Bousley Actual-Innocence Gateway Extends to Equally Serious Dismissed Charges for AEDPA Time-Bar Relief

Introduction

In United States v. Hahn (10th Cir. Aug. 7, 2026), Marcus Hahn sought postconviction relief under 28 U.S.C. § 2255 from three convictions under 21 U.S.C. § 841(b)(7) (distribution of a controlled substance without the recipient’s knowledge and with intent to commit a “crime of violence”). His theory depended on Sessions v. Dimaya, which invalidated 18 U.S.C. § 16(b)’s residual-clause definition of “crime of violence” as unconstitutionally vague.

Hahn had pleaded guilty (and no-contest to one count) in 2001 to a package of child-sexual-exploitation offenses and § 841(b)(7) counts; in exchange, the government dismissed nine charges, including two counts under 18 U.S.C. § 2251(a). After Dimaya, Hahn filed a second-or-successive § 2255 motion in 2021 attacking the § 841(b)(7) convictions. The district court dismissed the motion as untimely and, alternatively, rejected the vagueness claim on the merits. The Tenth Circuit affirmed on timeliness—but in doing so issued two important holdings: (1) it clarified “reliance” on a residual clause for second-or-successive gatekeeping in a way favorable to Hahn, and (2) it adopted a new circuit rule on the actual-innocence/miscarriage-of-justice exception for untimely § 2255 motions following guilty pleas.

Summary of the Opinion

  • Gatekeeping satisfied: The panel held Hahn’s motion cleared § 2255(h)(2)’s second-or-successive “jurisdictional gates” because Dimaya announced a new rule, was “made retroactive” through the combined holdings of Johnson v. United States, Welch v. United States, and Dimaya (consistent with In re Mullins), and Hahn’s convictions “relied” on § 16(b) (the residual clause) given the 2001 “relevant background legal environment.”
  • Motion untimely: Hahn conceded he filed outside § 2255(f)(3)’s one-year window from Dimaya.
  • No miscarriage-of-justice exception: Even assuming Hahn could show “actual innocence” of the invalid § 841(b)(7) counts, he could not use that to bypass the time bar because he did not show actual innocence of dismissed charges that were equally serious—specifically, two dismissed § 2251(a) counts.
  • New circuit rule: The Tenth Circuit held Bousley v. United States requires actual innocence not only of “more serious” dismissed charges, but also of equally serious dismissed charges, to invoke the miscarriage-of-justice exception to AEDPA’s statute of limitations following a plea bargain.

Analysis

Precedents Cited

1) Vagueness doctrine and residual clauses: Sessions v. Dimaya, Johnson v. United States, Welch v. United States, United States v. Davis

Sessions v. Dimaya supplied the substantive constitutional hook: § 16(b)’s “substantial risk” residual clause is void for vagueness. Hahn’s § 841(b)(7) counts incorporated § 16’s definition of “crime of violence,” so if the predicate offense could qualify only via § 16(b), the convictions would collapse.

The retroactivity and second-or-successive authorization analysis leaned on the Court’s residual-clause line: Johnson v. United States (ACCA residual clause invalid), Welch v. United States (Johnson retroactive as substantive), and United States v. Davis (924(c) residual clause invalid). Although the Supreme Court has never expressly declared Dimaya retroactive, the Tenth Circuit treated retroactivity as “necessarily dictated” under Tyler v. Cain via the same logic it had used in In re Mullins for Davis: when a vagueness ruling narrows a statute’s substantive reach, Welch supplies retroactivity.

2) Second-or-successive gatekeeping and “reliance”: United States v. Murphy, In re Encinias, United States v. Cooper, United States v. Washington

Following United States v. Murphy and United States v. Cooper, the court reaffirmed a strict “reliance” requirement: a movant “relies” on a new residual-clause invalidation only if the sentencing court’s classification more likely than not rested on the residual clause. The opinion candidly noted (in footnote) that this approach “smuggles the merits” into gatekeeping—because deciding residual-clause reliance largely decides the central merits premise.

3) The “relevant background legal environment” method: United States v. Copeland, United States v. Driscoll, United States v. Snyder

With no clear sentencing record, the panel used the “snapshot” method from Copeland/Driscoll/Snyder: infer which clause was used by examining controlling law at the time of sentencing, excluding post-sentencing clarifications.

4) Categorical approach and “force”: Borden v. United States

The court applied the categorical approach, citing Borden v. United States: compare the least culpable conduct criminalized by the predicate statute to the federal elements clause. Because the New Mexico statute criminalized “touching or applying force,” the panel treated “touching” as distinct from “force,” and thus outside § 16(a)’s elements clause.

