Petition for Writ of Certiorari — Okechukwu Dimkpa, Petitioner v. United States

No. 26In the

Supreme Court of the United States

OKECHUKWU DIMKPA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Beau B. Brindley

Counsel of Record

Law Offices of Beau B. Brindley

53 West Jackson Boulevard,

Suite 1410

Chicago, IL 60604

(312) 765-8878

bbbrindley@gmail.com

Counsel for Petitioner

Okechukwu Dimkpa

121218

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

1.

Whether this Court’s decision in Ruan v. United

States, 597 U.S. 450 (2022) constitutes a sufficiently

“novel” intervening change in law to constitute

“cause” excusing a procedural default under 28 U.S.C.

§ 2255.

2.

Whether this Court’s holding in Reed v. Ross, 468 U.S.

1 (1984)—that a decision overturning a unanimous or

nearly unanimous circuit interpretation of a federal

criminal statute, where that interpretation was based

on, if not compelled by, this Court’s own precedent,

constitutes “cause” excusing procedural default—

survived this Court’s later decision in Bousley v.

United States, 523 U.S. 614 (1998).

3.

If Reed remains good law, whether this Court’s

decision in more “arguably” overturned a practice

previously approved of in United States v. Moore, 423

U.S. 122 (1975).

ii

LIST OF PARTIES TO THE PROCEEDINGS

Petitioner Okechukwu Dimkpa was the defendantappellant below. Respondent United States of America

was the appellee below. There are no corporate parties

involved in this case.

iii

RELATED PROCEEDINGS

United States Court Of Appeals (Fourth Circuit):

United States v. Dimkpa, No. 23-6245, 169 F.4th 228

(4th Cir. 2026)

United States District Court (M.D.N.C.):

Dimkpa v. United States, No. 1:19-CR-443, 2023 WL

2349599, (M.D.N.C. Mar. 3, 2023).

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES TO THE PROCEEDINGS . . . . . . ii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii

OPINIONS AND RULINGS BELOW . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONST I T U T IONA L A N D STAT U T ORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 1

FACTUAL AND PROCEDURAL BACKGROUND . . . 6

A. Proceedings In the District Court . . . . . . . . . . . . 6

B. Circuit Court Case Law And Ruan v.

United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

C. The Cause and Prejudice Standard . . . . . . . . . . 11

v

Table of Contents

Page

D. Section 2255 and the Court of Appeals

Decision Below . . . . . . . . . . . . . . . . . . . . . . . 13

REASONS FOR GRANTING THE PETITION . . . . 15

I.

Petitioner ’s Case P rov ides a Clean

Opportunity For This Court To Resolve

A Circuit Split As To Whether The Reed

Factors Constitute Sufficient “Cause”

Excusing Procedural Default In Habeas

After Bousley . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A. Ruan unambiguously qualifies under

the Second and Third Circumstance

Identified in Reed . . . . . . . . . . . . . . . . . . . . . 15

B. A Circuit Split Exists as to whether

the Second and Third Circumstances

Constituting Novelty Articulated in

Reed Survive Bousley . . . . . . . . . . . . . . . . . 19

II. The Decision Below Was Wrongly Decided

And Undermines The Interests Of Judicial

Economy And Justice . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

vi

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT, FILED

MARCH 3, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION

AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE

DI S T R IC T OF NOR T H C A R OL I NA ,

DATED MARCH 3, 2023 . . . . . . . . . . . . . . . . . . . . . 20a

A PPEN DI X C — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT, FILED

MAY 1, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35a

APPENDIX D — EXPEDITED TRANSCRIPT

OF CHANGE OF PLEA FOR THE UNITED

STAT ES DIST RIC COU RT, M I DDLE

DISTRICT OF NORTH CAROLINA, DATED

SEPTEMBER 11, 2019 . . . . . . . . . . . . . . . . . . . . . . . 36a

A PPEN DI X E — PLE A AGR EEM EN T

OF THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT

OF NORT H CA ROLINA , FILED

AUGUST 26, 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . 62a

A PPENDIX F — FACTUA L BA SIS FOR

PLEA OF T H E U NI T ED STAT ES

DISTRICT COURT FOR THE MIDDLE

DI S T R IC T OF NOR T H C A R OL I NA ,

DATED AUGUST 26, 2019 . . . . . . . . . . . . . . . . . . . . 69a

vii

TABLE OF CITED AUTHORITIES

Page

Cases

Bailey v. United States,

516 U.S. 137 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bousley v. United States,

523 U.S. 614 (1998) . . . . . . 2, 5, 6, 11, 12, 15, 19, 20, 22

Cross v. United States,

892 F.3d 288 (7th Cir. 2018) . . . . . . . . . . . . . . . 5, 20, 21

Cvijetinovic v. Eberlin,

617 F.3d 833 (6th Cir. 2010) . . . . . . . . . . . . . . . . . . 5, 23

Engle v. Isaac,

456 U.S. 107 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 12, 15

Evans v. Horton,

792 F. App’x 568 (10th Cir. 2019) . . . . . . . . . . . 5, 20, 23

Gatewood v. United States,

979 F.3d 391 (6th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 20

Granda v. United States,

990 F.3d 1272 (11th Cir. 2021) . . . . . . . . . . . . . 5, 20, 23

Griffith v. Kentucky,

479 U.S. 314 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Gupta v. United States,

913 F.3d 81 (2d Cir. 2019) . . . . . . . . . . . . . . . . . 5, 20, 22

viii

Cited Authorities

Page

Hunter v. United States,

146 S. Ct. 1702 (2026) . . . . . . . . . . . . . . . . . . . . . . . . . 23

Johnson v. United States,

576 U.S. 591 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Mackey v. United States,

401 U.S. 667 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Morissette v. United States,

342 U.S. 246 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Murray v. Carrier,

477 U.S. 478 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Reed v. Ross,

468 U.S. 1 (1984) . . . . . 2-6, 11, 12, 14, 15, 17, 19-22, 25

Ruan v. United States,

597 U.S. 450 (2022) . . 2-5, 8, 9, 10, 13-19, 21, 22, 24, 25

Schriro v. Summerlin,

542 U.S. 348 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Simpson v. Matesanz,

175 F.3d 200 (1st Cir. 1999) . . . . . . . . . . . . . . . 5, 20, 22

Strickler v. Greene,

527 U.S. 263 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ix

Cited Authorities

Page

Teague v. Lane,

489 U.S. 288 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Feingold,

454 F.3d 1001 (9th Cir. 2006) . . . . . . . . . . . . 2, 9, 10, 16

United States v. Godofsky,

943 F.3d 1011 (6th Cir. 2019) . . . . . . . . . . . . . . . . . 9, 16

United States v. Johnson,

457 U.S. 537 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11

United States v. Khan,

989 F.3d 806 (10th Cir. 2021) . . . . . . . . . . . . . . . 2, 9, 17

United States v. Kohli,

847 F.3d 483 (7th Cir. 2017) . . . . . . . . . . . . . 2, 9, 10, 16

United States v. Lyons,

173 F.4th 491 (3d Cir. 2026) . . . . . . . . . . . . . . . . . . 5, 20

United States v. Moore,

423 U.S. 122 (1975) . . . . . . . . 9, 10, 14, 16, 17, 18, 19, 25

United States v. Nelson,

383 F.3d 1227 (10th Cir. 2004) . . . . . . . . . . . . . . . . 16-17

United States v. Norris,

780 F.2d 1207 (5th Cir. 1986) . . . . . . . . . . . . . . 2, 16, 17

x

Cited Authorities

Page

United States v. Purpera,

844 F. App’x 614 (4th Cir. 2021) . . . . . . . . . . . . . . . . . 15

United States v. Ruan,

966 F.3d 1101 (11th Cir. 2020) . . . . . . . . . . . . . . 2, 9, 19

United States v. Sabean,

885 F.3d 27 (1st Cir. 2018) . . . . . . . . . . . . . . . . . . . . 2, 9

United States v. Sanders,

247 F.3d 139 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 14

United States v. Smith,

573 F.3d 639 (8th Cir. 2009) . . . . . . . . . . . . . . . . . . 2, 16

United States v. Smithers,

92 F.4th 237 (4th Cir. 2024) . . . . . . . . . . . . . . . . . 16, 19

United States v. Tran Trong Cuong,

18 F.3d 1132 (4th Cir. 1994) . . . . . . . . . . . . . . . . . . . . 17

United States v. Vamos,

797 F.2d 1146 (2d Cir. 1986) . . . . . . . . . . . . . . . . 2, 9, 16

United States v. Vargas-Soto,

35 F.4th 979 (5th Cir. 2022) . . . . . . . . . . . . . . . 5, 20, 23

United States v. Volkman,

797 F.3d 377 (6th Cir. 2015) . . . . . . . . . . . . . . . . . . 2, 17

xi

Cited Authorities

Page

Wainwright v. Sykes,

433 U.S. 72 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Whitman v. United States,

754 F. App’x 40 (2d Cir. 2018) . . . . . . . . . . . . . . . 22-23

Statutes and Other Authorities

18 U.S.C. § 841 . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10, 13

18 U.S.C. § 841(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16

18 U.S.C.A. § 924(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

21 U.S.C. § 841(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6

21 U.S.C. § 841(b)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

Brent E. Newton, An Argument for Reviving the

Actual Futility Exception to the Supreme Court’s

Procedural Default Doctrine, 4 J. App. Prac. &

Process 521 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1

OPINIONS AND RULINGS BELOW

United States v. Dimkpa, 169 F.4th 228 (4th Cir. 2026)

JURISDICTION

The Judgment of the Fourth Circuit Court of Appeals

judgment was entered on March 3, 2026. A timely Petition

for Rehearing en banc was denied on May 1, 2026. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

21 U.S.C. § 841(a)(1) provides in pertinent part:

Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or

intentionally—

(1) t o ma nu fa ct u re, d i st r ibut e, or

dispense, or possess with intent to manufacture,

distribute, or dispense, a controlled substance;

or

(2) to create, distribute, or dispense, or

possess with intent to distribute or dispense,

a counterfeit substance.

STATEMENT OF THE CASE

This case presents a clear and unambiguous vehicle for

this Court to clarify what constitutes a sufficiently “novel”

intervening change in how a federal criminal statute

2

is interpreted to constitute cause excusing procedural

default under Reed v. Ross, 468 U.S. 1 (1984) and Bousley

v. United States, 523 U.S. 614 (1998).

