Amicus Curiae Brief — Nadarius Barnes, Petitioner v. United States

No. 25-936

IN THE

Supreme Court of the United States

————

NADARIUS BARNES,

Petitioner,

v.

UNITED STATES,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

————

BRIEF AMICUS CURIAE OF THE

DUKE CENTER FOR CRIMINAL JUSTICE AND

PROFESSIONAL RESPONSIBILITY

IN SUPPORT OF PETITIONER

————

JAMES E. COLEMAN, JR.

Counsel of Record

JAMIE T. LAU

CENTER FOR CRIMINAL

JUSTICE AND PROFESSIONAL

RESPONSIBILITY

210 Science Dr. Box 90360

Durham, NC 27708-0360

(919) 613-7057

jcoleman@law.duke.edu

Counsel for Amicus Curiae

April 1, 2026

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

Whether, by entering a guilty plea, a defendant

waives his right to appeal his conviction on the ground

that the admitted conduct does not constitute a

criminal offense as a matter of law.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

i

TABLE OF AUTHORITIES ................................

vi

INTEREST OF AMICUS CURIAE .....................

1

SUMMARY OF ARGUMENT .............................

2

REASONS FOR GRANTING THE WRIT ..........

4

I.

COURTS OF APPEALS ARE SPLIT ON

WHETHER AN UNCONDITIONAL

GUILTY PLEA IMPLICITLY WAIVES

DIRECT REVIEW OF A PRESERVED

CLAIM THAT THE GOVERNMENT

LACKED STATUTORY AUTHORITY

TO CONVICT THE DEFENDANT ..........

4

A. The courts of appeals’ split on

whether an unconditional plea waives

direct review of claims of innocence

creates unnecessary legal uncertainty

for criminal defendants .......................

6

B. In circuits treating an unconditional

plea as a waiver of challenges that the

statute does not criminalize the

admitted conduct, a defendant who

defaulted on that claim prior to his

guilty plea may be able to pursue it

collaterally under the MennaBlackledge doctrine .............................

7

1. A guilty plea admits historical

facts but does not concede the

government’s authority to prosecute based on the admitted facts ...

8

(iii)

iv

TABLE OF CONTENTS—Continued

Page

II.

2. Claims that admitted conduct does

not constitute a criminal offense

are claims of innocence ..................

9

3. This Court’s precedents recognize

that such claims of innocence

survive a guilty plea and may be

pursued

in

post-conviction

proceedings .....................................

10

COLLATERAL REVIEW IS NOT A SUBSTITUTE FOR DIRECT APPEAL IN A

CASE WHERE THE DEFENDANT

CHALLENGED

THE

SENTENCE

ENHANCEMENT PRIOR TO HIS

UNCONDITIONAL GUILTY PLEA BUT

WAS BARRED FROM PURSUING IT

ON DIRECT APPEAL BECAUSE OF

HIS PLEA .................................................

11

A. The Tenth Circuit’s guilty-plea

waiver rule may preclude review of a

claim otherwise allowed by this Court

on both direct and collateral review ...

12

B. The failure to raise an available claim

on direct appeal as a result of a guilty

plea waiver may constitute a

procedural default ...............................

12

1. The cause-and-prejudice standard

may not offer a pathway for a

claim that was preserved but not

heard on direct appeal ...................

13

v

TABLE OF CONTENTS—Continued

Page

2. The actual innocence gateway may

be unavailable to obtain collateral

review of a defaulted claim

challenging a guilty plea under 18

U.S.C. § 924(c) ................................

14

C. The resulting structural gap should

be eliminated by this Court to

preserve the integrity of the plea

system ..................................................

14

III. THE QUESTION PRESENTED IS

SYSTEMATICALLY IMPORTANT IN A

CRIMINAL JUSTICE SYSTEM DOMI

NATED BY GUILTY PLEAS ...................

15

A. Guilty pleas resolve the overwhelming majority of criminal cases .............

15

B. A significant number of defendants

plead guilty in such a system for

reasons unrelated to the legal validity

of their convictions ..............................

16

C. Conditioning appellate review on

proceeding to trial distorts the plea

system ..................................................

17

D. The waiver rule challenged in this

petition

prevents

the

uniform

development of federal criminal law ..

18

CONCLUSION ....................................................

