Brian Scott Witham v. United States of America

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0077p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIAN SCOTT WITHAM,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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No. 21-6214
Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville.
Nos. 3:15-cr-00177; 3:20-cv-00277—Thomas A. Varlan, District Judge.
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MICHAEL EUGENE SAVAGE,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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No. 23-3577
Appeal from the United States District Court for the Southern District of Ohio at Columbus.
Nos. 2:96-cr-00010; 2:20-cv-03139—Michael H. Watson, District Judge.
Argued: March 20, 2024
Decided and Filed: April 8, 2024
Before: SUTTON, Chief Judge; SUHRHEINRICH and MURPHY, Circuit Judges.
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COUNSEL
ARGUED: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant Witham. Eric S. Roytman, HOGAN
LOVELLS US LLP, Washington, D.C., for Appellant Savage. Mahogane D. Reed, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC.,
Knoxville, Tennessee, for Appellant Witham. Eric S. Roytman, Nathaniel A.G. Zelinsky,
HOGAN LOVELLS US LLP, Washington, D.C., Katherine B. Wellington, HOGAN LOVELLS
US LLP, Boston, Massachusetts, for Appellant Savage. Debra A. Breneman, UNITED STATES
ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee in 21-6214. Mahogane D. Reed,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Mary Beth Young,
UNITED STATES ATTORNEY’S OFFICE, Columbus, Ohio, for Appellee in 23-3577.
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OPINION
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SUTTON, Chief Judge. After being indicted for violating one or more criminal laws, a
defendant may plead guilty to some of the charges for all manner of reasons, including a
commitment by the government to drop other charges or to recommend a shorter sentence.
Criminal Rule 11 establishes a highly reticulated process to ensure that each defendant enters any
such agreement knowingly and voluntarily. The courts do not lightly undo such bargains.
Absent a mistake in the Rule 11 process or a preserved constitutional violation with respect to
the plea-bargaining process, a post-conviction claimant has few options for relief other than
executive-branch clemency. One narrow exception is that he may raise a claim of “actual
innocence” to an offense covered by the guilty plea, say because subsequent caselaw establishes
that the charge no longer amounts to a criminal offense. To obtain relief under this exception,
however, the claimant must demonstrate his “actual innocence” of any “more serious” charges
that the government dismissed as part of the plea deal. Bousley v. United States, 523 U.S. 614,
624 (1998).
Today’s consolidated cases raise a variation on this issue. When plea bargainers wish to
raise procedurally defaulted postconviction challenges to their offenses of conviction, but cannot

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show their actual innocence of “equally serious” dismissed counts, may we excuse the default?
The answer is no.
I.
A.
The first case involves Brian Witham. After finishing a term in prison for previous
federal crimes, he began looking for ways to raise capital. Conventionally, he turned to a bank.
Less conventionally, he and a co-defendant robbed the bank. After that, they turned to bank
employees, breaking into their homes and threatening to assault their spouses and children unless
the employees gave them cash from the bank vault.
The FBI caught Witham on the way to scout another bank employee. A grand jury
charged him with a slew of federal crimes: bank extortion, attempted bank extortion, carjacking,
felony firearm possession, and, as relevant here, six counts of using, carrying, and brandishing a
firearm in relation to a crime of violence. See 18 U.S.C. § 924(c). Each of these last six counts
carried a mandatory consecutive sentence of seven years to life. Id. § 924(c)(1)(A)(ii).
Witham struck a deal with the government. The government agreed to dismiss the felony
firearm possession charges and five of the six § 924(c) charges. Witham pleaded guilty to the
remaining charges, including one count of “using, carrying, and brandishing a firearm, during
and in relation to” attempted bank extortion. Id. § 924(c).
At sentencing, the district court determined that Witham’s § 924(c) offense carried a
mandatory minimum sentence of seven years and that the remaining offenses led to an advisory
guidelines range of 30 years to life—what came to a total guidelines range of 37 years to life.
The government asked the court to depart from the guidelines range and impose a total sentence
of about 33 years. In view of Witham’s cooperation with the government, the court departed
downward still further and imposed an overall sentence of 30 years. Witham appealed his
sentence on due process grounds, and we dismissed the appeal based on a direct-appeal waiver.
See United States v. Witham, No. 17-6010 (6th Cir. June 25, 2018) (order).
In 2020, Witham filed a motion to vacate his § 924(c) conviction under 28 U.S.C. § 2255.

