United States v. Timothy Fugit , 703 F.3d 248 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 11-6741
TIMOTHY ANDREW FUGIT,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Jerome B. Friedman, Senior District Judge.
(4:07-cr-00065-JBF-JEB-1; 4:09-cv-00135-JBF-DEM)
Argued: October 25, 2012
Decided: December 31, 2012
Before TRAXLER, Chief Judge, and WILKINSON and
AGEE, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Judge Agee joined.
COUNSEL
ARGUED: Mary Beth Usher, WAKE FOREST UNIVER-
SITY SCHOOL OF LAW, Winston-Salem, North Carolina,
for Appellant. Richard Daniel Cooke, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for
2 UNITED STATES v. FUGIT
Appellee. ON BRIEF: John J. Korzen, Director, Melissa
Evett, Third Year Law Student, WAKE FOREST UNIVER-
SITY SCHOOL OF LAW, Appellate Advocacy Clinic,
Winston-Salem, North Carolina, for Appellant. Neil H. Mac-
Bride, United States Attorney, Alexandria, Virginia, Lisa R.
McKeel, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Newport News, Virginia,
for Appellee.
OPINION
WILKINSON, Circuit Judge:
Timothy Andrew Fugit moves for post-conviction relief in
connection with his guilty plea for enticing or attempting to
entice a minor to engage in illegal sexual activity, in violation
of 18 U.S.C. § 2422(b). The district court denied Fugit’s
motion under 28 U.S.C. § 2255 to vacate, set aside, or correct
his sentence. For the reasons that follow, we affirm the judg-
ment.
I.
A grand jury in the Eastern District of Virginia returned a
two-count indictment against Fugit on May 24, 2007. Count
One charged him with distributing child pornography, in vio-
lation of 18 U.S.C. § 2252A(a)(2) and (b)(1). Count Two
charged him with violating 18 U.S.C. § 2422(b), which pro-
vides, in pertinent part:
Whoever, using the mail or any facility or means of
interstate or foreign commerce, . . . knowingly per-
suades, induces, entices, or coerces any individual
who has not attained the age of 18 years, to engage
in prostitution or any sexual activity for which any
person can be charged with a criminal offense, or
UNITED STATES v. FUGIT 3
attempts to do so, shall be fined under this title and
imprisoned not less than 10 years or for life.
Count Two alone is at issue here.
On the advice of counsel, Fugit pleaded guilty to both
counts on July 20, 2007. Although Fugit and the government
did not enter a formal plea agreement, the parties agreed to a
stipulated "Statement of Facts." This document described the
following foundations for the charges.
On November 28, 2005, while claiming to be a young girl
named "Kimberly," Fugit held a conversation in an internet
chat room with an eleven-year-old girl, "Jane Doe #2." He
asked her questions regarding her breasts and genitals, her
underwear, slumber parties, and whether she had ever
appeared naked in front of men. He also obtained her tele-
phone number. Pretending to be Kimberly’s father, Fugit tele-
phoned Jane Doe #2 shortly thereafter and engaged her "in an
inappropriate sexual conversation." He asked whether she had
"seen a grown man naked," whether "she minded if he came
in to check on her while she was naked," whether "she would
mind seeing him naked," and whether she would "get naked
for him." Tracking the text of 18 U.S.C. § 2422(b), the State-
ment of Facts concluded its discussion of this incident by not-
ing that Fugit "admits that he knowingly persuaded, induced,
enticed or coerced Jane Doe #2 to engage in a sexual activity,
to wit; Taking Indecent Liberties with Children, in violation
of § 18.2-370 of the Code of Virginia 1950, as amended, for
which he could be charged."
Likewise, on December 12, 2005, once more posing as
"Kimberly," Fugit chatted online with a ten-year-old girl,
"Jane Doe #1," and obtained her telephone number. Approxi-
mately five minutes later, he telephoned her, pretended to be
Kimberly’s father, and engaged her "in an inappropriate sex-
ual conversation." The Statement of Facts further described
how this latter incident precipitated an extensive police inves-
4 UNITED STATES v. FUGIT
tigation. During the execution of a search warrant at his resi-
dence, Fugit told police that he had "attempted to contact
children on the computer and telephone" and that an internet
account of his had been "bumped" several times because of
inappropriate contact with minors. Law enforcement discov-
ered, "among other things" on Fugit’s computer, that he had
once distributed a child pornography image over e-mail.