19

vi

TABLE OF AUTHORITIES

CASES

Page(s)

Blackledge v. Perry,

417 U.S. 21 (1974) .............................. 7-8, 10, 12

Bousley v. United States,

523 U.S. 614 (1998) .................................. 5, 7-12

Brady v. United States,

397 U.S. 742, 752–53 (1970) .....................

16

Class v. United States,

583 U.S. 174 (2018) .................................. 7-8, 10

Coleman v. Thompson,

501 U.S. 722 (1991) ...................................

13

Damon v. United States,

732 U.S. F.3d 1 (1st Cir. 2013) .................

14

Fiore v. White,

531 U.S. 225 (2001) ................................... 7-10

Lafler v. Cooper,

566 U.S. 156 (2012) ................................... 15, 17

Marrero v. Ives,

682 F.3d 1190 (9th Cir. 2012) ...................

14

McKay v. United States,

657 F.3d 1190 (11th Cir. 2011) .................

14

Menna v. New York,

423 U.S. 61 (1975) .............................. 7-8, 10, 12

Missouri v. Frye,

566 U.S. 134 (2012) ...................................

15

Grzegorczyk v. United States,

997 F.3d 743 (7th Cir. 2021) .....................

4, 6

vii

TABLE OF AUTHORITIES—Continued

Page(s)

In re Winship,

397 U.S. 358 (1970) ...................................

7

United States v. Broce,

488 U.S. 563 (1989) ................................ 7-10, 13

United States v. Brown,

875 F.3d 1235 (9th Cir. 2017) ...................

5, 6

United States v. Delgado-Garcia,

374 F.3d 1337 (D.C. Cir. 2004) .................

4, 6

United States v. Frady,

456 U.S. 152 (1982) ................................... 11-13

United States v. Jones,

75 F.4th 502 (5th Cir. 2023) .....................

5-6

United States v. Pettiford,

612 F.3d 270 (4th Cir. 2010) .....................

14

United States v. Pittman,

125 F.4th 527 (4th Cir. 2025) ...................

4, 6

United States v. Rosa-Ortiz,

348 F.3d 33 (1st Cir. 2003) .......................

5-6

United States v. Rubin,

743 F.3d 31 (2d Cir. 2014) ........................

4, 6

United States v. St. Hubert,

909 F.3d 335 (11th Cir. 2018) ...................

5-6

United States v. Taylor,

596 U.S. 845 (2022) ...................................

5

Wainwright v. Sykes, 433 U.S. 72

(1977) ................................................... 11, 13, 15

viii

TABLE OF AUTHORITIES—Continued

STATUTES

Page(s)

18 U.S.C. § 924(c) ............................... 8, 12, 13, 14

28 U.S.C. § 2255 ........................................... 12-13

RULES

Fed. R. Crim. P. 11(a)(2) ..............................

17

Fed. R. Crim. P. 11(e) ...................................

11

OTHER AUTHORITIES

Charles E. Hintz, The Plain Error of Cause

and Prejudice, 53 Seton Hall L. Rev. 439

(2022) .........................................................

13

Brandon L. Garrett, Convicting the

Innocent: Where Criminal Prosecutions

Go Wrong (2011) ....................................... 16-17

Nancy J. King et al., Final Technical

Report: Habeas Litigation in U.S.

District Courts, NCJ No. 305999 (2007) ..

17

The National Registry of Exonerations,

Explore Exonerations (ital.), https://exon

erationregistry.org/cases?f%5B0%5D=n_

cchar%3AP&f%5B1%5D=n_pre_1989%3

A0 (last visited Mar. 22, 2026) .................

16

United States Sentencing Commission,

2024 Sourcebook of Federal Sentencing

Statistics (March 19, 2025).......................

15

INTEREST OF AMICUS CURIAE1

Amicus Curiae is the Duke Center for Criminal

Justice and Professional Responsibility (CCJPR).

CCJPR promotes justice in criminal cases and works

to identify, remedy, and prevent the wrongful conviction of innocent people.

Established in 2006, CCJPR was co-founded and is

led by James E. Coleman, Jr., the John S. Bradway

Distinguished Professor of the Practice of Law at Duke

University School of Law. For his lifelong commitment

to equal justice, due process, and the rule of law, the

Bolch Judicial Institute at Duke University School of

Law awarded Professor Coleman the 2022 Raphael

Lemkin Rule of Law Guardian Medal.

CCJPR promotes justice in criminal cases and trains

students, lawyers, prosecutors, judges, and the public

to prevent, identify, and remedy wrongful convictions.

