United States v. Donzell McKinney ( 2023 )

USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 1 of 39
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6396
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DONZELL ALI MCKINNEY,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Martin K. Reidinger, Chief District Judge. (1:12-cr-00085-MR-WCM-1; 1:16-
cv-00149-MR)
Argued: September 13, 2022 Decided: February 16, 2023
Before WILKINSON, Circuit Judge, and MOTZ and KEENAN, Senior Circuit Judges.
Reversed and remanded by published opinion. Senior Judge Motz wrote the opinion, in
which Senior Judge Keenan concurred. Judge Wilkinson wrote a dissenting opinion.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina,
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 2 of 39
for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
2
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 3 of 39
DIANA GRIBBON MOTZ, Senior Circuit Judge:
In 2012, Donzell Ali McKinney pled guilty to two counts — conspiracy to commit
Hobbs Act robbery and a violation of 18 U.S.C. § 924(c) for discharging a firearm during
and in relation to that conspiracy. Under subsequent controlling precedent, McKinney now
stands convicted of, and imprisoned for, conduct that does not violate § 924(c) and in fact
is not criminal. Accordingly, he brought this 28 U.S.C. § 2255 motion asking the district
court to vacate his § 924(c) conviction. The district court refused to do so, and McKinney
now appeals. For the reasons that follow, we reverse and remand the case to the district
court with instructions to vacate McKinney’s § 924(c) conviction and for further
proceedings consistent with this opinion.
I.
This case arises from a September 2011 conspiracy to rob a barbecue restaurant in
Asheville, North Carolina. At around 2:00 a.m., McKinney and his coconspirator
approached two women who had left the restaurant. After hitting one woman on the head,
McKinney ordered them to the ground and started beating on the restaurant’s door. When
the restaurant manager came to the door, McKinney pointed a gun at the manager,
demanded he open the door, discharged the gun (wounding no one), and ordered him to
hand over money in the safe. McKinney and his coconspirator fled with $451.
In a three-count indictment, the Government charged McKinney with substantive
Hobbs Act robbery, Hobbs Act conspiracy, and a violation of § 924(c) predicated on
substantive Hobbs Act robbery. J.A. 6‒9. But a careful review of the record reveals that
McKinney expressly refused to plead guilty to substantive Hobbs Act robbery and the
3
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 4 of 39
§ 924(c) count predicated on it. S.J.A. 14‒16. Indeed, two plea hearings failed because of
McKinney’s persistent refusal to plead guilty to those counts. S.J.A. 28‒31.
The Government then filed a bill of information charging McKinney with Hobbs
Act conspiracy and a single § 924(c) count with Hobbs Act conspiracy as the sole predicate
offense. J.A. 18‒20. McKinney agreed to plead guilty to these two counts in the bill of
information in exchange for the Government’s agreement to dismiss the remaining charges.
S.J.A. 62. McKinney’s plea agreement, entered in 2012, included a waiver of the right to
contest his conviction and sentence except on grounds of ineffective assistance of counsel
or prosecutorial misconduct. The district court sentenced McKinney to 70 months for
Hobbs Act conspiracy and 120 months for the § 924(c) conviction predicated on Hobbs
Act conspiracy, to run consecutively. McKinney did not pursue a direct appeal.
Four years later, in 2016, McKinney filed a § 2255 motion to vacate his § 924(c)
conviction and sentence. In his motion, he pointed out that Johnson v. United States, 576
U.S. 591 (2015), had struck down the residual clause of the Armed Career Criminal Act
(ACCA) as unconstitutionally vague, and Welch v. United States, 578 U.S. 120 (2016),
held Johnson retroactively applicable on collateral review. McKinney argued that because
§ 924(c)’s residual clause was “functionally indistinguishable” from the ACCA’s residual
clause, his § 924(c) conviction could not stand. The district court stayed the matter pending
decisions from the Supreme Court and this court. Three years later, the Supreme Court
decided United States v. Davis, 139 S. Ct. 2319 (2019), holding that the residual clause of
§ 924(c), too, was unconstitutionally vague. McKinney filed a supplemental motion
arguing that Davis further compelled vacatur of his § 924(c) conviction.
4
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 5 of 39
The Government moved to dismiss McKinney’s § 2255 motion, asserting that the
appeal waiver in his plea agreement and procedural default foreclosed his claim. In January
2020, the district court granted the Government’s motion to dismiss. Acknowledging that
McKinney’s § 924(c) conviction was likely invalid, the district court nonetheless found
that the appeal waiver barred his challenge and that McKinney failed to show cause and
prejudice or actual innocence to excuse his procedural default. We granted McKinney a
certificate of appealability on the following issues: (i) whether his § 924(c) conviction is
invalid in light of Davis; (ii) whether his appeal waiver bars his claim; (iii) whether he has
demonstrated cause and prejudice to excuse his procedural default; and (iv) whether he has
demonstrated actual innocence to excuse his procedural default.
II.
We review the district court’s denial of a § 2255 motion de novo. United States v.
Palacios, 982 F.3d 920, 923 (4th Cir. 2020).
Although we typically reach the underlying merits of a § 2255 motion last, this is
an unusual petition in that the merits are clear-cut. Indeed, the Government concedes the
invalidity of McKinney’s § 924(c) conviction predicated on Hobbs Act conspiracy. See
Br. of the United States 16.
The concession is well-taken. In Davis, 139 S. Ct. at 2336, the Supreme Court held
that the residual clause of § 924(c) was unconstitutionally vague, leaving only the question
of whether Hobbs Act conspiracy could be a “crime of violence” under the elements clause
of § 924(c). We held in United States v. Simms, 914 F.3d 229, 233–34 (4th Cir. 2019) (en
banc), that Hobbs Act conspiracy also could not constitute a “crime of violence” under the
5
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 6 of 39
elements clause of § 924(c). Moreover, we have since held that Davis “applies
retroactively to cases on collateral review.” In re Thomas, 988 F.3d 783, 789 (4th Cir.
2021).
The record is clear that the sole predicate offense underlying McKinney’s § 924(c)
conviction is Hobbs Act conspiracy. J.A. 18‒20. McKinney’s plea agreement stated that
he was agreeing to enter a guilty plea to the two counts set forth in the bill of information.
J.A. 151. The bill of information charged McKinney with Hobbs Act conspiracy and use
of a firearm “during and in relation to a crime of violence, that is conspiracy to commit
interference with commerce by threats and violence,” in violation of § 924(c). J.A. 19
(emphasis added). Because Hobbs Act conspiracy does not constitute a predicate “crime
of violence” for a § 924(c) violation, McKinney stands convicted of a crime that no longer
exists. Ordinarily, that alone would entitle him to relief on his § 2255 motion.
III.
The Government contends, however, that McKinney executed a plea agreement that
bars his claim. Specifically, it argues that because McKinney does not raise either of the
two types of claims expressly exempted from the waiver in his plea agreement —
ineffective assistance of counsel and prosecutorial misconduct — he cannot challenge his
conviction on any other grounds.
Although McKinney does not raise those claims or contend that his appeal waiver
was invalid, he nonetheless argues that we should refuse to enforce it. We can do so under
a few limited circumstances. See, e.g., United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992) (recognizing that we refuse to enforce an appeal waiver when a sentence is imposed
6
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 7 of 39
in excess of the statutory maximum or is based on a constitutionally impermissible factor).