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Invoking United States v. Davis, 139 S. Ct. 2319 (2019), which narrowed the categories of
offenses that count as “crimes of violence,” he argued that he did not commit a crime of violence
while using a firearm. The district court rejected the § 2255 motion, reasoning that Witham
procedurally defaulted the claim by failing to raise it on direct appeal. It held that Witham’s
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. We granted a certificate of appealability on the issue.
B.
Michael Savage’s case involves a different set of charges but comes to us in a similar
procedural posture. In 1995, Savage arranged to sell crack cocaine to a buyer. On his way to the
meeting place, he picked up some co-conspirators and gave them weapons. The group split up
upon arrival, with the co-conspirators waiting behind a building while Savage went out to the
buyer’s vehicle. The co-conspirators emerged with firearms drawn. Because the ostensible
buyer was an undercover federal agent, the drug transaction-turned-robbery ended with an arrest.
A grand jury indicted Savage for a slew of offenses: distribution and possession of
controlled substances, conspiracy to commit an offense against the United States, attempted
robbery of property belonging to the United States, intimidation of a federal official, possession
of an unregistered sawed-off shotgun, and, relevant here, two counts of using or carrying a
firearm during a crime of violence. Savage pleaded guilty to most of the charges, including a
§ 924(c) count of using a firearm during the attempted robbery of federal property. In exchange,
the government agreed to dismiss the other § 924(c) charge (using or carrying a firearm during
the crime of violence of assaulting a federal officer), and to dismiss the charge of possessing an
unregistered sawed-off shotgun.
The court sentenced Savage to roughly twelve years in prison. Savage did not appeal. In
2007, while on supervised release, he sold crack cocaine to an undercover federal officer. In
searching his residence, police found firearms and various controlled substances, all in violation
of the terms of his release. The court revoked his supervised release, sentencing him to another
thirty months in prison and more supervised release. Savage, again, did not appeal.

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After the Supreme Court’s Davis decision, Savage filed a postconviction challenge to his
§ 924(c) conviction in 2020. He argued that he was “actually innocent” of the offense because
attempted robbery of federal property does not amount to a crime of violence. The district court
disagreed. Our court reversed based on a confession of error. Savage v. United States,
No. 21-3406, 2022 WL 17660329, at *2 (6th Cir. Dec. 8, 2022).
On remand, the district court denied the petition on the ground that Savage procedurally
defaulted this claim when he opted not to file a direct appeal. The court concluded that it could
not excuse the default because he had “ma[de] no effort to show he was actually innocent of” the
two charges that were dismissed as part of his plea deal. Savage R.117 at 10. The court granted
a certificate of appealability to determine whether Bousley requires plea bargainers to show
actual innocence of dismissed counts of “equal seriousness with the count of conviction.”
Savage R.121.
II.
A few ground rules orient these appeals. An individual in federal custody may not obtain
relief under § 2255 with respect to a procedurally defaulted claim. See Reed v. Farley, 512 U.S.
339, 353–54 (1994). A § 2255 petitioner who “contested his sentence on appeal, but did not
challenge the validity of his plea,” has “procedurally defaulted” that claim. Bousley, 523 U.S. at
621. A petitioner is bound by his procedural default in all but the “extraordinary case,” such as
when the petitioner can demonstrate “actual innocence” of the crime. Schlup v. Delo, 513 U.S.
298, 321 (1995); see Bousley, 523 U.S. at 623.
At one level, Witham and Savage seem to have promising claims under this framework.
Although they defaulted their claims by failing to raise them on direct appeal, Davis establishes
that they are actually innocent of the charges of conviction. The government and the defendants
all agree that using a firearm during attempted bank extortion (Witham’s offense) and using a
firearm during attempted robbery of federal property (Savage’s offense) no longer qualify as
§ 924(c) violations. Davis, 139 S. Ct. at 2336.
The complication, anticipated by the Supreme Court in Bousley, is that before excusing a
default on “actual innocence” grounds, the federal courts must account for the other charges in