In addition to public advocacy, clinical faculty and over

300 Duke Law students, through the Wrongful

Convictions Clinic and the Duke Law Innocence

Project®, have worked to secure the full exoneration of

eleven men and the release of five others.

The Center has substantial experience with postconviction litigation and the structural barriers that

arise when legal claims are foreclosed from direct

appeal. When purely legal challenges to the scope of

1

Pursuant to this Court’s Rule 37.2, Counsel of record for all

listed parties received email notice of the Amicus Curiae’s

intention to file this brief at least ten days prior to the Brief’s due

date.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel

for any party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation of submission of this brief.

2

criminal statutes are barred following guilty pleas,

those claims are relegated to collateral proceedings,

where review is narrower, delayed or unavailable. The

Center’s experience underscores the substantial

systemic consequences of restricting appellate review

in this context.

The question presented in this case concerns

whether solely, on account of his unconditional guilty

plea, a defendant waives review of a claim that his

admitted conduct does not constitute a criminal

offense. The Court’s resolution of that question will

directly affect the ability of courts at the earliest stage

to correct wrongful convictions of defendants claiming

actual innocence. Consequently, this will help lessen

the impact on the limited resources of organizations like

CCJPR to advance the rule of law by correcting miscarriages of justice through post-conviction proceedings.

SUMMARY OF THE ARGUMENT

An unconditional guilty plea does not waive a

defendant’s right to argue on direct appeal that his

admitted conduct does not constitute a criminal

offense as a matter of law. A guilty plea admits facts.

It does not concede that the government has lawful

authority to convict or punish on those facts. When a

defendant argues that the statute does not reach his

conduct, he does not just dispute factual guilt, he

disputes the legal basis for the conviction itself.

That distinction is settled by this Court’s cases.

Claims challenging case-specific defects in the determination of factual guilt fall away with a plea. But

claims challenging the government’s power to convict

do not. A defendant who contends that the admitted

conduct is not criminal raises a claim of innocence, not

a waived procedural claim. The contrary rule collapses

3

the distinction between fact and law and allows a

conviction to stand even where the statute does not

criminalize the conduct at issue.

The courts of appeals are divided on this question.

Some treat a plea as resolving both factual and legal

sufficiency. Others recognize that a plea settles only

the facts and leaves intact the legal question of

whether those facts amount to a crime. That

disagreement produces intolerable asymmetry in

federal criminal law. The availability of review should

not depend on geography.

The alternatives to direct appeal are no substitute.

Once a defendant is barred from pursuing this claim

on direct review because of his plea, collateral review

may not provide an alternative path. A defendant

generally may not use post-conviction proceedings as

a substitute for appeal, and a claim not heard on direct

review may be treated as procedurally defaulted. The

traditional gateways do not solve the problem. It is

uncertain whether a court’s refusal to hear the claim

because of a guilty plea establishes cause. And courts

have held that the actual innocence gateway is limited

to factual innocence, not innocence resulting from the

government’s failure to establish a statutory element

for enhancement.

That leaves a structural gap. A defendant who

preserved the issue may lose both direct and collateral

review entirely. That result turns diligence into

forfeiture and deprives courts of the opportunity to

correct legal error at the stage where correction is

expected to occur.

That problem is especially serious in a criminal

justice system characterized by guilty pleas. Nearly all

federal convictions result from pleas, not trials. In that

4

system, a rule conditioning review on the willingness

to go to trial may prevent substantial legal questions

from being heard at all in some cases. It will also

distort plea bargaining by forcing defendants to reject

otherwise appropriate pleas to preserve legal claims

that have nothing to do with disputed facts.

Direct appeal is the proper vehicle for resolving

those claims. It allows courts to address pure questions

of law promptly, uniformly, and in cases where the

relevant facts are undisputed. This Court should

resolve whether an unconditional guilty plea alone

waives a defendant’s right to argue on direct appeal

that his admitted conduct does not constitute a crime.

REASONS FOR GRANTING THE WRIT

I. COURTS OF APPEALS ARE SPLIT ON

WHETHER AN UNCONDITIONAL GUILTY

PLEA IMPLICITLY WAIVES DIRECT

REVIEW OF A PRESERVED CLAIM THAT

THE GOVERNMENT LACKED STATUTORY AUTHORITY TO CONVICT THE

DEFENDANT.

