George Ryan, a former Governor of Illinois, is in federal prison following his convictions for racketeering, mail fraud, tax evasion, and lying to the FBI. The mail-fraud charge alleged that Ryan defrauded Illinois of its intangible right to his honest services by covertly acting in the interests of some private supporters rather than as a fiduciary for the state’s citizens. Ryan’s convictions and sentences were affirmed on appeal.
United States v. Warner,
After the Supreme Court held in
Skilling v. United States,
— U.S. -,
A collateral attack is timely if filed within one year from the date on which the judgment became final. See 28 U.S.C. § 2255(f). Ryan took more than two. But
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§ 2255(f)(3) restarts the time when a “right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review”. The prosecutor conceded in the district court that
Skilling
meets that standard. The Justices did not say in
Skilling,
a case on direct appeal, whether their decision applies retroactively on collateral review, but
Fischer v. United States,
Although the prosecutor’s concession takes § 2255(f) out of the case, this remains a collateral attack, and the arguments available on collateral review differ from those available earlier. Ryan contended at trial and on appeal (see
Ryan sees “cause” in this circuit’s pre-
Skilling
law. The district court’s rulings and instructions followed the understanding of § 1346 articulated in
United States v. Bloom,
There are two problems with an argument that Ryan has “cause” for any default: one practical, one doctrinal. The practical problem is that it would not have been pointless to argue that § 1346 is limited to bribery and kickbacks. Both Ryan and Skilling were tried in 2006. Yet while Ryan’s lawyers proposed instructions based on Bloom — which was more favorable to defendants than the law in some other circuits — Skilling’s lawyers contended that § 1346 is much narrower if not unconstitutionally vague. Skilling asked the Supreme Court to disapprove Bloom. That Court ruled in his favor. If Ryan’s lawyers had done what Skilling’s lawyers did, the controlling decision today might be Ryan rather than Skilling. (Ryan’s petition for certiorari beat Skilling’s to the Supreme Court.)
Nothing prevented Ryan from making the arguments that Skilling did. Many other defendants in this circuit contended that
Bloom
was wrongly decided. Conrad Black was among them. See
United States v. Black,
Ryan’s doctrinal problem is that “cause” in the formula “cause and prejudice” means some impediment to making an argument. That the argument seems likely to fail is not “cause” for its omission. So
Bousley
tells us. The Supreme Court held in
Bailey v. United States,
While we have held that a claim that “is so novel that its legal basis is not reasonably available to counsel” may constitute cause for a procedural default, Reed v. Ross,468 U.S. 1 , 16 [104 S.Ct. 2901 ,82 L.Ed.2d 1 ] (1984), petitioner’s claim does not qualify as such. The argument that it was error for the District Court to misinform petitioner as to the statutory elements of § 924(c)(1) was most surely not a novel one. See Henderson,426 U.S., at 645-646 [96 S.Ct. 2253 ]. Indeed, at the time of petitioner’s plea, the Federal Reporters were replete with *917 cases involving challenges to the notion that “use” is synonymous with mere “possession.” See, e.g., United States v. Cooper,942 F.2d 1200 , 1206 (C.A.7 1991) (appeal from plea of guilty to “use” of a firearm in violation of § 924(c)(1)), cert. denied,503 U.S. 923 [112 S.Ct. 1303 ,117 L.Ed.2d 524 ] (1992). Petitioner also contends that his default should be excused because, “before Bailey, any attempt to attack [his] guilty plea would have been futile.” Brief for Petitioner 35. This argument, too, is unavailing. As we clearly stated in Engle v. Isaac,456 U.S. 107 [102 S.Ct. 1558 ,71 L.Ed.2d 783 ] (1982), “futility cannot constitute cause if it means simply that a claim was ‘unacceptable to that particular court at that particular time.’” Id., at 130, n. 35 [102 S.Ct. 1558 ]. Therefore, petitioner is unable to establish cause for his default.
But the Justices added that a forfeiture is not conclusive when a person is innocent. This is where
Davis
becomes important. That decision holds that collateral relief under § 2255 is available when opinions released after a person’s conviction show that he is in prison for an act that the law does not make criminal. Section 2255(a) authorizes relief for a person whose custody violates “the Constitution or
laws
of the United States” (emphasis added). Davis had argued that statutory exegesis after his conviction established his innocence. The Justices wrote: “such a circumstance ‘inherently results in a complete miscarriage of justice’ and ‘presentís] exceptional circumstances’ that justify collateral relief under § 2255.”
Bousley elaborated, holding that a prisoner is entitled to relief if actually innocent:
To establish actual innocence, petitioner must demonstrate that, “ ‘in light of all the evidence,’ ” “it is more likely than not that no reasonable juror would have convicted him.” Schlup v. Delo,513 U.S. 298 , 327-328 [115 S.Ct. 851 ,130 L.Ed.2d 808 ] (1995) (quoting Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L.Rev. 142, 160 (1970)).... It is important to note in this regard that “actual innocence” means factual innocence, not mere legal insufficiency. See Sawyer v. Whitley,505 U.S. 333 , 339 [112 S.Ct. 2514 ,120 L.Ed.2d 269 ] (1992).
Ryan maintains that the prosecutor forfeited reliance on the distinction between actual innocence and defective jury instructions by filing a brief that ignores
Engle, Frady, Davis,
and
Bousley.
On collateral review, however, a court may
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elect to disregard a prosecutor’s forfeiture, because the Judicial Branch has an independent interest in the finality of judgments. See, e.g.,
Day v. McDonough,
The right question under
Davis
and
Bousley
is whether, applying current legal standards to the trial record, Ryan is entitled to a judgment of acquittal. If yes, then the mail fraud convictions must be vacated; if no, then they stand. This is the approach we took to § 924(c) prosecutions after
Bailey.
See, e.g.,
Gray-Bey v. United States,
On the record at trial, a jury could have convicted Ryan of mail fraud using the legal standard set by Skilling. He is therefore not entitled to collateral relief.
The record shows compellingly — indeed, Ryan admits — that he received substantial payments from private parties during his years as Secretary of State and Governor. The failure to report and pay tax on this income underlies the tax convictions. The debate at trial on the racketeering and mail-fraud charges was whether these payments were campaign contributions, plus gifts from friends and well-wishers, or were instead bribes designed to influence Ryan’s official actions. If a reasonable jury could find that the payments were bribes, then the mail-fraud convictions survive Skilling.
Our initial opinion summed up the core of the charges:
The story behind this case began in November 1990 when Ryan, then the Lieutenant Governor of Illinois, won election as Illinois’s Secretary of State. He was re-elected to that post in 1994. Throughout Ryan’s two terms in that office, [Lawrence E.] Warner [Ryan’s co-defendant] was one of Ryan’s closest unpaid advisors. One of Ryan’s duties as Secretary of State was to award leases and contracts for the office, using a process of competitive bidding for major contracts and selecting leases based on the staffs assessments of multiple options. Improprieties in awarding four leases and three contracts form the basis of the majority of the RICO and mail fraud counts against Warner and Ryan, as these leases and contracts were steered improperly to Warner-controlled entities. The result was hundreds of thousands of dollars in benefits for Warner and Ryan. These benefits included financial support for Ryan’s successful 1998 campaign for Governor of Illinois.
Affirmed