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the indictment that the government dismissed as a result of the plea deal. In thinking about this
complication, three possibilities exist: that the government, in return for the defendant’s guilty
plea, dismissed (1) more serious charges, (2) less serious charges, or (3) equally serious charges.
Bousley tells us what to do when the government dismisses more serious charges through
a plea bargain. It observed that, 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.” 523 U.S. at 624. Since Bousley, we have repeatedly required petitioners to show
actual innocence of any dismissed charges that are more serious than the crime of conviction.
See Peveler v. United States, 269 F.3d 693, 700 (6th Cir. 2001); Vanwinkle v. United States, 645
F.3d 365, 371 (6th Cir. 2011); Kimbrough v. United States, 71 F.4th 468, 475 (6th Cir. 2023).
Otherwise, the defendant faces a procedural default.
What of less serious charges? While Bousley does not say as much, it suggests that we
should excuse a procedural default when, in the course of a plea deal, the government dismisses
less serious charges than the now-actually-innocent charge of conviction. The D.C. Circuit has
made the point explicitly (and correctly, at least in that case), noting that less serious dismissed
charges should not be held against a petitioner. United States v. Caso, 723 F.3d 215, 223 (D.C.
Cir. 2013). “[W]e should not require a person to spend 30 years in prison on an erroneous
murder conviction,” it explained, “because he was guilty of an uncharged theft offense that
would carry a sentence of one year.” Id. Put another way, if it is “fair” to hold the parties to
their bargain to dismiss some charges in exchange for a “lesser penalty,” it is “unfair” to deny
relief when the dismissed charges would lead to less prison time for the defendant. Id.
Today’s two cases present the third scenario—dismissed charges that are equally serious
to the offense of conviction. Because the parties agree that the dismissed § 924(c) charges are
each equally serious to the § 924(c) offenses of conviction, carrying the same statutory
maximums and minimums, we need not dwell on the correct metric for gauging the point or on
whether to aggregate the dismissed charges in doing so. Cf. id. at 222–25.
In thinking about this third category, it helps to return to Bousley’s reasoning. It
recognized that there are “significant procedural hurdles” to claims like this one because the

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federal courts have “strictly limited the circumstances under which a guilty plea may be attacked
on collateral review.” 523 U.S. at 621. It observed that collateral review is an “extraordinary
remedy” that should not “do service for an appeal.” Id. (quotation omitted). It noted that
concerns about “finality” have “special force with respect to convictions based on guilty pleas”
that were not challenged on direct appeal. Id. (quoting United States v. Timmreck, 441 U.S. 780,
784 (1979)). It acknowledged in that case, as we must acknowledge in this one, that the
traditional explanations for excusing a procedural default—cause and prejudice—thus will prove
difficult when the defendant does not challenge the validity of his plea bargain on direct appeal.
Id. at 621–23. And it determined that the only source of relief for a claimant in Bousley’s
position was the narrow actual-innocence exception to the procedural-default rule. Id. at 623.
That meant the claimant must show that, “in light of all the evidence,” “it is more likely than not
that no reasonable juror would have convicted him”—and thus that the actual-innocence inquiry
extends to “factual innocence, not merely legal insufficiency.” Id. (quoting Schlup, 513 U.S. at
327–28 (quoting Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal
Judgments, 38 U. Chi. L. Rev. 142, 160 (1970))).
For these reasons, Bousley concluded, plea bargainers who invoke the actual-innocence
exception must “extend” their claim of actual innocence to forgone charges. Id. at 624. As we
have explained since Bousley, this approach avoids “the unfairness” that would result if a
petitioner could “raise a procedurally defaulted challenge to a sentence he bargained for, while
escaping punishment for dismissed counts that he actually committed.” Peveler, 269 F.3d at
701; see Lewis v. Peterson, 329 F.3d 934, 936 (7th Cir. 2003); Caso, 723 F.3d at 223.
Each thread of Bousley’s reasoning leads to the same place—that petitioners who secure
the dismissal of equally serious charges face the same requirements that apply to dismissal of
more serious charges. When a defendant enters a plea bargain after an indictment or after a
charge bargain before an indictment, he makes a calculation of risk that the benefits of the plea
bargain (a shorter sentence and fewer charges) outweigh the burdens (giving up the right to a
trial by jury and the possibility of acquittal). If the defendant makes that choice with respect to
one § 924(c) charge, it is likely he would make the same choice with another § 924(c) charge.