At all times relevant to this petition, the defendantpetitioner Okechukwu Dimkpa was a physician duly

registered under the Controlled Substances Act to

distribute Schedule II controlled narcotics. Prior to this

Court’s decision in Ruan v. United States, petitioner

Dimkpa was charged by information, and pleaded guilty

to, six counts of unauthorized distribution of a controlled

substance in violation of 18 U.S.C. § 841(a). At the time

the time petitioner’s conviction became final, the Fourth

Circuit and every other circuit to have consider the matter

held that a medical practitioner’s guilt under § 84 turned

on whether he acted in “good faith” in issuing a charged

prescription. United States v. Sabean, 885 F.3d 27, 45 (1st

Cir. 2018); United States v. Vamos, 797 F.2d 1146, 1152 (2d

Cir. 1986); United States v. Norris, 780 F.2d 1207, 1209 n.

2; United States v. Volkman, 797 F.3d 377, 387 (6th Cir.

2015); United States v. Kohli, 847 F.3d 483, 490 (7th Cir.

2017); United States v. Smith, 573 F.3d 639, 649–50 n.4

(8th Cir. 2009); United States v. Feingold, 454 F.3d 1001,

1008 (9th Cir. 2006); United States v. Khan, 989 F.3d 806,

825 (10th Cir. 2021); United States v. Ruan, 966 F.3d 1101,

1167 (11th Cir. 2020).

In Ruan this Court held that a defendant’s guilt

did not turn on some nebulous “good faith” standard

but instead required the government to prove “that a

defendant knew or intended that his or her conduct was

unauthorized.” Ruan v. United States, 597 U.S. at 467

(emphasis added).

3

Following Ruan, Petitioner filed a habeas petition

arguing that he would not have pleaded guilty had he

known that the government was required to prove that he

knew that the charged prescriptions were unauthorized

and that Ruan represented a sufficiently novel change in

the law to constitute cause under Reed v. Ross, 468 U.S.

1, 13–14 (1984). Appendix (“App”) 6. The government

conceded that Ruan applies retroactively on collateral

review and that the plea colloquy was deficient under

Ruan. App.6.

Prejudice is not at issue in this case. Both the district

court and the Fourth Circuit agree that Petitioner would

likely not have pleaded guilty had he been told that the

government is required to prove that he issued what he

knew to be unauthorized prescriptions.

“Dimkpa has made a strong showing of

prejudice. His sentencing materials were

largely directed to his argument that he had

treated Mr. Cohen as a person with complex

medical needs including chronic pain and

addiction, . . . implicitly contending he had not

known the prescribing of oxycodone to someone

using heroin and cocaine was inappropriate if

that person had other legitimate medical needs

supporting the prescription.”

App.26. At this point everyone concedes that petitioner’s

plea was not knowingly and voluntarily entered and

that he would not have entered the plea had he been

correctly informed of the elements of the offense. The only

question at issue in this petition is whether, in the face of

overwhelming contrary appellate court law, the mens rea

4

standard articulated in Ruan is a sufficiently novel case

to constitute cause excusing procedural default.

This case presents a significant question of national

concern. Its import stretches far beyond those defendants

convicted prior to Ruan. The question is whether a decision

of statutory interpretation from this Court can only be

considered sufficiently novel to constitute cause whether

this Court directly overturns its own prior interpretation

of a statute. Reed lists three circumstances in which an

intervening case from this Court is sufficiently novel to

constitute cause excusing procedural default.

“First, a decision of this Court may explicitly

overrule one of our precedents. . . . Second, a

decision may ‘overtur[n] a longstanding and

widespread practice to which this Court has

not spoken, but which a near-unanimous body of

lower court authority has expressly approved.’

Ibid. And, finally, a decision may ‘disapprov[e]

a practice this Court arguably has sanctioned

in prior cases.’ Ibid.”

Reed, 468 U.S. at 17 (quoting United States v. Johnson,

457 U.S. 537 (1982) (abrogated by Griffith v. Kentucky,

479 U.S. 314 (1987)). The Reed Court went on to note that

“By definition, when a case falling into one of

the first two categories is given retroactive

application, there will almost certainly have

been no reasonable basis upon which an

attorney previously could have urged a state

court to adopt the position that this Court has

ultimately adopted.”

5

Id. The Fourth Circuit below agreed that Ruan meets at

least the second Reed criteria because Ruan overturned

the near unanimous consensus of the circuit courts of

appeal. App.13. However, the Fourth Circuit concluded

that following Bousley “that alone is not enough to

establish cause in this case.” App.12.

Indeed, the Fourth Circuit’s decision holds that at

least in the absence of this Court directly overturning its

own precedent, the fact that a practice has been roundly

rejected by the appellate courts itself establishes that the

defendant did not have cause for failing to make it. App.1112 (“And the fact that other defendants ‘perceived and

litigated’ similar claims around the same time indicates

that a claim is not so ‘novel’ that it can excuse a default.”).

The Fourth Circuit is not alone in this view. See United

States v. Lyons, 173 F.4th 491, 497–98 (3d Cir. 2026);

Simpson v. Matesanz, 175 F.3d 200, 212 (1st Cir. 1999);

Gupta v. United States, 913 F.3d 81, 85 (2d Cir. 2019);

United States v. Vargas-Soto, 35 F.4th 979, 993–94 (5th

Cir. 2022); Cvijetinovic v. Eberlin, 617 F.3d 833, 837 (6th

Cir. 2010); Evans v. Horton, 792 F. App’x 568, 571 (10th

Cir. 2019) (unpublished). Granda v. United States, 990

F.3d 1272, 1287–88 (11th Cir. 2021).

On the other hand, the Seventh Circuit still relies on

Reed to determine novelty. Cross v. United States, 892

F.3d 288, 296 (7th Cir. 2018).

One of two things is true. (1) Either Reed remains

good law and Petitioner is entitled to withdraw his appeal

because Ruan overturned a near unanimous body of

appellate court case law and a practice that this Court

6

had arguably approved of or, (2) Bously rendered the

Reed factors obsolete. In either event, a definitive ruling

by this Court would provide much needed clarity to the

issue and save considerable briefing in the courts below.

FACTUAL AND PROCEDURAL BACKGROUND

A. Proceedings In the District Court

At all times relevant to this petition, Petitioner

Okechukwu Dimkpa was a medical practitioner registered

under the Controlled Substances Act (“CSA”) to distribute

Schedule II controlled narcotics. Petitioner practiced in

hospitals for several years before opening his own practice

in Kannapolis, North Carolina. App.21. On August 23,

2019, the government charged petitioner with six counts

of distributing oxycodone outside the usual course of

professional medical practice and without a legitimate

medical purpose in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C), R.1. Each charged prescription was issued to a

single patient by the name of A.C.

Petitioner waived his right to prosecution by indictment

and pleaded guilty to a bill of Information. App.22. The

information and factual basis of the guilty plea allege that

an expert in pain management reviewed A.C’s medical

file and opined that, based on the information contained

therein, the prescriptions were issued “outside the course

of usual medical practice” and “not medically legitimate.”

App.66-67.

According to medical records, A.C. was seeking

treatment for a chronic and longstanding pain condition.

App.21.

7

Petitioner first began treating A.C. in April 2014. At

the initial consultation, Petitioner discussed the possibility

of using the drugs Vivitrol or Suboxone as alternatives to

oxycodone, but A.C. declined. App.21.

Four months later in August of 2014, A.C.’s brother

accompanied A.C. to an appointment with Petitioner. A.C.

informed Petitioner that he was addicted to pain pills and

that his brother, who ran a dental office in the area and

employed A.C., “was going to fire him if he did not stop

using prescription opioids.” App.21.

For the next four months Petitioner switched A.C.’s

prescription from oxycodone to Suboxone. App.21-22.

Suboxone is a controlled substance designed, in part, to

treat opioid addiction. App.21-22.

In January of 2015, Petitioner returned A.C. to

oxycodone therapy for his pain. App.22. Those prescriptions

continued intermittently until August of 2016. During that

time, A.C. tested positive for heroin and cocaine on more

than one occasion. App.22. A.C. died of “Acute Combined

Drug Toxicity” on August 28, 2016. App.22.

During the plea colloquy, the defendant indicated

that he understood the charges and was voluntarily and

intelligently pleading guilty. App.45. However, consistent

with then existing case law, the defendant was not told that

the government was required to prove that the defendant

knew, at the time of the prescription, that issuing said

prescription was outside the scope of his authorization

under the CSA. App.45-46; App.23 (“The Court then

listed the dates of the offenses but again did not address

the knowledge requirement.”).

8

Nothing in either the factual basis, the defendant’s

plea, or the information discussed the defendant’s

subjective intent in issuing the charged prescriptions or

informed him that the government was required to prove

any level of subjective intent. See, App.64-68. The factual

basis for the plea contained no admission that petitioner

knew his prescriptions were unauthorized.

Petitioner’s primary argument at sentencing was that

he had treated A.C. in what he earnestly believed to be

his best medical judgment. App.26-27. A.C. was a complex

patient who suffered from a bona fide pain condition as

well as being addicted to opioids. App.26-27.

The Court sentenced Petitioner to forty-six months

on all counts to run concurrently, followed by a period of

three years of supervised release. Petitioner did not file

a direct appeal.

B. Circuit Court Case Law And Ruan v. United States

In June of 2022, after petitioner’s guilty plea and

sentence, the Supreme Court decided Ruan v. United

States, 597 U.S. 450, 467 (2022). In Ruan this Court

held that in order to obtain a conviction under §841

the government must prove that a registered medical

practitioner not only knowingly issued the charged

prescription but did so with the knowledge that issuing

the charged prescription was outside the scope of his

authorization under § 841. Ruan v. United States, 597

U.S. 450, 467 (2022) (“But the Government must still carry

this burden. And for purposes of a criminal conviction

under § 841, this requires proving that a defendant knew

or intended that his or her conduct was unauthorized.”).

9

Prior to Ruan, every circuit court to have addressed

the question interpreted this Court’s decision in United

States v. Moore, 423 U.S. 122 (1975) to mean that a

registered medical practitioner’s guilt or innocence under

§ 841 was dependent upon whether the defendant acted in

“good faith.” The instructions issued in Moore required

the jury to find:

“that a physician, who knowingly or intentionally,

did dispense or distribute methadone by

prescription, did so other than in good faith

for detoxification in the usual course of a

professional practice and in accordance with

a standard of medical practice generally

recognized and accepted in the United States.”

Moore, 423 U.S. at 138–39.

Some circuits, including the Fourth Circuit, applied

a definition of good faith that amounted to essentially

strict liability. Khan, 989 F.3d at 825; Ruan, 966 F.3d at

1167; App.12-13 (describing prior Fourth Circuit case law).

