Dorian Ragland v. United States, 756 F.3d 597

In 2001 Ragland sold heroin to Zack Lane; Lane later died from central nervous system depression attributed to drugs he had taken.
In January 2006 the government filed an information and then an indictment charging Ragland with distributing heroin resulting in death under 21 U.S.C. § 841(a)(1) and (b)(1)(C).
After a mistrial at the first trial, a jury at retrial convicted Ragland; he was sentenced to 240 months and his conviction was affirmed on direct appeal.
Ragland filed a timely 28 U.S.C. § 2255 motion alleging ineffective assistance for failing to raise (1) a statute-of-limitations defense under 18 U.S.C. §§ 3282/3288 and (2) a challenge to the § 841(b)(1)(C) enhanced-penalty application.
The district court denied relief; this appeal raised whether counsel was ineffective for not asserting the statute-of-limitations defense and sought expansion of the certificate of appealability in light of the Supreme Court’s decision in Burrage.
The Eighth Circuit affirmed in part (statute-of-limitations claim), vacated in part, and remanded for consideration of Burrage’s effect and potential retroactivity.

Issue	Ragland's Argument	Government's Argument	Held
Whether counsel was ineffective for failing to assert that the filing of an information did not "institute" prosecution under 18 U.S.C. § 3282(a) (statute of limitations)	Counsel should have raised that an information filed on the last day of the limitations period does not "institute" prosecution and § 3288 does not save a later indictment	The filing of the information was sufficient to "institute" the proceeding (follow Burdix-Dana); counsel reasonably declined a novel, unsettled argument	Affirmed: counsel’s performance was not constitutionally deficient given split authority and lack of controlling precedent; no Strickland relief
Whether Burrage (but-for causation required for § 841(b)(1)(C) enhancement) entitles Ragland to relief or requires expanding the COA and remand	Burrage narrows the scope of § 841(b)(1)(C); Ragland argues his conviction lacked the required but-for causation and Burrage should apply retroactively on collateral review	Government relies on pre-Burrage Eighth Circuit precedent; argues counsel not ineffective for failing to anticipate change in law	In part vacated and remanded: court granted limited expansion of COA and remanded for district court to consider Burrage’s effect and retroactivity and any procedural bars

Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
Burrage v. United States, 134 S. Ct. 881 (but-for causation required for § 841(b)(1)(C) enhancement)
Schriro v. Summerlin, 542 U.S. 348 (new substantive rules generally apply retroactively)
Bousley v. United States, 523 U.S. 614 (cause-and-prejudice and actual-innocence gateways for collateral review)
Fields v. United States, 201 F.3d 1025 (counsel not ineffective for failing to assert unsettled legal claims)
United States v. Ragland, 555 F.3d 706 (direct-appeal opinion recited underlying facts and procedural history)
United States v. Burdix-Dana, 149 F.3d 741 (7th Cir. decision holding an information can "institute" prosecution under § 3282)