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If it is fair to hold the defendant to the bargain in the context of the dismissal of a more serious
charge, it is fair to do the same with the same charge (or another equally serious charge).
In both settings, “allowing a petitioner to raise a procedurally defaulted challenge to a
sentence he bargained for, while escaping punishment for dismissed counts that he actually
committed,” would flip the risk calculation on its head. Peveler, 269 F.3d at 701. Compared to
those who opted for a jury trial, the plea bargainer would face both a shorter sentence at the
outset and a similar chance at postconviction relief down the line. The finality of proceedings
would have no more “special force” for plea bargainers than for those who maintain their
innocence. Bousley, 523 U.S. at 621 (quotation omitted). The balance struck in Bousley was to
permit collateral attacks on guilty pleas to avoid injustice to a defendant, not to enable a
“windfall.” Lewis, 329 F.3d at 936.
“[O]nly if [the government] charges a less serious crime,” as the Seventh Circuit
concluded, “is there a strong reason to believe that the defendant was punished more severely by
virtue of having pleaded guilty to the count later learned to be invalid.” Id. at 937. Choosing to
pursue one “equally serious” charge over the other does not unfairly benefit the government. Id.
Had the government realized that “the charge to which [the petitioner] pleaded guilty was
unsound,” it “would have switched the plea to the sound charge,” and “the punishment would
probably have been the same.” Id. The Seventh Circuit added that there is a material difference
in kind between dismissing “less serious” and “equally serious” charges—the bad bargain and
the good one—making it appropriate to treat them differently.
A case-specific argument that Bousley rejected suggests as much. As it happens, Bousley
itself involved multiple potential § 924(c) offenses. 523 U.S. at 624. The government in
Bousley argued that the petitioner could not attack his § 924(c) conviction unless he could show
actual innocence of a different § 924(c) offense with which he had not been charged. Id.
According to the government in Bousley, then, the plea bargain there, like the plea bargain here,
involved the decision not to pursue equally serious charges. Yet Bousley did not reject the
government’s argument on the ground that it had identified only an equally serious (not a more
serious) § 924(c) charge. Rather, the Court rejected the argument because “no record evidence”

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suggested that the government had ever contemplated this second charge. Id. This inquiry
would have been entirely superfluous under the petitioners’ reading of Bousley. Id.
We thus join the Seventh Circuit—the only one to resolve this issue—in holding 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.” Lewis, 329 F.3d at 937. If a petitioner has accepted a plea bargain, he may
not collaterally attack his conviction unless he can show that he is actually innocent of equally or
more serious charges dismissed as part of the bargain. Because Witham and Savage’s plea
agreements both involved the dismissal of § 924(c) charges, and because neither of them has
shown actual innocence of the dismissed charges, we may not excuse their procedural defaults.
Witham and Savage raise several objections to this conclusion. They point out that
Bousley by its terms applies only to “more serious” dismissed charges. 523 U.S. at 624. That is
true. But “we don’t read precedents like statutes.” Herr v. U.S. Forest Serv., 803 F.3d 809, 819
(6th Cir. 2015). The reasoning of the decision applies here. Just as Bousley’s rationale may well
help prisoners when the dismissed charges are less serious than the accepted ones, it does not
help petitioners when the dismissed charges are more or equally serious than the accepted
charge.
The petitioners claim that the Third and Eighth Circuits have gone the other way. See
United States v. Lloyd, 188 F.3d 184 (3d Cir. 1999), abrogated in part on other grounds by
Dodd v. United States, 545 U.S. 353, 357 (2005); United States v. Johnson, 260 F.3d 919 (8th
Cir. 2001) (per curiam). We read the decisions differently. Lloyd merely holds that a petitioner
is “not required to demonstrate actual innocence of a foregone, less serious charge.” 188 F.3d at
185 (emphasis added). Johnson gives more pause than comfort to the petitioners. In the only
two relevant sentences of the opinion, the court says that it is addressing a claim by the
government that the dismissed charge was “more serious” than the convicted charge. 260 F.3d at
921. It never discusses the distinct concerns of equally serious charges and indeed never uses
that phrase or one like it.

