United States v. McIntosh
676 F. App'x 792
| 10th Cir. | 2017Background
- McIntosh, an inmate, was convicted by a jury of multiple counts for assaulting prison employees by hitting them with urine and other bodily fluids in violation of 18 U.S.C. § 111(a)(1); he received a 144-month sentence.
- He filed a 28 U.S.C. § 2255 motion raising many claims (indictment defects, jury instructions, sentencing, perjury, ex post facto, prosecutorial misconduct); the district court denied relief in a detailed 45-page order and denied a certificate of appealability (COA).
- McIntosh sought a COA from the Tenth Circuit to appeal the § 2255 denial; the district court found most claims procedurally defaulted because they were not raised on direct appeal.
- His primary specific claim for review was that appellate counsel was ineffective for failing to argue the trial court should have instructed the jury on the lesser included misdemeanor offense of "simple assault."
- Tenth Circuit precedent later clarified that assault (willful attempt/threat) is an element of all § 111(a) offenses and that "simple assault" is a lesser-included offense of "assault involving physical contact," but the court found the distinction (physical contact) was not in dispute at trial.
- McIntosh also asserted actual innocence, but he offered no new reliable evidence not presented at trial; the court therefore found Schlup/McQuiggin gateway relief inapplicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether COA should issue for § 2255 denial | McIntosh: reasonable jurists could debate denial; appeals counsel ineffective for not raising jury-instruction claim | Government: claims are procedurally defaulted; appellate counsel not ineffective because instruction not warranted | COA denied; denial not debatable; appeal dismissed |
| Whether appellate counsel was ineffective for not arguing omission of lesser-included instruction | McIntosh: counsel should have challenged absence of "simple assault" instruction | Government: no deficiency because instruction was not warranted by evidence; physical-contact element undisputed | No ineffective-assistance: instruction unwarranted, so failure to raise was not prejudicial |
| Whether "simple assault" is a lesser-included offense of § 111(a)(1) "assault involving physical contact" | McIntosh: (implied) entitled to instruction | Government: (before precedent) argued differences in elements | Court: Under later Tenth Circuit law, "simple assault" is a lesser-included offense, but not applicable here because elements distinguishing offenses were not contested at trial |
| Whether McIntosh made a Schlup/McQuiggin actual-innocence showing to overcome procedural default | McIntosh: trial witnesses lied; videotape insufficient | Government: no new reliable evidence presented | Actual innocence gateway not shown; no new reliable evidence, so procedural bar stands |
Key Cases Cited
- Miller-El v. Cockrell, 537 U.S. 322 (COA standard)
- Slack v. McDaniel, 529 U.S. 473 (COA where district court rests on procedural grounds)
- United States v. Wolfname, 835 F.3d 1214 (Tenth Cir. 2016) (assault element applies to all § 111(a) offenses)
- Schmuck v. United States, 489 U.S. 705 (lesser-included-offense instruction framework)
- Schlup v. Delo, 513 U.S. 298 (actual-innocence gateway requires new reliable evidence)
- McQuiggin v. Perkins, 133 S. Ct. 1924 (actual innocence as gateway to federal habeas review)
- Cannon v. Mullin, 383 F.3d 1152 (failure to raise meritless claims is not ineffective assistance)