Date: Sep 12, 2026

Tenth Circuit Requires § 2255 Evidentiary Hearings When Plea Counsel May Have Omitted a Plausible Loughrin/Williams Bank-Fraud Defense and Misadvised on Cheek Willfulness

1. Introduction

Case: United States v. Martin, No. 24-3140 (10th Cir. Sept. 8, 2026) (published).
Parties: United States of America (Appellee) v. Nancy Martin (Appellant).
Posture: Appeal from denial of a 28 U.S.C. § 2255 motion to vacate guilty-plea convictions for bank fraud under 18 U.S.C. § 1344(2) and aiding/assisting in filing a false tax document under 26 U.S.C. § 7206(2).

The case arises from a long-running embezzlement scheme in which Nancy Martin wrote checks on her employers’ accounts to pay her personal expenses. After a state-court default judgment exceeding $11 million and a federal indictment, Martin pleaded guilty (pursuant to counsel’s advice) to one count of bank fraud and one count of aiding/assisting a false tax filing, receiving a prison sentence and restitution.

Having lost a direct appeal due to an appeal waiver (see United States v. Martin, No. 23-3045, 2023 WL 4858015 (10th Cir. July 31, 2023) (per curiam)), Martin filed a § 2255 motion alleging ineffective assistance at the plea stage: (1) counsel failed to advise a potentially dispositive statutory defense to § 1344(2) bank fraud grounded in the “by means of” clause as interpreted in Loughrin v. United States; and (2) counsel failed to advise that § 7206(2) requires “willfulness,” i.e., specific intent to violate a known legal duty under Cheek v. United States.

Key issues on appeal:

Whether Martin sufficiently alleged deficient performance on the bank-fraud plea advice to require an evidentiary hearing under § 2255(b).
Whether the district court applied the correct prejudice framework for a willfulness element in the tax count, and whether remand is required.

2. Summary of the Opinion

The Tenth Circuit reversed the denial of Martin’s § 2255 motion and remanded for further proceedings.

Bank fraud (§ 1344(2)): The panel held that Martin presented a highly plausible defense theory—derived from the statutory “by means of false or fraudulent pretenses” limitation and Supreme Court authority suggesting checks do not inherently communicate factual assertions—that was “sufficiently foreshadowed or knowable” at the time of her plea. Because the record did not conclusively refute her allegation that counsel failed to consider/disclose this defense, § 2255(b) required an evidentiary hearing.
Tax count (§ 7206(2)): The panel agreed counsel was deficient because the plea colloquy reflected a misunderstanding of “willfulness.” It found the district court’s prejudice analysis legally flawed insofar as it framed “good faith” like an affirmative defense Martin had to establish, rather than focusing on the Government’s burden to prove willfulness beyond a reasonable doubt as an element. The panel remanded for a proper prejudice determination under the correct substantive standard.

Judge Bacharach dissented, arguing the majority improperly ordered a hearing not sought on appeal and that existing Tenth Circuit precedent (especially United States v. Bonnett) supports bank-fraud liability via concealment or implied misrepresentation; the dissent would also affirm the tax count on harmlessness.

3. Analysis

3.1. Precedents Cited (and How They Shaped the Decision)

A. Ineffective assistance framework for guilty pleas

Strickland v. Washington, 466 U.S. 668 (1984): The foundational two-prong test—deficiency and prejudice—governs. The panel applied Strickland to plea advice.
Missouri v. Frye, 566 U.S. 134 (2012) and Lafler v. Cooper, 566 U.S. 156 (2012): Confirmed the Sixth Amendment applies to “certain steps before trial,” including plea bargaining, and framed deficiency as falling below an objective standard of reasonableness.
Hill v. Lockhart, 474 U.S. 52 (1985); Heard v. Addison, 728 F.3d 1170 (10th Cir. 2013); Lee v. United States, 582 U.S. 357 (2017); Miller v. Champion, 262 F.3d 1066 (10th Cir. 2001): These cases supplied the plea-prejudice standard: a “reasonable probability” the defendant would have gone to trial, assessed via a “holistic inquiry” and supported by contemporaneous evidence rather than “bald, post hoc” assertions.
United States v. Watson, 766 F.3d 1219 (10th Cir. 2014) and United States v. Rodriguez-Rivera, 518 F.3d 1208 (10th Cir. 2008): Provided the Tenth Circuit’s de novo standard for deficiency and prejudice, and the typical clear-error review for underlying facts.
United States v. Barrett, 797 F.3d 1207 (10th Cir. 2015) and United States v. Rushin, 642 F.3d 1299 (10th Cir. 2011) (with reference to United States v. Sandoval-Flores, 168 F.4th 1330 (10th Cir. 2026)): Critically, because the district court denied relief without an evidentiary hearing, the panel reviewed de novo the entire order, including any factual findings—underscoring why an undeveloped record can necessitate remand.
United States v. Aguayo-Montes, 169 F.4th 1205 (10th Cir. 2026): Reinforced § 2255(b)’s hearing requirement unless the record “conclusively” forecloses relief; the majority used it as the immediate procedural anchor for remand.