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The petitioners also claim that Congress changed everything when it enacted 18 U.S.C.
§ 3296 in 2002, four years after the Court decided Bousley. Section 3296 establishes that, if a
criminal defendant successfully vacates his plea, the government may reinstate any dismissed
counts even after the statute of limitations has run on them. Id. § 3296(a). As the petitioners see
it, § 3296 undermines the explanation for Bousley and essentially occupies the field. To quote
Savage, Congress “decided” when it passed § 3296 that the remedy to address the “unfairness
that may arise when a petitioner vacates his plea” was “to suspend the statute of limitations and
allow the government to reinstate forgone charges—not to require a defendant to prove his
innocence of [forgone] charges.” Savage Appellant’s Br. 33. He accuses the district court of
distorting a “judge-made procedural default rule” by extending Bousley’s “judge-made equitable
caveat” after “Congress has already addressed” the same problem by statute. Id. at 5, 8, 9.
We are not convinced. In the two decades since the passage of § 3296, the Supreme
Court has not held, said, or hinted that this statute cuts back on Bousley or for that matter
overrules it. As an intermediary appellate court, we must follow Supreme Court decisions until
directed otherwise. For what it is worth, none of the lower court decisions to grapple with these
issues over the last two decades, including the Seventh Circuit in Lewis and the D.C. Circuit in
Caso, even cites the statute in the discussion.
There are good reasons why neither the Supreme Court nor any other court has invoked
§ 3296 in this way. The decision and the statute speak to distinct issues and proceedings.
Bousley tells courts how to address procedurally defaulted claims in the context of the
“extraordinary remedy” of postconviction relief. Bousley, 523 U.S. at 621. Section 3296 applies
after a defendant successfully vacates a plea agreement, for all manner of reasons and in all
manner of contexts, in order to give the government time to pursue a new conviction. The
possibility that the government might move to reinstate dismissed counts under § 3296 does not
displace the imperative to enforce procedural default rules and the finality of criminal judgments.
See Bousley, 523 U.S. at 621; Schlup, 513 U.S. at 322 (drawing procedural default lines to
prioritize “finality, comity, and conservation of judicial resources” (quotation omitted)).

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The defendants’ suggestion that Congress enacted § 3296 to cover post-conviction
remedies and overrule Bousley in the process is belied by the language of the statute. It directs
district courts to grant a motion to reinstate counts that “were dismissed pursuant to a plea
agreement” when “the guilty plea was subsequently vacated on the motion of the defendant.”
That language does not cover just postconviction motions to vacate sentences. It likely allows
charges to be reinstated if a district court allows a defendant to withdraw his plea before
sentencing, see Fed. R. Crim. P. 11(d), or if a defendant successfully appeals his conviction, see
United States v. Petties, 42 F.4th 388, 397–98 (4th Cir. 2022). Even in the postconviction
posture, it is an open question whether the statute applies to a case like this one. When a
defendant pleads guilty to multiple offenses, as Witham and Savage did, does granting a § 2255
motion to correct a sentence on just one of the counts rises to the level of the vacatur “of the
guilty plea”? Id. At the very least, the reality that § 3296 applies across the board to more
serious, equally serious, and less serious dismissed charges shows that § 3296 does not take on
the concerns Bousley addressed.
While Savage frames Bousley as a “judge-made . . . carve-out to the actual-innocence
exception,” Savage Appellant’s Br. 3, the decision in truth harmonizes two judge-made rules.
On the one side sits the procedural default rule, which “limit[s] the habeas practice” that the
Court “radically expanded in the early or mid-20th century.” McQuiggin v. Perkins, 569 U.S.
383, 402 (2013) (Scalia, J., dissenting). On the other side sits the actual innocence rule, which
applies when “a constitutional violation has probably resulted in the conviction of one who is
actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986). Before Bousley, it was not
clear how those two judge-made doctrines applied to plea bargainers. Could a person who
pleaded guilty still be considered “actually innocent”? See Bousley, 523 U.S. at 630 (Scalia, J.,
dissenting) (noting that, until Bousley, the Supreme Court had applied the actual innocence
doctrine only after a conviction by a jury). Bousley draws that line. A plea bargainer can qualify
as “actually innocent” and thus have his procedural default excused, but only if he can show
factual innocence of his offense of conviction and certain other forgone charges. Id. at 623–24
(majority opinion). Bousley, in short, is not an exception to Congress’s habeas scheme. It brings