Among these is the most fundamental reason, that is, if enforcing an appeal waiver would
result in a “miscarriage of justice.” See United States v. Adams, 814 F.3d 178, 182 (4th
Cir. 2016); United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
As we explained in Adams, to establish such a miscarriage of justice, a defendant
need only make “a cognizable claim of actual innocence.” 814 F.3d at 182 (emphasis
added). The appeal waiver in Adams was substantially similar to the one in this case: it
“waived [Adams’s] right to challenge his conviction or sentence in a motion pursuant to
28 U.S.C. § 2255 unless he did so on the basis of ineffective assistance of counsel or
prosecutorial misconduct.” Id. at 180. And in Adams, we found that, in light of intervening
precedent invalidating a § 922(g) conviction because it was no longer based on a valid
predicate, the defendant made “a cognizable claim of actual innocence.” Id. at 182. For
this reason, the defendant in Adams met the standard for miscarriage of justice, and his
appeal waiver did not bar his claim. Id. at 183.
That logic applies here. Under Davis and Simms, Hobbs Act conspiracy no longer
qualifies as a predicate offense for a § 924(c) conviction. McKinney, like Adams, has
made a cognizable claim of actual innocence and so, like Adams, has satisfied the
miscarriage-of-justice requirement. See also United States v. Sweeney, 833 F. App’x 395,
396–97 (4th Cir. 2021) (declining to enforce an appeal waiver and vacating a § 924(c)
conviction because attempted Hobbs Act robbery and Hobbs Act conspiracy are no longer
7
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 8 of 39
valid predicates). 1 Accordingly, McKinney’s appeal waiver does not bar his claim for
relief.
IV.
Absent a controlling appeal waiver, McKinney’s claim ordinarily would not be
barred from collateral review. However, the Government contends that an affirmative
defense, i.e., procedural default, bars consideration of his claim on the merits. This defense
rests on a contention that a defendant has failed to raise the claim at issue during his initial
criminal proceeding or on direct appeal. See United States v. Harris, 991 F.3d 552, 558
(4th Cir. 2021). Without an excuse for this failure, the procedural-default doctrine
precludes a defendant from asserting that claim on collateral review.
Two showings excuse a procedural default: a defendant’s demonstration of “either
cause and actual prejudice or that he is actually innocent.” Bousley v. United States, 523
U.S. 614, 622 (1998) (cleaned up). As directed by the Supreme Court, we first address
cause and prejudice for procedural default. See Dretke v. Haley, 541 U.S. 386, 393–94
(2004) (stating that when an actual-innocence excuse is raised, a court “must first address
In a Rule 28(j) letter, the Government relies on a statement respecting the denial
1
of certiorari in Grzegorczyk v. United States, 142 S. Ct. 2580 (2022), to contend that
McKinney’s guilty plea precludes this argument. Given that the “denial of a writ of
certiorari imports no expression of opinion upon the merits of the case,” and that “opinions
accompanying the denial of certiorari cannot have the same effect as decisions on the
merits,” Teague v. Lane, 489 U.S. 288, 296 (1989) (quoting United States v. Carver, 260
U.S. 482, 490 (1923)), we reject this contention as a basis for overruling binding circuit
precedent.
8
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 9 of 39
all . . . other grounds for cause to excuse the procedural default”). 2 Because we find cause
and prejudice here, we need not reach the actual-innocence excuse for procedural default.
A.
We begin with cause. Generally, the existence of cause for procedural default turns
on whether “some objective factor external to the defense” prevented counsel from raising
the claim on direct appeal. See Murray v. Carrier, 477 U.S. 478, 488, 492 (1986). For
example, a claim that “is so novel that its legal basis is not reasonably available to counsel”
may constitute cause. Reed v. Ross, 468 U.S. 1, 16 (1984) (emphasis added). In Reed, the
Supreme Court delineated three situations in which the novelty of a claim could constitute
cause:
First, a decision of [the Supreme] Court may explicitly overrule one of [its]
precedents. Second, a decision may “overtur[n] a longstanding and
widespread practice to which [the Supreme] Court has not spoken, but which
a near-unanimous body of lower court authority has expressly approved.”
And, finally, a decision may “disapprov[e] a practice [the Supreme] Court
arguably has sanctioned in prior cases.”
We note that we have already expressly rejected the Government’s procedural-
2
default challenge to a successive § 2255 motion raising a Davis claim, reasoning that Davis
“established a new rule of constitutional law made retroactive on collateral review.” See
United States v. Jackson, 32 F.4th 278, 283 & n.3 (4th Cir. 2022). It would be odd indeed
to reject the Government’s procedural-default defense in Jackson but not in this case,
which also involves a Davis claim. The Government, however, insists that Jackson does
not control here because in Jackson, we ultimately denied the defendant’s claim on the
merits, and so the procedural-default analysis was not “necessary” to our outcome. The
Government also argues that Jackson failed to address earlier precedent requiring cause
and prejudice and that Jackson involved a jury trial, not a guilty plea. Because, as our
analysis within explains, McKinney has demonstrated cause and prejudice that would
overcome any procedural default, we need not here resolve the force of Jackson.
9
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 10 of 39
Id. at 17 (quoting United States v. Johnson, 457 U.S. 537, 551–52 (1982)). Further, as
Reed instructs, finding cause for cases falling into the third category depends on “how
direct [the Supreme] Court’s sanction of the prevailing practice had been, how well
entrenched the practice was in the relevant jurisdiction at the time of defense counsel’s
failure to challenge it, and how strong the available support is from sources opposing the
prevailing practice.” Id. at 17–18.
The third Reed category contemplates precisely the type of novel claim McKinney
advances here. At the time McKinney pled guilty in 2012 and was sentenced in 2013, the
Supreme Court had affirmatively upheld the constitutionality of residual clauses like the
one at issue here. In the years leading up to McKinney’s guilty plea and sentence, the
Supreme Court had repeatedly treated the residual clause of the ACCA as if it were
sufficiently determinate to put an ordinary person on notice of what conduct it prohibited.
See, e.g., Sykes v. United States, 564 U.S. 1, 15 (2011); James v. United States, 550 U.S.
192, 210 n.6 (2007).
In fact, in 2007 in James, 550 U.S. at 210 n.6, the Court summarily rejected the
argument that the ACCA’s residual clause was unconstitutionally vague. And in doing so,
it emphasized that “similar formulations” appeared in other federal statutes. Id. 3 In sum,
when McKinney pled guilty in 2012 and was sentenced in 2013, Supreme Court precedent
3
Subsequently, the Supreme Court specifically noted the similarity among the
residual clauses of § 924(c) and the ACCA. See Davis, 139 S. Ct. at 2325–26; see also
Sessions v. Dimaya, 138 S. Ct. 1204, 1215 (2018) (relying on Johnson to find 18 U.S.C.
§ 16(b)’s residual clause, which is virtually identical to § 924(c)’s residual clause,
unconstitutionally vague).
10
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 11 of 39
had effectively foreclosed the claim McKinney now asserts. It was not until 2015, when
the Court decided Johnson, that it struck down a residual clause for vagueness and therefore
it was not until then that this claim became “reasonably available.” See Reed, 468 U.S. at
16.
Moreover, before 2015, the practice within our circuit — and indeed, across circuits
— was well entrenched. See id. at 17. Our court hewed closely to the Supreme Court’s
resistance to void-for-vagueness challenges in cases involving residual clauses in the
ACCA and elsewhere. See, e.g., United States v. Mobley, 687 F.3d 625, 632 n.7 (4th Cir.