Others imposed a standard closer to negligence. Sabean,

885 F.3d at 45; Vamos, 797 F.2d at 1152; Li, 819 F. App’x

at 118 (unpublished); Godofsky, 943 F.3d at 1026; King,

898 F.3d at 807–08. Even the Ninth and Seventh Circuits,

which were more generous to defendants, defined guilt

based on subjective “good faith.” Kohli, 847 F.3d at 490;

Feingold, 454 F.3d at 1008. Even there, the mens rea

requirement was included in the good faith instruction,

not the elements of the offense.1

1. To that extent, petitioner disagrees that with the Fourth

Circuit that the case law prior to Ruan was only “nearly”

10

Ruan held that the Harrison Act “good faith”

standard, at least tacitly approved of in Moore, does not

capture the mens rea required by §841 of the CSA.

“For one thing, § 841, like many criminal

statutes, uses the familiar mens rea words

‘knowingly or intentionally.’ It nowhere uses

words such as “good faith,” ‘objectively,’

‘reasonable,’ or ‘honest effort.’

For another, the Government’s standard

would turn a defendant’s criminal liability on

the mental state of a hypothetical ‘reasonable’

doctor, not on the mental state of the defendant

himself or herself.”

Ruan, 597 U.S. at 465. No circuit required the government

to prove that the defendant issued what he knew to be an

unauthorized prescription. See, App.12-13. (“In our 2006

decision in Hurwitz, we adopted what we believed to be the

consensus position of the federal courts of appeals, holding

that § 841 did not require the government to prove that a

doctor knew or intended to prescribe in an unauthorized

manner, but only that a doctor’s prescriptions were

objectively unauthorized.”) (Citing United States v.

Hurwitz, 459 F.3d at 479).

unanimous. App.12 n.5. While the Seventh and Ninth Circuits

imposed a subjective standard, they still did so through the

mechanism of a good faith instruction rather than requiring

the government to prove that the defendant knew the changed

prescriptions were outside the scope of his authorization under

the CSA. United States v. Kohli, 847 F.3d 483, 489 (7th Cir. 2017);

United States v. Feingold, 454 F.3d 1001, 1008 (9th Cir. 2006)

11

C. The Cause and Prejudice Standard

Where a defendant has procedurally defaulted a

claim by failing to raise it on direct review, the claim

may be raised on habeas only if the petitioner can first

demonstrate either “cause” and actual “prejudice” or

that he is “actually innocent,’” Bousley, 523 U.S. at 622

(quoting Murray v. Carrier, 477 U.S. 478, 485 (1986);

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

In Reed, this Court held that a sufficiently “novel”

intervening change in this Court’s interpretation of law

may constitute “cause” excusing procedural default in

habeas. Reed, 468 U.S. at 15–16. A change in the law

is sufficiently novel where an attorney does not have a

“reasonable basis” upon which to develop a legal theory.

Id. at 15; Strickler v. Greene, 527 U.S. 263, 283, n.24, (1999)

(noting that “a showing that the factual or legal basis for

a claim was not reasonably available to counsel . . . would

constitute cause under this standard.” (citation omitted)).

The Reed Court identified three situations where

an intervening change in the law is sufficiently novel

to constitute cause (1) “a decision of this Court may

explicitly overrule one of our precedents.”, (2) a decision

which overturns a “longstanding and widespread practice

to which this Court has not spoken, but which a nearunanimous body of lower court authority has expressly

approved.” (3) A decision that disapproves of “a practice this

Court arguably has sanctioned in prior cases.” Id. 16–18.

(quotations to United States v. Johnson, 457 U.S., at 551).

The Court noted that “[b]y definition, when a case

falling into one of the first two categories is given

12

retroactive application, there will almost certainly

have been no reasonable basis upon which an attorney

previously could have urged a state court to adopt the

position that this Court has ultimately adopted.” Reed,

468 U.S. at 16–18. As to the third category, the Court

determined that whether a “reasonable basis” exists turns

on “how direct this Court’s sanction of the prevailing

practice had been, how well entrenched the practice was

in the relevant jurisdiction at the time of defense counsel’s

failure to challenge it, and how strong the available

support is from sources opposing the prevailing practice.”

Id. (emphasis added).

In Bousley, 523 U.S. at 623–24, this Court clarified

that “futility” in a specific jurisdiction is not sufficient to

constitute cause excusing procedural default under Reed.

In that case, the petitioner had pleaded guilty to “using” a

firearm under 18 U.S.C.A. § 924(c)(1). Bousley, 523 U.S. at

623–24. After the petitioner’s conviction became final, this

Court held that the “using” prong of § 924(c)(1) required

active employment of the firearm. Id. 616. (See Bailey v.

United States, 516 U.S. 137, 144 (1995)). The petitioner in

Bousley collaterally attacked his conviction under § 2255,

arguing that Bailey was sufficiently novel to constitute

cause excusing procedural default. This Court held that

petitioner’s claim would not have been sufficiently novel

at the time his conviction became final because “futility

cannot constitute cause if it means simply that a claim was

unacceptable to that particular court at that particular

time.” 523 U.S. at 622–623 (quoting Engle v. Isaac, 456

U.S. 107, 130 n.35 (1982)).

13

D.

Section 2255 and the Court of Appeals Decision

Below

In September 2022, Petitioner filed a timely pro se

§ 2255 motion to vacate his conviction, arguing that his

guilty plea was not knowing and voluntary because the

district court had not informed him that the government

was required to prove his subjective knowledge that the

charged prescriptions were not authorized under § 841.

On, September 12, 2022, Petitioner filed a petition for

release under § 2255. Petitioner argued that his guilty

plea was not knowingly entered because the district court,

consistent with then existing case law, did not inform him

that the government was required to prove that he knew

the prescriptions to be unauthorized. The government

conceded that Ruan applies retroactively on collateral

review. App.6.

The district court found that Petitioner’s guilty

plea was not entered intelligently because he was not

informed that the government is required to establish the

defendant’s guilty state of mind. App.27-28. The defendant

did not admit, and was not required to admit, that he

knew the prescription to be unauthorized at the time it

was issued. See, App.33-54.

The district court further held that defendant

had established prejudice. App. 27 (“Dr. Dimkpa

probably would not have pled guilty if he had realized

the government would have to prove that he knew the

distribution of oxycodone was inappropriate.”). However,

the district court denied the petition finding that the

Ruan did not represent a sufficiently “novel” change in

14

the law to constitute “cause” for Petitioner’s failure to file

a direct appeal. The district court issued a Certification of

Appealability on the question of whether Ruan constituted

sufficient cause excusing procedural default.

The Fourth Circuit affirmed. App.9 The Fourth

Circuit acknowledged that Ruan “changed the law” in

the Fourth Circuit. The court further pointed out that

the Fourth Circuit’s view was, at the time Petitioner

pleaded guilty, the consensus view of the Courts of Appeal.

App.13. Therefore, Ruan meets at least the second of the

three Reed factors. Ruan overturned longstanding and

widespread practice to which a near-unanimous body of

lower court authority had expressly agreed. App.13.

Nevertheless, the Fourth Circuit held that Ruan was

not sufficiently “novel” because at the time his conviction

became final petitioner had the “essential tools” necessary

to make a Ruan style argument. App.13. (quoting United

States v. Sanders, 247 F.3d 139, 146 (4th Cir. 2001). Fourth

Circuit reasoned that the fact that “other defendants

already were pursuing what would become Ruan claims

is good evidence that ‘the foundation for [Ruan] was laid’

before Ruan was decided in 2022.” App.16.

As to petitioner’s argument that Ruan overturned

a practice that was at least arguably approved of in

Moore, the Fourth Circuit held that this “Court expressly

rejected the argument Dimkpa now advances, pressed

in Ruan by the government: that Moore had ‘effectively

endorsed’ an objective scienter standard.” The Fourth

Circuit, therefore, felt bound by this Court’s analysis of

Moore. App.17.

15

REASONS FOR GRANTING THE PETITION

I.

Petitioner’s Case Provides a Clean Opportunity

For This Court To Resolve A Circuit Split As To

Whether The Reed Factors Constitute Sufficient

“Cause” Excusing Procedural Default In Habeas

After Bousley.

A.

Ruan unambiguously qualifies under the

Second and Third Circumstance Identified in

Reed.

There is no doubt that any appeal Petitioner would

have filed would have been futile in the Fourth Circuit at

the time his conviction became final. Bousley held that

“futility cannot constitute cause if it means simply that

a claim was unacceptable to that particular court at that

particular time.” Bousley, 523 U.S. at 622–623. However,

it is not simply a matter of the appeal being futile in the

Fourth Circuit. It would have been futile in every federal

court of appeals. The language in Reed only requires a

“near-unanimous” consensus among the federal courts.

Here, the consensus was actually unanimous. This is not

a case where, in one “particular court” at a “particular

time”, an argument would have been futile. Bousley, 523

U.S. at 623 (citing Engle v. Isaac, 456 U.S. 107, 130 n. 35

(1982)). It was foreclosed in every or nearly every circuit.

As the Fourth Circuit noted in a different case the

year before Ruan was issued: “We have made clear—

as has “every [other] court to specifically consider the

question”—that the good faith standard set out in those

cases’ jury instructions ‘must be an objective one.’” United

States v. Purpera, 844 F. App’x 614, 626–27 (4th Cir.

16

2021) (unpublished) (emphasis added) (quoting Hurwitz,

459 F.3d at 479). The Petitioner acknowledges that at the

time Purpera was decided the Seventh and Ninth Circuits

allowed for a subjective good faith defense. United States

v. Kohli, 847 F.3d 483, 489 (7th Cir. 2017); United States v.

Feingold, 454 F.3d 1001, 1008 (9th Cir. 2006). Even those

circuits incorporated the objective mens rea element into

the good faith instruction. Id. That is contrary to this

Court’s explicit holding in Ruan. Ruan, 597 U.S. at 465.

Furthermore, those circuits that imposed an objective

scienter did so on the basis of Moore. United States v.

Smithers, 92 F.4th 237, 247 (4th Cir. 2024) (“We based

that conclusion on United States v. Moore, 423 U.S. 122

(1975), which, we said, “strongly suggest[ed] the inquiry

[under § 841, for prosecutions of medical practitioners]

is an objective one.”); United States v. Vamos, 797 F.2d

1146, 1153 (2d Cir. 1986) (“As the Supreme Court noted

in Moore . . . ”); United States v. Norris, 780 F.2d 1207,

1209 (5th Cir. 1986) (“In United States v. Moore, 423 U.S.

122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), the Court, in

affirming the conviction of a physician under 21 U.S.C.

841, implicitly approved the following instruction . . . ”);

United States v. Godofsky, 943 F.3d 1011, 1024 (6th Cir.