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the various threads of the Court’s habeas doctrine together in a way that allows some plea
bargainers to get relief.
Petitioners’ repeated concerns about “judge made” rules also do not account for the
words of the statute under which Savage and Witham sought relief: 28 U.S.C § 2255. “If the
court finds,” it says, “that the judgment was rendered without jurisdiction, or that the sentence
imposed was not authorized by law or otherwise open to collateral attack, or that there has been
such a denial or infringement of the constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and
shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may
appear appropriate.” Id. § 2255(b) (emphasis added). Procedural default rules work with—they
do not contradict—the italicized language: “that there has been such a denial or infringement of
the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.”
When Congress passed § 2255 in 1948, as the Court explained in United States v. Frady, it
brought the common law customs of habeas law with it, including the longstanding rule that “a
collateral challenge may not do service for an appeal.” 456 U.S. 152, 165 (1982). It’s not
enough to win a “collateral attack,” in other words, to show a constitutional violation by itself.
The petitioner must show that it is “vulnerable” to attack years later. Judge-made or not, old or
new, see Massaro v. United States, 538 U.S. 500, 504 (2003), the procedural-default rule
amounts to a fair way to operationalize the words of the key congressional statute on point.
No doubt, if we faced the choice between applying an equitable judge-made rule or a
statute “directly address[ing]” the issue, we would pick the statute. Lonchar v. Thomas, 517 U.S.
314, 326 (1996); see id. at 323 (explaining that courts make equitable rules to govern habeas
relief “when Congress has not resolved the question”). But § 3296 simply does not speak to the
issue, and there is another statute in play anyway: § 2255.
The two statutes work together, moreover, not apart. Under § 2255 (as under § 2254), it
is difficult for plea bargainers to raise defaulted postconviction challenges. See Bousley, 523
U.S. at 621, 624. They need to exercise diligence in pursuing their claims on direct appeal or
show that theirs is the unusual case that warrants excusing procedural default. That is not easy

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because the petitioner faces the burden of proof and the government may use evidence not in the
record to counter the petitioner’s claims. Id. Under § 3296, the government has an extended
timeline in which to pursue a new conviction in the event the petitioner vacates his guilty plea
for any reason, whether in front of the trial court, on direct appeal, or in a collateral attack. See
18 U.S.C. § 3296. Each statute is trained at different objectives, imposes different burdens, and
is subject to different evidentiary rules. Respecting each of these laws does not undermine the
National Legislature’s approach. It’s the approach Congress put in place.
It does not change matters that one explanation for Bousley, at least according to the
lower courts, is that the relevant statute of limitations might make it difficult to reinstate
dismissed charges. See Peveler, 269 F.3d at 701; Lloyd, 188 F.3d at 189 n.11. But even if we
accepted that this was one potential explanation for Bousley and even if we accepted that § 3296
addressed that problem, that offers no reason for ignoring the other explanations for Bousley,
indeed the only explanations the Court offered. Even before § 3296 extended these statutes of
limitations, it’s well to remember, the government sometimes was not time-barred from
reinstating those charges that did not have a statute of limitations. See, e.g., Hawk v. Berkemer,
610 F.2d 445, 446–47 (6th Cir. 1979).
The petitioners are correct that Bousley could have explicitly stated that plea bargainers
must show actual innocence of “more or equally serious charges.” But they must come to grips
with the reverse. Bousley might just as easily have explicitly stated that plea bargainers need
“only” show actual innocence of “more serious charges.”
The petitioners worry that requiring a defendant to demonstrate actual innocence of a
dismissed charge is “in serious tension with the constitutional presumption of innocence.”
Savage Appellant’s Br. 43–44. But that critique goes to the correctness of Bousley, not to
today’s case. The argument at any rate is undercut by the reality that the presumption of
innocence applies to criminal defendants, not to convicted felons seeking to collaterally attack
their convictions after failing to do so on direct appeal. See Herrera v. Collins, 506 U.S. 390,
399 (1993). The government can lawfully require a petitioner seeking postconviction relief to
show more than just innocence. It can require a petitioner to demonstrate that his is an