Additionally, at his sentencing hearing, Fugit effectively
admitted the facts contained in the pre-sentence report (PSR)
prepared by the probation office. Specifically, he contested
only one allegation, which is not at issue here, and affirmed
that the remainder of the factual background was error-free.
The PSR revealed a great deal of information beyond that
contained in the Statement of Facts.
Apparently referencing the incidents discussed above, the
PSR described how Fugit, in claiming to be Kimberly’s
father, asked Jane Doe #2 "to masturbate and take her shirt
off" and repeatedly demanded that she remove her pants. And
with regard to Jane Doe #1, among other statements, Fugit
"informed her of the rules he would impose" if she spent the
night at his house, "instructed her to call him ‘Daddy,’" and
stated that he "would perform a ‘finger test’ on [her] by rub-
bing her all over with his finger." Additionally, he said "that
he would allow her to touch his penis" and asked her "to take
her clothes off."
Moreover, the PSR made clear that the incidents involving
Jane Does #1 and #2 were anything but isolated occurrences.
Investigation revealed that Fugit had participated in internet
chats with 129 individuals who appeared to be children,
twelve of whom police confirmed were indeed minors
between nine and twelve years old. During these dozen con-
versations, which occurred between March 2005 and January
2006, Fugit "always represented himself to be a child and
often asked inappropriate questions," including
UNITED STATES v. FUGIT 5
the child’s breast size, whether or not the child had
pubic hair, whether or not the child slept in the nude,
whether or not the child engaged in masturbation,
what type of underwear the child wore, and whether
or not the child had been naked in front of a member
of the opposite sex.
As with Jane Does #1 and #2, Fugit often proceeded to
engage these children in telephone conversations involving
"inappropriate sexual comments."
Finally, the PSR disclosed that 289 still images and twenty-
four videos of child pornography—at least some of which
were extremely graphic—were found on Fugit’s computers.
In addition to the single occasion described in the Statement
of Facts, the PSR revealed that law enforcement identified
forty-three instances of child pornography distribution
between September 2004 and January 2006, some involving
multiple images.
Following a hearing on December 19, 2007, the district
court sentenced Fugit to 240 months of imprisonment on
Count One (the statutory maximum) and seventy months of
imprisonment on Count Two, to be served consecutively,
yielding a sentence of 310 months from a guideline range of
292 to 365 months. Represented by the same counsel as dur-
ing the initial plea proceedings, Fugit appealed only his sen-
tence, and this court affirmed the judgment of the district
court. United States v. Fugit, 296 F. App’x 311 (4th Cir.
2008) (per curiam).
On October 1, 2009, Fugit filed a motion for post-
conviction relief pursuant to 28 U.S.C. § 2255. He contested
his convictions on ten grounds. The district court denied the
motion in its entirety, rejecting each of Fugit’s claims on the
merits and also seeming to find that several were procedurally
defaulted. This court granted a certificate of appealability on
the following issues, which relate to Count Two only: (1)
6 UNITED STATES v. FUGIT
"whether Fugit’s stipulated conduct constituted attempted
inducement of ‘sexual activity’ of a minor within the meaning
of 18 U.S.C. § 2422(b)" and (2) "whether Fugit’s counsel ren-
dered ineffective assistance by advising him to stipulate to the
inducement of ‘sexual activity’ and guilt under 18 U.S.C.
§ 2422(b)."
II.
We underscore at the outset of our review the interest of the
criminal justice system in the finality of convictions, an inter-
est repeatedly confirmed the Supreme Court. See, e.g.,
McCleskey v. Zant, 499 U.S. 467, 492-93 (1991); Henderson
v. Kibbe, 431 U.S. 145, 154 n.13 (1977). "The historical evi-
dence demonstrates that the purposes of the writ [of habeas
corpus], at the time of the adoption of the Constitution, were
tempered by a due regard for the finality of the judgment of
the committing court." Schneckloth v. Bustamonte, 412 U.S.
218, 256 (1973) (Powell, J., concurring). Relitigation of a
conviction is a rear-view mirror, while a respect for finality
encourages those in custody to contemplate the future pros-
pect of "becoming a constructive citizen." Id. at 262.