2019) (“The Court further noted, with apparent approval,

that the trial court had instructed the jury . . . ”); United

States v. Smith, 573 F.3d 639, 647 (8th Cir. 2009) (“In

Moore, the Supreme Court impliedly approved a jury

instruction that allowed a jury to find a doctor guilty of

violating § 841(a) if the doctor dispensed methadone “other

than in good faith for detoxification in the usual course of a

professional practice and in accordance with a standard of

medical practice generally recognized and accepted in the

United States.”); United States v. Nelson, 383 F.3d 1227,

17

1233 (10th Cir. 2004) (“ We hold that the instruction in the

instant case correctly stated the law, based on our reading

of Moore and the inference that necessarily follows from

the wording of the applicable regulation.”).

This Court’s decision in Ruan was well founded and

did not directly overturn Moore. Under Reed, however,

the question is whether the Ruan overturned a practice

“arguably [] sanctioned in prior cases.” Reed, 468 U.S. at

16–18 (emphasis added).

Given the near unanimous belief of the Circuit Court

judges that Moore required a result different from the

one ultimately reached by this Court in Ruan, it seems

logically impossible to assert that Moore did not at least

“arguably” endorse the statutory interpretation reached

by the Circuit Courts. Not only was it argued that Moore

imposed an objective scienter, that argument was nearly

universally accepted.

The instructions issued and approved of by the Fourth

Circuit, and every other circuit, at the time of Petitioner’s

conviction were materially indistinguishable from the

instructions issued in Moore, 423 U.S. at 138–39 (1975).

The instruction issued in Moore, and approved of by this

Court in the body of its decision, instructed the jury that

the must find:

“beyond a reasonable doubt that a physician,

who knowingly or intentionally, did dispense

or distribute methadone by prescription, did

so other than in good faith for detoxification

in the usual course of a professional practice

and in accordance with a standard of medical

18

practice generally recognized and accepted in

the United States.”

Moore, 423 U.S. at 138–39. The instructions issued in the

Circuit Courts prior to Ruan were nearly identical. See,

e.g., United States v. Tran Trong Cuong, 18 F.3d 1132,

1138 (4th Cir. 1994) (“Good faith in this context means

good intentions in the honest exercise of best professional

judgment as to a patient’s need. It means the doctor acted

in accordance with what he believed to be proper medical

practice.”); United States v. Volkman, 797 F.3d 377, 387

(6th Cir. 2015) (“If a physician dispenses a drug in good

faith in the course of medically treating a patient, then

the doctor has dispensed the drug for a legitimate medical

purpose in the usual course of accepted medical practice.

That is, he has dispensed the drug lawfully.

“Good faith” in this context means good intentions

and an honest exercise of professional judgment as to

a patient’s medical needs. It means that the defendant

acted in accordance with what he reasonably believed to

be proper medical practice.”); United States v. Norris, 780

F.2d 1207, 1209 (5th Cir. 1986) (“A controlled substance

is prescribed by a physician in the usual course of a

professional practice, and, therefore, lawfully, if the

substance is prescribed by him in good faith, medically

treating a patient in accordance with a standard of

medical practice generally recognized and accepted in

the United States.”); United States v. Khan, 989 F.3d 806,

823 (10th Cir. 2021) (“‘Good faith’ connotes an attempt to

act in accordance with what a reasonable physician should

believe to be proper medical practice. The good faith

defense requires the jury to determine whether Defendant

Shakeel Kahn acted in an honest effort to prescribe for

19

patients’ medical conditions in accordance with generally

recognized and accepted standards of practice.”); United

States v. Ruan, 966 F.3d 1101, 1167 (11th Cir. 2020) (“The

district court’s instruction told the jury that good faith was

a defense to a Controlled Substances Act violation as long

as the appellants’ conduct also was in accordance with the

standards of medical practice generally recognized and

accepted in the United States, and it highlighted that the

appellants ‘maintain[ed] at all times they acted in good

faith and in accordance with [that] standard.’”).

Those instructions are no longer good law following

Ruan. Ruan, 597 U.S. at 465; United States v. Smithers,

92 F.4th 237, 247 (4th Cir. 2024) Id. (“[Good faith]

instruction directly contravenes Ruan; far from helping

the government, it proves Defendant’s point.”). The fact

that good faith instructions nearly identical to the one

issued in Moore are now fatal to convictions following

Ruan would seem, by definition, to render Ruan a case

wherein this Court overturned a practice that it had

“arguably [] sanctioned in prior cases.” Reed, 468 U.S.

at 16–18.

B. A Circuit Split Exists as to whether the Second

and Third Circumstances Constituting Novelty

Articulated in Reed Survive Bousley.

The Fourth Circuit decision in this case renders the

second and third circumstances identified in Reed no

longer sufficient to establish cause excusing prejudice. The

only time a change in statutory construction is sufficient

to establish cause, according to the Fourth Circuit, is if

this Court explicitly overturns its existing precedent.

Near unanimous or even entirely unanimous consensus

20

among the Courts of Appeal is not a sufficient justification

for excusing cause. App.13.

The Fourth Circuit is not alone in holding that the

first two Reed factors do not constitute cause excusing

procedural default. In United States v. Lyons, 173 F.4th

491, 497–98 (3d Cir. 2026), for example, the Third Circuit

held that second two Reed categories (This Court directly

overturning long standing practice in the appellate

courts, and this Court overturning a practice it had

arguably previously approved of) were simply dictum

that did not survive Bousley. Lyons, 173 F.4th at 496.

The existence of contrary case law itself establishes that

a claim is not sufficiently “novel” to constitute cause. Id.

If a near unanimous body of lower court authority has

expressly approved of a practice that the Supreme Court

later rejects, the Federal Reporters are, by definition,

replete with cases involving challenges to the practice.

Id. 497–98; Simpson v. Matesanz, 175 F.3d 200, 212 (1st

Cir. 1999); Gupta v. United States, 913 F.3d 81, 85 (2d Cir.

2019); United States v. Vargas-Soto, 35 F.4th 979, 993–94

(5th Cir. 2022); Gatewood v. United States, 979 F.3d 391,

396–97 (6th Cir. 2020); Evans v. Horton, 792 F. App’x

568, 571 (10th Cir. 2019) (unpublished). Granda v. United

States, 990 F.3d 1272, 1287–88 (11th Cir. 2021).

The Seventh Circuit, by contrast, appears to still

recognize the viability of the second and third Reed

factors. In Cross v. United States, the Seventh Circuit

held that this Court’s decision in Johnson v. United States,

576 U.S. 591 (2015) constitutes a sufficiently novel decision

to constitute cause excusing procedural default where a

habeas petitioner did not challenge his residual clause

sentence on direct appeal. Cross v. United States, 892 F.3d

21

288, 296 (7th Cir. 2018). The Seventh Circuit noted that a

“substantial body of circuit court precedent” foreclosed

such challenges. Id.

The second and third scenarios identified by

Reed present even more compelling grounds to

excuse Cross’s and Davis’s procedural defaults.

Johnson abrogated a substantial body of circuit

court precedent upholding the residual clause

against vagueness challenges. . . . Although most

of these decisions postdate Davis’s sentencing

(though not Cross’s), no court ever came close

to striking down the residual clause before 1992

or even suggested that it would entertain such

a challenge. Finally, the Supreme Court had

implicitly “sanctioned” the residual clause by

interpreting it as if it were determinate.

Id. at 295–96.

The government has conceded Ruan’s retroactivity.

Teague v. Lane, 489 U.S. 288 (1989), is not applicable here.

Teague only applies to procedural rules. It does not apply

to cases interpreting a statute in such a way as to place

“‘certain kinds of primary, private individual conduct

beyond the power of the criminal law-making authority to

proscribe,’” Id. at 311 (quoting Mackey v. United States,

401 U.S. 667, 692 (1971) (Harlan, J., concurring in part

and dissenting in part)).

As the district court found, Petitioner made a “strong

showing of prejudice.” R. 38 at 7-8. App.26. On the merits,

there is no argument that Petitioner’s plea was knowingly

or voluntarily entered. In pleading guilty to the charged

22

offense, Petitioner was not asked and did not admit to

knowing wrongdoing. Nor is there any serious argument

to be made that Ruan does not fall into the second and

third example of “novelty” identified in Reed.

This case presents a clean vehicle for the Court to

resolve whether unanimous or near unanimous contrary

binding appellate court authority constitutes sufficient

cause to excuse procedural default.

II. The Decision Below Was Wrongly Decided And

Undermines The Interests Of Judicial Economy

And Justice.

Whether the second two Reed factors constitute

sufficient cause excusing procedural default following

Bousley is a reoccurring question in the appellate

courts. Bousley addressed the question of whether a

petitioner can overcome procedural default when he

failed to raise a claim that was the subject of a circuit

split. Bousley, 523 U.S. at 618. Applying Bousley where

no circuit split exists, or where the overwhelming

consensus of the circuit courts was against the defendant

creates a somewhat paradoxical incentive structure that

undermines judicial efficiency.

Running through the appellate court decisions that

reject Reed is a common theme: if someone made the

argument, then by definition it was “available” to the

petitioner. App.16 (“It is no surprise, then, that other

defendants were raising Ruan-style claims well before

Ruan was decided.”); Simpson v. Matesanz, 175 F.3d 200,

212 (1st Cir. 1999); Gupta v. United States, 913 F.3d 81,

85 (2d Cir. 2019) (citing Whitman v. United States, 754

23

F. App’x 40 (2d Cir. 2018)); United States v. Vargas-Soto,

35 F.4th 979, 994 (5th Cir. 2022); Cvijetinovic v. Eberlin,

617 F.3d 833, 837 (6th Cir. 2010); Evans v. Horton, 792 F.

App’x 568, 571 (10th Cir. 2019) (unpublished); Granda v.

United States, 990 F.3d 1272, 1287 (11th Cir. 2021).

The difficulty with that reasoning is that the more

obvious it is that an argument is one the courts have

rejected, the less “cause” a petitioner has for making it. If

a change in law from unanimous appellate court consensus

is not sufficient to establish cause, then a careful defense

attorney will feel compelled to raise every issue no matter

how profoundly unlikely to succeed. Brent E. Newton, An

Argument for Reviving the Actual Futility Exception

to the Supreme Court’s Procedural Default Doctrine,

4 J. App. Prac. & Process 521, 523 (2002). Indeed,

“[r]equiring defense counsel to object on grounds that

are clearly foreclosed by entrenched precedent subjects

them to possible sanctions for raising ‘frivolous” claims.’”

Id. 523. That result undermines the efficaciousness of

appellate briefs and imposes upon the courts the burden of

considering issues upon which there is binding precedent.