5) Tenth Circuit pre-2001 child-sex-offense “crime of violence” cases: United States v. Reyes-Castro, United States v. Coronado-Cervantes, United States v. Reyes Pena, United States v. Passi

These cases were decisive to the panel’s inference that Hahn’s sentencing court would have relied on a residual clause:

  • United States v. Reyes-Castro held a “touching” child-sex statute did not have “physical force” as an element and instead fit § 16(b) because non-consensual conduct creates a “substantial risk” force may be used.
  • United States v. Coronado-Cervantes extended similar reasoning under U.S.S.G. § 4B1.2’s residual clause to “intentional touching” offenses.
  • United States v. Reyes Pena emphasized it is the “serious risk of physical force,” not actual force, that drives residual-clause treatment of child sex crimes.
  • United States v. Passi treated aggravated incest as involving a “substantial risk” of force—again tracking residual-clause language.

Together, these pre-2001 authorities made it more likely than not that a 2001 court would place New Mexico’s criminal sexual contact of a minor statute in the residual clause category.

6) The government’s elements-clause counter and the court’s rejection: United States v. Vigil, United States v. Pierce

The government leaned on United States v. Vigil, where Colorado’s aggravated-incest statute was treated as meeting an elements clause because of an implied “threatened use of physical force” in a parent-child dominance context, relying in part on United States v. Pierce. The panel rejected this for two reasons: (1) Vigil post-dated Hahn’s sentencing and thus was not part of the “snapshot,” and (2) even on its own terms, Vigil turned on the unique dominance/control dynamics of incest, not generic minor-sex-contact statutes.

7) AEDPA timeliness exceptions and actual innocence: Doe v. Jones, McQuiggin v. Perkins, Schlup v. Delo, Bousley v. United States

The timeliness analysis was grounded in:

  • McQuiggin v. Perkins and Doe v. Jones for the proposition that a “credible showing” of actual innocence can equitably bypass AEDPA’s limitations period.
  • Schlup v. Delo for the gateway standard (“more likely than not that no reasonable juror would have convicted”).
  • Bousley v. United States for two constraints: actual innocence means factual innocence (not merely legal insufficiency), and, for pleas, the showing must extend to charges forgone in the bargain.

8) The new “equally serious” gloss: Witham v. United States, Lewis v. Peterson, United States v. Johnson, United States v. Caso, Peveler v. United States, Herr v. U.S. Forest Serv.

On whether Bousley reaches equally serious dismissed charges, the panel adopted the reasoning of:

  • Lewis v. Peterson (7th Cir.)—if the dismissed charge is equally serious, the bargain likely would have substituted the sound charge, and the punishment likely would have been the same, so allowing relief without innocence would be a windfall.
  • Witham v. United States (6th Cir.)—per Chief Judge Sutton, allowing time-barred challenges while escaping punishment for dismissed but equally serious counts flips the plea’s risk calculus and creates unfair asymmetry versus defendants who went to trial (drawing also on Peveler v. United States).

The court acknowledged the only clear contrary circuit authority as United States v. Johnson (8th Cir.), which read Bousley literally as “more serious charges” only. The panel refused that approach, invoking the interpretive principle that “we don’t read precedents like statutes,” quoting Herr v. U.S. Forest Serv., and emphasizing that lower courts must apply the Supreme Court’s reasoning, not just its phrasing. It also noted dicta in United States v. Caso (D.C. Cir.) supporting the “equally serious” extension, while distinguishing Caso’s core holding about less serious dismissed charges.

9) The § 3296 argument rejected: Shinn v. Ramirez, Lonchar v. Thomas, Fry v. Pliler, Taylor v. Powell

Hahn argued Congress’s enactment of 18 U.S.C. § 3296 (allowing reinstatement of dismissed counts if a plea is later vacated) undermined Bousley’s policy concerns. Following Witham, the panel rejected this: § 3296 is not targeted to habeas’s finality/limitations context, the Supreme Court has not hinted it narrows Bousley, and AEDPA is generally understood to limit (not expand) habeas relief (citing Shinn v. Ramirez and Fry v. Pliler).