The Supreme Court has declared, moreover, that "the con-
cern with finality served by the limitation on collateral attack
has special force with respect to convictions based on guilty
pleas." United States v. Timmreck, 441 U.S. 780, 784 (1979).
In explaining this corollary to the finality principle, the Court
remarked:
Every inroad on the concept of finality undermines
confidence in the integrity of our procedures; and, by
increasing the volume of judicial work, inevitably
delays and impairs the orderly administration of jus-
tice. The impact is greatest when new grounds for
setting aside guilty pleas are approved because the
vast majority of criminal convictions result from
such pleas.
UNITED STATES v. FUGIT 7
Id. (quoting United States v. Smith, 440 F.2d 521, 528-29 (7th
Cir. 1971) (Stevens, J., dissenting)). In addition to emphasiz-
ing the sheer volume of guilty pleas, the Supreme Court has
located independent value in the fact that such a plea "usually
rest[s] . . . on a defendant’s profession of guilt in open court,"
United States v. Dominguez Benitez, 542 U.S. 74, 82-83
(2004), and allows him to demonstrate "that he is ready and
willing to admit his crime and to enter the correctional system
in a frame of mind that affords hope for success in rehabilita-
tion over a shorter period of time than might otherwise be
necessary," Brady v. United States, 397 U.S. 742, 753 (1970).
On the strength of these rationales, this circuit has long
refused to permit the casual withdrawal of guilty pleas. See,
e.g., United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir.
1992) (en banc).
Though high, the bar of finality is not insurmountable, even
in the guilty plea context. It bears emphasis, however, that
allowing a person to abrogate his guilty plea on collateral
attack represents a rare exception to the rule of finality, and
we proceed to review Fugit’s claims with this foundational
principle in mind.
III.
Fugit’s primary contention is that the district court erred in
interpreting 18 U.S.C. § 2422(b), the statute underlying his
conviction on Count Two. The government argues, however,
that the doctrine of procedural default bars this claim because
Fugit failed to raise it during his initial plea proceedings or on
direct appeal. See Massaro v. United States, 538 U.S. 500,
504 (2003) (citing United States v. Frady, 456 U.S. 152, 167-
68 (1982)). This doctrine, too, rests on the law’s basic interest
in finality. Id. ("The procedural-default rule is neither a statu-
tory nor a constitutional requirement, but it is a doctrine
adhered to by the courts to conserve judicial resources and to
respect the law’s important interest in the finality of judg-
ments.").
8 UNITED STATES v. FUGIT
Fugit did not make the statutory argument he now presses
during his initial plea proceedings before the district court,
and although he "contested his sentence on appeal, [he] did
not challenge the validity of his plea." Bousley v. United
States, 523 U.S. 614, 621 (1998). It would appear, therefore,
that Fugit has procedurally defaulted this claim. See id.
A procedural default, however, may be excused in two cir-
cumstances: where a person attacking his conviction can
establish (1) that he is "actually innocent" or (2) "cause" for
the default and "prejudice" resulting therefrom. Id. at 622.
While a successful showing on either actual innocence or
cause and prejudice would suffice to excuse the default, Fugit
contends that he can accomplish both. We consider Fugit’s
actual innocence claim first—an analysis that, incidentally,
requires us to resolve the underlying statutory dispute.
As outlined above, 18 U.S.C. § 2422(b) comprises four ele-
ments: "(1) use of a facility of interstate commerce; (2) to
knowingly persuade, induce, entice, or coerce; (3) a person
who is younger than eighteen; (4) to engage in an illegal sex-
ual activity." United States v. Kaye, 451 F. Supp. 2d 775, 782
(E.D. Va. 2006). Fugit’s claim of actual innocence focuses
exclusively on the "sexual activity" component of the fourth
element. He contests neither the other three elements nor the
illegality component of the fourth, effectively conceding that
his behavior violated § 18.2-370 of the Code of Virginia,
which prohibits taking indecent liberties with children. Fugit
acknowledges that his behavior was—to put it mildly—
"reprehensible." Nevertheless, he argues that the phrase "sex-
ual activity" in § 2422(b) incorporates an irreducible mini-
mum of interpersonal physical contact—and that, because the
relevant interactions with his victims neither included nor ref-
erenced such contact, he cannot have been guilty of violating
the statute.
We first interpret the phrase "sexual activity" as used in
§ 2422(b) and then proceed to apply that interpretation to
Fugit’s actual innocence claim.