2012); United States v. Hudson, 673 F.3d 263, 268–69 (4th Cir. 2012).
With respect to § 924(c)’s residual clause, specifically, we have found no cases in
any federal court of appeals prior to the Supreme Court’s issuance of Johnson in 2015 that
adopt a vagueness argument. Again, it was only after the Supreme Court issued Johnson
that courts of appeals, including our own, began to reconsider the constitutionality of
§ 924(c)’s analogous residual clause. See, e.g., Simms, 914 F.3d at 236; United States v.
Douglas, 907 F.3d 1, 4 (1st Cir. 2018); Ovalles v. United States, 905 F.3d 1231, 1233 (11th
Cir. 2018); United States v. Barrett, 903 F.3d 166, 173 (2d Cir. 2018); United States v.
Eshetu, 898 F.3d 36 (D.C. Cir. 2018); United States v. Salas, 889 F.3d 681, 683 (10th Cir.
2018). Accordingly, prior to 2015, there was “almost certainly . . . no reasonable basis
upon which an attorney previously could have urged a . . . court to adopt the position”
ultimately endorsed by the Supreme Court in Johnson. See Reed, 468 U.S. at 17. Thus,
McKinney has established cause. See Jones v. United States, 39 F.4th 523, 525 (8th Cir.
2022) (finding cause for procedural default under Reed where defendant’s 2005 conviction
11
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 12 of 39
for a violation of § 924(c) no longer had a valid predicate); United States v. Garcia, 811 F.
App’x 472, 480 (10th Cir. 2020) (finding cause for procedural default where defendant’s
2013 conviction for a violation of § 924(c) was invalid after Davis).
Seeking to avoid this conclusion, the Government ignores Reed and instead relies
on Bousley for the proposition that “futility cannot constitute cause” if “a claim was
‘unacceptable to that particular court at that particular time.’” 523 U.S. at 622–23 (quoting
Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982)) (finding no cause because “at the time of
petitioner’s plea, the Federal Reporters were replete with cases” considering the same
argument). But Bousley is inapposite. The claim in Bousley did not arise out of the
Supreme Court overturning its own precedent. See Lassend v. United States, 898 F.3d 115,
123 (1st Cir. 2018); Gatewood v. United States, 979 F.3d 391, 397 (6th Cir. 2020) (noting
that Reed remains the “controlling decision” where Supreme Court precedent forecloses an
argument at the time of procedural default). 4 That distinction is critical. At the time of his
guilty plea in 2012 and sentence in 2013, McKinney’s claim would have been rejected by
our court and every other circuit due to then-controlling Supreme Court precedent.
In sum, when McKinney pled guilty in 2012 and was sentenced in 2013, the
Supreme Court had implicitly approved § 924(c)’s residual clause. Only several years
later, in 2015, did the Court in Johnson cause a sea change in the law, disapproving its
prior precedent upholding similar residual clauses against void-for-vagueness challenges.
4
For the same reasons, we are unpersuaded by the Government’s reliance on
Whiteside v. United States, 775 F.3d 180, 185–87 (4th Cir. 2014) (en banc), and United
States v. Sanders, 247 F.3d 139, 145–46 (4th Cir. 2001), neither of which involved claims
based on the Supreme Court overturning its own precedent.
12
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 13 of 39
And it was not until 2019 that Davis dealt the final blow to § 924(c)’s residual clause.
McKinney’s case falls squarely within Reed’s “novelty” framework, and so he has shown
cause for his procedural default.
B.
We turn to the prejudice prong. To establish prejudice, a defendant must show that
the error “worked to his actual and substantial disadvantage.” United States v. Frady, 456
U.S. 152, 170 (1982) (emphasis in original). The Supreme Court has yet to define the exact
contours of the prejudice standard in the § 2255 procedural-default context. See id. at 168
(noting that “future cases” would provide “further elaboration” on prejudice, outside the
context of erroneous jury instructions given at trial).
What is clear is that McKinney’s § 924(c) conviction subjects him to imprisonment
for conduct that the law does not make criminal. In finding another § 2255 claim
cognizable, the Supreme Court has explained that if the defendant’s “conviction and
punishment are for an act that the law does not make criminal,” then “[t]here can be no
room for doubt that such a circumstance ‘inherently results in a complete miscarriage of
justice’ and ‘present[s] exceptional circumstances’ that justify collateral relief under
§ 2255.” Davis v. United States, 417 U.S. 333, 346–47 (1974) (emphasis added).
Accordingly, in analogous cases, our sister courts have found prejudice justifying collateral
relief when the defendant’s conviction or sentence is no longer “authorized by law.” See,
e.g., Raines v. United States, 898 F.3d 680, 687 (6th Cir. 2018) (ACCA); United States v.
Snyder, 871 F.3d 1122, 1127–28 (10th Cir. 2017) (same); Garcia, 811 F. App’x at 480 (§
924(c)).
13
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 14 of 39
However, the Government argues, and the district court held, that McKinney cannot
establish prejudice because, had McKinney “raised his constitutional challenge” at or prior
to sentencing, the Government “would not have dismissed the . . . § 924(c) charge
predicated on the Hobbs Act robbery,” and McKinney “likely would have received the
same sentence.” See McKinney v. United States, No. 1:16-cv-00149-MR, 2020 WL
475196, at *5–6 (W.D.N.C. Jan. 29, 2020). This is so, the Government contends, because
the dismissed § 924(c) count was based on an (also dismissed) substantive Hobbs Act
robbery count, which could constitute a valid predicate. The dissent, too, espouses this
theory. 5
But where the record in a case shows that a count of conviction is now invalid, no
precedent authorizes a court to then rely on a dismissed count to negate that demonstrated
prejudice. Rather, in determining prejudice, we ask whether it is likely a defendant, had
he known of the error, would not have pled guilty to the count of conviction. See, e.g.,
United States v. Dominguez Benitez, 542 U.S. 74 (2004); United States v. Heyward, 42
F.4th 460 (4th Cir. 2022). We do not look to whether it is likely a defendant, had he known
of the error, would not have pled guilty to a dismissed count. (Of course, in this case, the
record also makes abundantly clear that McKinney likely would not have pled guilty to the
dismissed § 924(c) count — two plea hearings failed because he resolutely refused to plead
guilty to the dismissed counts. S.J.A. 28‒31; see Heyward, 42 F.4th at 460 (explaining
that we may look to “contemporaneous evidence to substantiate a defendant’s expressed
5
To be clear, the analysis set forth in the next five paragraphs constitutes our fact
specific holding in this case, not some “per se rule” conjured up by the dissent.
14
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 15 of 39
preferences” (quoting Lee v. United States, 137 S. Ct. 1958, 1967 (2017)). The dissent
ignores the record when stating that our statement of this fact is “incorrect.”)
It is telling that none of the cases cited by the Government or the dissent permit an
appellate court to base its prejudice holding on a count the Government agreed to dismiss,
and the district court did dismiss, in exchange for the defendant’s guilty plea. None of
those cases require or permit an appellate court to search for an alternative, valid predicate
offense that the Government did not charge as the predicate for the count of conviction.
And none of those cases permit an appellate court to find a crime for which a defendant
was not convicted to uphold an indisputably invalid conviction and justify the sentence for
that invalid conviction.