The courts of appeals are sharply divided over the

effect of an unconditional guilty plea on a defendant’s

right to appellate review of a preserved claim of law

based on his actual innocence. Some circuits hold that

a plea bars a defendant from arguing on direct appeal

that the conduct he admitted does not constitute a

criminal offense. See, e.g., United States v. Pittman,

125 F.4th 527, 530–33 (4th Cir. 2025); Grzegorczyk v.

United States, 997 F.3d 743, 745–48 (7th Cir.

2021); United States v. Rubin, 743 F.3d 31, 38–40 (2d

Cir. 2014); United States v. Delgado-Garcia, 374 F.3d

1337, 1340–41 (D.C. Cir. 2004). Other circuits hold that

such claims survive a plea because they challenge the

5

government’s statutory authority to obtain the

conviction itself. See, e.g., United States v. Jones, 75

F.4th 502, 508 (5th Cir. 2023); United States v. St.

Hubert, 909 F.3d 335, 343–45 (11th Cir. 2018),

abrogated on other grounds by United States v. Taylor,

596 U.S. 845 (2022); United States v. Brown, 875 F.3d

1235, 1238–39 (9th Cir. 2017); United States v. RosaOrtiz, 348 F.3d 33, 36–37 (1st Cir. 2003).

This disagreement reflects fundamentally different

views of the legal consequences of a guilty plea. In the

first set of circuits, the plea is treated as conceding

both the underlying conduct and the legal sufficiency

of the conduct to establish the offense to which the plea

is entered. In the second, the plea resolves only the

historical facts constituting the conduct, preserving

purely legal questions of whether those facts satisfy

the Government’s burden to establish beyond a

reasonable doubt the elements of the statute under

which the defendant was charged. The result is a

persistent conflict over whether defendants who plead

guilty may later challenge the legal validity of the

conviction itself, and if so, how such a challenge can be

mounted.

Because convictions are overwhelmingly obtained

through guilty pleas, the conflict over whether a plea

forecloses review of claims that the admitted conduct

is not criminal (and therefore that the defendant is

innocent of the enhancement) is crucial. See Bousley v.

United States, 523 U.S. 614, 629 (1998) (Stevens, J.,

dissenting in part). The availability of appellate review

now turns on geography rather than law. Identical

legal claims are treated fundamentally different,

depending solely on the circuit in which the

prosecution occurs.

6

A. The courts of appeals’ split on whether

an unconditional plea waives direct

review of claims of innocence creates

unnecessary legal uncertainty for

criminal defendants.

Courts adopting the court-imposed waiver rule treat

a guilty plea as admitting not only the charged conduct

but also settling the legal issue whether the conduct

establishes the elements of the offense. Under that

view, once a defendant pleads guilty, he may not subsequently claim on appeal that the admitted conduct did

not violate the statute under which he was convicted.

See Pittman, 125 F.4th at 530–33; Grzegorczyk, 997

F.3d at 745–48; Rubin, 743 F.3d at 38–40; DelgadoGarcia, 374 F.3d at 1340–41. Because the plea is

treated as conceding the legal validity of the charge,

those courts regard any contrary argument as waived.

Other circuits reject that premise. Those courts

recognize that a defendant may admit the conduct

alleged in the indictment in a guilty plea, while

maintaining that the conduct does not constitute a

crime under the statute. See United States v. Jones, 75

F.4th at 508; St. Hubert, 909 F.3d at 343–45; Brown,

875 F.3d at 1238–39; Rosa-Ortiz, 348 F.3d at 36–37. In

their view, a guilty plea resolves factual disputes but

does not conclusively determine the legal reach of the

statute under which the conviction is entered. See

Jones, 75 F.4th at 508; St. Hubert, 909 F.3d at 343–45;

Brown, 875 F.3d at 1238–39; Rosa-Ortiz, 348 F.3d at

36–37.

This divergence is not procedural but substantive.

One approach treats the plea as resolving both fact

and law; the other confines the plea’s effect to resolving

the facts but preserving for appellate review the

merits of claims that the admitted conduct does not

7

establish the statutory elements of the offense. See In

re Winship, 397 U.S. 358, 364 (1970). That disagreement produces substantial uncertainty for criminal

defendants and inconsistent interpretations of federal

criminal statutes across jurisdictions.

B. In circuits treating an unconditional

plea as a waiver of challenges that the

statute does not criminalize the admitted conduct, a defendant who defaulted

on that claim prior to his guilty plea

may be able to pursue it collaterally

under the Menna-Blackledge doctrine.