UNITED STATES v. FUGIT 9
A.
For the reasons that follow, we hold that interpersonal
physical contact is not a requirement of § 2422(b)’s "sexual
activity" element.
"Statutory interpretation necessarily begins with an analysis
of the language of the statute." Chris v. Tenet, 221 F.3d 648,
651 (4th Cir. 2000). As far as the text of § 2422(b) is con-
cerned, Fugit appears to have pulled his proposed interper-
sonal physical contact requirement out of a hat. The statute is
simply not framed in the terms for which he contends: it men-
tions nothing about physical contact. In fact, it does not
expressly demarcate the meaning of "sexual activity" in any
way, instead leaving the term undefined. By contrast, where
similar statutory terms were meant to encompass only a spe-
cific subset of conduct, Congress took care to define them
explicitly for purposes of the sections or chapters in which
they are found. See, e.g., 18 U.S.C. § 2246(2) (defining "sex-
ual act"); id. § 2246(3) (defining "sexual contact"); id.
§ 2256(2) (defining "sexually explicit conduct"); id. § 2423(f)
(defining "illicit sexual conduct").
When analyzing the meaning of an undefined statutory
term, "we must first ‘determine whether the language at issue
has a plain and unambiguous meaning.’" Chris, 221 F.3d at
651 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340
(1997)). We think the meaning of "sexual activity" in
§ 2422(b) is indeed plain and that this meaning extends
beyond interpersonal physical contact.
This court has long consulted dictionaries of common
usage in order to establish the plain meaning of disputed stat-
utory language. See Nat’l Coal. for Students with Disabilities
Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 289 (4th Cir.
1998). In determining the meaning of "sexual," we find
instructive a definition from Webster’s: "of or relating to the
sphere of behavior associated with libidinal gratification."
10 UNITED STATES v. FUGIT
Webster’s New International Dictionary 2082 (3d ed. 1993).
This court has previously relied on this very definition in a
related context. See United States v. Diaz-Ibarra, 522 F.3d
343, 349 (4th Cir. 2008) (interpreting the phrase "sexual
abuse of a minor" for purposes of sentencing enhancement in
U.S. Sentencing Guidelines Manual § 2L1.2). Likewise, we
find the most pertinent definition of "activity" to be "an occu-
pation, pursuit, or recreation in which a person is active."
Webster’s, supra, at 22.
Thus, as a matter of plain meaning, the phrase "sexual
activity" as used in § 2422(b) comprises conduct connected
with the "active pursuit of libidinal gratification" on the part
of any individual. The fact that such conduct need not involve
interpersonal physical contact is self-evident. See Diaz-
Ibarra, 522 F.3d at 351-52 (concluding that "‘sexual abuse of
a minor’ means the ‘perpetrator’s physical or nonphysical
misuse or maltreatment of a minor for a purpose associated
with sexual gratification’" (emphasis added)).
This meaning of the "sexual activity" element is not only
plain; it also renders the statutory scheme coherent as a
whole. This court has made clear that § 2422(b) "was
designed to protect children from the act of solicitation itself."
United States v. Engle, 676 F.3d 405, 419 (4th Cir. 2012)
(quoting United States v. Hughes, 632 F.3d 956, 961 (6th Cir.
2011), cert. denied, 131 S. Ct. 2975 (2011)). Consequently,
by forbidding the knowing persuasion, inducement, entice-
ment, or coercion of a minor, the statute "criminalizes an
intentional attempt to achieve a mental state—a minor’s
assent—regardless of the accused’s intentions concerning the
actual consummation of sexual activities with the minor." Id.
(quoting United States v. Berk, 652 F.3d 132, 140 (1st Cir.
2011)). The primary evil that Congress meant to avert by
enacting § 2422(b) was the psychological sexualization of
children, and this evil can surely obtain in situations where
the contemplated conduct does not involve interpersonal
physical contact.
UNITED STATES v. FUGIT 11
We cannot accept Fugit’s contention that absent an inter-
personal physical contact requirement, § 2422(b) becomes a
trap capable of snaring all sorts of innocent behavior. For sev-
eral reasons, our interpretation of the term "sexual activity" is
hardly open-ended. First, wide swaths of behavior simply can-
not be described as "sexual activity": indeed, the overwhelm-
ing preponderance of human interaction does not involve the
"active pursuit of libidinal gratification" in any minimally ten-
able way.
