Guilty pleas; Procedurally defaulted postconviction challenges; “Actual innocence”; United States v Bousley; Lewis v Peterson (7th Cir); Motion under 28 USC § 2255 to vacate a firearm conviction under 18 USC § 924(c); United States v Davis; Whether 18 USC § 3296 overruled Bousley

In these consolidated cases, the court held for the first time that it would not excuse plea bargainers’ procedurally defaulted postconviction challenges to their offenses of conviction unless, under Bousley, they can show their actual innocence of “equally serious” dismissed counts. Petitioner-Witham was charged with crimes related to bank robbery, including felony-firearm and six counts of using, carrying, and brandishing a firearm in relation to a crime of violence under § 924(c). The government dismissed the felony-firearm charges and five of the § 924(c) charges, and he pled guilty to the remaining charges, including one § 924(c) charge. Witham later moved to vacate the § 924(c) conviction under § 2255, citing Davis. The district court denied his motion, ruling that his failure to raise the claim on direct appeal resulted in a default, and that his “actual innocence of the attempted bank extortion/firearm charge did not make a difference when it comes to excusing the default because he could not show his innocence with respect to the other dismissed firearms charges.” Petitioner-Savage was also charged with several crimes, including two § 924(c) counts. He pled guilty to “a § 924(c) count of using a firearm during the attempted robbery of federal property.” The other § 924(c) charge was dismissed. He did not appeal. After Davis, he filed a postconviction challenge to his § 924(c) conviction. His petition was also denied. The issue before the court was “whether Bousley requires plea bargainers to show actual innocence of dismissed counts of ‘equal seriousness with the count of conviction.’” Pursuant to Bousley, “when the Government gives up ‘more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.’” The scenario presented here concerned “dismissed charges that are equally serious to the offense of conviction.” Joining the Seventh Circuit, the court held that “the Bousley rule ‘does not require that the charge that was dropped or forgone in the plea negotiations be more serious than the charge to which the petitioner pleaded guilty. It is enough that it is as serious.’” The court also rejected petitioners’ arguments that § 3296 overruled Bousley. Affirmed.