The waiver rule adopted in some circuits conflicts

with this Court’s decisions regarding review of guiltypleas. Those decisions distinguish between claims

challenging procedural defects in the adjudicative

process and claims challenging the government’s

authority to obtain the conviction itself. Class v. United

States, 583 U.S. 174, 180–83 (2018); Fiore v. White, 531

U.S. 225, 228–29 (2001); Bousley v. United States, 523

U.S. 614, 620–22 (1998); United States v. Broce, 488

U.S. 563, 574–75 (1989); Menna v. New York, 423 U.S.

61, 62 n.2 (1975); Blackledge v. Perry, 417 U.S. 21, 30

(1974).

Menna articulates that principle directly: a guilty

plea “is an admission of factual guilt,” but does not bar

a claim that the state may not convict “no matter how

validly his factual guilt is established.” 423 U.S. at 62

n.2. Blackledge rests on the same premise. There, the

plea did not foreclose review because the challenge

went “to the very power of the State” to prosecute the

charge at issue. 417 U.S. at 30. These decisions define

the boundary of the guilty-plea rule itself.

8

A plea waives claims concerning antecedent

procedural errors. It does not relieve the government

of its constitutional burden to show that the facts

establish the elements of the statute under which the

defendant was charged. See Class, 583 U.S. at 180–83

(holding that a guilty plea does not bar a defendant

from arguing on direct appeal that the statute of

conviction is unconstitutional). Such a claim survives

because it does not challenge the plea’s factual

admissions but only whether the government has

criminalized the admitted conduct. Id. at 182; accord,

Fiore, 531 U.S. at 228–29; Bousley, 523 U.S. at 620–22;

Broce, 488 U.S. at 574–75. These decisions rest upon

the fundamental principle that the government cannot

punish conduct—the sole purpose of 18 U.S.C.

§ 924(c)—that the statute itself does not criminalize.

1. A guilty plea admits historical facts

but does not concede the government’s authority to prosecute based

on the admitted facts.

A guilty plea establishes the historical conduct

underlying the conviction. It does not determine the

legal consequences of those facts. That distinction runs

throughout this Court’s guilty-plea jurisprudence.

Menna made the point explicitly. The plea admitted

factual guilt but did not waive the claim that the State

lacked authority to convict based on the admitted

facts. 423 U.S. at 62 n.2. Blackledge reached the same

conclusion, holding that the asserted defect concerned

the State’s authority to prosecute the charge rather

than the factual basis for conviction. 417 U.S. at 30–

31. Class reaffirmed that principle in the modern

context. There, the Court treated the plea as an

admission of conduct only, leaving open whether the

9

government had authority to punish the defendant for

the conduct. 583 U.S. at 181–83.

Broce is consistent with that rule. The Court rejected

a challenge that sought to contradict the factual

admissions underlying the plea. 488 U.S. at 570–74.

But it recognized claims that the court lacked

authority to enter the judgment. Id. at 575. In other

words, a guilty plea resolves disputes about what the

defendant did; it does not conclusively establish that

the legislature criminalized what he did.

2. Claims that admitted conduct does

not constitute a criminal offense are

claims of innocence.

A claim that admitted conduct does not constitute

the charged offense is a claim of innocence. See

Bousley, 523 U.S. at 620–22. The defendant does not

dispute what occurred; he disputes whether the

legislature made the conduct a crime. Such claims

differ fundamentally from the procedural objections

ordinarily waived by a guilty plea. Challenges to

searches, confessions, or evidentiary rulings concern

the procedures through which factual guilt was

established. A claim that the statute does not

criminalize the admitted conduct concerns whether

the defendant has committed an offense at all. Id. at

620–22. That is a claim of “actual innocence” because

the defendant has been convicted for conduct that the

law does not criminalize. Id. at 623. See also Fiore, 531

U.S. at 228–29.

10

3. This Court’s precedents recognize

that such claims of innocence survive

a guilty plea and may be pursued in

post-conviction proceedings.

This Court’s decisions recognize that a claim

challenging the government’s authority to convict a

defendant for undisputed conduct survives a guilty

plea. Menna and Blackledge establish the rule. Broce

preserves it in defining the limits of a plea-based

waiver. Bousley and Fiore apply the same principle

where subsequent interpretation of a statute reveals

that the defendant’s conduct was not criminal. Class

confirms that the doctrine applies on direct appeal

following an unconditional guilty plea.

