Alvarado-Ochoa

MEMORANDUM **

Benjamin Alvarado-Ochoa appeals the district court’s denial of his 28 U.S.C. § 2241 habeas petition requesting relief from removal. We have jurisdiction over a final judgment denying a habeas petition pursuant to 28 U.S.C. § 1291 , and we reverse.

Preliminarily, we reject the government’s contention that the issue of whether Alvarado is an aggravated felon is barred by res judicata. On direct review, we determined Alvarado’s conviction for transportation of a controlled substance was an aggravated felony, as required by United States v. Lomas, 30 F.3d 1191 (9th Cir.1994). An en bane panel of this court reversed the Lomas decision in United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir.2001), and thus the issue may be relitigated. See Clifton v. Attorney Gen. of Cal., 997 F.2d 660, 663 (9th Cir.1993) (recognizing “the traditional exception to res judicata ‘where between the time of the first judgment and the second there has been an intervening decision or a change in the law creating an altered situation’ ” (quoting State Farm v. Duel, 324 U.S. 154, 162 , 65 S.Ct. 573 , 89 L.Ed. 812 (1945))).

Alvarado’s state conviction for transportation of cocaine no longer…