Second, § 2422(b) concerns only conduct that is already
criminally prohibited. That is, § 2422(b) does not criminalize
enticement of "sexual activity," full stop; instead, it forbids
enticement of "sexual activity for which any person can be
charged with a criminal offense." The latter category is con-
siderably narrower than the former. As a general matter, con-
duct that is innocuous, ambiguous, or merely flirtatious is not
criminal and thus not subject to prosecution under § 2422(b).
Third, § 2422(b) addresses only behavior involving chil-
dren. And there exists, of course, a vast range of everyday
adult-child interactions that are neither remotely erotic nor
independently illegal—from the salutary mentoring of teach-
ers, coaches, and counselors to the unintentional jostling
between strangers traversing a crowded city sidewalk.
Finally, we believe that the Seventh Circuit’s decision in
United States v. Taylor, 640 F.3d 255 (7th Cir. 2011), upon
which Fugit places great weight, was mistaken. The Taylor
court held that the phrase "sexual activity" in § 2422(b) is
synonymous with the phrase "sexual act," as defined in 18
U.S.C. § 2246(2). Id. at 259-60. That complex provision
defines "sexual act" to require not only interpersonal physical
contact but interpersonal physical contact involving the geni-
talia or anus—and, for persons who are sixteen or older,
requires either oral sex or actual penetration of the genital or
anal opening.
12 UNITED STATES v. FUGIT
We decline Taylor’s invitation to cut and paste this restric-
tive definition into § 2422(b) because doing so would contra-
vene express statutory text. Section 2246 explicitly limits the
definitions provided therein to the chapter in which it resides.
Specifically, the very first words of the section are "[a]s used
in this chapter" (with the various definitions following), and
the section’s title is "[d]efinitions for chapter." Whereas
§ 2246 appears in Chapter 109A of Title 18, § 2422(b) is situ-
ated in an entirely different location, Chapter 117. Simply put,
we find "no indication that Congress intended to import the
definitions of chapter 109A to [another] chapter." United
States v. Sonnenberg, 556 F.3d 667, 670 (8th Cir. 2009).
For the foregoing reasons, we hold that the phrase "sexual
activity" in § 2422(b) denotes conduct connected with the
"active pursuit of libidinal gratification" on the part of any
individual—nothing more, nothing less—and, therefore, does
not incorporate an invariable requirement of interpersonal
physical contact.
B.
Having thus determined the interpretation of § 2422(b)’s
"sexual activity" element, we must analyze whether the con-
duct at issue in this case supports Fugit’s claim of actual inno-
cence. In order to succeed, Fugit "must demonstrate that, ‘in
light of all the evidence,’ ‘it is more likely than not that no
reasonable juror would have convicted him.’" Bousley, 523
U.S. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28
(1995)).
1.
At the threshold of the actual innocence inquiry, the parties
spar over what universe of facts this court may take into
account. Fugit asserts that this universe is small and strictly
bounded. Invoking the precise text of the certificate of
appealability, Fugit contends that our review is limited to
UNITED STATES v. FUGIT 13
whether his "stipulated conduct constituted attempted induce-
ment of ‘sexual activity’ of a minor within the meaning of 18
U.S.C. § 2422(b)." He further argues that "stipulated conduct"
refers only to the Statement of Facts to which he conceded as
part of his guilty plea.
For several reasons, we think that the range of relevant con-
duct is significantly broader—even assuming that Fugit is cor-
rect that the phrase "stipulated conduct" in the certificate of
appealability denotes only the conduct discussed in the State-
ment of Facts. We are guided, first, by the Supreme Court’s
clear instruction that, because acceptance of a claim of actual
innocence from someone previously adjudicated guilty repre-
sents an extraordinary form of relief, the scope of pertinent
evidence is expansive. Schlup’s requirement that a person
prove actual innocence "in light of all the evidence" points to
this principle, 513 U.S. at 328 (emphasis added), and in Bous-
ley, the Court made it explicit:
It is important to note . . . that "actual innocence"
means factual innocence, not mere legal insuffi-
ciency. In other words, the Government is not lim-
ited to the existing record to rebut any showing that
petitioner might make . . . [and may rely on] any
admissible evidence of petitioner’s guilt even if that
evidence was not presented during petitioner’s plea
colloquy . . . .