Adhering to what simple justice requires in this circumstance, the Eighth Circuit in
Jones, 39 F.4th at 526, recently rejected the Government’s similar attempt to use a
dismissed count to negate a finding of prejudice. There, as here, the defendant challenged
his § 924(c) conviction because it was no longer sustained by a valid predicate offense. Id.
There, as here, the Government claimed that, had it known of the error, it could have based
the § 924(c) count on an alternative predicate offense: carjacking, the factual basis for
which the defendant had admitted at the plea hearing. Id. at 525. But the Eighth Circuit
rejected this argument, reasoning that the “carjacking was not charged as a predicate crime
of violence,” and so the Government could not rely on it to sustain that count and negate a
15
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 16 of 39
finding of prejudice. Id. (emphasis added). So it is here. 6 We likewise refuse to substitute
an alternative predicate, not charged as the basis for the § 924(c) count of conviction, to
negate a finding of prejudice.
Moreover, delving into whether a defendant ultimately would have received the
same sentence, based on an uncharged or dismissed charge, improperly equates the
standards for actual innocence and prejudice for the purpose of excusing procedural
default. See United States v. Jimenez-Segura, 476 F. Supp. 3d 326, 338 (E.D. Va. 2020)
(Ellis, J.). Actual innocence and prejudice are not one and the same. The Supreme Court
has made that clear, stating that actual innocence requires “a stronger showing than that
needed to establish prejudice.” See Schlup v. Delo, 513 U.S. 298, 327 (1995). To
demonstrate actual innocence sufficient to excuse procedural default, a defendant must
show that he is actually innocent of (i) the charge on which he was convicted and (ii) more
serious, dismissed charges. Bousley, 523 U.S. at 624. In contrast, demonstrating prejudice
sufficient to excuse procedural default “does not require consideration of the charges
foregone by the Government in the course of plea bargaining.” Jimenez-Segura, 476 F.
Supp. 3d at 338; see also Calderon v. United States, No. 7:12-CR-37-FA-2, 2022 WL
6Thus the only other appellate court to consider the question has recently held, as
we do, that a dismissed count cannot negate a finding of prejudice. The dissent does not,
and cannot, distinguish Jones, and so instead attempts to trivialize it as “brief” and
“incorrect,” Dis. Op. at 36 n.2, or wish it away, id. at 35 (stating “the majority cites no
binding or persuasive case for the proposition that it is illegitimate to consider dismissed
counts as part of the factual prejudice inquiry”). But see Lee, 137 S. Ct. at 1967;
Dominguez Benitez, 542 U.S. at 83‒85; Schlup, 513 U.S. at 327 (all lending support to the
holding reached here and in Jones).
16
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 17 of 39
821152 (E.D.N.C. Mar. 17, 2022) (following the “thoughtful and well-reasoned opinion”
in Jimenez-Segura).
Furthermore, conviction and sentencing are quintessentially tasks carried out at the
trial level. The Government and the dissent would instead have this appellate court convict
McKinney in the first instance of a § 924(c) count, which the Government did not charge
as the count of conviction, to which McKinney did not plead guilty, and which the
Government in fact dismissed. That we cannot do. Cf. United States v. Hodge, 902 F.3d
420, 430 (4th Cir. 2018) (“We will not allow the Government to change its position
regarding which convictions support [an] ACCA enhancement now that one of its original
choices . . . cannot do the job.”).
For all these reasons, we reject the Government’s, and now the dissent’s, prejudice
theory and decline to import the dismissed § 924(c) charge into our assessment of
prejudice. Fact-specific considerations underlying the dismissed counts are for the
Government to raise on remand when the district court can assess them in exercising its
discretion to carry out further proceedings consistent with this opinion. Because the error
here worked to McKinney’s “actual and substantial disadvantage,” he has established
prejudice to excuse his procedural default.
* * *
Before concluding, we briefly address the dissent’s accusation that we have
established a rule “fundamentally at odds with the most basic of principles of our criminal
justice system.” Dis. Op. at 19. In fact, it is the dissent that would establish such a rule,
convicting a defendant in the first instance of a § 924(c) count to which the defendant
17
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 18 of 39
refused to plead guilty and which the Government never charged as the count of conviction,
but instead dismissed.
V.
The district court erred by denying McKinney’s § 2255 motion on the grounds that
the appeal waiver barred his claim and that he failed to show cause and prejudice to excuse
his procedural default. Therefore, we reverse the judgment of the district court. We
remand the case with instructions to vacate McKinney’s § 924(c) conviction predicated on
Hobbs Act conspiracy and for further proceedings consistent with this opinion, including
resentencing on the remaining count.
REVERSED AND REMANDED
18
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 19 of 39
WILKINSON, Circuit Judge, dissenting:
Donzell McKinney pleaded guilty in 2012 to an 18 U.S.C. § 924(c) violation. His
plea was altogether valid and lawful when it was entered. Section 924(c) makes criminal
the use of a firearm in connection with a crime of violence. The predicate crime of violence
in McKinney’s case was Hobbs Act conspiracy, which was entirely understandable, given
the terms of the statute and McKinney’s undisputed criminal conduct. McKinney never
raised any objection to the validity of this predicate, thereby procedurally defaulting the
claim.
Seven years after his plea was entered, Hobbs Act conspiracy was ruled invalid as
a § 924(c) predicate crime of violence. United States v. Simms, 914 F.3d 229, 233–34 (4th
Cir. 2019) (en banc). In the normal course, McKinney must establish cause and prejudice
to excuse his procedural default. This would involve a review of the plea bargain and
proceedings as well as McKinney’s own conduct, in an effort to determine whether absent
the error there was a “substantial likelihood” that McKinney would not have pleaded guilty.
United States v. Frady, 456 U.S. 152, 174 (1982). The majority did absolutely none of this.
It did not confront the sheer strength of the case against McKinney. It proceeded to rule
that prejudice was automatic irrespective of whether the relevant facts establish it. This per
se rule is fundamentally at odds with the most basic of principles of our criminal justice
system.
The majority strenuously seeks to shed the per se label, but its protestations fail to
obscure the fact that this is both formally and functionally a per se case. See Maj. Op. at 14
n.5. Its per se rule is plain: All one needs to do is examine the present status of a past
19
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 20 of 39
predicate to reverse a § 924(c) conviction. See id. at 13–15 (repeatedly emphasizing the
per se proposition). With all respect to my friends in the majority, a wolf in sheep’s clothing
remains a wolf.
I.
Prejudice in our criminal justice system is preeminently a factual matter. The
majority wishes to convert prejudice to a matter of per se reversal under law. This not only
denies courts the ability to make individualized assessments of a defendant’s
circumstances. It often privileges, as here, the most violent and least deserving criminals.
Indeed those offenders will become free riders on the majority’s per se train. The Supreme
Court has repeatedly flagged courts off the tracks that the majority is taking here.
Just consider the facts. Donzell McKinney indisputably violated 18 U.S.C. § 924(c)
by using a firearm during a Hobbs Act robbery. According to the Presentence Investigation
Report:
Donzell Ali McKinney and Clinton Hugo Wilson, Jr.[] entered the restaurant, one
armed with a black handgun, and ordered the manager A. Booher to get money
out of the safe.
The investigation revealed McKinney and [Wilson] dressed in hoodies
approached two women, O. Kulakova and B. Scott who had left the restaurant.
Kulakova was hit in the head by McKinney and then he ordered the females to
the ground outside the restaurant and started beating on the door of the restaurant.
