United States v. Avery

When seeking habeas corpus relief, actual innocence overcomes the procedural default of a claim challenging the conviction, and a defendant cannot be considered to have been convicted or sentenced based on a broader charge that was not part of the plea agreement.

Mark Avery pled guilty to wire fraud, money laundering, and criminal forfeiture. Almost four years into his 102 months of imprisonment, Avery sought habeas relief, arguing that the Supreme Court’s decision in Skilling v. United States invalidated his conviction and sentence because it “narrowed the scope of the honest services fraud theory” under 18 U.S.C. § 1346. The district court denied Avery’s petition, concluding that he had procedurally defaulted his claim because he had failed to raise it on direct review. On appeal to the Ninth Circuit, Avery argued that the district court erred in finding that he had procedurally defaulted on his honest services fraud challenge, and, in the alternative, that he could prove “actual innocence or cause and prejudice to overcome any default.” To determine whether Avery was actually innocent, the panel had to identify which offenses he had actually pled guilty to. Looking to the actual language in the plea agreement, the panel found that Avery pled guilty only to honest services fraud, and thus could not be considered convicted of the broader charge of money-or-property based fraud. Under Skilling, Avery was innocent of honest services fraud, and because there was no evidence suggesting that Avery “engaged in bribery or received kickbacks,” the crime Avery pled guilty to was no longer a criminal offense. The panel held that Avery’s innocence was sufficient to allow review of his habeas claim, even though he had procedurally defaulted by failing to raise it on direct review. VACATED and REMANDED.