Harry Jwhitman v. JAMES KEYS, Superintendent Airway Heights Correction Center

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARRY J WHITMAN,
Petitioner-Appellant,
v.
JAMES KEYS, Superintendent Airway
Heights Correction Center,
Respondent-Appellee.
No. 20-35314
D.C. No. 2:19-cv-00198-SAB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Stanley A. Bastian, Chief District Judge, Presiding
Argued and Submitted November 8, 2021
Seattle, Washington
Before: GOULD, TALLMAN, and BUMATAY, Circuit Judges.
Appellant Harry J. Whitman appeals the dismissal of his 28 U.S.C. § 2241
petition for a writ of habeas corpus. While this case was on appeal before this
Court, the Supreme Court decided a potentially dispositive case, Borden v. United
States, 141 S. Ct. 1817 (2021). Further, in Allen v. Ives, 950 F.3d 1184 (9th Cir.
2020), this Court provided significant guidance on relevant issues that were not
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
NOV 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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briefed to the district court.
Both parties now raise arguments that were not before the district court. We
therefore vacate and remand the dismissal of Whitman’s petition on an open
record. Both parties may assert new arguments and defenses before the district
court. This panel will retain jurisdiction over any subsequent appeal.
VACATED AND REMANDED ON AN OPEN RECORD. Each party
shall bear its own costs.

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