523 U.S. at 623-24.
Moreover, the Supreme Court has specifically linked the
notion that actual innocence claims must surmount a high hur-
dle to the systemic interest in finality. See, e.g., Schlup, 513
U.S. at 324 (describing actual innocence jurisprudence as
"seek[ing] to balance the societal interests in finality, comity,
and conservation of scarce judicial resources with the individ-
ual interest in justice that arises in the extraordinary case");
Sawyer v. Whitley, 505 U.S. 333, 345 (1992) ("[P]etitioner’s
14 UNITED STATES v. FUGIT
standard [for actual innocence claims] would so broaden the
inquiry as to make it anything but a ‘narrow’ exception to the
principle of finality that we have previously described it to
be."). Given the Court’s pronouncements, we can only greet
skeptically Fugit’s effort to constrict the universe of evidence
relevant to his belated actual innocence claim.
Second, Gonzalez v. Thaler, 132 S. Ct. 641 (2012), con-
firms the propriety of considering a broad base of evidence
despite the arguably narrow span of the certificate of appeala-
bility. At issue in Gonzalez was 28 U.S.C. § 2253(c), which
requires that a person seeking to challenge an adverse district
court judgment on collateral attack obtain a certificate of
appealability. Specifically, § 2253(c) provides:
(1) Unless a circuit justice or judge issues a certifi-
cate of appealability, an appeal may not be taken to
the court of appeals from—
(A) the final order in a habeas corpus pro-
ceeding in which the detention complained
of arises out of process issued by a State
court; or
(B) the final order in a proceeding under
section 2255.
(2) A certificate of appealability may issue under
paragraph (1) only if the applicant has made a sub-
stantial showing of the denial of a constitutional
right.
(3) The certificate of appealability under paragraph
(1) shall indicate which specific issue or issues sat-
isfy the showing required by paragraph (2).
The Gonzalez Court determined that, whereas the baseline
requirement of a certificate’s existence in § 2253(c)(1) is
UNITED STATES v. FUGIT 15
jurisdictional in nature, the directive stated in subsection
(c)(3) constitutes a mere "claim-processing rule" and is conse-
quently non-jurisdictional. Id. at 648-49. "Accordingly," the
Court decided, "a judge’s failure to ‘indicate’ the requisite
constitutional issue . . . does not deprive a court of appeals of
subject-matter jurisdiction to adjudicate [an] appeal." Id. at
646.
By holding that the specific wording of the certificate of
appealability does not limit a court’s ability to adjudicate a
collateral attack as a matter of subject matter jurisdiction,
Gonzalez directs the conclusion that the reference to "stipu-
lated conduct" in the certificate does not constrain our consid-
eration of Fugit’s actual innocence claim in view of all of the
evidence in the record. In light of Bousley’s unequivocal mes-
sage that resolving such claims on an artificially restricted
record would eviscerate the critical systemic interest in final-
ity, we believe that we would be mistaken to confine our anal-
ysis to the stipulated Statement of Facts. Gonzalez confirms
that we need not do so.
And third, to treat the certificate of appealability as circum-
scribing the permissible ambit of arguments offered by the
government—as Fugit would have it—entirely upends con-
gressional intent as to the nature of appellate review over col-
lateral challenges to convictions. The Federal Rules of
Appellate Procedure make manifest that while the convicted
individual "cannot take an appeal unless a circuit justice or a
circuit or district judge issues a certificate of appealability
under 28 U.S.C. § 2253(c)," a certificate "is not required
when a state or its representative or the United States or its
representative appeals." Fed. R. App. P. 22(b)(1), (3); see also
Fed. R. App. P. 22 advisory committee’s note. The fact that
the government need not obtain a certificate of appealability
at all strongly indicates that the function of the certificate is
to restrain the appeal of insubstantial claims on collateral
attack, not to restrict artificially the government’s capacity to
respond to them.
16 UNITED STATES v. FUGIT
Although we thus decline to confine our review of Fugit’s
actual innocence claim to the Statement of Facts, we find it
unnecessary to explore the outer parameters of permissible
evidence. In particular, the facts set forth in the PSR stand on
a different—and firmer—footing than does other potentially
inculpatory evidence uncovered during the police investiga-
tion. As discussed above, Bousley speaks of "admissible evi-
dence of petitioner’s guilt." 523 U.S. at 624 (emphasis added).
