Harmless-Error Framework for Taylor-Based § 924(c) Instructional Challenges When the Record Shows Completed Hobbs Act Robbery

1. Introduction

United States v. Bailey (10th Cir. June 23, 2026) is an unpublished order denying a certificate of appealability (COA) from the denial of a federal prisoner’s 28 U.S.C. § 2255 motion. The appellant, Melvin Louis Bailey, III, sought collateral relief from convictions and a 396-month sentence arising from three Walgreens robberies in Tulsa, Oklahoma (2015, 2017, and 2018). He was convicted of three counts of Hobbs Act robbery under 18 U.S.C. § 1951(a), three counts of brandishing a firearm during a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii), and one count of Hobbs Act conspiracy.

The central post-conviction issue was a jury-instruction problem after United States v. Taylor, 596 U.S. 845 (2022), which held that attempted Hobbs Act robbery is not a “crime of violence” for § 924(c) purposes. Bailey argued the trial instructions permitted the jury to predicate his § 924(c) convictions on attempted Hobbs Act robbery. The district court found any error harmless; the Tenth Circuit held no reasonable jurist could debate that conclusion and denied a COA.

2. Summary of the Opinion

  • The Tenth Circuit denied a COA and dismissed the appeal because Bailey failed to make the required “substantial showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c).
  • Suppression claim (confession): Denied as procedurally defaulted (and also deemed untimely below). The panel held no reasonable jurist could debate the procedural-default ruling.
  • § 924(c) / Hobbs Act instructions after Taylor: Even assuming the jury was instructed on an invalid predicate theory (attempted Hobbs Act robbery), the error was harmless because the trial record overwhelmingly supported that Bailey committed completed Hobbs Act robberies, which remain valid § 924(c) predicates in the Tenth Circuit.
  • “Illegal Sentence” claim: Rejected as conclusory and unsupported.
  • The court accepted counsel’s Anders submission, conducted an independent review, and allowed counsel to withdraw.

3. Analysis

3.1. Precedents Cited

Gatekeeping and appellate posture (COA / Anders)

  • Slack v. McDaniel, 529 U.S. 473 (2000): Provided the operative COA standards. The panel applied Slack’s two-track approach: (i) merits denials require showing the merits assessment is “debatable or wrong,” and (ii) procedural denials require debatability as to both the procedural ruling and the underlying constitutional claim. This framework controlled the disposition of the suppression and “illegal sentence” issues, and it set the threshold Bailey could not meet on the harmless-error issue.
  • Anders v. California, 386 U.S. 738 (1967): Defined counsel’s withdrawal procedure when no nonfrivolous issues exist. The court followed Anders by independently examining the record and agreeing the appeal was “wholly frivolous” in the COA context.
  • Davis v. Roberts, 425 F.3d 830 (10th Cir. 2005): Confirmed the Tenth Circuit may deny a COA on any ground supported by the record, even if not relied on below. This authority supports the panel’s streamlined COA denial posture and reinforces that COA review is not limited to the district court’s precise reasoning.

Procedural default on collateral review

  • United States v. Cook, 997 F.2d 1312 (10th Cir. 1993), and United States v. Salazar, 323 F.3d 852 (10th Cir. 2003): Cited for the standard that claims not raised on direct appeal are generally procedurally barred on § 2255 review absent cause and prejudice or a fundamental miscarriage of justice. The court leaned on these cases to uphold the district court’s procedural-default disposition of Bailey’s confession/suppression claim.

The Taylor problem: invalid alternative predicate and harmless error

  • United States v. Taylor, 596 U.S. 845 (2022): Supplied the core substantive change—attempted Hobbs Act robbery is not a § 924(c) crime of violence. Taylor created the potential instructional defect here because Bailey’s robbery instructions referenced “obtained or attempted to obtain” and the jury also received separate attempt instructions.
  • Hedgpeth v. Pulido, 555 U.S. 57 (2008) (per curium): Supplied the governing rule for general verdicts where the jury may have relied on an invalid legal theory: such errors are not automatically reversible; they are subject to harmless-error review asking whether the instructional flaw had a “substantial and injurious effect or influence” on the verdict. Pulido is the doctrinal bridge that converts a Taylor-based invalid-theory claim into a harmless-error inquiry on collateral review.
  • United States v. Holly, 488 F.3d 1298 (10th Cir. 2007): Provided the Tenth Circuit articulation of when instructional errors are harmless: where the contested element was supported by overwhelming evidence such that the verdict would have been the same absent the error. Holly supported the district court’s (and the panel’s) conclusion that the record foreclosed any meaningful possibility the jury relied only on attempt.
  • United States v. Baker, 49 F.4th 1348 (10th Cir. 2022): Cited for the continuing validity of completed Hobbs Act robbery as a § 924(c) crime of violence. Baker matters because it supplies the “valid predicate” that makes the Taylor instructional defect harmless if the evidence shows completed robbery.

Categorical approach argument addressed (and rejected as inapplicable)

  • United States v. Washington, 653 F.3d 1251 (10th Cir. 2011): Cited by Bailey (in the district court) to argue Hobbs Act robbery is “divisible” and triggers a modified categorical approach, limiting what materials a court can examine. The panel explained this argument missed the point: the court was not deciding whether attempted robbery is a crime of violence (Taylor already did), but whether the instructional error was harmless—an inquiry that permits review of trial evidence.

