Christopher McCoy v. United States , 815 F.3d 292 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2741
CHRISTOPHER H. MCCOY,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 13-cv-1318-DRH — David R. Herndon, Judge.
____________________
ARGUED NOVEMBER 3, 2015 — DECIDED MARCH 2, 2016
____________________
Before WOOD, Chief Judge, EASTERBROOK, Circuit Judge,
and BRUCE, District Judge. *
BRUCE, District Judge. Christopher H. McCoy, appeals the
dismissal of his motion to vacate, set aside, or correct sen-
tence under 28 U.S.C. §2255. On appeal, McCoy argues that
the magistrate judge who accepted his felony guilty plea ex-
* Of the Central District of Illinois, sitting by designation.
2 No. 14-2741
ceeded his authority under the Federal Magistrates Act (28
U.S.C. §636) and Article III of the U.S. Constitution. This ar-
gument was neither raised on direct appeal or in the §2255
proceedings before the district court. Rather, it is raised for
the first time in this court on this appeal. Because McCoy did
not demonstrate sufficient cause for his failure to present
this claim in the earlier proceedings, we affirm the district
court’s dismissal of his §2255 motion.
I.
Christopher H. McCoy was indicted on May 18, 2011, in
the Southern District of Illinois on five felony child pornog-
raphy charges: (1) enticement of a minor in violation of 18
U.S.C. §2422(b); (2) distribution of child pornography in vio-
lation of 18 U.S.C. §2252(a)(2); (3) transfer of obscene materi-
al to a minor in violation of 18 U.S.C. §1470; (4) receipt of
child pornography in violation of 18 U.S.C. §2252(a)(2); and
(5) possession of child pornography in violation of 18 U.S.C.
§2252(a)(4)(B).
On September 19, 2011, McCoy pled guilty to all of the
enumerated counts before U.S. Magistrate Judge Donald G.
Wilkerson. McCoy consented to having the magistrate judge
perform his plea colloquy under Federal Rule of Criminal
Procedure 11 and to having the magistrate judge accept his
guilty plea. At the time of McCoy’s plea, Local Rule
72.1(b)(2) for the U.S. District Court for the Southern District
of Illinois authorized magistrate judges to accept guilty pleas
in felony cases with the consent of the parties. This was a full
acceptance by a magistrate judge of a felony guilty plea, and
not a situation where a magistrate judge made a report and
recommendation to the district court judge, with the district
No. 14-2741 3
court judge having final say over whether to approve the re-
port and recommendation and accept the guilty plea.
On January 27, 2012, U.S. District Court Judge David R.
Herndon sentenced McCoy to 327 months in prison.
McCoy filed a direct appeal to this court, arguing that his
sentence was unreasonable and that the district court im-
properly weighed the U.S. Sentencing Commission’s factors
for sentencing. On August 15, 2012, this court issued an or-
der rejecting McCoy’s arguments and affirming his sentence.
See United States v. McCoy, 493 Fed. Appx. 767, 771 (7th Cir.
2012). The U.S. Supreme Court denied McCoy’s petition for
a writ of certiorari on January 22, 2013.
On December 19, 2013, McCoy filed a pro se motion to va-
cate, set aside, or correct sentence under 28 U.S.C. §2255, ar-
guing that he received ineffective assistance of counsel and
that an insufficient factual basis existed to support his con-
viction on the enticement count under 18 U.S.C. §2422(b).
McCoy was appointed counsel.
On March 25, 2014, with the help of counsel, McCoy filed
an amended §2255 motion. The amended motion raised
three grounds: (1) ineffective assistance of counsel in advis-
ing McCoy to plead guilty to the enticement count; (2) insuf-
ficient factual basis to support a conviction under §2422(b)
(enticement); and (3) ineffective assistance of counsel for
failure to file a motion to suppress the enticement count.
Following a hearing on July 31, 2014, the district court
denied McCoy’s §2255 motion. On August 6, 2014, McCoy
filed a notice of appeal and moved to proceed on appeal in
forma pauperis. The district court denied McCoy’s motion,
finding the appeal was taken in bad faith. On August 20,
4 No. 14-2741
2014, the district court declined to issue McCoy a certificate
of appealability.
Upon learning of this court’s decision in United States v.
Harden, 758 F.3d 886 (7th Cir. 2014), McCoy filed a “motion
to vacate appeal for lack of subject matter jurisdiction” with
this court. In Harden, this court held that magistrate judges
do not have authority under the Federal Magistrates Act to
accept felony guilty pleas, and that neither the defendant’s
consent nor lack of apparent harm to the defendant preclud-
ed reversal. Harden, 758 F.3d at 890–91. The court declined to
reach the defendant’s constitutional claim that alleged the
magistrate judge’s acceptance of a felony guilty plea violated
the structural guarantees of Article III. Harden, 758 F.3d at
891.
McCoy argued that, based on Harden, the magistrate
judge unlawfully accepted his felony guilty plea. We con-
strued McCoy’s motion as an application for a certificate of
appealability. On October 21, 2014, we entered an order
granting McCoy a certificate of appealability and instructing
counsel to brief the following issues: (1) has McCoy default-
ed any claim regarding the acceptance of his pleas by a mag-
istrate judge; and (2) if the claim is not defaulted, is McCoy
entitled to any relief, and if so, what relief is appropriate?