Taken together, these cases reflect a consistent

principle: a guilty plea admits facts, not law, and it

does not legalize a conviction that substantive

criminal law does not authorize. When a defendant

concedes the factual basis for his guilty plea but

argues that the statute under which he is being

sentenced does not criminalize his conduct, the claim

challenges the government’s statutory authority to

impose punishment rather than the procedures

through which guilt was established.

The existing circuit split demonstrates the need for

this Court’s intervention. In some jurisdictions, such

claims of actual innocence receive direct appellate

review; in others, they are deemed waived by the act of

pleading guilty; and in some, but not all, they may

survive for collateral review. The resulting chaos

leaves the availability of review to the happenstance

of geography and prevents uniform resolution of questions regarding the government’s authority to obtain

substantially enhanced punishment in some cases.

11

II. COLLATERAL REVIEW IS NOT A

SUBSTITUTE FOR DIRECT APPEAL IN A

CASE WHERE THE DEFENDANT CHALLENGED THE SENTENCE ENHANCEMENT

PRIOR

TO

HIS

UNCONDITIONAL

GUILTY PLEA BUT WAS BARRED FROM

PURSUING IT ON DIRECT APPEAL

BECAUSE OF HIS PLEA.

Under the Federal Rules of Criminal Procedure, a

guilty plea may only be set aside on direct appeal or

collateral attack. Fed. R. Crim. P. 11(e). In circuits that

foreclose direct appeal under the waiver by guilty-plea

rule, collateral review becomes the only avenue to

challenge a guilty plea that was not challenged on

direct appeal. Bousley, 523 U.S. at 622. However, before

the claim can be considered on the merits, the

defendant must first obtain relief from the procedural

default resulting from his failure to pursue it on direct

appeal. Such relief is available only upon a showing of

cause and prejudice or through the actual innocence

gateway. See Bousley, 523 U.S. at 622; United States v.

Frady, 456 U.S. 152, 166–68 (1982); Wainwright v.

Sykes, 433 U.S. 72, 87 (1977).

For a defendant such as the petitioner, however, who

raised his claim in district court, but was not allowed

to pursue it on direct appeal as a result of his guilty

plea, neither avenue for collateral review may be

available; his defaulted claim may be permanently

barred. This structural gap warrants the Court’s

consideration.

12

A. The Tenth Circuit’s guilty-plea waiver

rule may preclude review of a claim

otherwise allowed by this Court on

both direct and collateral review.

Under this Court’s decisions, a defendant may

challenge a guilty plea on direct appeal, Menna, 423

U.S. at 62 n.2; Blackledge, 417 U.S. at 30, or in

collateral proceedings. Bousley, 523 U.S. at 622. For a

defendant like Barnes, however, who was denied direct

review of his challenge to the Government’s authority

to obtain a sentence enhancement as a consequence of

his guilty plea, collateral review may not restore that

lost opportunity. A defendant cannot use 28 U.S.C.

§ 2255 as a substitute for an appeal that was

determined to be waived by the circuit court, see Frady,

456 U.S. at 165, nor can he relitigate the technically

defaulted claim absent a showing of cause and

prejudice or obtaining relief through the actual

innocence gateway. Bousley, 523 U.S. at 622. Neither

avenue is clearly available.

B. The failure to raise an available claim

on direct appeal as a result of a guilty

plea waiver may constitute a procedural

default.

If a defendant does not raise a claim on direct appeal

that was available for review, it technically constitutes

a procedural default that requires a showing of cause

and prejudice to obtain relief from the default or relief

from the miscarriage of justice through the innocence

gateway. Id. Barnes raised, litigated, and lost his

challenge to the § 924(c) sentence enhancement in

district court and tried to pursue it on direct appeal.

An unintended and involuntary consequence of the

Tenth Circuit’s refusal to review the § 924(c) claim

13

because of his guilty plea, however, may also be a bar

to of his right to seek collateral review of the challenge.

1. The cause-and-prejudice standard

may not offer a pathway for a claim

that was preserved but not heard on

direct appeal.

Cause and prejudice must be satisfied for review of

a defaulted claim on collateral review. See Sykes, 433

U.S. at 97; Frady, 456 U.S. at 167–68 (extending the

standard to a § 2255 motion). It is not obvious that the

waiver of direct appeal occasioned by a guilty plea is

an “objective factor external to the defense” that

impeded the defendant’s direct appeal. Murray v.