B. Certificate of appealability (COA) gatekeeping

Saiz v. Ortiz, 392 F.3d 1166 (10th Cir. 2004) (quoting Tennard v. Dretke, 542 U.S. 274 (2004)); Miller-El v. Cockrell, 537 U.S. 322 (2003): These cases framed the COA standard—claims may be “debatable” even if ultimately unsuccessful. They contextualize why the appeal proceeded on two defined issues.

C. Bank fraud’s “by means of” limitation and the plausibility of a check-based defense

Loughrin v. United States, 573 U.S. 351 (2014): The centerpiece for the bank-fraud analysis. The panel relied on Loughrin’s interpretation of § 1344(2)’s “by means of” clause as a “significant textual limitation,” satisfied when a defendant’s “false statement is the mechanism naturally inducing a bank” to part with property. The majority also treated Loughrin’s discussion of check-kiting (footnote 4) as strongly signaling that certain check schemes lack “false representations.”
Williams v. United States, 458 U.S. 279 (1982): Held that a check is “not a factual assertion at all,” rejecting implied representations inherent in checks. The majority used Williams (via Loughrin and other authorities) to question whether “implicit authority” theories suffice when the “false statement” is merely the act of presenting valid checks.
United States v. Doherty, 969 F.2d 425 (7th Cir. 1992): Cited as an example of applying Williams’s logic to § 1344(2), and referenced by Loughrin in the check-kiting discussion. For the majority, Doherty helped show the defense theory was reasonably discoverable at plea time.
United States v. McDonald, 209 F. App'x 748 (10th Cir. 2006): The Government’s key counter-citation for “implied misrepresentation.” The majority discounted it as unpublished, pre-Loughrin, and potentially in tension with Williams.
United States v. Bonnett, 877 F.2d 1450 (10th Cir. 1989) and United States v. Cronic, 900 F.2d 1511 (10th Cir. 1990), overruled on other grounds by Cleveland v. United States, 531 U.S. 12 (2000): The majority confronted Bonnett (heavily relied upon by the dissent) by narrowing it to its facts—classic check kiting plus bank-insider conduct that induced bank reliance—and by emphasizing that mere presentment of checks is not enough. Cronic was used to reinforce that a check itself does not create a false representation.
United States v. Serawop, 505 F.3d 1112 (10th Cir. 2007): Used for the proposition that Tenth Circuit panels treat Supreme Court “published statements of law” as binding even if characterized as dicta—supporting reliance on Loughrin’s check-kiting discussion.
United States v. Robinson, 161 F.4th 1069 (7th Cir. 2025) (as amended Jan. 28, 2026) and United States v. McDonald, No. 5:21-CR-00012, 2024 WL 244941 (W.D. Va. Jan. 23, 2024): Cited only as post-plea persuasive authority demonstrating the defense theory was being litigated elsewhere, not as controlling “hindsight” law.

D. Duty to investigate and “foreshadowed” legal arguments

United States v. Demeree, 108 F. App'x 602 (10th Cir. 2004) (quoted in Heard v. Addison): Grounded counsel’s duty to research “relevant law.”
Bridges v. United States, 991 F.3d 793 (7th Cir. 2021); United States v. Carthorne, 878 F.3d 458 (4th Cir. 2017); United States v. Juarez, 672 F.3d 381 (5th Cir. 2012); Dando v. Yukins, 461 F.3d 791 (6th Cir. 2006): These cases supported the majority’s principle that while counsel need not predict novel legal shifts, counsel may be deficient for failing to consider arguments “sufficiently foreshadowed” and for failing to disclose a credible defense even if it might ultimately lose.

