JERRY E. SMITH, Circuit Judge:
Tiofila Santillana filed a petition for writ of habeas corpus under 28 U.S.C. § 2241, claiming that she is entitled to relief under Burrage v. United States, ___ U.S. ___, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014). The district court dismissed the petition for lack of jurisdiction, finding that Santillana had not satisfied the "savings clause" of 28 U.S.C. § 2255(e) because Burrage is not retroactively applicable on collateral review. Because Burrage applies retroactively, we reverse and remand.
Santillana was convicted in 2009 of distributing a schedule II controlled substance (methadone) that resulted in the death of Brandon Moore, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). We described the facts in detail in our opinion from Santillana's direct appeal, United States v. Santillana, 604 F.3d 192, 193-95 (5th Cir. 2010).
In that appeal, Santillana contended, inter alia, that there was insufficient evidence to show that Moore's death "result[ed]" from methadone within the meaning of § 841(b)(1)(C). Santillana conceded that all three medical witnesses, including her own expert, concluded that methadone was at least a contributing cause of death. She maintained, however, that the plain meaning of "results" implies "a stronger degree of causation than mere contribution." She did not explain what that "stronger degree of causation" might be. We affirmed, explaining that even if Santillana were correct, "there was sufficient evidence for a reasonable jury to conclude that Moore's death resulted from his use of methadone under a heightened standard of causation." Santillana, 604 F.3d at 196-97.
Thereafter, in Burrage, the Court "h[eld] that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim's death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury." Burrage, 134 S.Ct. at 892. Santillana filed a habeas petition under § 2241, alleging that, under Burrage's interpretation of "results," she is actually innocent of her § 841(b)(1)(C) conviction. The district court dismissed for lack of jurisdiction because it concluded that, absent an explicit holding from the Supreme Court, it lacked the authority to determine whether Burrage was retroactively applicable.
Ordinarily, to attack a conviction collaterally, a federal prisoner can seek relief only by a § 2255 petition. Kenemore v. Roy, 690 F.3d 639, 640 (5th Cir. 2012). But under the "savings clause" of § 2255(e), he may file a § 2241 habeas
Garland v. Roy, 615 F.3d 391, 394 (5th Cir. 2010) (quoting Reyes-Requena v. United States, 243 F.3d 893, 895 (5th Cir. 2001)) (first alteration added). "The petitioner bears the burden of demonstrating that the section 2255 remedy is inadequate or ineffective." Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000).
Although we have not yet considered whether Burrage is applicable retroactively,
The district court dismissed Santillana's petition because it concluded that it lacked authority to determine whether Burrage was retroactively applicable. It relied on Tyler v. Cain, 533 U.S. 656, 662-63, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001), which held that for a prisoner to file a second or successive habeas petition based on a new rule of constitutional law, the Supreme Court must have held the rule to be retroactive to cases on collateral review. But the holding in Tyler depends on statutory language providing that the "new rule of constitutional law [be] made retroactive to
In contrast, the retroactivity element of our savings-clause analysis is not tethered to a similar statutory limitation. Our precedent requires only that a § 2241 petition be based on a "retroactively applicable Supreme Court decision," without specifying that the Supreme Court must have made the determination of retroactivity. Garland, 615 F.3d at 394. Indeed, Garland states that Supreme Court decisions that substantively interpret federal statutes "automatically apply retroactively." Id. at 396 (emphasis added). We thus proceed to consider the retroactivity of Burrage.
On its face, Burrage is a substantive decision that interprets the scope of a federal criminal statute. See Krieger v. United States, 842 F.3d 490, 499-500 (7th Cir. 2016) (holding that Burrage is a retroactively applicable, substantive decision); cf. Ragland v. United States, 784 F.3d 1213, 1214 (8th Cir. 2015) (per curiam) (concluding that Burrage challenges are cognizable under § 2255).
Indeed, that was the precise issue in Burrage. There, the Eighth Circuit had decided that a drug needed to be only a "contributory cause" of death, and so had affirmed the sentence under § 841(b)(1)(C).
Some courts have advanced a different reading of Burrage, interpreting it not as a substantive decision but instead as an application of the procedural rules in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).
The government urges us to affirm the dismissal on the third prong of the savings-clause test. It contends that even if Burrage is retroactively applicable, Santillana cannot meet her burden to show that "[she] may have been convicted of a nonexistent offense." Garland, 615 F.3d at 394 (quotation marks omitted). We disagree.
The government's theory is essentially that the record contains evidence that could support a finding of but-for causation, so Santillana's conviction was proper even in light of Burrage. The government relies on our statement from her direct appeal that "there was sufficient evidence for a reasonable jury to conclude that Moore's death resulted from his use of methadone under a heightened standard of causation." Santillana, 604 F.3d at 196-97. But that statement does not resolve the savings-clause inquiry. As an initial matter, we did not define "heightened ... causation" as but-for causation. To the contrary, we noted that Santillana had not identified what "stronger degree of causation" she was arguing for. Id. at 196. Moreover, we stated only that a reasonable jury could have found heightened causation; we did not hold that it actually did so.
Our precedents make certain that, when determining whether a petitioner can show that he may have been convicted of a nonexistent offense, we must look to what the factfinder actually decided. For example, in Garland, the petitioner raised a claim based on United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008), in which the Court held that in certain circumstances, "proceeds" in 18 U.S.C. § 1956 must be defined as "profits."
In contrast, in Christopher v. Miles, 342 F.3d 378 (5th Cir. 2003), we held that a petitioner had not met his burden. He had advanced a claim based on Cleveland v. United States, 531 U.S. 12, 15, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000), which held that a government's interest in licensing an activity is not a property interest for purposes of conviction under the mailfraud statutes. As in Garland, we looked to the indictment and jury instructions:
Christopher, 342 F.3d at 385. Because that action "unquestionably violate[d] the wire fraud statute," the petitioner had not shown that he had been convicted of a nonexistent offense. Id.
The judgment of dismissal is REVERSED and REMANDED. We place no limitation on the matters that the district court can consider on remand, and we express no opinion on what decisions it should make.