Wilson dragged witness Scott through the doorway into the restaurant. Witness
K. Robinson drove up to the restaurant in her vehicle, saw a woman lying on the
ground in the doorway and saw Booher on his knees with his hands in the air.
McKinney went to Robinson, ordered her out of the vehicle, put a gun to her head
20
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 21 of 39
and ordered her inside the restaurant. Booher went to the door to investigate the
noise and McKinney pointed a black 9 mm handgun at Booher and yelled, “Open
the fucking door!” When Booher did not move fast enough, McKinney fired a
round in the direction of Booher. . . . Officers . . . conducted an extensive manhunt
and located McKinney hiding in bushes . . . . Officers also recovered a loaded Hi
Point 9mm pistol.
J.A. 162. McKinney’s only objections to the PSR were that he fired his weapon “toward
the ceiling” rather than at Booher and that he did not point his weapon at Robinson’s head.
J.A. 177.
Given these horrific and largely uncontroverted facts, the government only agreed
to dismiss the Hobbs Act robbery count and the related § 924(c) charge on the condition
that McKinney plead guilty to conspiracy to commit Hobbs Act robbery and a § 924(c)
count predicated on that conspiracy. McKinney therefore suffered absolutely no prejudice
from his now invalid conspiracy-based § 924(c) conviction: Had the error existed at the
time of the plea, McKinney would unquestionably have been convicted of an identical
§ 924(c) count predicated on the substantive robbery offense that he undoubtedly
committed. McKinney therefore cannot satisfy his burden to show “actual prejudice” that
would excuse his procedural default. United States v. Frady, 456 U.S. 152, 159 (1982); see
Wainwright v. Sykes, 433 U.S. 72, 90–91 (1977) (establishing “cause and prejudice”
standard).
The majority errs in concluding otherwise and sets a damaging precedent for future
procedural-default cases. It holds that McKinney has established prejudice to excuse his
procedural default because his Ҥ 924(c) conviction subjects him to imprisonment for
21
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 22 of 39
conduct that the law does not make criminal.” Maj. Op. at 13; see id. at 17 (“reject[ing] the
Government’s . . . prejudice theory”—i.e., that McKinney suffered no prejudice because
he “likely would have received the same sentence”). The sweep of this reasoning is vast
and consequential. Under the majority’s view, all individuals convicted under later-
invalidated provisions have suffered prejudice regardless of the specific facts of each case.
This reasoning constructs a per se rule that a conviction based on a predicate later deemed
invalid is invariably and automatically deemed prejudicial—even if the defendant would
have been convicted of an offense of comparable and indistinguishable seriousness had the
error existed at the time of the plea.
The majority makes a pass at the importance of case-specific inquiries by suggesting
the government might move to raise the dismissed counts on remand. See id. at 17. That
has it exactly backward. It is defendant’s burden to establish prejudice prior to any vacatur
of his conviction. And that burden can only begin to be satisfied by pointing right here and
now to facts specific to defendant’s case.
This plea was entered long ago. It was not the product of some primitive system of
criminal justice. It was the valid outcome of a valid process. It was properly negotiated. Its
terms were fairly arrived at. The conviction and sentence have been settled. They should
be allowed to rest. The Supreme Court has commanded that given the important finality
interests implicated by collateral review of procedurally defaulted claims, the prejudice
inquiry is stringent, fact-intensive, and requires “actual and substantial disadvantage.”
Frady, 456 U.S. at 170. The majority disregards the Court’s clear instruction across a
myriad of contexts that structural error is the rare exception; fact-specific prejudice
22
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 23 of 39
inquiries are the rule. It subverts the parties’ plea bargain and undermines the philosophy
behind guilty pleas. And it creates a palpable tension with the factual innocence
requirement articulated in Bousley v. United States, 523 U.S. 614 (1998).
The majority’s decision is retroactivity with a vengeance. It undermines the criminal
justice system’s commitment to finality at every turn. Procedural defaults are meant to
protect the finality of convictions. Now they are weakened years later. How many
witnesses are no longer available? How much do they still recall? Not content with this
assault on finality, the majority erodes the finality of guilty pleas as well, allowing one
party to an agreement to back away from it and take whatever later benefits may drift its
way. In so doing, the majority repositions not only the utilization of prosecutorial
resources. It commits executive review generally to an ongoing retrospective,
notwithstanding the demands that the commission of present crimes make upon our
coordinate branch of government.
Retroactivity, of course, does have its place. The First Step Act is retroactive in its
application, see First Step Act of 2018, Pub. L. No. 115–391, 132 Stat. 5194, but in a
manner carefully tailored to individual circumstances. What makes the majority’s version
of retroactivity so pernicious is that it applies irrespective of those circumstances, thereby
undermining the primacy of individualized consideration in our system of justice.
Recognizing the naïve idealization of a perfect criminal justice system, factual
inquiries yet insist that proceedings be practically grounded and, above all, fundamentally
fair. Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). Again, the facts, had they been
so much as consulted, are fatal to McKinney’s case. The government would never have
23
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 24 of 39
dismissed the substantive Hobbs Act count had the Hobbs Act conspiracy count been
anything but a wholly lawful predicate at the time of McKinney’s plea. McKinney’s
undisputed conduct—discharging a firearm to threaten victims during a violent and
dangerous robbery of a restaurant—lies at the heart of what Congress sought to criminalize
through § 924(c). The real prejudice here is not to the defendant but to the public, which
must suffer the consequences of the majority’s ill-advised rule.
II.
The Supreme Court has made clear that to establish the prejudice required to excuse
procedural default, a habeas petitioner must show that given the “particular circumstances
of [his] individual case,” the error “worked to his actual and substantial disadvantage.”
Frady, 456 U.S. at 170. 1 McKinney comes nowhere close.
A.
A habeas petitioner must demonstrate “cause” and “actual prejudice” to excuse his
procedural default. See Wainwright, 433 U.S. at 90–91. The Supreme Court explained what
constitutes “actual prejudice” in United States v. Frady.
Inasmuch as the majority has all but ignored Frady, I am compelled, with apologies
to the reader, to briefly traverse what should be familiar ground. The fact that this case
1
Because this case concerns the showing of prejudice necessary to excuse a habeas
petitioner’s procedural default, Frady is the controlling standard. No one disputes that
McKinney’s conviction is now invalid given that United States v. Davis, 139 S. Ct. 2319
(2019), “applies retroactively to cases on collateral review.” In re Thomas, 988 F.3d 783,
789 (4th Cir. 2021); see Schriro v. Summerlin, 542 U.S. 348, 351–53 (2004) (explaining
that “new substantive rules generally apply retroactively”).
24
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 25 of 39
comes to us on collateral review is of salient importance, not just as another factor for the
majority to toss into the hopper. The Frady Court began by “reaffirm[ing] the well-settled
principle that to obtain collateral relief a prisoner must clear a significantly higher hurdle
than would exist on direct appeal”—i.e., the plain-error standard. 456 U.S. at 166; see
Murray v. Carrier, 477 U.S. 478, 493–94 (1986) (“The showing of prejudice required
under Wainwright v. Sykes is significantly greater than that necessary under . . . ‘plain
error.’”). A more stringent collateral-review standard is appropriate because
“postconviction collateral attacks” implicate society’s interest in finality: the “respect” that
“a final judgment commands.” Frady, 456 U.S. at 164–65 (“Once the defendant’s chance
to appeal has been waived or exhausted . . . we are entitled to presume he stands fairly and
finally convicted.”). So to establish eligibility for collateral relief on a procedurally
defaulted claim, the petitioner “must show both (1) ‘cause’ excusing his double procedural
default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” Id. at
167–68.