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“extraordinary case” warranting relief, Schlup, 513 U.S. at 321 (quotation omitted), including by
showing that he is “factual[ly]” innocent, Bousley, 523 U.S. at 623.
The petitioners claim that we should not require them to show actual innocence of the
dismissed firearms charges to the extent that they relate to distinct conduct from the § 924(c)
offenses underlying their convictions. For example, while Witham pleaded guilty to using a
firearm when he attempted bank extortion on October 21, 2015, the dismissed charges related to
his use of a firearm in committing crimes on other days. But nothing in Bousley limits its
reasoning to identical crimes committed on the same day or to otherwise identical offenses.
Otherwise, why have an exception for “more serious” crimes? The Fourth Circuit’s decision in
United States v. Adams may well suggest an exception to Bousley when the conduct underlying
the dismissed charges is “dissimilar” from the offense of conviction, such as when the dismissed
charges relate to robbery and the offense of conviction concerns felony possession of a firearm.
814 F.3d 178, 184 (4th Cir. 2016). But, even on its own terms, Adams does not apply to this
case. All of the dismissed charges against Witham and Savage are firearms offenses, making it
odd to call them “dissimilar.” In fact, Adams itself treated charges “focused on underlying
criminal conduct relating to firearms” as similar. Id.
The petitioners each point to specific facts that purportedly justify case-specific
exceptions to these rules for their appeals. Savage, for instance, highlights that his plea bargain
involved only one dismissed § 924(c) charge, as compared to Witham’s multiple. Witham,
meanwhile, stresses the various ways that he cooperated with prosecutors and helped them
secure convictions. These facts and circumstances, however, are more relevant to resolving
whether the petitioners were prejudiced by the imposition of now-invalid charges than whether
they need to show that they are actually innocent of them. Although the logic of Bousley in
some ways echoes a prejudice or harmless-error analysis, see Lewis, 329 F.3d at 937, different
standards apply to each inquiry, see Schlup, 513 U.S. at 327. Prejudice does not necessarily
require courts to peer behind the plea bargain to look at forgone charges, whereas actual
innocence does. See United States v. McKinney, 60 F.4th 188, 197 (4th Cir. 2023). And while
we take a totality-of-the-circumstances approach to determining whether a petitioner has suffered
prejudice or a harmful error, Frady, 456 U.S. at 169, Bousley turns this general standard into the

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Nos. 21-6214/23-3577 Witham v. United States
Savage v. United States
Page 15
more specific rule that the petitioner must show actual innocence of forgone charges. Bousley
requires only that courts ask (1) whether the plea bargain at issue involved dismissed charges,
and (2) whether those dismissed charges were more, equally, or less serious than the offense of
conviction. See 523 U.S. at 624; see, e.g., Kimbrough, 71 F.4th at 475. Those objective criteria
work against some petitioners and in favor of others. Just as we may not selectively ignore
Bousley’s “actual innocence” showing when the facts-and-circumstances equities of a plea
bargain favor a particular petitioner, we cannot extend Bousley’s burden to less serious charges
when those equities run in the other direction.
As one final point, Savage contests the district court’s determination that he cannot show
good cause for his procedural default. But he never obtained a certificate of appealability on the
district court’s conclusion that he failed to show good cause. That question thus is not properly
before us. See 28 U.S.C. § 2253(c). Nor has Savage demonstrated that “reasonable jurists could
debate whether the district court should have granted relief,” the threshold showing for the
issuance of a certificate of appealability. Mitchell v. United States, 43 F.4th 608, 614 (6th Cir.
2022) (quotation omitted).
We affirm.

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