United States v. Michael Dunkel
685 F. App'x 234
| 4th Cir. | 2017Background
- Defendant Michael Brian Dunkel pleaded guilty to fraud under 18 U.S.C. § 1031 for using a front company to obtain NASA contracts and admitted the scheme related to procurements valued over $1,000,000 (including Contract A86B).
- Dunkel filed a § 2255 motion alleging ineffective assistance of counsel (IAC) on multiple grounds and that his conduct did not meet § 1031’s $1 million jurisdictional threshold.
- The district court denied relief; Dunkel sought a certificate of appealability to challenge that denial.
- Dunkel conceded procedural default as to the § 1031 challenge and invoked actual innocence or cause-and-prejudice (IAC) to excuse default.
- At sentencing Dunkel stipulated that he and Company B gained at least $2.9 million; the government called two victim-impact witnesses about loss at sentencing.
- The Fourth Circuit independently reviewed the record, found Dunkel’s claims meritless, denied a certificate of appealability, and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1031’s $1M jurisdictional requirement requires a single prime contract/subcontract | Dunkel: § 1031 requires a single $1M prime contract/subcontract and his scheme lacked one | Gov: § 1031 covers procurements or other federal assistance totaling $1M; single-contract requirement not required | Rejected Dunkel; § 1031 covers procurements/assistance ≥ $1M; stipulation placed conduct within § 1031 |
| Whether Dunkel can overcome procedural default via actual innocence | Dunkel: He is actually innocent because statutory construction excludes his conduct | Gov: Dunkel stipulated scheme involved > $1M and statutory language covers such schemes | Rejected; stipulation and statutory reading show no actual innocence |
| Whether IAC (failure to raise § 1031 issue) excuses default | Dunkel: Counsel was ineffective for not raising § 1031 argument | Gov: Counsel’s performance was not deficient because § 1031 argument lacked merit | Rejected; no deficient performance or prejudice because § 1031 claim fails |
| Whether counsel was ineffective for not advising about SORNA registration | Dunkel: Counsel failed to warn that conviction would trigger SORNA registration | Gov: SORNA retroactively applied to Dunkel pre-plea; advising would not have changed outcome | Rejected; no deficiency or prejudice because SORNA applied regardless |
| Whether counsel erred by advising stipulation to $2.9M gain (used as loss proxy) | Dunkel: Stipulated loss unsupported by evidence; counsel deficient | Gov: Gain is a valid proxy where loss is hard to calculate; admission established gain | Rejected; counsel’s advice was reasonable and caused no prejudice |
| Whether counsel erred by not objecting to government witnesses at sentencing | Dunkel: Witnesses breached plea agreement by introducing additional loss evidence | Gov: No breach; government did not seek a higher USSG enhancement and plea allowed sentencing arguments | Rejected; no breach, so no IAC |
Key Cases Cited
- Slack v. McDaniel, 529 U.S. 473 (standard for certificate of appealability)
- Miller-El v. Cockrell, 537 U.S. 322 (reasonable jurists standard for COA review)
- Bousley v. United States, 523 U.S. 614 (actual-innocence and procedural default principles)
- Schlup v. Delo, 513 U.S. 298 (actual-innocence gateway standard)
- United States v. Brooks, 111 F.3d 365 (§ 1031 aggregation and pervasive-multi-subcontract fraud context)
- United States v. Mikalajunas, 186 F.3d 490 (cause shown by external factors including IAC)
- Strickland v. Washington, 466 U.S. 668 (two-prong ineffective-assistance test)
- Hill v. Lockhart, 474 U.S. 52 (prejudice standard for IAC when plea entered)
- Hooper v. Garraghty, 845 F.2d 471 (application of Hill standard in the Fourth Circuit)