More than that, the logic of the Fourth Circuit

shields from review exactly those cases where injustice

is most likely to obtain. Like many defendants, Petitioner

pleaded guilty. “Our criminal justice system is no longer

dominated by trials and sentences based on them, but plea

bargains . . . ”. Hunter v. United States, 146 S. Ct. 1702,

1716 (2026) (J. Gorsuch, concurring). Petitioner pleaded

guilty because and only because the Fourth Circuit, and

nearly every circuit, told him that his intent in issuing

the charged prescriptions was irrelevant. As the district

court recognized, he would not have pleaded guilty to

24

intentional wrongdoing, because he did not believe he did

anything wrong.

Ruan is retroactively applicable. Ruan narrowed “the

scope of a criminal statute by interpreting its terms” in

such a way as to “place particular conduct or persons

covered by the statute beyond the State’s power to

punish.” See Schriro v. Summerlin, 542 U.S. 348, 351–2

(2004) (citations omitted). Such decisions are retroactively

applicable on collateral review because “they necessarily

carry a significant risk that a defendant stands convicted

of an act that the law does not make criminal or faces

a punishment that the law cannot impose upon him.”

Summerlin, 542 U.S. at 352 (quotation marks omitted).

Ruan turned what most circuits considered a strict

liability or negligence offense into one that required

specific intent. “The contention that an injury can

amount to a crime only when inflicted by intention is

no provincial or transient notion. It is as universal and

persistent in mature systems of law as belief in freedom

of the human will and a consequent ability and duty of

the normal individual to choose between good and evil.”

Morissette v. United States, 342 U.S. 246, 250 (1952).

Yet, as central as mens rea is to mature systems of law,

it is also uniquely an issue that it is almost impossible to

prove one’s innocence on in the affirmative. If the Fourth

Circuit’s logic is allowed to stand, it will be impossible

for habeas to ever provide a plausible avenue of relief to

defendants convicted under a lesser mens rea standard

than that which is required by the law.

The question here is a simple and clean one. Petitioner

did not plead to the element of the offense which separates

25

“innocent conduct from wrongful conduct” Ruan, 597 U.S.

at 451. He stands convicted of an offense that he does not

believe he committed, and which the government has not

proven he committed. As the district court acknowledged,

and the government conceded, the only reason he pleaded

guilty is that the Fourth Circuit, and nearly every other

circuit believed that this Moore imposed an objective

scienter. Under Reed, that would constitute cause.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

Beau B. Brindley

Counsel of Record

Law Offices of Beau B. Brindley

53 West Jackson Boulevard,

Suite 1410

Chicago, IL 60604

(312) 765-8878

bbbrindley@gmail.com

Counsel for Petitioner

Okechukwu Dimkpa

July 30, 2026

APPENDIX

i

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT, FILED

MARCH 3, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION

AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE

DI S T R IC T OF NOR T H C A R OL I NA ,

DATED MARCH 3, 2023 . . . . . . . . . . . . . . . . . . . . . 20a

A PPEN DI X C — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT, FILED

MAY 1, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35a

APPENDIX D — EXPEDITED TRANSCRIPT

OF CHANGE OF PLEA FOR THE UNITED

STAT ES DIST RIC COU RT, M I DDLE

DISTRICT OF NORTH CAROLINA, DATED

SEPTEMBER 11, 2019 . . . . . . . . . . . . . . . . . . . . . . . 36a

A PPEN DI X E — PLE A AGR EEM EN T

OF THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT

OF NORT H CA ROLINA , FILED

AUGUST 26, 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . 62a

A PPENDIX F — FACTUA L BA SIS FOR

PLEA OF T H E U NI T ED STAT ES

DISTRICT COURT FOR THE MIDDLE

DI S T R IC T OF NOR T H C A R OL I NA ,

DATED AUGUST 26, 2019 . . . . . . . . . . . . . . . . . . . . 69a

1a

Appendix

A

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT,

FILED MARCH 3, 2026

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-6245

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OKECHUKWU DIMKPA,

Defendant-Appellant.

OPINION

Appeal from the United States District Court for the

Middle District of North Carolina, at Greensboro.

Catherine C. Eagles, Chief District Judge. (1:19-cr-00443CCE-1; 1:22-cv-00770-CCE-LPA)

Argued: September 9, 2025

Decided: March 3, 2026

Before DIAZ, Chief Judge, and WYNN and HARRIS,

Circuit Judges.

Affirmed by published opinion. Judge Harris wrote the

opinion, in which Chief Judge Diaz and Judge Wynn

joined.

2a

Appendix A

PAMELA HARRIS, Circuit Judge:

Dr. Okechukwu Dimkpa pled guilty to unlawfully

distributing oxycodone in violation of 21 U.S.C. § 841(a)(1).

Three years later, in Ruan v. United States, 597 U.S. 450,

142 S. Ct. 2370, 213 L. Ed. 2d 706 (2022), the Supreme

Court held that § 841’s scienter provision requires the

government to prove that a physician knew he was acting

in an unauthorized manner when prescribing a controlled

substance, such as oxycodone. Dimkpa then filed a § 2255

motion challenging his convictions under § 841, arguing

that his guilty plea was not knowing and voluntary

because he was not informed of the mens rea requirement

articulated in Ruan.

The district court denied Dimkpa’s motion, finding

that Dimkpa had procedurally defaulted his Ruan-based

claim by failing to raise it during his initial criminal

proceeding, and that he had not shown cause to overcome

this default. Although Ruan had yet to be decided when

Dimkpa pled guilty, the district court reasoned, the legal

basis for a Ruan-style claim was reasonably available to

Dimkpa at that time. Accordingly, Dimkpa’s mens rea

argument was not sufficiently novel to constitute cause

for his procedural default. We agree and therefore affirm

the judgment of the district court.

I.

A.

Defendant Okechukwu Dimkpa, a physician, was

charged with six counts of unlawfully distributing

3a

Appendix A

oxycodone, a Schedule II controlled substance, in violation

of 21 U.S.C. § 841(a)(1). That statute makes it a federal

crime, “[e]xcept as authorized,” for any person “knowingly

or intentionally” to “manufacture, distribute, or dispense”

a controlled substance. 21 U.S.C. § 841(a)(1). Registered

doctors may prescribe such substances to their patients,

but pursuant to federal regulations, “a prescription is only

authorized when a doctor issues it ‘for a legitimate medical

purpose . . . acting in the usual course of his professional

practice.’” Ruan, 597 U.S. at 454 (alteration in original)

(quoting 21 C.F.R. § 1306.04(a) (2021)).

Dimkpa’s charges corresponded to six instances

in which he prescribed oxycodone to the same patient.

According to the government, those prescriptions were

not “authorized” under § 841 and were instead “outside

the course of usual medical practice” and “not medically

legitimate.” J.A. 44-45. Dimkpa was aware, the government

alleged, that his patient was addicted to opioids — because

his patient told him so — and nevertheless continued to

prescribe oxycodone. And each of the six prescriptions in

question was issued immediately after the patient tested

positive for heroin or cocaine. Five days after receiving

the last of his oxycodone prescriptions from Dimkpa, the

patient died of an opioid-involved drug overdose.1

Dimkpa pled guilty to all six charges in September

2019. At the plea hearing, the district court informed

Dimkpa that should the case proceed to trial, the

1. More specifically, a medical examiner determined that

the patient died of “Acute Combined Drug Toxicity (oxycodone,

alprazolam).” J.A. 43.

4a

Appendix A

government would be required to prove each element

of the charged § 841 offense beyond a reasonable doubt.

And that would include, the district court explained,

proof that Dimkpa had acted in an unauthorized manner

by prescribing oxycodone “outside the usual course of

professional practice.” J.A. 60. But consistent with thengoverning Fourth Circuit precedent, the district court

did not inform Dimkpa that the government would have

to prove that he knew his prescriptions were unauthorized

as outside the bounds of professional practice. See United

States v. Hurwitz, 459 F.3d 463, 477-80 (4th Cir. 2006)

(applying an objective rather than subjective standard to

a physician’s “good faith” defense that his prescriptions

were authorized).

Satisfied that Dimkpa’s guilty plea was knowing and

voluntary, the district court accepted it and sentenced

Dimkpa to 46 months of imprisonment — the low end of

the applicable Sentencing Guidelines range — followed by

three years of supervised release. Dimkpa did not pursue

a direct appeal.

B.

In June 2022, nearly three years after Dimkpa’s 2019

guilty plea, the Supreme Court held in Ruan v. United

States that a physician can be convicted under § 841

only if the government proves that he “knowingly or

intentionally acted in an unauthorized manner.” 597 U.S.

at 457. Section 841, recall, makes it unlawful, “[e]xcept as

authorized[,] . . . for any person knowingly or intentionally

. . . to manufacture, distribute, or dispense” a controlled

substance. 21 U.S.C. § 841(a)(1). In Ruan, the Supreme

5a

Appendix A

Court, citing the “presumption of scienter,” held that

§ 841’s “knowingly or intentionally” mens rea applies

not only to the “manufacture, distribute, or dispense”

clause, but also to the “except as authorized” clause. 597

U.S. at 457-59. To convict a physician under § 841, in

other words, it is not enough that “a prescription was in

fact not authorized”; the government must prove beyond

a reasonable doubt that “the doctor knew or intended

that the prescription was unauthorized.” Id. at 454-55

(emphasis in original).

Dimkpa, proceeding pro se, moved to vacate his § 841

convictions pursuant to 28 U.S.C. § 2255. He argued

that his guilty plea was constitutionally invalid because

the district court did not inform him of the scienter

requirement newly recognized in Ruan. The government

did not dispute that Dimkpa’s plea colloquy was inadequate

under Ruan. 2 Instead, the government invoked the

doctrine of procedural default. Dimkpa’s Ruan claim was

barred, the government argued, because it was not raised

during Dimkpa’s initial criminal proceeding or on direct

appeal, and Dimkpa failed to overcome this default by

showing either cause and prejudice or actual innocence.

The district court agreed with the government and

denied Dimkpa’s motion. Dimkpa v. United States,

2023 U.S. Dist. LEXIS 35496, 2023 WL 2349599, at

*1 (M.D.N.C. Mar. 3, 2023). As the court recounted,

Dimkpa did not challenge the mens rea required to

sustain a § 841 conviction at the time he pled guilty, nor

2. The government expressly conceded that Ruan applies

retroactively on collateral review, and that Dimkpa’s § 2255 motion

was timely filed.

6a

Appendix A

did he file a direct appeal from his convictions. 2023

U.S. Dist. LEXIS 35496, [WL] at *2, *4. The claim was

therefore procedurally defaulted, and could be raised in

post-conviction proceedings only if Dimkpa established

a basis for excusing the default. 2023 U.S. Dist. LEXIS

35496, [WL] at *4. Relevant here, the district court ruled

that Dimkpa’s reliance on Ruan — new authority that

postdated his guilty plea — was not enough to demonstrate

cause under the cause and prejudice standard. Id.

