. § 2241 . We first must determine whether we have jurisdiction to consider this petition, brought without a certificate of appealability (“COA”). Alaimalo has demonstrated both actual innocence and that his actual innocence claim was not available to him on direct appeal or when he filed his first motion for habeas relief under 28 U.S.C. § 2255 . We conclude that we have jurisdiction to consider his petition for habeas relief brought under 28 U.S.C. § 2241 without a COA.

We must also determine whether we should give preclusive effect, under either the law of the case or abuse of the writ doctrines, to a prior panel’s denial on the merits of Alaimalo’s October 2006 § 2241 petition. Because we hold that Alaimalo is actually innocent and that failing to consider his habeas petition would result in manifest injustice, we decline to do so.

FACTS

Alaimalo was convicted in 1997 of three counts of importing methamphetamine from California to Guam in violation of 21 U.S.C. §§ 952 (a) & 960 and three…

dissenting:

This appeal from the denial of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 , however decided, will have no practical consequence. While the majority orders the district court to issue the writ, it will not result in the release of petitioner, a serial drug dealer, who is serving a life sentence for distribution of methamphetamines. The life sentence was mandatory because of two prior drug convictions in California. The judgment of conviction for the offense on which he is serving the foregoing life sentence and the judgments of conviction for the predicate offenses are final and concededly not subject to challenge.

Nevertheless, the majority orders the district court to grant the petition with respect to three counts of importing methamphetamines into the United States from Guam — a ground for relief that was considered and rejected in two prior petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 . Petitioner did not timely file an appeal from the denial of his first petition, and the appeal was dismissed. Alaimalo v. Shultz, No. 06-15658 (9th Cir. June 9, 2006). The denial of his second petition was unanimously affirmed in an…