Here, Fugit conceded the conduct discussed in the PSR in
open court (besides one allegation upon which we do not
rely), and the trial judge accordingly used those allegations as
the basis for his sentencing calculations, which this court has
affirmed. There is no need for us to address other evidence.
2.
With the boundaries of inquiry thus established, Fugit’s
actual innocence claim fails by a wide margin.
Given the interpretation of § 2422(b)’s "sexual activity"
element established above, Fugit falls far short of proving that
"it is more likely than not that no reasonable juror would have
convicted him" on Count Two, the § 2422(b) enticement
charge. Schlup, 513 U.S. at 327. In fact, Fugit’s conceded
conduct so surely satisfies the "sexual activity" element that
it is difficult to conceive of any reasonable juror not convict-
ing him.
Count Two appears to have been based on Fugit’s behavior
toward Jane Doe #2. The conduct described in the PSR with
respect to this victim is condemnatory. Fugit tricked this
eleven-year-old child into providing her telephone number
during an online chat in which he pretended to befriend her
as a girl named "Kimberly." During that chat, Fugit "inquired
as to the child’s breast size, her underwear, and whether or
not she had been nude in front of boys." When he telephoned
her, "[t]he victim asked to speak to Kimberly, however, the
defendant refused and stated that he was Kimberly’s father
UNITED STATES v. FUGIT 17
and needed to ask the victim some questions first." Later in
the conversation, he "inquired as to where the victim’s parents
were and told her he wanted her to go to another room." Fugit
thus attempted to lure this young girl away from her protec-
tors in hopes of exploiting her undisturbed. The PSR further
describes Fugit’s telephone inquiries to Jane Doe #2 "about
her underwear and bras" and whether she "had seen other girls
naked," had been "in a hot tub with other girls and boys," had
"seen a grown man naked," and "would mind seeing him
naked." Following these questions, Fugit requested that she
remove her shirt and, on more than one occasion, demanded
that she take off her pants as well. He also asked her to mas-
turbate. That such conduct qualifies as involving the "active
pursuit of libidinal gratification" on Fugit’s part is beyond
question.
Nor is the conduct disclosed in the Statement of Facts at all
exonerative. To the contrary, that document described how
Fugit baited two children into participating in "inappropriate
sexual conversation[s]" and asked at least one a barrage of
questions regarding her anatomy, underwear, and experiences,
as well as whether the two of them could be naked in front of
each other. Engaging young girls in the kind of discussions
described above plainly involves them in "sexual activity"—
that is, the "active pursuit of libidinal gratification." The idea
of an adult man behaving in such a manner is utterly unper-
suasive of "actual innocence," and Fugit’s procedural default
of his statutory claim cannot be excused on this ground.
C.
Fugit maintains, however, that he can satisfy the second
ground for excusing procedural default, cause and prejudice,
by establishing ineffective assistance of counsel under the
Sixth Amendment. See Murray v. Carrier, 477 U.S. 478, 488
(1986) ("Ineffective assistance of counsel . . . is cause for a
procedural default."). As an initial matter, this court has
agreed to consider a limited subset of Fugit’s ineffective
18 UNITED STATES v. FUGIT
assistance claims, and there is some question as to whether
those theories are sufficiently connected to the procedural
default in order to excuse it. We conclude, though, that we
need not consider Fugit’s ineffective assistance arguments for
this purpose at all, given the above disposition of the dispute
over the meaning of § 2422(b)’s "sexual activity" element.
That is, because we have decided that Fugit’s statutory claim
fails on the merits, whether that claim is defaulted has become
irrelevant.
IV.
Moreover, Fugit’s ineffective assistance arguments provide
no substantive grounds for relief. The Supreme Court has
made clear that ineffective assistance challenges brought
under the aegis of § 2255 are not themselves susceptible to
procedural default. Massaro v. United States, 538 U.S. 500,
503-04 (2003). We do not think, however, that Fugit’s inef-
fective assistance claims provide any independent basis for
overturning his conviction on Count Two.