Frady and subsequent cases drive home the point that actual prejudice is a strict,
fact-specific standard. The Frady Court explicitly rejected the idea, now embraced by the
majority, that an error could “amount[] to prejudice per se, regardless of the particular
circumstances of the individual case.” Id. at 170. Rather, the petitioner “must shoulder the
burden of showing, not merely that the errors at his trial created a possibility of prejudice,
but that they worked to his actual and substantial disadvantage.” Id.; see also Carrier, 477
U.S. at 494 (quoting this standard); Shinn v. Ramirez, 142 S. Ct. 1718, 1733 (2022) (same).
The Court then conducted a fact-specific inquiry and concluded that given “the strong
25
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 26 of 39
uncontradicted evidence . . . in the record,” there was “no substantial likelihood” of a
different result; the petitioner would have been convicted regardless of the error. Frady,
456 U.S. at 172–74. So there was no actual prejudice. Id. at 175.
Thus, for a habeas petitioner to establish actual prejudice, he must show, based on
the specific facts of his case, that the error caused him an “actual” and “substantial”
disadvantage. He must show that there is a “substantial likelihood” that he would have
received a better outcome but for the error. The majority all but ignores this standard. The
effect is to relegate Supreme Court decisions to no more than provisional status.
B.
Given the uncontested facts of McKinney’s case, there is no substantial likelihood
that he would be in a better position but for the subsequently invalidated, conspiracy-
predicated § 924(c) charge. There is no way he can show that being charged with and
pleading guilty to this later invalidated count “worked to his actual and substantial
disadvantage.” Frady, 456 U.S. at 170. The majority, fleeing the facts, does not come close
to establishing that he could.
McKinney was originally charged by a grand jury with Hobbs Act robbery,
conspiracy to commit Hobbs Act robbery, and a § 924(c) count predicated on the
substantive offense. McKinney has never denied that he committed these offenses; his
“offense conduct was uncontroverted, and it remains uncontroverted to this day.”
McKinney v. United States, No. 1:16-cv-00149-MR, 2020 WL 475196, at *6 (W.D.N.C.
Jan. 29, 2020). The government agreed to dismiss the substantive robbery count and
§ 924(c) count predicated on it only if McKinney pleaded guilty to the conspiracy count
26
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 27 of 39
and a conspiracy-predicated § 924(c) count. McKinney does not dispute that if the court
had found the conspiracy-predicated § 924(c) count invalid, the government “would not
have dismissed” the substantive robbery count or the § 924(c) count predicated on it.
McKinney, 2020 WL 475196, at *5. So even if McKinney had not faced the invalid
conspiracy-predicated § 924(c) count, he would have faced an equivalent one that would
have carried the same statutory penalties and subjected him to the same Sentencing
Guidelines. See 18 U.S.C. § 924(c)(1)(A)(iii); U.S.S.G. § 2k2.4(b).
The majority suggests fleetingly that the defendant would not have pleaded guilty.
Maj. Op. at 14. This is incorrect. Given these facts, there is no substantial likelihood that
McKinney “would not have pleaded guilty” to the § 924(c) count predicated on substantive
Hobbs Act robbery had the conspiracy-predicated § 924(c) count been unavailable. Hill v.
Lockhart, 474 U.S. 52, 59 (1985). The prejudice inquiry in guilty-plea cases “depend[s] in
large part on a prediction” about the “likely . . . outcome at a possible trial” judged
“objectively, without regard for the idiosyncrasies of the particular decisionmaker.” Id. at
59–60 (quotation marks omitted). Given the objective nature of the inquiry, the majority’s
assertion that McKinney refused to plead guilty at two plea hearings misses the point.
Objectively, McKinney’s prospects at trial were bleak given the overwhelming, undisputed
evidence that he did in fact fire a gun while committing a Hobbs Act robbery. Given that
evidence—and the downward adjustment for accepting responsibility that he only could
receive by pleading guilty, see U.S.S.G. § 3E1.1—there is no substantial likelihood that
McKinney would not have pleaded guilty.
27
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 28 of 39
That same evidence would have left McKinney dead in the water at trial. Had
McKinney taken his chances before a jury, the government would have shown that he
stormed a restaurant armed with a handgun, ordered a woman into the restaurant at
gunpoint, fired a warning shot to coerce the manager’s compliance, and was found hiding
in the nearby bushes. There is no substantial likelihood that a jury would have acquitted
him of using a firearm during and in relation to a Hobbs Act robbery.
Please consider the facts. Whether he would have pleaded guilty or gone to trial,
one way or another McKinney would have been convicted of the § 924(c) count predicated
on his violent and undisputed Hobbs Act robbery. He would have faced the same statutory
penalties and Sentencing Guidelines range as he did for the invalid conspiracy-based
§ 924(c) charge and, in all likelihood, his sentence would have been the same as or worse
than the one he actually received. See McKinney, 2020 WL 475196, at *6. Because the
error did not work to McKinney’s “actual and substantial disadvantage,” he has shown no
prejudice that would excuse his procedural default, Frady, 456 U.S. at 170, and courts
should respect his long and fairly settled federal conviction and sentence.
III.
As John Adams famously said, “facts are stubborn things.” To the majority, facts
are not only stubborn, but scary. Ignoring the facts, the majority devises a per se rule that
there is prejudice whenever a defendant is convicted under a predicate that is later ruled
invalid. Under such a rule, a court need not consider the facts of the case to reverse a
conviction; it need only examine the later status of the predicate offense at issue. In short,
the majority concocts a legal test in which facts are irrelevant. Imagine a terrifying or
28
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 29 of 39
heartbreaking scene through the eyes of the victims. Then tell yourself that because the
guilty plea from that tragedy rested on a Hobbs Act conspiracy (rather than substantive)
predicate, the whole conviction must, no questions asked, be set aside.
A.
This should not be. The majority’s creation of a per se rule of prejudice defies the
Supreme Court’s repeated instruction that structural errors—which result in “automatic
reversal” without any showing of actual prejudice—are “highly exceptional.” Greer v.
United States, 141 S. Ct. 2090, 2099–2100 (2021) (quoting Neder v. United States, 527
U.S. 1, 8 (1999), and United States v. Davila, 569 U.S. 597, 611 (2013)). Rather, across a
variety of contexts, “the ‘general rule’ is that ‘a constitutional error does not automatically
require reversal of a conviction’”: Errors must cause prejudice, which is a factual matter
that depends on the defendant showing specifically how the error affected him. Id. at 2099
(quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991)).
This general rule makes sense. The hallmark of structural error is that defendants
get their convictions reversed no matter how undeserving they are or how violent their acts.
This case is Exhibit A: McKinney’s violent armed robbery was exactly what Congress
wanted to punish through § 924(c). Conversely, the great advantage of factual prejudice
determinations is that they allow courts to inquire into the strength of the case and make
individualized determinations as to whether the defendant would have been convicted even
had no error been made. But the majority ignores these factors, electing instead to forgo
tailored factual analysis in favor of an ill-fitting, precedent-defying per se rule.
29
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 30 of 39
B.