A claim based on inter vening Supreme Court

precedent can constitute cause for purposes of procedural

default, the court explained, but only if the claim is “so

novel that its legal basis [was] not reasonably available to

counsel” before the Supreme Court’s decision and at the

time the claim should have been raised. Id. (alteration in

original) (quoting Reed v. Ross, 468 U.S. 1, 16, 104 S. Ct.

2901, 82 L. Ed. 2d 1 (1984)). And here, the district court

concluded, Dimpka’s Ruan-style claim was “reasonably

available” at the time of his guilty plea in 2019, regardless

of whether it could have succeeded under then-governing

Fourth Circuit precedent. See id. (“[A]lleged futility

cannot serve as ‘cause’ for a procedural default . . . if

it means simply that a claim was unacceptable to that

particular court at that particular time.” (alteration in

original) (quoting Whiteside v. United States, 775 F.3d

180, 185 (4th Cir. 2014) (en banc))).

In 2019, the district court reasoned, the Supreme

Court had not foreclosed Dimkpa’s argument regarding

the mens rea required to convict a physician under § 841.

Id. Moreover, other defendants had taken advantage of

that opening, raising claims just like Dimkpa’s around

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Appendix A

the time of Dimkpa’s guilty plea. Id. And finally, months

before Dimkpa’s plea colloquy, the Supreme Court had

adopted a defendant’s very similar mens rea argument

under a different statute: In Rehaif v. United States, 588

U.S. 225, 139 S. Ct. 2191, 204 L. Ed. 2d 594 (2019), the

Supreme Court applied the same presumption of scienter

it would rely on in Ruan and held that in a prosecution

under 18 U.S.C. § 924(a)(2) for a “knowing” violation of

18 U.S.C. § 922(g), the government must prove not only

that a defendant knew he possessed a firearm but also

that he knew he was within a class of persons prohibited

from possessing a firearm under § 922(g). 588 U.S. at

227, 229; see Dimkpa, 2023 U.S. Dist. LEXIS 35496,

2023 WL 2349599, at *4 & n.7 (discussing Rehaif ). For

these reasons, the district court concluded, the claim

pressed by Dimkpa in his § 2255 motion was reasonably

available at the time of his plea and on direct review, and

the intervention of Ruan did not qualify as cause for his

failure to raise the claim then. Dimkpa, 2023 U.S. Dist.

LEXIS 35496, 2023 WL 2349599, at *4. 3

3. The district court did find that Dimkpa could satisfy the

prejudice prong of the cause and prejudice standard. His argument at

sentencing focused on a claim that he did not know his prescriptions

were unauthorized — specifically, that he did not know prescribing

oxycodone to a patient using heroin and cocaine was medically

inappropriate if the patient had other legitimate medical needs

supporting the prescription. Given that argument, the district

court explained, “Dimkpa probably would not have pled guilty if he

had realized the government would have to prove that he knew the

distribution of oxycodone was inappropriate.” Dimkpa, 2023 U.S.

Dist. LEXIS 35496, 2023 WL 2349599, at *4. But as the district court

correctly recognized, prejudice alone is insufficient to overcome a

procedural default; the cause prong must also be satisfied. Id.

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Appendix A

Having determined that Dimkpa could not overcome

his procedural default on the basis of cause and prejudice,

the district court turned to Dimkpa’s remaining

argument: that his procedural default could be excused by

actual innocence. 2023 U.S. Dist. LEXIS 35496, [WL] at

*5. But Dimkpa could not prevail on that ground, either,

the court concluded: “The inference that Dr. Dimkpa

knew prescribing these medicines was not appropriate is

strong,” and Dimkpa could not show that “in light of all

the evidence available, ‘it is more likely than not that no

reasonable juror would have convicted him’ of any charge.”

Id. (quoting Bousley v. United States, 523 U.S. 614, 623,

118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)).

Accordingly, the district court ruled that the

procedural default doctrine precluded Dimkpa from

asserting his Ruan-based claim on collateral review, and

denied Dimkpa’s motion to vacate his § 841 convictions.

2023 U.S. Dist. LEXIS 35496, [WL] at *6. The district

court then issued Dimkpa a certificate of appealability,

and this timely appeal followed.

II.

We review the district court’s denial of a § 2255 motion

de novo. United States v. McKinney, 60 F.4th 188, 191 (4th

Cir. 2023). On appeal, Dimkpa challenges only the district

court’s determination that he failed to show cause for his

procedural default, maintaining that his Ruan-based

mens rea claim was sufficiently novel at the time he pled

guilty that his failure to raise it on direct review should be

9a

Appendix A

excused.4 We disagree and therefore affirm the judgment

of the district court.

A.

Habeas review should not take the place of an appeal.

Bousley v. United States, 523 U.S. 614, 621, 118 S. Ct. 1604,

140 L. Ed. 2d 828 (1998). Accordingly, “[w]here a defendant

has procedurally defaulted a claim by failing to raise it

on direct review, the claim may be raised in habeas only

if the defendant can first demonstrate either ‘cause’ and

actual ‘prejudice,’ or that he is ‘actually innocent.’” Id. at

622 (citations omitted). “[A] claim that ‘is so novel that

its legal basis is not reasonably available to counsel’ may

constitute cause for a procedural default.” Id. (quoting

Reed, 468 U.S. at 16).

That “novelty” standard is a high one. Poyner v.

Murray, 964 F.2d 1404, 1424 (4th Cir. 1992). As the district

court explained — and Dimkpa does not dispute — it is

not enough that at the time Dimkpa pled guilty, Fourth

Circuit precedent foreclosed application of a subjective

scienter standard to § 841’s “except as authorized” clause.

See Hurwitz, 459 F.3d at 477-80 (rejecting subjective

“good faith” standard in favor of objective standard);

United States v. Smithers, 92 F.4th 237, 247 (4th Cir.

2024) (explaining, on direct review, that it “would have

been futile for [the defendant] to argue for a subjective

standard” in the Fourth Circuit before Ruan was decided).

4. Dimkpa does not challenge the district court’s ruling that

he failed to show actual innocence.

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Appendix A

That kind of futility, the Supreme Court has held — that

a claim cannot prevail in front of a specific court at a

particular point in time — cannot qualify as cause for

a procedural default. Bousley, 523 U.S. at 623. Nor is

it enough that this issue was unsettled in 2019, when

Dimkpa entered his plea. The law is “often in a state of

flux,” and the “mere fact that certain legal principles

are unsettled” at the relevant time “does not deprive a

competent attorney of a ‘reasonable basis’ for asserting

a claim.” United States v. Gaylor, 828 F.2d 253, 256-57

(4th Cir. 1987). “[T]he question is not whether subsequent

legal developments have made counsel’s task easier, but

whether at the time of the default the claim was ‘available’

at all.” Smith v. Murray, 477 U.S. 527, 537, 106 S. Ct. 2661,

91 L. Ed. 2d 434 (1986).

In Reed v. Ross, 468 U.S. 1, 104 S. Ct. 2901, 82 L. Ed.

2d 1 (1984), the Supreme Court identified three situations

in which “the novelty of a claim could constitute cause,”

McKinney, 60 F.4th at 194:

First, a decision of the Supreme Court may

explicitly overrule one of its precedents.

Second, a decision may overturn a longstanding

and widespread practice to which the Supreme

Court has not spoken, but which a nearunanimous body of lower court authority has

expressly approved. And, finally, a decision may

disapprove [of] a practice the Supreme Court

arguably has sanctioned in prior cases.

Id. (cleaned up) (quoting Reed, 468 U.S. at 17). Dimkpa

relies heavily on these Reed categories in making his

11a

Appendix A

argument, and we agree that this framework may

helpfully inform the inquiry into whether a claim is so

“novel” that it was not “reasonably available” at the time

of a default. But as subsequent Supreme Court precedent

makes clear, the Reed categories may not be dispositive,

and the analysis does not stop there.

As our court has explained, after the Supreme Court

decided Reed, it “elaborated on just what constitutes

a novel claim” in Bousley v. United States. United

States v. Sanders, 247 F.3d 139, 144-45 (4th Cir. 2001).

There, the Court held that a claim about the scope of 18

U.S.C. § 924(c)(1)’s prohibition on “use” of a firearm was

“reasonably available” for years before it was adopted by

the Supreme Court. Id. (citing Bousley, 523 U.S. at 616,

622-23). In reaching that conclusion, the Court did not

reference the Reed categories. Instead, it focused directly

on the bottom-line inquiry: Was the “legal basis” for the

defendant’s claim “reasonably available to counsel” at the

time of the default? Bousley, 523 U.S. at 622; see Sanders,

247 F.3d at 144. And while the Court recognized that its

decision narrowing the scope of § 924(c)(1) in Bailey v.

United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d

472 (1995), had “changed the relevant legal landscape,” it

still concluded that the basis for the petitioner’s claim was

“reasonably available” years before Bailey was decided,

emphasizing that other defendants already were raising

Bailey-style claims. Sanders, 247 F.3d at 145 (citing

Bousley, 523 U.S. at 622-23).

Consistent with that approach, we have held that a

claim is not sufficiently “novel” to qualify as cause for a

default where prior Supreme Court decisions provided a

12a

Appendix A

defendant with the “essential legal tools” for his claim.

Sanders, 247 F.3d at 146. Even if it is only later that the

Supreme Court actually settles the issue, in other words,

a claim is “reasonably available” if prior precedent “laid

the basis for” it. Engle v. Isaac, 456 U.S. 107, 131-33, 102

S. Ct. 1558, 71 L. Ed. 2d 783 (1982); see, e.g., Turner v.

Jabe, 58 F.3d 924, 929 (4th Cir. 1995). And the fact that

other defendants “perceived and litigated” similar claims

around the same time indicates that a claim is not so

“novel” that it can excuse a default. Engle, 456 U.S. at 134;

see, e.g., Bousley, 523 U.S. at 622-23, 623 n.2; Sanders,

247 F.3d at 145; Turner, 58 F.3d at 929.

B.

Against that background, we turn to Dimkpa’s

contention that his claim was sufficiently “novel” to

constitute cause for his 2019 default. We appreciate

that it was not until three years later that the Supreme

Court embraced Dimkpa’s position in Ruan. And we

recognize, as Dimkpa argues, that Ruan’s endorsement

of a subjective mens rea requirement for § 841’s “except

as authorized” clause “changed the law in this circuit”

and many others. United States v. Kim, 71 F.4th 155, 160

(4th Cir. 2023). But that alone is not enough to establish

cause in this case.

In our 2006 decision in Hurwitz, we adopted what

we believed to be the consensus position of the federal

courts of appeals, holding that § 841 did not require the

government to prove that a doctor knew or intended to

prescribe in an unauthorized manner, but only that a

13a

Appendix A

doctor’s prescriptions were objectively unauthorized.

