United States v. Taylor

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Case No. 1:21-cr-392-2-RCL

RUSSELL TAYLOR,

Defendant.

MEMORANDUM ORDER

Mr. Russell Taylor was indicted in June 2021 on multiple felony and misdemeanor counts

due to his participation in the Capitol Riots of January 6, 2021. See Superseding Indictment, ECF

No. 89. On April 19, 2023, Mr. Taylor pleaded guilty to a single count: Conspiracy to Obstruct

an Official Proceeding in violation of 18 U.S.C. § 1512(k). See Plea Agreement 1, ECF No. 196.

In consideration of Mr. Taylor’s acceptance of responsibility and extensive assistance in the

prosecution of his co-defendants, Mr. Taylor was sentenced on May 3, 2024 to thirty-six months’

probation and no term of incarceration. See Judgment, ECF No. 492. On June 28, 2024, the

Supreme Court adopted an interpretation of 18 U.S.C. § 1512 that greatly narrowed the statute’s

ambit. See Fischer v. United States, 603 U.S. 480 (2024). On January 20, 2025, Mr. Taylor

received a presidential pardon. See Proclamation No. 10887, 90 Fed. Reg. 8331 (Jan. 29, 2025).

Contending that he is innocent of the charge to which he pleaded guilty in light of Fischer,

Mr. Taylor moved on March 9, 2025 to withdraw his plea of guilty and then to dismiss the case.1

1 Mr. Taylor’s Motion is styled in full as a “Motion to Withdraw Plea or in the Alternative Dismiss His Case Pursuant to Fischer v. United States.” Mot. to Withdraw Plea at 1, ECF No. 530 (cleaned up). Despite this title, the body of his Motion does not suggest that he would be content with one form of relief or the other; rather, he seems to be asking for both forms of relief sequentially. See id. at 3 (requesting that Mr. Taylor “be allowed to withdraw his guilty plea and the matter then be dismissed”); see also Def.’s Reply at 3, ECF No. 539 (“[Mr. Taylor] should therefore be allowed to withdraw his plea for a crime to which he is innocent and still under the threat of said conviction. The matter should then be dismissed.”). Moreover, all of the arguments contained in his Motion and Reply are directed toward withdrawing his guilty plea, rather than the separate question of dismissal. Therefore, the Court herein considers only

1 See Def.’s Mot to Withdraw Plea, ECF No. 530. The Government has filed an opposition to Mr.

Taylor’s Motion. See Gov’s Opp’n, ECF No. 538. Mr. Taylor has filed a Reply. See Def.’s Reply,

ECF No. 539. The Motion is now ripe for this Court’s review. Because the Court lacks any

mechanism for permitting the withdrawal of Mr. Taylor’s guilty plea, his Motion is DENIED.

Mr. Taylor specifies Federal Rule of Criminal Procedure 32(d) as a basis for his Motion.

The Court and the Government both believe that Mr. Taylor intended to rely upon Federal Rule of

Criminal Procedure 11, which governs the withdrawal of a guilty plea.2

Rule 11(e) provides as follows: “After the court imposes sentence, the defendant may not

withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal

or collateral attack.” Mr. Taylor moved to withdraw his guilty plea more than ten months after

the imposition of his sentence. Accordingly, Rule 11 straightforwardly dictates that Mr. Taylor’s

plea can only be set aside by appeal or collateral attack.

Mr. Taylor did not appeal, and his time to appeal has run. See Fed. R. App. P. 4(b)(1)(A)

(a criminal defendant must file a notice of appeal within fourteen days of the entry of judgment or

the order being appealed, or within fourteen days of the government’s notice of appeal being filed,

whichever is later). Therefore, the only remaining legal avenue by which Mr. Taylor may

challenge his guilty plea is via collateral attack, typically conducted under the rubric of 28 U.S.C.

§ 2255. See United States v. Farley, 72 F.3d 158, 162 (D.C. Cir. 1995) (“[A]fter sentencing a plea

may be set aside only on direct appeal or via a section 2255 motion.”) (emphasis in original).