Plain error and procedural default inquiries both underscore the intensive factual
nature of the prejudice inquiry. It is therefore particularly instructive to consider what the
Supreme Court has said about prejudice being a factual inquiry in the context of plain-error
review. Plain error applies on direct review of errors that were not raised in the district
court. See United States v. Olano, 507 U.S. 725, 731 (1993); Fed. R. Crim. P. 52(b). Under
the Olano framework, a court may only grant relief if the defendant shows (1) there was
an error; (2) that was “plain”; (3) that affected “substantial rights”—“which generally
means that there must be a reasonable probability that, but for the error, the outcome of the
proceeding would have been different”—and (4) the court concludes “the error had a
serious effect on the fairness, integrity or public reputation of judicial proceedings.” Greer,
141 S. Ct. at 2096–97 (quotation marks omitted). The defendant bears the “difficult”
burden of establishing all four requirements. Id. at 2097 (quoting Puckett v. United States,
556 U.S. 129, 135 (2009)).
A note to the majority: The Supreme Court has said time and again that the third
and fourth Olano prongs are fact-specific inquiries. With respect to the third prong
(prejudice), the Supreme Court has found no reasonable probability of a different outcome
even where the jury was not instructed on an element of the crime. See id. at 2097–98.
Greer considered whether the defendant was prejudiced by the district court’s failure to
instruct the jury that, in a felon-in-possession case, the government must prove not only
that the defendant knew he possessed a firearm, “but also that he knew he was a felon.” Id.
at 2095; see Rehaif v. United States, 139 S. Ct. 2191, 2199–2200 (2019). The Court
30
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 31 of 39
“consider[ed] the entire record” and concluded that because Greer had been convicted of
multiple felonies, stipulated to that fact at trial, and had never argued that he did not know
he was a felon, there was no “reasonable probability that a jury would have acquitted him”
“but for the Rehaif error.” Greer, 141 S. Ct. at 2097–98. Despite the error’s seriousness,
the defendant was not, given the facts, prejudiced. Id.
With respect to the fourth prong (“fairness”), both the Supreme Court and this Court
have repeatedly stressed the fact-specific nature of the inquiry. In Puckett, the Supreme
Court explained that this prong “is meant to be applied on a case-specific and fact-intensive
basis.” 556 U.S. at 142. Accordingly, the Court considered the facts of the defendant’s case
and concluded that the error did not “compromise the public reputation of judicial
proceedings.” Id. at 143. And Puckett’s characterization of this prong as fact-intensive has
been repeatedly reaffirmed. See, e.g., Rosales-Mireles v. United States, 138 S. Ct. 1897,
1909 (2018); United States v. Edgell, 914 F.3d 281, 290–91 (4th Cir. 2019); United States
v. Heyward, 42 F.4th 460, 471 (4th Cir. 2022).
The lessons of the Supreme Court’s plain-error precedents—that prejudice is fact-
specific and per se rules are extraordinary—apply a fortiori to the “actual prejudice”
inquiry we apply on collateral review of procedurally defaulted claims. As noted, because
collateral review implicates “society’s justified interests in the finality of criminal
judgments,” habeas petitioners attempting to show actual prejudice “must clear a
significantly higher hurdle than would exist on direct appeal.” Frady, 456 U.S. at 166, 175;
see United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003) (“[T]he ‘showing of
prejudice required’ to overcome procedural default on collateral review ‘is significantly
31
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 32 of 39
greater than that necessary’ to establish plain error on direct review.” (quoting Carrier, 477
U.S. at 493–94)). Because “actual prejudice” is a more demanding standard than plain-
error prejudice, we should be even more attentive here to specific facts and even less
willing to adopt per se rules. Neglect of Supreme Court precedent is not an option.
C.
The Supreme Court has also eschewed per se rules of prejudice and emphasized its
factual nature in other contexts.
First, in Neder v. United States, the Supreme Court applied the harmless-error
standard to a district court’s omission of a crime’s materiality element from its jury
instructions. 527 U.S. at 4. The Court rejected the argument that this error was structural,
noting that omitting an element does not “necessarily render a criminal trial fundamentally
unfair or an unreliable vehicle for determining guilt or innocence.” Id. at 9. Rather, the
Court concluded that given the facts of the case, it was “beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.” Id. at 15 (quotation marks
omitted). “The evidence supporting materiality was so overwhelming” that “no jury could
reasonably find” otherwise, so the error was harmless. Id. at 16. Neder is especially
instructive because the Court found no prejudice even when it was the government’s burden
to prove the lack of prejudice beyond a reasonable doubt; here, by contrast, it is
McKinney’s burden to show actual and substantial prejudice. Compare Neder, 527 U.S. at
7, with Frady, 456 U.S. at 170.
Second, in ineffective-assistance-of-counsel cases, the Supreme Court generally
requires the defendant to show that “there is a reasonable probability that, but for counsel’s
32
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 33 of 39
unprofessional errors, the result of the proceeding would have been different.” Strickland
v. Washington, 466 U.S. 668, 694 (1984). This prejudice determination requires courts to
“consider the totality of the evidence before the judge or jury.” Id. at 695. Consistent with
the Court’s general approach to prejudice inquiries, prejudice is presumed only in the most
exceptional cases. See id. at 692 (noting “state interference with counsel’s assistance” and
“actively represent[ing] conflicting interests” as circumstances where prejudice is
presumed (quotation marks omitted)). But those cases aside, ineffective-assistance claims
“are subject to a general requirement that the defendant affirmatively prove prejudice.” Id.
at 693.
Finally, the Supreme Court’s test for whether a Brady violation has occurred
incorporates a factual prejudice inquiry. Brady is violated when the State suppresses
evidence favorable to the accused and that evidence is “material”—i.e., “if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” Strickler v. Greene, 527 U.S. 263, 280 (1999)
(quotation marks omitted); see Brady v. Maryland, 373 U.S. 83 (1963). This inquiry is fact-
intensive: “[T]he question is whether the favorable evidence could reasonably be taken to
put the whole case in such a different light as to undermine confidence in the verdict.”
Strickler, 527 U.S. at 290 (quotation marks omitted). And the Court has, in fact, found that
suppressed, favorable evidence was immaterial. See, e.g., id. at 296.
* * *
Sooner or later, it must occur to my friends in the majority that they are swimming
against a powerful tide. In case after case, context after context, the Supreme Court has
33
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 34 of 39
reaffirmed the fact-intensive nature of prejudice. See, e.g., Frady, 456 U.S. at 168–70
(collateral review of procedurally defaulted claims); Greer, 141 S. Ct. at 2097–98 (plain
error), Neder, 579 U.S. at 15–17 (harmless error), Strickland, 466 U.S. at 694 (ineffective
assistance), Strickler, 527 U.S. at 290 (Brady). Through these cases, the Supreme Court
has firmly rooted our judicial system in the foundational principle that courts will not
disturb convictions unless there is a factual showing of prejudice. But the majority ignores
this caselaw and the need for individualized consideration of defendants that flows from it.
Facts look to real world effects. Justice is instead meted out by the majority under an
abstract rule that bundles the least deserving with the most. While some countries may
favor this indiscriminate approach, ours looks person-by-person in an effort to balance
individual rights with the need for public safety.
IV.
As if all this were not enough, the majority subverts the parties’ plea bargain and
undermines the entire philosophy behind guilty pleas. “Indiscriminate[ly]” allowing
prisoners to escape their guilty pleas through collateral attacks on their sentences “would
eliminate the chief virtues of the plea system”—“speed, economy, and finality.”