Carrier, 477 U.S. 478, 486, 488 (1986). Though, a courtcreated barrier to appellate review could support a

finding of cause, that issue has yet to be decided.2 Thus,

it is uncertain whether the Tenth Circuit’s refusal to

hear Barnes’s preserved claim as a result of his guilty

plea would constitute cause under Sykes and its

progeny.3 See Coleman v. Thompson, 501 U.S. 722, 750–

51 (1991) (recognizing that procedural rules serve the

interest of finality even when they prevent review of

constitutional claims); Carrier, 477 U.S. at 487.

2

See Charles E. Hintz, The Plain Error of Cause and Prejudice,

53 Seton Hall L. Rev. 439, 463–64 (2022) (stating that cause and

prejudice is an imprecise standard that is often more complicated

and time-consuming than the merits of the underlying claim).

3

The defendant likely cannot claim his guilty plea was not

voluntary and intelligent because he challenged whether § 924(c)

criminalizes his conduct before his unconditional guilty plea.

Broce, 488 U.S. at 569.

14

2. The actual innocence gateway may

be unavailable to obtain collateral

review of a defaulted claim challenging a guilty plea under 18 U.S.C.

§924(c).

The actual innocence gateway, as applied to

challenges of a sentence enhancement such as § 924(c),

is limited. It is unclear whether it can be used to

provide relief based on what some courts have called

“legal innocence.” Those courts require proof that the

defendant is innocent of the predicate offense, and not

just that the admitted conduct did not establish the

statutory elements for the enhancement. Damon v.

United States, 732 U.S. F.3d 1, 5–6 (1st Cir. 2013).

That distinction likely would control here. Barnes

challenges whether § 924(c) applies to his admitted

conduct. His claim that § 924(c) does not authorize a

sentence enhancement for that conduct may not

provide relief through the actual innocence gateway.4

C. The resulting structural gap should be

eliminated by this Court to preserve

the integrity of the plea system.

The resulting conflict creates a structural mismatch.

A defendant who fails to raise the claim at all may

obtain collateral review but a defendant who raises

4

Damon, 732 F.3d at 5–6; see also Marrero v. Ives, 682 F.3d

1190, 1193 (9th Cir. 2012) (explaining one cannot assert a

cognizable claim of actual innocence for a sentence enhancement); McKay v. United States, 657 F.3d 1190, 1189-90 (11th Cir.

2011) (stating that for Bousley to apply, a movant must show that

he is factually innocent of the predicate crime); United States v.

Pettiford, 612 F.3d 270, 284 (4th Cir. 2010) (explaining that

innocence stems from “factual innocence of the predicate crimes,

and not from the legal classification of the predicate crimes”).

15

and preserves the claim, and is denied direct appeal as

a consequence of his guilty plea, may be precluded

from obtaining review through either path. The more

diligent the defendant is in preserving his claim prior

to his guilty plea, the less likely his claim will receive

appellate scrutiny. This conflicts with the repeated

suggestion that procedural rules are designed to

ensure that the trial and direct appeal remain “the

main event” and not a “tryout on the road” for later

collateral review. See Sykes, 433 U.S. at 90 (Burger,

C.J., concurring). The Tenth Circuit shut down the

main event before it could run its course.

III. THE

QUESTION

PRESENTED

IS

SYSTEMATICALLY IMPORTANT IN A

CRIMINAL JUSTICE SYSTEM DOMINATED BY GUILTY PLEAS.

The rule adopted in some circuits operates in a

criminal justice system in which convictions are

overwhelmingly obtained through guilty pleas. In

federal court, approximately ninety-seven percent of

convictions result from guilty pleas. See United States

Sentencing Commission, 2024 Sourcebook of Federal

Sentencing Statistics, tbl. 11. In that system, rules

governing the effect of a guilty plea control how and

whether recurring legal questions are reviewed by

appellate courts.

A. Guilty pleas resolve the overwhelming

majority of criminal cases.

Guilty pleas define the system. This Court has

recognized that “ours is for the most part a system of

pleas, not a system of trials.” Missouri v. Frye, 566 U.S.