Mr. Taylor’s request to withdraw his guilty plea. If Mr. Taylor seeks another form of relief after this Order has issued, he should move for it separately, and provide legal argumentation specifically explaining his entitlement to it. 2 The standards for withdrawal of a guilty plea were once partially housed in Rule 32, but the 2002 amendments to the Federal Rules of Criminal Procedure relocated those provisions to Rule 11; Rule 32(d), the provision Mr. Taylor cites, now provides parameters for the creation of a presentence report, which is irrelevant to this Motion. See Advisory Committee Notes, 2002 Amendments, Fed. R. Crim. P. 11 (“Amended Rule 11(e) is a new provision, taken from current Rule 32(e), that addresses the finality of a guilty or nolo contendere plea after the court imposes sentence. The provision makes it clear that it is not possible for a defendant to withdraw a plea after sentence is imposed.”).

2 However, even if the Court were to construe Mr. Taylor’s Motion as a collateral attack

under § 2255—a position which Mr. Taylor seems to adopt in his Reply brief, see Def.’s Reply at

1–2 (arguing that Mr. Taylor is eligible for relief under § 2255)—that interpretation would fare no

better for him. The statute provides that “[a] prisoner in custody under sentence of a court . . .

claiming the right to be released upon the ground that the sentence was imposed in violation of the

Constitution or laws of the United States . . . or is otherwise subject to collateral attack, may move

the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. §

2255(a) (emphasis added). Even assuming that his term of supervised release could have been

considered “custody” for purposes of § 2255(a),3 Mr. Taylor is no longer in custody today because

the pardon that he received on January 20 extinguished his probationary sentence. Therefore, Mr.

Taylor is now statutorily ineligible to collaterally attack his guilty plea. See United States v.

Williams, 630 F. Supp. 2d 28, 30 (D.D.C. 2009) (rejecting a habeas claim on jurisdictional grounds

because, “upon completion of [a] sentence, the defendant no longer remains ‘in custody’ within

the meaning of § 2255 . . . .”).4

Resisting this conclusion, Mr. Taylor offers two arguments, one doctrinal and one practical,

neither of which is availing. First, Mr. Taylor argues that, to the extent that he is now procedurally

barred from bringing his § 2255 motion, the Court should entertain his challenge anyway because

3 See Banks v. Gonzalez, 496 F. Supp. 2d 146, 149 (D.D.C. 2007) (collecting cases for the proposition that “a petitioner who is on parole, probation, supervised release, or released on bail is deemed to be ‘in custody’ for habeas purposes”); see also Doe v. U.S. Parole Comm’n, 602 Fed. App’x 530, 533 (D.C. Cir. 2015) (“Even if an individual is not physically incarcerated, he or she may be ‘in custody’ for purposes of federal habeas law if ‘significant restraints’ are placed on his or her liberty.”). 4 The Court notes that there is another means of collateral attack which neither party mentions: “Section 2255(e), referred to as ‘the savings clause’ of § 2255, ‘provides that if the remedy by motion is inadequate or ineffective to test the legality of [a] detention, [a] prisoner may utilize 28 U.S.C. § 2241 to collaterally attack the legality of his conviction or sentence.’” United States v. Armstead, No. 13-cr-329-BAH, 2016 WL 10749633, at *2 (D.D.C. Nov. 2, 2016) (Howell, C.J.) (alterations in original) (quotation omitted) (citing In re Smith, 285 F.3d 6, 8 (D.C. Cir. 2002)). This route, however, would also prove to be a dead end for Mr. Taylor because the savings clause, by its own terms, applies only to “[a]n application for a writ of habeas corpus in behalf of a prisoner . . . .” 28 U.S.C. § 2255(e) (emphasis added). For reasons already discussed, Mr. Taylor is not a “prisoner,” and therefore cannot invoke the savings clause.

3 of the “actual innocence exception to the procedural default rule.” Mot. to Withdraw Plea at 2.

Mr. Taylor directs the Court to Bousley v. United States, in which the Supreme Court held that

“[w]here a defendant has procedurally defaulted a claim by failing to raise it on direct review, the

claim may be raised in habeas . . . if the defendant can . . . demonstrate . . . that he is ‘actually

innocent.’” 523 U.S. 614, 623 (1998).

But this argument misunderstands the import of the “actual innocence exception.” That

exception functions to salvage a claim that would otherwise be barred due to a procedural default,

i.e. the petitioner’s failure to first raise the claim on appeal. See, e.g., Bousley, 523 U.S. at 622–

23 (contemplating the actual innocence exception in a case where the petitioner failed to challenge

the validity of his plea on appeal and then sought to challenge it on collateral review); Murray v.