E. Tax willfulness and the Government’s burden

Cheek v. United States, 498 U.S. 192 (1991) and United States v. Ambort, 405 F.3d 1109 (10th Cir. 2005): Established the controlling definition of “willfully” in tax crimes: duty imposed by law, knowledge of the duty, and voluntary intentional violation. The majority treated Martin’s plea colloquy (“I didn’t know it was illegal”) as inconsistent with willfulness.
United States v. Taylor, 596 U.S. 845 (2022): Used to emphasize that elements must be proven beyond a reasonable doubt, framing why it was legal error to treat “good faith” as something Martin had to “articulate” rather than focusing on whether the Government could prove willfulness.
United States v. Winchell, 129 F.3d 1093 (10th Cir. 1997); United States v. Murdock, 290 U.S. 389 (1933); United States v. Mousavi, 604 F.3d 1084 (9th Cir. 2010): Cited to underscore the “heightened” character (or at least the doctrinal emphasis) of willfulness in tax cases and the policy of not criminalizing bona fide misunderstandings.
United States v. Yurek, 925 F.3d 423 (10th Cir. 2019) (citing United States v. Payne, 978 F.2d 1177 (10th Cir. 1992)): Reinforced the “specific intent to evade taxes” framing—supporting why willfulness is not satisfied by mere intentional conduct divorced from knowledge of illegality.
United States v. Dominguez, 998 F.3d 1094 (10th Cir. 2021): Supported the “holistic inquiry” into whether the deficient advice affected the plea decision.
Tenth Circuit Criminal Pattern Jury Instruction 2.94: The panel used it to concretize the correct element instruction—“voluntary intent to violate a known legal duty.”

3.2. Legal Reasoning

A. The bank-fraud claim: why the record did not “conclusively” defeat relief

The majority’s bank-fraud reasoning proceeds in two moves:

Plausibility/availability of the defense at plea time. The court did not hold Martin’s statutory defense was definitively correct; instead, it held the defense was “strong,” “highly plausible,” and “reasonably available” given the text of § 1344(2), Loughrin v. United States, and Williams v. United States’s “check is not a factual assertion” premise. That was enough to make counsel’s failure to investigate and advise potentially deficient.
§ 2255(b) hearing entitlement. Because Martin swore that counsel did not inform her the Government had to prove deception as the “means” of obtaining bank property, and counsel’s affidavit did not directly rebut whether counsel researched/considered/disclosed the defense, the panel held the files and record did not “conclusively show” Martin was entitled to no relief. Under § 2255(b) (as reinforced by United States v. Aguayo-Montes), the district court should have held an evidentiary hearing.

Notably, the majority treated the evidentiary gap as dispositive: it remanded to determine (1) whether counsel considered the defense at all, (2) whether counsel discussed it with Martin, and (3) whether it would have affected the decision to go to trial (prejudice).

B. The tax-fraud claim: correcting the prejudice lens for willfulness

The majority agreed with the district court that counsel’s plea-stage advice was deficient because the plea colloquy showed confusion: the Government and defense suggested that “intent to commit the acts” could substitute for willfulness even though Cheek v. United States requires knowledge of illegality (a “known legal duty”).

The remand, however, turned on prejudice. The majority held the district court’s analysis slipped into treating “good faith” as though Martin bore the burden to “assert and articulate” it, rather than requiring the court to consider whether the Government could prove willfulness beyond a reasonable doubt as an element (see United States v. Taylor).

The proper prejudice inquiry, the majority emphasized, is not whether Martin could successfully “articulate” a defense in the abstract, but whether there is a reasonable probability that correct advice about an element bearing on guilt would have led her to reject the plea and go to trial, assessed holistically under Lee v. United States and Tenth Circuit precedent.

C. Interaction between counts

The panel highlighted a practical plea-dynamics point: Martin allegedly would not have pursued a defense strategy that realistically risked imprisonment. Because her plea posture was tied to perceived sentencing exposure (including her hope for probation), prejudice may depend on whether viable defenses existed to both counts. The district court on remand was authorized to consider whether the prejudice analyses “rise and fall together.”

