Key Points
- A Ruan-based mens rea claim was reasonably available at Dimkpa’s 2019 guilty plea, the Fourth Circuit held.
- Adverse circuit precedent and unsettled law did not establish cause for procedural default.
- The panel treated Rehaif as a source of legal support for the later Ruan argument.
- The court affirmed denial of Dimkpa’s Section 2255 motion.
The Fourth Circuit affirmed the denial of Okechukwu Dimkpa’s motion to vacate his convictions for unlawfully distributing oxycodone, holding that his challenge under Ruan v. United States was procedurally defaulted. The panel concluded that the legal basis for arguing the government had to prove he knew his prescriptions were unauthorized was reasonably available when he pleaded guilty in 2019, though Ruan was decided in 2022.
The March 3 published decision addresses the cause requirement for defendants who seek collateral relief after Ruan’s construction of 21 U.S.C. Section 841. Ruan held that, to convict a physician under that statute, the government must prove the physician knowingly or intentionally acted in an unauthorized manner when prescribing a controlled substance. Dimkpa argued that his plea was not knowing and voluntary because he had not been advised of that requirement.
Dimkpa, a physician, pleaded guilty to six counts based on oxycodone prescriptions issued to the same patient. At the plea hearing, the district court advised him that the government would have to prove the prescriptions were unauthorized because they fell outside the usual course of professional practice. Under then-governing Fourth Circuit precedent, however, the court did not advise him that the government also would have to prove he knew the prescriptions were unauthorized. Dimkpa did not pursue a direct appeal.
After Ruan, Dimkpa moved under Section 2255 to vacate his convictions. The government did not dispute that the plea colloquy was inadequate under Ruan, according to the opinion. It instead asserted procedural default, arguing that Dimkpa had not raised the mens rea issue during his initial criminal proceeding or on direct review and could not establish cause and prejudice or actual innocence.
The district court denied relief. It found that Dimkpa’s claim was reasonably available at the time of his plea, despite adverse circuit precedent, and therefore that Ruan did not supply cause for the default. The court found Dimkpa could satisfy the prejudice component, reasoning that he probably would not have pleaded guilty if he had understood the government had to prove he knew the oxycodone distribution was inappropriate. The absence of cause nevertheless barred relief.
Judge Harris wrote that a claim can establish cause only when it was sufficiently novel that its legal basis was not reasonably available to counsel. Binding precedent in the court where a claim would have been presented does not itself make that claim unavailable, the panel explained. The opinion also said that legal uncertainty alone does not deprive counsel of a reasonable basis for asserting an argument.
The panel acknowledged that Ruan changed Fourth Circuit law and the law in multiple other circuits. Before Ruan, the Fourth Circuit applied an objective standard to determine whether a physician’s prescriptions were authorized, and a broad circuit consensus supported that approach. The court said the prior consensus did not place the legal basis for Dimkpa’s claim beyond reasonable availability, particularly because the Seventh and Ninth Circuits had required proof that a doctor intended to act without authorization.
Rehaif v. United States was central to that conclusion. Decided three months before Dimkpa’s plea, Rehaif held that a criminal statute’s scienter requirement could extend beyond the words immediately following it. The Fourth Circuit found that Rehaif supplied the legal tools for an argument that Section 841’s knowingly or intentionally language also modified the statute’s except-as-authorized clause. Other defendants also were litigating similar claims before Ruan, the panel said. Because Dimkpa could not show cause for his default, the Fourth Circuit affirmed.