Case-specific procedural context

  • United States v. Bailey, 972 F.3d 1179 (10th Cir. 2020): The prior direct-appeal decision, referenced to show Bailey did not challenge these jury instructions on direct appeal and to anchor the procedural history of the § 924(c) convictions.

3.2. Legal Reasoning

  1. COA as a threshold filter: The opinion is driven by the COA standard, not by plenary merits review. The question was whether reasonable jurists could debate the district court’s rulings. Applying Slack v. McDaniel, the panel treated procedural bars and harmless error as “COA dispositive” when not reasonably debatable.
  2. Suppression claim rejected on procedural-default grounds: Because Bailey did not raise the confession/suppression argument at trial or on direct appeal, it was barred on § 2255 review absent cause-and-prejudice or miscarriage-of-justice showings. The panel held that no reasonable jurist could debate the district court’s application of this rule, making a COA unavailable regardless of timeliness disputes.
  3. Taylor-based instructional error treated as an alternative-theory problem governed by Pulido: The court assumed the instructions could have allowed a § 924(c) verdict to rest on an invalid theory (attempt). Under Hedgpeth v. Pulido, that possibility triggers harmless-error analysis rather than automatic reversal.
  4. Harmlessness found because the record overwhelmingly showed completed robberies: The district court reviewed evidence on each element of completed Hobbs Act robbery for each incident (obtaining money without consent; threatened force/violence/fear; effect on interstate commerce), including Bailey’s detailed confession, witness testimony about the firearm, and physical evidence. Given that completed Hobbs Act robbery remains a valid § 924(c) predicate under United States v. Baker, the court concluded any attempt-based theory would not have had a substantial and injurious effect on the verdict.
  5. Categorical-approach constraints do not govern harmless-error review: Responding to Bailey’s divisibility/modified categorical approach argument (citing United States v. Washington), the court clarified that harmless-error analysis is a fact-sensitive inquiry into what likely drove the jury’s actual verdict; it therefore permits reviewing trial evidence.
  6. Conclusory “illegal sentence” claim insufficient: A bare label without supporting facts or legal theory cannot carry a § 2255 claim, much less satisfy the COA standard.

3.3. Impact

  • Practical rule for post-Taylor litigation: In the Tenth Circuit, a Taylor-based challenge to § 924(c) convictions premised on potentially ambiguous Hobbs Act instructions may fail on collateral review where the trial record strongly supports completed Hobbs Act robbery. The opinion illustrates that the key battleground becomes harmless error, not Taylor’s categorical holding.
  • Record-based harmlessness can defeat a COA: Because COA review asks whether the district court’s harmlessness conclusion is reasonably debatable, a detailed evidentiary record can foreclose appellate review at the threshold stage.
  • Limits of categorical-approach arguments in this posture: The court’s explanation signals that attempts to confine review to Shepard-like documents (charging papers, instructions, verdict forms) may not translate to a Pulido harmless-error inquiry, which is concerned with verdict effect rather than offense definition.
  • Nonprecedential but informative: The order is expressly nonbinding except under law-of-the-case, res judicata, and collateral estoppel, yet it provides a clear template for how courts may operationalize Taylor challenges through Pulido/Holly harmless-error analysis.

4. Complex Concepts Simplified

28 U.S.C. § 2255 motion
A mechanism for a federal prisoner to collaterally attack a conviction or sentence (similar in function to habeas), typically after the direct appeal is over.
Certificate of Appealability (COA)
Permission to appeal the denial of § 2255 relief. It issues only if the prisoner makes a substantial showing of the denial of a constitutional right; debatable issues are required.
Procedural default
A rule barring claims on collateral review that could have been raised on direct appeal but were not, unless the prisoner shows cause and prejudice (or a fundamental miscarriage of justice).
18 U.S.C. § 924(c) “crime of violence” predicate
Section 924(c) adds penalties for using/brandishing a firearm during certain predicate offenses. After Taylor, attempted Hobbs Act robbery cannot qualify as that predicate; completed Hobbs Act robbery can (in the Tenth Circuit under Baker).
Alternative-theory instructional error
When a jury is instructed it may convict on multiple theories, but one theory is legally invalid. Under Pulido, the conviction stands if the error was harmless.
Harmless error (“substantial and injurious effect”)
An error does not warrant relief if it likely did not affect the outcome—i.e., it did not substantially influence the verdict.
Anders brief
A filing by appellate counsel asserting there are no nonfrivolous issues to raise, triggering the court’s independent review before allowing counsel to withdraw.

5. Conclusion

United States v. Bailey reinforces that post-United States v. Taylor challenges to § 924(c) convictions based on potentially attempt-permitting Hobbs Act instructions will often turn on harmless-error review under Hedgpeth v. Pulido, not on Taylor’s categorical rule alone. Where the trial evidence overwhelmingly supports completed Hobbs Act robbery—a still-valid § 924(c) predicate under United States v. Baker—courts may deem any instructional defect harmless and deny relief (and even deny a COA) at the threshold stage. The decision also underscores enduring limits on § 2255 review: claims omitted on direct appeal risk procedural default, and conclusory assertions cannot sustain collateral relief.