459 F.3d at 479 (“We believe that the inquiry must be

an objective one, a conclusion that has been reached by

every court to specifically consider the question.”). And it

appears that this consensus only grew in the years after

Hurwitz was decided. See Brief for Defendant-Appellant

at 21-22 (collecting cases). 5 So when Ruan held that the

government was required in a § 841 prosecution to prove

that a doctor knowingly or intentionally acted in an

unauthorized manner, it abrogated the law in multiple

circuits, including our own, see Smithers, 92 F.4th at 250,

and “changed the relevant legal landscape,” Sanders, 247

F.3d at 145. See Reed, 468 U.S. at 17 (describing category

of cases in which a Supreme Court decision “overturn[s]

a longstanding and widespread practice to which [the

Supreme Court] has not spoken, but which a nearunanimous body of lower court authority has expressly

approved”).

But however strong this former circuit-court consensus,

it did not place the “legal basis” for Dimkpa’s Ruan-style

challenge beyond the realm of “reasonable availability” at

the time of Dimkpa’s default. That is primarily because of

an unusual feature of this case, emphasized by the district

court: Three months before Dimkpa pled guilty and six

months before he was sentenced, a strikingly similar mens

rea claim was embraced by the Supreme Court in Rehaif v.

5. Still, the consensus was not unanimous: The Seventh and

the Ninth Circuits required the government to prove that a doctor

intended to act in an unauthorized manner. See United States v.

Chube II, 538 F.3d 693, 698 (7th Cir. 2008); United States v. Feingold,

454 F.3d 1001, 1008 (9th Cir. 2006).

14a

Appendix A

United States. See Dimkpa, 2023 U.S. Dist. LEXIS 35496,

2023 WL 2349599, at *4 & n.7. Whatever the state of play

before Rehaif, after Rehaif, Dimkpa “plainly had at his

disposal the essential legal tools with which to construct

his claim.” Sanders, 247 F.3d at 146.

Dimkpa’s claim, again, rests on the proposition that

§ 841’s “knowingly or intentionally” mens rea modifies not

only “manufacture, distribute, or dispense” — the clause

immediately following it — but also the preceding “except

as authorized” clause. In Rehaif, the Court considered

an analogous (if slightly more ambitious) claim about

the scope of the word “knowingly” as used in 18 U.S.C.

§ 924(a)(2), which penalizes anyone who “knowingly”

violates a different statute, 18 U.S.C. § 922(g). 588

U.S. at 227. Section 922(g), in turn, prohibits firearm

possession by certain individuals, including convicted

felons and noncitizens illegally in the United States. Id.

The defendant in Rehaif argued that § 924(a)(2)’s mens rea

requirement applied across statutes to modify all elements

of an antecedent § 922(g) offense. And the Supreme Court

agreed, holding that § 924(a)(2)’s “knowingly” modifier

is not limited to the words immediately following it, see

Ruan, 597 U.S. at 461 (discussing Rehaif ), and instead

requires that “in a prosecution under 18 U.S.C. § 922(g)

and § 924(a)(2), the [g]overnment must prove both that the

defendant knew he possessed a firearm and that he knew

he belonged to the relevant category of persons barred

from possessing a firearm,” Rehaif, 588 U.S. at 237.

Despite these parallels, Rehaif might be less important

here if the Supreme Court had “carefully crafted [that]

15a

Appendix A

holding to avoid deciding whether [its] logic . . . applied

outside the context” of the particular statutory scheme at

issue. United States v. Brown, 868 F.3d 297, 302 (4th Cir.

2017). But the Court in Rehaif did exactly the opposite.

It framed its holding as an application of broad and basic

criminal law principles: the “universal” understanding that

“an injury is criminal only if inflicted knowingly,” and the

concomitant “longstanding” and “ordinary presumption

in favor of scienter” when construing criminal statutes.

Rehaif, 588 U.S. at 229, 231. It situated its holding within

a “legion” of cases “emphasiz[ing] scienter’s importance

in separating wrongful from innocent acts.” Id. at 231.

And it underscored that while the presumption of scienter

applies even when a statute specifies no mens rea, the

presumption applies “with equal or greater force” when

— as in § 924(a)(2) in Rehaif, and § 841 in this case —

Congress has included a general scienter provision in the

statutory scheme. Id. at 229.

Those principles apply straightforwardly to Dimkpa’s

Ruan-style claim. And we know this because when the

Supreme Court decided Ruan three years later, its

reasoning mirrored that of Rehaif, and it relied on Rehaif

throughout. In Ruan, as in Rehaif, the Court started from

fundamental principles of criminal law: the maxim that

“wrongdoing must be conscious to be criminal” and the

presumption of scienter. Ruan, 597 U.S. at 457-58 (citing

Rehaif, 588 U.S. at 229). The Court observed, again, that

because § 841 contains a general scienter provision, the

presumption of scienter “applies with equal or greater

force” in construing its scope. Id. at 458 (quoting Rehaif,

588 U.S. at 229). The Court characterized Rehaif,

16a

Appendix A

specifically, as “[a]nalogous precedent” concerning “the

mental state that applies to a statutory clause” — in

Ruan, the “except as authorized” clause — “that does

not immediately follow the scienter provision.” Id. at 461.

And the Court concluded, as it had before, that application

of a scienter requirement would play a “crucial role” in

separating presumptively innocent acts (such as possession

of a licensed firearm or prescription of medication by a

physician) from wrongful conduct. Id. at 458-59, 464 (citing

Rehaif, 588 U.S. at 231-32).

Ruan was not, of course, a carbon copy of Rehaif.

See id. at 468-73 (Alito, J., concurring in the judgment)

(arguing that Rehaif is distinguishable). But “reasonable

availability” does not demand an exact match. See Gaylor,

828 F.2d at 256-57 (claim may be “reasonably available”

before an issue is settled by the Supreme Court). For

procedural default to apply, it is enough if a defendant and

his counsel have available the “tools to construct their []

claim.” Engle, 456 U.S. at 133. And months before Dimkpa

pled guilty, was sentenced, and forwent an appeal in 2019,

Rehaif had given Dimkpa and his lawyer “the legal tools,

i.e., case law, necessary to conceive and argue” a Ruanstyle claim. Poyner, 964 F.2d at 1424; see Sanders, 247

F.3d at 145-46 (applying similar reasoning to find that

Apprendi-style claims were “reasonably available” in

years before Supreme Court decided Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435

(2000)).

It is no surprise, then, that other defendants were

raising Ruan-style claims well before Ruan was decided.

17a

Appendix A

As the district court noted, defendants in the Fourth

Circuit were bringing such challenges around the time

of Dimkpa’s default, Dimkpa, 2023 U.S. Dist. LEXIS

35496, 2023 WL 2349599, at *4, as were defendants in

other circuits, see Response Brief of the United States at

19 & n.2 (listing cases from the Fourth Circuit and other

circuits). That other defendants already were pursuing

what would become Ruan claims is good evidence that “the

foundation for [Ruan] was laid” before Ruan was decided

in 2022, Sanders, 247 F.3d at 145, and that Dimkpa’s claim

was not so “novel” that it can constitute cause for a default.

See Bousley, 523 U.S. at 622 (reasoning that petitioner’s

claim did not qualify as “novel” because “at the time of

petitioner’s plea, the Federal Reporters were replete with

cases involving [similar] challenges”).

Finally, we are unpersuaded by Dimkpa’s argument

that his claim was not “reasonably available” until Ruan

was decided because Ruan overturned the Supreme

Court’s prior precedent in United States v. Moore, 423

U.S. 122, 96 S. Ct. 335, 46 L. Ed. 2d 333 (1975), or at

least “disapprove[d] [of] a practice [the Supreme Court]

arguably ha[d] sanctioned” in Moore. Reed, 468 U.S. at

17 (identifying situations in which claim might not be

reasonably available to petitioner). Ruan did not overrule

Moore. Instead, it distinguished it: “[T]he question in

Moore was whether doctors could ever be held criminally

liable under § 841. Moore did not directly address the

question before us here regarding the mens rea required

to convict under the statute.” Ruan, 597 U.S. at 466

(emphasis in original) (citation omitted). Moreover, the

Court expressly rejected the argument Dimkpa now

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Appendix A

advances, pressed in Ruan by the government: that Moore

had “effectively endorsed” an objective scienter standard.

See id. Given the Supreme Court’s own analysis of its

precedent, we are not at liberty to adopt a contrary view

and find that Moore sanctioned the objective standard

later disapproved of in Ruan.

This case is thus distinguishable from United States

v. McKinney, in which we found cause for a petitioner’s

default of a vagueness challenge to the residual clause of

18 U.S.C. § 924(c) in the years before the Supreme Court

invalidated a similar residual clause in Johnson v. United

States, 576 U.S. 591, 135 S. Ct. 2551, 192 L. Ed. 2d 569

(2015). See McKinney, 60 F.4th at 191, 193-95. Until 2015,

we explained, Supreme Court precedent had “effectively

foreclosed” such a claim, “affirmatively uph[olding] the

constitutionality of residual clauses like the one at issue.”

Id. at 194. A claim “foreclosed” by binding Supreme

Court precedent may well be “unavailable” in a way that

constitutes cause for a default. See id.; Reed, 468 U.S.

at 17. Here, however, the Supreme Court has expressly

instructed that its decision in Moore did not even address,

let alone foreclose, the mens rea claim Dimkpa defaulted.

Ruan, 597 U.S. at 466.

Accordingly, we agree with the district court that the

legal basis for Dimkpa’s mens rea claim was “reasonably

available to him” at the time he pled guilty and then failed

to pursue a direct appeal. His failure to assert that claim

was therefore a procedural default for which no cause

can be shown, and on that ground, collateral relief is

precluded.

19a

Appendix A

III.

For the foregoing reasons, we affirm the judgment of

the district court.

AFFIRMED

20a

Appendix B

APPENDIX B — MEMORANDUM

OPINION AND

ORDER OF THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF

NORTH CAROLINA, DATED MARCH 3, 2023

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

NORTH CAROLINA

1:19-CR-443

1:22-CV-770

OKECHUKWU DIMKPA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

Signed March 3, 2023

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, District Judge.

In 2019, Okechukwu Dimkpa, a medical doctor, pled

guilty to six counts of distribution of oxycodone outside

the usual course of professional practice as a physician

and without a legitimate medical purpose, in violation of

21 U.S.C. § 841(a). He now moves to vacate his conviction

based on the Supreme Court’s decision in Ruan v. United

21a

Appendix B

States, 142 S. Ct. 2370 (2022), contending he was not told

before his guilty plea that it is an element of the crime

that he have “knowingly or intentionally acted in an

unauthorized manner.”

