United States v. Avery, No. 12-35209 (9th Cir. 2013)
Annotate this CaseDefendant appealed the district court's denial of his 28 U.S.C. 2255 federal habeas corpus petition based upon the Supreme Court's decision in Skilling v. United States, which narrowed the scope of the honest services fraud theory. Defendant,a former attorney and trustee of private trusts, pleaded guilty to honest services fraud. The government conceded that defendant was actually innocent of honest services fraud in light of Skilling, which confined the reach of the offense to cases of bribes and kickbacks. The court vacated the district court's dismissal of defendant's honest services fraud claim where no evidence suggested that defendant either engaged in bribery or received kickbacks.
Court Description: Habeas Corpus. The panel vacated the district court’s denial of a 28 U.S.C. § 2255 motion to vacate a sentence after petitioner pled guilty to wire fraud, money laundering, and criminal forfeiture, and remanded for further proceedings. After serving almost four years of his sentence, petitioner sought federal habeas relief, claiming his conviction and sentence were invalidated by the Supreme Court’s decision in Skilling v. United States, 130 S. Ct. 2896 (2010), which narrowed the scope of the honest services fraud theory. The panel concluded that petitioner pled guilty only to honest services fraud and cannot be deemed to have been convicted or sentenced based on a broader charge that was not incorporated into the plea agreement and not acknowledged by petitioner as true when he pled guilty. The panel held that, because the crime to which petitioner pled guilty and for which he was incarcerated is no longer a criminal offense, petitioner’s actual innocence overcomes the procedural default of his claim challenging his conviction.
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