Blackledge v. Allison, 431 U.S. 63, 71 (1977). A plea bargain is exactly that: an exchange
of benefits between the defendant and the government. The government conserves judicial
and prosecutorial resources and obtains the certainty that a guilty and often dangerous
criminal receives punishment. The defendant receives some certain present benefits—for
instance, acceptance-of-responsibility sentencing adjustments and, crucially, the dismissal
of additional charges that the government could have proved at trial. In return, the
34
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 35 of 39
defendant relinquishes the possibility of acquittal at trial and the possibility that he might
benefit from some future legal development in his favor.
That is exactly what happened here. McKinney received significant present benefits
in exchange for pleading guilty. Most notably, despite the overwhelming evidence of
McKinney’s guilt, the government dismissed the substantive Hobbs Act robbery count—
thereby likely reducing his potential prison sentence. McKinney, in return, pleaded guilty
to the Hobbs Act conspiracy count and a § 924(c) count predicated on that offense. In so
doing, McKinney waived his rights to appeal. By pleading guilty, McKinney voluntarily
and intelligently accepted that he would not benefit from any subsequent legal development
invalidating his conspiracy-predicated § 924(c) count unless he could overcome the
procedural-default bar on collateral review. This affirmative waiver went far beyond the
typical case of procedural default in which a party inadvertently fails to contest an issue.
The majority protests that it is inappropriate to consider dismissed counts as part of
the prejudice inquiry in the plea-bargaining context, suggesting that no precedent permits
a court to consider such counts. Maj. Op. at 15. Respectfully, that has it exactly backwards:
It is telling that the majority cites no binding or persuasive case for the proposition that it
is illegitimate to consider dismissed counts as part of the factual prejudice inquiry. That
inquiry, as explained above, asks whether an error worked to a defendant’s “actual and
substantial disadvantage.” Frady, 456 U.S. at 170. That standard does not limit our
consideration of whether the defendant would have pleaded guilty to an identical § 924(c)
offense predicated on a dismissed count. Indeed, as a matter of common sense, the
35
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 36 of 39
availability of such a dismissed count to serve as a predicate offense at the government’s
disposal is highly relevant to the defendant’s decision to enter the plea that he did. 2
The majority subverts the parties’ bargain and grants McKinney a windfall. Despite
McKinney being indisputably guilty of (1) Hobbs Act robbery, (2) using a firearm during
the robbery, and (3) conspiracy to commit that robbery, the majority lets him skate with
just the later invalidated conspiracy conviction. All this despite the government only
agreeing to dismiss (1) and (2) if McKinney pleaded guilty to conspiracy and the attendant
§ 924(c) charge.
The majority again compromises the value of finality—that eventual and essential
point of termination in any criminal justice system that allows both society and the
individual a chance to pivot and look forward. At some point, the law may fairly and
properly be deemed conclusive, and the light of future possibility let in. Courts typically
safeguard the finality of guilty pleas by requiring defendants to “show a reasonable
probability that, but for the error, [the defendant] would not have entered the plea.” United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (applying reasonable-probability
standard to defendant seeking to withdraw guilty plea because of court’s plain error); Hill,
2
Once again, the majority flees the facts. It relies on the Eighth Circuit’s brief opinion in
Jones v. United States, 39 F.4th 523 (8th Cir. 2022), to support a finding of prejudice here.
To the extent that Jones did not consider whether a dismissed count could serve as a
predicate offense to sustain the defendant’s § 924(c) conviction, that was incorrect. To the
extent the majority implies that any circuit overrides the clear teachings of the Supreme
Court, I would respectfully suggest that is incorrect as well. To ascertain whether Jones
and McKinney were prejudiced, a court must consider all the particulars of the case, as trial
courts routinely do. It was up to the trial court in the first instance to determine the
relevance of any particular factor, including any dismissed counts, to the entire prejudice
analysis, as it did here. See J.A. 143–44.
36
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 37 of 39
474 U.S. at 59 (same with respect to withdrawing guilty plea because of ineffective
assistance of counsel). By granting McKinney relief despite his inability to show a
reasonable probability that he would not have pleaded guilty—much less any actual and
substantial disadvantage—the majority disregards the heightened finality interests here.
See Frady, 456 U.S. at 165–66, 170.
The government was thus stripped of the benefit of its bargain. It is no answer that
the majority implies that the government could move to reinstate the counts that it
dismissed pursuant to McKinney’s plea agreement. See Maj. Op. at 17. The statute that
allows the government to move to reinstate dismissed counts only permits it to do so after
the guilty plea has been “vacated on the motion of the defendant.” 18 U.S.C. § 3296(a)(3).
The case is then reset to square one and the virtue of finality is thereby undermined. The
majority thus allows the vacatur of McKinney’s guilty plea and the attendant subversion
of the parties’ bargain—all without a showing of actual prejudice.
V.
The majority’s per se prejudice exception is also in significant tension with Bousley
v. United States, 523 U.S. 614 (1998), and the general rule of procedural default. A habeas
petitioner can overcome procedural default in either of two ways: by showing cause and
actual prejudice or by showing actual innocence. Id. at 622. In the actual-innocence
context, the Supreme Court has instructed that “actual innocence means factual innocence,
not mere legal insufficiency.” Id. at 623 (quotation marks omitted). Thus, to determine
whether a petitioner meets this “very narrow exception,” Sawyer v. Whitley, 505 U.S. 333,
341 (1992), the court will look at “all the evidence . . . even if that evidence was not
37
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 38 of 39
presented during petitioner’s plea colloquy.” Bousley, 523 U.S. at 623–24. The inquiry
completely turns on the facts of the case. So Bousley is yet another entry in the catalog of
cases where the Supreme Court has warned us away from per se rules and instead
commanded a fact-intensive analysis. The facts, of course, point to McKinney’s guilt at
every count and corner.
VI.
The majority pronounces a novel per se rule in disregard of the Supreme Court’s
repeated instructions. Strive as the majority undoubtedly does to listen to the Supreme
Court, I am afraid it has misheard. Its per se pronouncements ignore “the hierarchy of the
federal court system created by the Constitution and Congress.” Hutto v. Davis, 454 U.S.
370, 375 (1982) (per curiam).
Rather than rush to per se rules, we should walk slowly, lest we “riddle the cause
and prejudice standard” with ill-advised exceptions. Dretke v. Haley, 541 U.S. 386, 394
(2004). In fact, “it is precisely because the various exceptions to the procedural default
doctrine are judge-made rules that courts as their stewards must exercise restraint, adding
to or expanding them only when necessary.” Id. Such a warning was meant to ward off just
such decisions as the majority has rendered here.
Pronouncing broad new rules makes no sense in the fraught and salient context of
§ 924 crimes and Congress’s attempts to address the scourge of gun violence afflicting this
country. See Berkemer v. McCarty, 468 U.S. 420, 446 (1984) (Stevens, J., concurring)
(underscoring that principles of “restraint grow[] in importance the more problematic” the
issue is). Given the Supreme Court’s emphasis upon Congress’s goal of keeping the public
38
USCA4 Appeal: 20-6396 Doc: 83 Filed: 02/16/2023 Pg: 39 of 39
safe from violent crimes committed with firearms, we should not lightly uproot the
sentences of those convicted under § 924(c). To declare an entire category of § 924(c)
convictions per se prejudicial ignores the facts of each case to the undeserved benefit of
some of society’s most violent offenders.
I respectfully dissent. I am left only with the hope that basic errors of transmission
between the Supreme Court and the courts of appeals will be more limited in future cases.
39