Legal Reasoning

1) Jurisdiction to hear a second-or-successive motion

The court treated § 2255(h)’s gatekeeping requirements as jurisdictional (citing United States v. Murphy and related authority), and then worked through each prong:

  1. New rule: Dimaya was “new,” relying on the “dictated by precedent” test from Edwards v. Vannoy (quoting Teague v. Lane, Lambrix v. Singletary), and observing that Dimaya was reasonably debatable (including by analogy to United States v. Vargas-Soto).
  2. Made retroactive: While acknowledging the issue is “closer,” the court followed its own In re Mullins approach under Tyler v. Cain to conclude the Supreme Court has “made” the rule retroactive through the combined logic of Johnson, Welch, and Dimaya.
  3. Previously unavailable: The panel avoided deciding whether “previously” means “unavailable at the last § 2255” or “unavailable at the last federal proceeding,” because Dimaya post-dated either reference point in Hahn’s case.
  4. Relies on the rule: Using the “snapshot” method and pre-2001 precedent, the court held the sentencing court more likely than not used § 16(b), not § 16(a), because New Mexico’s statute covered “touching” conduct that does not categorically require “physical force.”

2) Timeliness and the miscarriage-of-justice gateway

AEDPA’s limitations period (28 U.S.C. § 2255(f)) barred Hahn’s 2021 filing because Dimaya was decided in 2018. Hahn abandoned equitable tolling after the magistrate judge’s recommendation, leaving only “miscarriage of justice” via actual innocence.

The court assumed (without deciding, citing United States v. Bowen) that if Hahn’s § 841(b)(7) convictions were invalid post-Dimaya, he could satisfy “actual innocence” as to those counts. But under Bousley v. United States, a plea-bargaining movant must also extend that innocence showing to dismissed counts that were equally or more serious.

3) Determining “equally serious” in Hahn

The panel evaluated seriousness by statutory penalties (and refused to consider a Guidelines-based seriousness theory as forfeited). Comparing § 841(b)(7) with § 2251 as it existed at the time, both offenses carried a maximum of twenty years and, on the panel’s reading, both were technically punishable by a fine without mandatory prison time. That made the dismissed § 2251(a) counts at least “equally serious,” triggering the extended Bousley requirement.

Because Hahn did not claim factual innocence of those dismissed § 2251(a) counts, he could not pass through the actual-innocence gateway to avoid the time bar—so the court affirmed dismissal without reaching the alternative merits/harmlessness disputes.

Impact

  • New controlling rule in the Tenth Circuit: Plea-bargaining movants seeking the miscarriage-of-justice exception to AEDPA’s § 2255(f) time bar must show actual innocence of equally serious as well as more serious dismissed charges. This materially raises the bar for untimely collateral attacks following pleas.
  • Practical consequences for post-Johnson/Dimaya/Davis litigation: Even where a residual clause clearly underpins an invalid conviction, the remedy may be unavailable if the defendant cannot credibly contest factual guilt on dismissed counts of comparable gravity.
  • Plea bargaining and finality: The decision aligns the Tenth Circuit with the Sixth and Seventh Circuits’ fairness rationale: defendants should not receive a “windfall” by undoing one count years later while remaining insulated from equally serious counts dismissed as part of the bargain.
  • Gatekeeping clarity: The opinion reinforces (and critiques) the circuit’s “more likely than not” residual-clause reliance standard at the § 2255(h) stage, encouraging litigants to build “background legal environment” records rather than relying on silent sentencing transcripts.

Complex Concepts Simplified

Residual clause vs. elements clause
An elements clause covers crimes whose statutory elements require the use/attempt/threat of physical force. A residual clause covers crimes that, “by their nature,” carry a risk that force may be used. Dimaya struck § 16(b)’s residual clause as too vague.
Categorical approach
Courts look at the statute’s elements in the abstract, not what the defendant actually did. If the statute covers any conduct that does not require “physical force,” it may not qualify under an elements clause.
Second-or-successive (§ 2255(h)) “gatekeeping”
After a first § 2255 motion, a later motion needs appellate authorization and must satisfy strict jurisdictional criteria (new, retroactive constitutional rule, etc.).
AEDPA’s one-year time bar (§ 2255(f))
Even a legally strong claim can be dismissed if filed too late, unless an equitable exception applies.
Miscarriage-of-justice / actual innocence gateway
A narrow equitable exception allowing late filings when the petitioner shows it is more likely than not that no reasonable juror would convict—i.e., factual innocence. Under Bousley, plea cases must also address dismissed counts; Hahn holds this includes equally serious dismissed counts.

Conclusion

United States v. Hahn is most significant not for its Dimaya analysis—which, if reached on the merits, was trending in Hahn’s favor—but for its new procedural rule: in the Tenth Circuit, a plea-bargaining § 2255 movant cannot use the actual-innocence miscarriage-of-justice gateway to escape AEDPA’s statute of limitations unless he shows actual innocence of any equally serious or more serious charges dismissed as part of the plea deal. The decision strengthens finality for plea convictions while narrowing the practical availability of late-filed collateral relief in the residual-clause aftermath.