Whether the Ninth Circuit erred in applying the Fifth Circuit's substantive law in considering a § 2241 petition claiming actual innocence

Questions Presented Petitioner Justin Graves challenged his sentencing enhancement under 18 U.S.C. § 924(e), the Armed Career Criminal Act, by filing a petition for writ of habeas corpus, 28 U.S.C. § 2241. In it, he claimed that he was actually innocent of the ACCA enhancement, because Texas burglary was no longer an ACCA predicate offense. The district court dismissed the petition on procedural grounds. At the government’s urging, the Ninth Circuit summarily affirmed the district court on the merits, concluding that it was bound by Fifth Circuit’s decision deeming Texas burglary an ACCA predicate offense. In doing so, the Ninth Circuit created a 2-1 circuit split on the question of which Circuit’s substantive law applies when the court considers a § 2241 petition claiming actual innocence—the law in the district of conviction or the district of confinement. This petition presents the following questions: 1. Did the Ninth Court err in deeming the Fifth Circuit’s decision on Texas burglary to be conclusive of whether Mr. Graves could state a claim of actual innocence in the Ninth Circuit? 2. Should the Court hold this petition pending the petition for a writ of certiorari in United States v. Herrold, 19-7731, the decision that purportedly controls the Ninth Circuit’s decision in this case? iv