II.
McCoy argues that his procedural default for not raising
the issue on direct appeal or in his §2255 motion before the
district court can be excused. He argues that the unavailabil-
ity of the Harden decision provides sufficient cause for pro-
cedural default and that, because a magistrate judge’s ac-
ceptance of a felony guilty plea is so fundamental as to con-
No. 14-2741 5
stitute structural error, he need not demonstrate prejudice. If
procedural default is excused, McCoy argues the magistrate
judge exceeded his authority under the Federal Magistrates
Act and Article III when he accepted McCoy’s guilty plea,
and that the only appropriate relief is to allow him to with-
draw his guilty plea.
A claim cannot be raised for the first time in a §2255 mo-
tion if it could have been raised at trial or on direct appeal.
Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).
Likewise, a §2255 appellant cannot raise for the first time on
appeal a claim not presented to the district court in the §2255
proceedings below. Pierce v. United States, 976 F.2d 369, 371
(7th Cir. 1992). A federal prisoner cannot bring defaulted
claims on collateral attack unless he shows both cause and
prejudice for the default. Hale v. United States, 710 F.3d 711,
713 (7th Cir. 2013); Gant v. United States, 627 F.3d 677, 683
(7th Cir. 2010). Absent a showing of both cause and preju-
dice, procedural default will only be excused if the prisoner
can demonstrate that he is “actually innocent” of the crimes
of which he was convicted. Torzala v. United States, 545 F.3d
517, 522 (7th Cir. 2008). McCoy has made no argument that
he is actually innocent of the offenses to which he pled
guilty. Therefore, his failure to raise the magistrate judge
claim will only be excused if he can demonstrate cause and
prejudice for the default.
McCoy argues that he can show cause because his argu-
ment “was not reasonably available on either direct appeal
or during his §2255 proceedings with the district court.”
Specifically, McCoy claims that he is basing his argument on
this court’s decision in Harden, a case that conflicts with all
prior federal circuit court precedent and was not issued until
6 No. 14-2741
July 14, 2014. Therefore, he had cause for not raising this ar-
gument before now.
In support of his argument, McCoy cites to the U.S. Su-
preme Court’s decision in Reed v. Ross, 468 U.S. 1, 104 S.Ct.
2091, 82 L.Ed.2d 1 (1984), where the Court held “where a
constitutional claim is so novel that its legal basis is not rea-
sonably available to counsel, a defendant has cause for his
failure to raise the claim in accordance with applicable state
procedures.” Reed, 468 U.S. at 16. The Court then articulated
three examples of when a claim is not “reasonably available”
so as to be considered novel: (1) the obvious case where a
Supreme Court decision explicitly overrules prior precedent;
(2) where a decision overturns 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, a claim based on that decision would
not have been reasonably available before then; and (3) a
claim may not have been reasonably available at earlier
stages of the litigation if based on a new decision disapprov-
ing of a practice which the Supreme Court had previously
sanctioned. Boyer, 55 F.3d at 298, citing Reed, 468 U.S. at 17.
McCoy argues the second Reed exception applies to his
case, because, before Harden, the only federal courts to have
considered the issue all found that a magistrate’s acceptance
of a felony guilty plea did not violate Article III or the Feder-
al Magistrates Act. See United States v. Benton, 523 F.3d 424,
431–32 (4th Cir. 2008); United States v. Woodard, 387 F.3d
1329, 1332–33 (11th Cir. 2004); United States v. Ciapponi, 77
F.3d 1247, 1250–52 (10th Cir. 1996). Thus, he claims, the ar-
gument was so novel that its legal basis was not reasonably
No. 14-2741 7
available to him at the time of direct appeal or his §2255 pro-
ceeding.
We find McCoy’s argument to be unavailing. First, the
Harden decision on which McCoy bases his claim was issued
a full two weeks before the hearing in the district court on
his §2255 motion. Harden was not an obscure, unpublished
order dealing with a minor legal matter in a distant district.
Rather, it was a published decision of this court that origi-
nated from the same district and even the same judge as
McCoy’s case. Further, Harden concerned an important legal
matter implicating procedures that were, from what this
court can tell, exclusive to the Southern District of Illinois.
Harden obligated courts in the Southern District to change
their longstanding practice of allowing magistrate judges to
accept felony guilty pleas. There can be no doubt that the
decision, from the moment it was issued on July 14, 2014,
made an immediate impact on criminal practice in the feder-
al courts in the Southern District. In this context and under
these facts, we find that an argument based on Harden would
have been fully available to McCoy to amend his §2255 mo-
tion by the time of the July 31, 2014, hearing.
By not presenting his argument based on Harden to the
district court, McCoy procedurally defaulted such an argu-
ment in this court. See Pierce, 976 F.2d at 371. Having found
that the Harden decision was available to McCoy during the
pendency of his §2255 motion, McCoy cannot show cause for
his procedural default. See Bousley v. United States, 523 U.S.
614, 623, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998). There-
fore, the decision of the district court dismissing his §2255
motion is affirmed.
AFFIRMED.