134, 143 (2012) (quoting Lafler v. Cooper, 566 U.S. 156,

170 (2012)). Because nearly all convictions result from

guilty pleas, the consequences attached to those pleas

16

determine which and how legal questions are

presented for appellate review. If review depends on

trial, the set of cases capable of generating appellate

decisions becomes vanishingly small.

B. A significant number of defendants

plead guilty in such a system for

reasons unrelated to the legal validity

of their convictions.

Defendants often plead guilty because the cost of

going to trial is too high. A defendant who proceeds to

trial faces both conviction and, relative to a negotiated

plea agreement, a significantly higher sentence. See

Brady v. United States, 397 U.S. 742, 752–53 (1970).

Faced with that risk, defendants accept plea

agreements even when they are innocent or maintain

that their conduct does not violate the statute of

conviction.5

This dynamic has real consequences. James Lee

Woodward, for example, was offered a three-year plea

in a homicide case he denied committing. He rejected

the plea and received a life sentence after trial,

ultimately spending twenty-seven years in prison

before being exonerated. See Brandon L. Garrett,

Convicting the Innocent: Where Criminal Prosecutions

5

See Brandon L. Garrett, Convicting the Innocent: Where

Criminal Prosecutions Go Wrong, 163 (2011) (stating “[t]here’s no

greater injustice than a man found guilty of something that he

didn’t do. Nothing is more horrifying, in our system of justice.”);

The National Registry of Exonerations, Explore Exonerations,

https://exonerationregistry.org/cases?f%5B0%5D=n_cchar%3AP&f

%5B1%5D=n_pre_1989%3A0 (last visited Mar. 22, 2026) (stating

that since 1989, the twenty-four percent of exonerees who plead

guilty lost a combined total of 2,712 years of freedom).

17

Go Wrong, 151–52 (2011). That result reflects the

grave consequence of conditioning justice on risk.

When those defendants later challenge their convictions, they must proceed through post-conviction

proceedings that are slower, narrower, and rarely

successful. Nancy J. King et al., Final Technical

Report: Habeas Litigation in U.S. District Courts, NCJ

No. 305999, at 64, tbl. 15 (2007). Those proceedings

are not suited to resolve pure questions of statutory

interpretation. Direct appeal often will be the most

efficient and meaningful opportunity to obtain review

of such preserved legal claims.

C. Conditioning appellate review on proceeding to trial distorts the plea system.

A defendant who cannot obtain review of a nonfrivolous legal issue after a guilty plea must choose

between trial to obtain such review or a plea that may

bar review. That choice does not turn on the merits. It

turns on the defendant’s willingness to risk a

substantially greater sentence by going to trial. See

Lafler, 566 U.S. at 170.

The result is predictable. Defendants must reject

otherwise appropriate pleas to preserve legal claims

even where there is no factual dispute that warrants a

trial, while courts must expend resources on trials that

serve no factfinding purpose. And conditional pleas do

not solve the problem because the government may

withhold consent. See Fed. R. Crim. P. 11(a)(2). In a

system defined by guilty pleas, conditioning review on

trial ensures that many meritorious claims may never

be reviewed or may be decided only years later when a

case arises in the right circuit.

18

D. The waiver rule challenged in this

petition prevents the uniform development of federal criminal law.

These consequences affect the pace at which federal

criminal law develops. Questions concerning the scope

of federal criminal statutes require consistent

answers, and appellate courts ordinarily resolve those

questions on direct review. The waiver rule removes

them from that process in many of the cases in which

they often arise. That delays resolution of claims until

a post-conviction challenge can be mounted or until

the same issue arises in a circuit in which it can be

reviewed on direct appeal.

The result is that identical legal claims are reviewed

in some circuits and foreclosed in others. This process

may delay this Court from reaching an important

issue on direct review. The development of federal

criminal law thus turns not on the importance of the

question, but on geography, prosecutorial discretion,

and a defendant’s willingness to risk an unnecessary

trial. This case presents a clean vehicle to resolve that

problem by putting all circuits on the same footing.

19

CONCLUSION

For the reasons stated above, the Petition for the

Writ of Certiorari should be granted.

Respectfully Submitted,

JAMES E. COLEMAN, JR.

Counsel of Record

JAMIE T. LAU

CENTER FOR CRIMINAL

JUSTICE AND PROFESSIONAL

RESPONSIBILITY

210 Science Dr. Box 90360

Durham, NC 27708-0360

(919) 613-7057

jcoleman@law.duke.edu

Counsel for Amicus Curiae

April 1, 2026