The framework governing this analysis is familiar. In order
to establish ineffective assistance under the Sixth Amend-
ment, a person must show (1) that his attorney’s performance
"fell below an objective standard of reasonableness" and (2)
that he experienced prejudice as a result, meaning that there
exists "a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S. 668, 687-88,
694 (1984). A different inquiry is necessary with respect to
the prejudice prong, however, where a conviction is based
upon a guilty plea. In that situation, a person must demon-
strate "a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on
going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). In
discussing "the importance of protecting the finality of con-
victions obtained through guilty pleas," the Supreme Court
recently declared that "[s]urmounting Strickland’s high bar is
UNITED STATES v. FUGIT 19
never an easy task." Padilla v. Kentucky, 130 S. Ct. 1473,
1484-85 (2010).
A.
As for Strickland’s first prong, Fugit argues that his coun-
sel’s advice to plead guilty to Count Two constituted deficient
performance for two reasons. First, Fugit contends that his
attorney failed to inform him of a critical defense—
specifically, the argument that § 2422(b)’s "sexual activity"
element includes an interpersonal physical contact require-
ment. Given our rejection of this defense above, we find that
the performance of Fugit’s attorney did not fall below an
objective standard of reasonableness on this ground. Just as
"[i]t is certainly reasonable for counsel not to raise unmeritor-
ious claims," Truesdale v. Moore, 142 F.3d 749, 756 (4th Cir.
1998), it is equally reasonable for counsel not to advise clients
of unmeritorious defenses.
Next, Fugit argues that his attorney performed deficiently
by imparting erroneous advice regarding the plea process and
its consequences. Specifically, Fugit contends that his attor-
ney incorrectly informed him that he could not enter a "split
plea" of guilty to Count One and not guilty to Count Two
because both counts were presented in the same indictment.
Fugit also contends that his attorney told him that if he
pleaded guilty to both counts, his sentences would run concur-
rently (again because both counts were contained in a single
indictment), whereas, in actuality, the sentencing court
retained discretion to select either concurrent or consecutive
sentences and, in fact, ordered the latter. While any such
advice would have been erroneous, Fugit nonetheless fails to
satisfy the prejudice prong of the Lockhart inquiry.
B.
As outlined above, in order to prove prejudice in the guilty
plea context, a person challenging his conviction must estab-
20 UNITED STATES v. FUGIT
lish "a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on
going to trial." Lockhart, 474 U.S. at 59. The Supreme Court
has specified, furthermore, that such an individual "must con-
vince the court" that such a decision "would have been ratio-
nal under the circumstances." Padilla, 130 S. Ct. at 1485. The
challenger’s subjective preferences, therefore, are not disposi-
tive; what matters is whether proceeding to trial would have
been objectively reasonable in light of all of the facts. See
Pilla v. United States, 668 F.3d 368, 373 (6th Cir. 2012)
("The test is objective, not subjective . . . .").
Fugit falls far short of satisfying this standard. He insists
that "the record is . . . clear" that he "would not have pleaded
guilty to Count Two but for trial counsel’s erroneous advice."
Even if this statement is subjectively true, however, the deci-
sion to go to trial would not have been objectively reasonable
for the reasons discussed above. The evidence on Count Two
was overwhelming. Fugit conceded to contacting a young girl
over both the internet and telephone, lulling her into a false
sense of security by lying about his identity, asking her a sus-
tained series of totally inappropriate questions, and making
numerous patently lewd comments—including soliciting her
to undress and to masturbate. What is more, had Fugit pro-
ceeded to trial, he would have undoubtedly opened himself up
to multiple additional charges relating to multiple other vic-
tims and to child pornography as well.
Fugit, in other words, was lucky to receive the deal that he
did. Pleading guilty generally involves a conscious decision to
accept both the benefits and burdens of a bargain. That deci-
sion may not be lightly undone by buyer’s remorse on the part
of one who has reaped advantage from the purchase. Fugit,
consequently, cannot show that declining to plead guilty
"would have been rational under the circumstances," Padilla,
130 S. Ct. at 1485, and his remaining ineffective assistance
arguments thus fail for lack of prejudice. See Pilla, 668 F.3d
at 373 (finding that proceeding to trial would have been irra-
UNITED STATES v. FUGIT 21
tional where defendant "faced overwhelming evidence of her
guilt" and "had no rational defense, would have been con-
victed and would have faced a longer term of incarceration").
V.
There are cases where the most learned doctrines of law
match the most untutored lessons of common experience.
This is one of those. There is no innocence here, save that of
the child victims. Collateral review has nothing to correct.
The judgment is affirmed.
AFFIRMED