3.3. Impact

A. Procedural impact: a stronger hearing mandate in plea-stage IAC claims

The most immediate doctrinal impact is procedural: where a § 2255 movant provides a verified allegation that plea counsel failed to advise of a materially plausible statutory defense and the record does not directly resolve counsel’s investigation/strategy, the Tenth Circuit signals that § 2255(b) will often require an evidentiary hearing. District courts may need to make explicit findings explaining why the record “conclusively” forecloses relief if they deny a hearing.

B. Substantive pressure on § 1344(2) “implied misrepresentation” theories

Although the panel disclaimed a definitive statutory holding, its reasoning increases litigation pressure on prosecutions that treat check presentment—without forged instruments or additional deceptive communications—as satisfying § 1344(2)’s “by means of” requirement. The opinion reads Loughrin v. United States (including its check-kiting discussion) together with Williams v. United States to cast doubt on expansive “implicit authority” theories, at least where the check is the principal alleged “false statement.”

Practically, defense counsel in the Tenth Circuit are now on notice that Loughrin/Williams-based arguments can be “foreshadowed” and thus may need to be investigated and discussed during plea negotiations to avoid deficiency claims.

C. Tax plea colloquies: willfulness cannot be “colloquially” watered down

On § 7206(2), the decision underscores that “willfulness” is not satisfied by mere intentional conduct; it requires knowledge of a legal duty and intent to violate it. Plea colloquies that accept “I didn’t know it was illegal” while proceeding as though that admission is irrelevant may invite collateral attack, especially where counsel’s advice contributed to the misunderstanding.

D. Relationship to dissent and intra-circuit uncertainty

The dissent’s reliance on United States v. Bonnett and concealment/implied-misrepresentation theories highlights that the Tenth Circuit may face future cases requiring a direct, precedential reconciliation of Bonnett-style reasoning with Loughrin/Williams. For now, the majority’s approach functions less as definitive statutory construction and more as an “IAC-risk” holding: counsel must recognize and discuss plausible defenses even in unsettled terrain.

4. Complex Concepts Simplified

A. What § 2255(b) means by “conclusively show”

A § 2255 motion is like a post-conviction challenge to the validity of a federal conviction or sentence. The statute says the judge must hold a hearing unless the existing record makes it obvious the movant cannot win. If key facts (e.g., what counsel researched, what counsel told the defendant, why) are missing or disputed, the record usually does not “conclusively show” no relief—and a hearing is required.

B. “By means of” in § 1344(2)

Section 1344(2) does not criminalize every fraud that happens to involve a bank account. It requires that bank property be obtained “by means of” false or fraudulent pretenses/representations/promises. Under Loughrin v. United States, the falsehood must be the mechanism that naturally induces the bank (or custodian) to release the money.

C. Why Williams v. United States matters for checks

Williams treats a check, technically, as an order to pay rather than a factual claim. So a check does not automatically “assert” facts like “I have authority” or “there are sufficient funds,” at least not in the way false-statement statutes typically require. This technical premise can matter when prosecutors argue that merely presenting checks implies a falsehood.

D. “Willfulness” in tax crimes

“Willfulness” is a term of art in federal tax law. Under Cheek v. United States, it requires proof that the defendant knew of a legal duty and intentionally violated it. A person can act intentionally and still not act willfully if they genuinely did not know the law required the reporting/payment at issue.

5. Conclusion

United States v. Martin is a significant Tenth Circuit decision at the intersection of plea bargaining, statutory defenses, and § 2255 procedure. It reinforces that:

Defense counsel’s plea advice must be informed by reasonable legal research, including “foreshadowed” statutory defenses, and credible defenses must be disclosed even if uncertain.
District courts must hold § 2255 evidentiary hearings when the record does not conclusively refute sworn ineffective-assistance allegations about counsel’s investigation and advice.
In tax pleas under § 7206(2), “willfulness” cannot be diluted to mere intent to perform acts; prejudice analysis must be anchored to the Government’s burden to prove willfulness as an element.

Going forward, the opinion is likely to (1) increase evidentiary hearings in plea-stage IAC litigation where counsel’s legal investigation is contested, (2) sharpen defense expectations around § 1344(2)’s “by means of” limitation in check-based employee embezzlement prosecutions, and (3) require greater rigor in plea colloquies and plea advice concerning tax “willfulness.”