Carrier, 477 U.S. 478, 482, 497 (1986) (respondent procedurally defaulted by failing to argue on

appeal that the trial judge had erred by not permitting the defendant to discover the victim’s

statements to police; Supreme Court remanded with instructions to consider whether the victim’s

statements “would establish respondent’s actual innocence”). Put differently, the actual innocence

exception softens the usual rule that “[h]abeas review is an extraordinary remedy and ‘will not be

allowed to do service for an appeal.’” Bousley, 523 U.S. at 621 (quoting Reed v. Farley, 512 U.S.

339, 354 (1994) (quotations omitted)).

In this case, however, the impediment to adjudicating Mr. Taylor’s § 2255 claim is not that

he procedurally defaulted by failing to first raise his arguments on appeal. Rather, the obstacle is

the jurisdictional requirement, embedded in the statute itself, that a federal habeas petitioner must

be in custody at time of filing. Actual innocence may excuse certain procedural errors, but it does

not allow this Court to rewrite the federal habeas statute and excise a jurisdictional constraint that

Congress ordained.

4 Second, Mr. Taylor offers a more pragmatic argument. He urges that his situation “appears

to be unprecedented,”5 and urges that it is unfair that he should suffer the lasting consequences of

a guilty plea simply because he received a pardon before he mounted this challenge. Mr. Taylor

is correct to note that he could suffer collateral consequences from his guilty plea remaining on

the books. For example, Application Note 10 to § 4A1.2 of the U.S. Sentencing Guidelines Manual

provides that, if a defendant has been pardoned for a “reason[] unrelated to innocence or errors of

law,” the underlying conviction should be counted toward the defendant’s criminal history score.6

If Mr. Taylor believes that he remains jurisdictionally able to proceed under § 2255 because

of the lingering effects of his guilty plea, he is mistaken: in Maleng v. Cook, the Supreme Court

squarely rejected the argument that “the possibility that the prior conviction will be used to enhance

5 Though the Court is unaware of any cases perfectly resembling Mr. Taylor’s, there are some cases that are somewhat similar. In United States v. Davis, a court considered whether a defendant who had been pardoned after pleading guilty but before being sentenced could withdraw his guilty plea and enter a plea of not guilty instead. 429 F. Supp. 503, 505 (E.D.N.Y. 1977). The court denied the defendant’s motion, reasoning that “the denial of one’s guilt (i.e., a plea of ‘not guilty’) after a pardon has been tendered constitutes a rejection or waiver of the pardon,” an outcome which the court assumed the defendant did not want. Id. at 505 & n.2 (citing United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833)). The D.C. Circuit has seemingly softened its stance on whether the acceptance of a pardon is necessarily inconsistent with maintaining one’s innocence. Compare In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994) (“[T]he acceptance of a pardon implies a confession of guilt.”), with United States v. Schaffer, 240 F.3d 35, 38 (D.C. Cir. 2001) (“[A]cceptance of a pardon may imply a confession of guilt.”) (emphasis added). Ultimately, because this Motion is resolved entirely on procedural and jurisdictional grounds, the Court need not address whether a not guilty plea is conceptually reconcilable with the acceptance of a pardon. And in United States v. Flynn, a court in this District considered a joint motion to dismiss a case as moot after the defendant, who had previously moved to withdraw his guilty plea, received a presidential pardon. 507 F. Supp. 3d 116, 123–24, 126 (D.D.C. 2020). The court agreed with the parties that the pardon rendered the case moot. Respectfully, this Court will not follow the logic of Flynn here. Mr. Taylor’s case is not moot because, if he were allowed to change his plea, he might receive real benefits, such as a reduction in his hypothetical criminal history score. At least one Circuit Court of Appeals has adopted this view as well. See Lorance v. Commandant, U.S. Disciplinary Barracks, 13 F.4th 1150, 1165 (10th Cir. 2021) (case was not moot after pardon because vacatur of the convictions would “impact [the petitioner’s] criminal history, ability to obtain military benefits, and likelihood of passing a bar character and fitness investigation”); see also Bjerkan v. United States, 529 F.2d 125, 129 (7th Cir. 1975) (Fairchild, C.J., dissenting) (“The Presidential Pardon . . . does not remove all of the ‘collateral consequences’ of [the plaintiff’s] conviction. Therefore, I am unable to agree with the majority that this case is now moot.”). 6 Mr. Taylor maintains that he is, in fact, innocent of his § 1512 charge as reinterpreted in Fischer, but he does not argue that he was pardoned due to his innocence—and indeed, the Executive Order announcing his pardon nowhere states that it was promulgated due to the recipients’ “innocence” or to correct any “error[] of law.”