United States v. Herbert Pridgen

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 1, 2022
• Docket: 20-6374
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6374

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HERBERT PRIDGEN, a/k/a Bok,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Raymond A. Jackson, District Judge. (4:14-cr-00059-RAJ-RJK-2; 4:19- cv-00097-RAJ-RJK)

Submitted: January 6, 2022 Decided: February 1, 2022

Before KING and HARRIS, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Herbert Pridgen, Appellant Pro Se. Richard Daniel Cooke, Assistant United States Attorney, Richmond, Virginia, Daniel Taylor Young, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Herbert Pridgen appeals the district court’s orders denying relief on his 28 U.S.C.

§ 2255 motion and his motion for reconsideration. We previously granted a certificate of

appealability and ordered additional briefing as to a single issue: whether Pridgen’s

conviction under 18 U.S.C. § 924(c), (j), remains valid in light of the rule announced in

United States v. Davis, 139 S. Ct. 2319, 2336 (2019). We now affirm.

We review a district court’s decision de novo, United States v. Herrera-Pagoada,

14 F.4th 311, 318 (4th Cir. 2021), and may affirm on any ground appearing in the record,

even one not relied upon by the district judge, United States v. Dozier, 848 F.3d 180, 188

(4th Cir. 2017). Section 2255 offers “an extraordinary remedy” that should not take the

place of an appeal. Herrera-Pagoada, 14 F.4th at 318. Issues that could have been raised

on direct appeal but were not may not be raised in a collateral proceeding under § 2255,

see Stone v. Powell, 428 U.S. 465, 477 n.10 (1976), unless the movant can show cause for

the default and resulting prejudice, United States v. Frady, 456 U.S. 152, 167-68 (1982),

or a miscarriage of justice, United States v. Addonizio, 442 U.S. 178, 185 (1979); United

States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999). In order to establish prejudice,

Pridgen must show that the trial court’s jury instruction concerning the underlying crimes

of violence “worked to his actual and substantial disadvantage, infecting his entire trial

with error of constitutional dimensions.” Frady, 456 U.S. at 170. To establish a

miscarriage of justice, a defendant must show actual innocence by clear and convincing

evidence. Murray v. Carrier, 477 U.S. 478, 496 (1986); Mikalajunas, 186 F.3d at 493.

2 Pridgen was indicted on use of a firearm in relation to a crime of violence resulting

in death and aiding and abetting such conduct where the killing constituted the murder of

Lafayette Bailey as defined in 18 U.S.C. § 1111(a), in violation of 18 U.S.C. §§ 924(c)(1),

(j), 2, along with other charges. The three underlying crimes of violence for this charge

were: (1) racketeering conspiracy as set forth in Count 1 of the indictment, (2) robbery as

set forth in Count 4, and (3) murder in aid of racketeering as set forth in Count 6. The jury

convicted Pridgen of the firearm offense and all three underlying crimes of violence. We

note that the jury was instructed that all three predicate offenses qualified as crimes of

violence, but was not instructed to specify the underlying crime of violence. Pridgen

correctly asserts that the racketeering conspiracy offense is no longer a crime of violence.

United States v. Simmons, 11 F.4th 239, 247, 257-61 (4th Cir.), cert. denied, 142 S. Ct. 574

(2021). Nevertheless, we are not compelled to vacate the firearm offense.

It is uncontested that the robbery offense described in Count 4 of the indictment is

categorically a crime of violence. United States v. Ali, 991 F.3d 561, 573-74 (4th Cir.),

cert. denied, 142 S. Ct. 486 (2021). The jury also found that one of the predicate

racketeering acts was the premeditated murder and/or murder in the commission of the

robbery of Lafayette Bailey, which was the basis for Count 4 and the firearm offense.

Given these findings and trial testimony concerning the robbery and Bailey’s murder, there

is no reason to believe that the jury would not have convicted Pridgen of the § 924(c), (j)

offense if it was instructed that the robbery described in Count 4 was the sole underlying

crime of violence. Pridgen cannot show actual prejudice because the jury was permitted

to consider whether the racketeering conspiracy was the underlying crime of violence.

3 Furthermore, because the firearm conviction is supported by the robbery described in

Count 4, Pridgen cannot establish his actual innocence.

While the district court denied Pridgen’s § 2255 motion, it did not identify a

qualifying underlying crime of violence. Because we may affirm on any reason appearing

in the record, we affirm the district court’s orders on the basis that Pridgen did not establish

prejudice due to the improper jury instruction or a miscarriage of justice. We deny

Pridgen’s motions to file an amended supplemental brief and for appointment of counsel.

We dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

AFFIRMED