Dr. Dimkpa did not raise this issue on direct appeal,

and it is procedurally defaulted. Because Dr. Dimkpa has

not shown cause and prejudice or actual innocence, he

has not overcome this procedural default and his motion

will be denied. But because the Fourth Circuit has not

yet addressed procedural default in the Ruan context, a

certificate of appealability shall issue.

I.

Offense Conduct

Dr. Dimkpa is a medical doctor who has practiced

in hospitals in the United States for a number of years,

including having his own practice in Kannapolis, North

Carolina. See, e.g., Doc. 12 at ¶¶ 3, 54-60.1 In October 2016,

the Drug Enforcement Administration received complaints

that Dr. Dimkpa was over-prescribing oxycodone, a

Schedule II controlled substance. Id. at ¶ 3. While

investigating, the DEA heard from witnesses that Dr.

Dimkpa “was prescribing opioids to known ‘drug seekers’

for cash with little or no physical examination.” Id.2

1. The Court adopted Dr. Dimkpa’s presentence report, Doc.

12, with some changes, Doc. 16 at 1, based on his objections. See

Doc. 11. The Court does not cite to anything in the presentence

report that was not adopted.

2. The presentence report contained discussions of other

patients that tended to support this characterization of Dr.

22a

Appendix B

One of Dr. Dimkpa’s patients was Adam Cohen. Id. at

¶ 4. Mr. Cohen first saw Dr. Dimkpa in April 2014 seeking

treatment for pain. Id. at ¶ 5. Dr. Dimkpa discussed the

possibility of using the drugs Vivitrol or Suboxone as

alternatives to oxycodone, but Mr. Cohen declined. Id.

In August 2014, Mr. Cohen again visited Dr. Dimkpa,

this time with his brother. Id. at ¶ 6. Mr. Cohen told Dr.

Dimkpa that he was addicted to pain pills and that his

brother, who ran a dental office in the area and employed

Mr. Cohen, “was going to fire him if he did not stop using

prescription opioids.” Id. Dr. Dimkpa prescribed Suboxone

to Mr. Cohen, which is designed to treat opioid addiction.

Id. Dr. Dimkpa continued to prescribe Suboxone to Mr.

Cohen for some four months. Id.

In January 2015, with knowledge that Mr. Cohen was

addicted to opioids, Dr. Dimkpa prescribed oxycodone

to Mr. Cohen. Id. at ¶¶ 6-7. He continued to prescribe

oxycodone to Mr. Cohen until August 2016, even after Mr.

Cohen routinely tested positive for heroin and cocaine. Id.

at ¶¶ 4, 6-7. He last prescribed oxycodone to Mr. Cohen on

August 23, 2016. Id. at ¶¶ 6-7. Mr. Cohen died on August

28, 2016, of “Acute Combined Drug Toxicity.” Id. at ¶ 4.

According to Dr. Gene S. Kennedy, who reviewed Mr.

Cohen’s medical chart for investigators, Dr. Dimkpa never

requested Mr. Cohen’s past medical records and never

conducted a creditable physical exam, and Dr. Dimkpa’s

Dimkpa’s practice. See Doc. 12 at ¶¶ 13-17. The Court struck

those paragraphs, as there were “no corroborated incidents of

the defendant prescribing opioids” to other patients “outside

appropriate medical practice.” Doc. 16 at 1.

23a

Appendix B

medical records contained no support for a chronic pain

diagnosis. Id. at ¶ 20. 3 Dr. Kennedy said that continuing

to prescribe oxycodone after Mr. Cohen tested positive

for cocaine and heroin was “without rationale, well outside

the course of normal medical practice, and not medically

legitimate.” Id. (cleaned up).

II. History of the Proceedings

On August 23, 2019, Dr. Dimkpa was charged via

information with six counts of distribution of oxycodone,

based on six times he wrote prescriptions for Mr. Cohen

after Mr. Cohen tested positive for cocaine and/or heroin.

Doc. 1; Doc. 2 at 3. Later that month, the parties filed a

signed plea agreement, Doc. 3, and on September 11, 2019,

Dr. Dimkpa pled guilty to all six counts pursuant to that

plea agreement. Minute Entry 09/11/2019; Doc 3.

At the Rule 11 change of plea hearing, the following

colloquy occurred between the Court and Dr. Dimkpa:

THE COURT: Okay. Dr. Dimkpa, you’ve been

charged with six counts of unlawful distribution

3. Dr. Dimkpa objected to these conclusions, see Doc. 11, Doc.

14, and argued that he was treating Mr. Cohen, a patient struggling

with chronic pain, as best as he could. He further contended that he

did request Mr. Cohen’s past medical records but could not obtain

them. Doc. 11 at 3. Dr. Dimkpa has not provided a transcript of the

sentencing hearing, but it appears from the Statement of Reasons

that the Court overruled these objections and adopted the part

of the PSR containing Dr. Kennedy’s conclusions as recited here.

See Doc. 16 at 1.

24a

Appendix B

of oxycodone. The elements of this offense are—

I’m just going to tell you the elements once,

and then we’ll go through the dates separately

for each count, okay. The elements are that

you knowingly or intentionally caused to be

distributed a quantity of a mixture or substance

containing a detectable amount of oxycodone,

a Schedule II controlled substance, knowing

that at the time you intended to distribute the

mixture, and you did so outside the usual course

of professional practice. Do you understand

those elements?

THE DEFENDANT:

Yes, Your Honor.

...

THE COURT: If you plead not guilty and go

to trial, the Government has to prove all of those

things beyond a reasonable doubt. If you plead

guilty, you’re admitting each and every one of

those things. Do you understand?

THE DEFENDANT:

Yes, Your Honor.

Doc. 34 at 12-14. The Court then listed the dates of

the offenses but again did not address the knowledge

requirement. Id. at 13. Later in the hearing, Dr.

Dimkpa admitted his guilt to all six charges of unlawful

distribution. Id. at 18-19.

25a

Appendix B

On December 16, 2019, the Court sentenced Dr.

Dimkpa to 46 months in prison followed by three years of

supervised release. Minute Entry 12/16/2019; Doc. 15 at

2-3. He self-reported to prison on January 27, 2020, Doc.

15 at 2, and did not appeal.

In May 2022, Dr. Dimkpa was released from the

custody of the Bureau of Prisons. See Find an Inmate,

Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/

(last visited Mar. 1, 2023). He is now serving his threeyear term of supervised release.

III. Ruan and the Pending Motion

In June 2022, the Supreme Court examined the

elements of the same crime to which Dr. Dimkpa pled

guilty and the specific part of that statute concerning drug

distribution by medical professionals. 21 U.S.C. § 841(a).

The Supreme Court first quoted and summarized the

statutory language:

A provision of the Controlled Substances Act,

codified at 21 U.S.C. § 841, makes it a federal

crime, “except as authorized, . . . for any person

knowingly or intentionally . . . to manufacture,

distribute, or dispense . . . a controlled

substance,” such as opioids. Reg istered

doctors may prescribe these substances to

their patients. But, as provided by regulation,

a prescription is only authorized when a doctor

issues it “for a legitimate medical purpose . . .

26a

Appendix B

acting in the usual course of his professional

practice.”

Ruan v. United States, 142 S. Ct. 2370, 2374-75 (2022)

(cleaned up).

The specific question at issue was whether it was

“sufficient for the Government to prove that a prescription

was in fact not authorized,” or whether the Government

must “prove that the doctor knew or intended that the

prescription was unauthorized.” Id. at 2375 (emphasis

in original). The Court held that “§ 841’s ‘knowingly

or intentionally’ mens rea applies to the ‘except as

authorized’ clause. This means that once a defendant

meets the burden of producing evidence that his or her

conduct was ‘authorized,’ the Government must prove

beyond a reasonable doubt that the defendant knowingly

or intentionally acted in an unauthorized manner.” Id. at

2376.

Shortly after the Supreme Court’s decision in Ruan,

Dr. Dimkpa sought vacatur of his conviction. Doc. 27. The

Court directed the government to respond, Doc. 28, and

briefing is now complete.

IV. Discussion

A federal pr isoner may challenge a sentence

imposed by a federal court if: (1) the sentence violates

the Constitution or laws of the United States; (2) the

sentencing court lacked jurisdiction to impose the

sentence; (3) the sentence exceeds the statutory maximum;

27a

Appendix B

or (4) the sentence “is otherwise subject to collateral

attack.” 28 U.S.C. § 2255(a).4 A sentence is “otherwise

subject to collateral attack” if a petitioner shows that the

proceedings suffered from “a fundamental defect which

inherently results in a complete miscarriage of justice.”

United States v. Addonizio, 442 U.S. 178, 185 (1979)

(cleaned up). “This standard is only satisfied when a court

is presented with exceptional circumstances where the

need for the remedy afforded by the writ of habeas corpus

is apparent.” United States v. Foote, 784 F.3d 931, 936 (4th

Cir. 2015) (cleaned up).

Dr. Dimkpa contends that he was not told when he

pled guilty that it is an element of this crime that he

knew he was acting in an unauthorized manner or that

he intended to act in an unauthorized manner. See Ruan

v. United States, 142 S. Ct. 2370, 2375 (2022). Because

the Court did not explicitly tell Dr. Dimkpa about this

element when he pled guilty, see Doc. 34 at 12-14, he says

his guilty plea was not knowing and voluntary. 5 He also

4. A motion for relief under 28 U.S.C. § 2255 must normally be

brought within one year of the date that the petitioner’s judgment

became final; there are narrow exceptions, see 28 U.S.C. § 2255(f),

one of which the government says applies here. See Doc. 32 at 3-4.

Courts do not usually raise timeliness issues sua sponte, and no

reason appears to consider it here in light of the government’s

implicit waiver. See generally Wood v. Milyard, 566 U.S. 463,

472-73 (2012).

5. Because omission of the mens rea element from the plea

colloquy “does not affect the entire framework within which the

proceeding occur[ed],” automatic reversal is not required, even on

direct appeal. Greer v. United States, 141 S. Ct. 2090, 2100 (2021).

28a

Appendix B

says that the government’s evidence was insufficient to

prove his guilt. See Doc. 27 at 2.

Dr. Dimkpa’s claim is procedurally defaulted. If raised

by the government, a claim is procedurally defaulted and

subject to dismissal if it could have been made on direct

appeal but is raised for the first time in post-conviction

proceedings. See Bousley v. United States, 523 U.S. 614,

621 (1998). Such is the case here, as Dr. Dimkpa did not

file a direct appeal and the government has raised the

procedural default. See Doc. 32.

“Two showings excuse a procedural default: a

defendant’s demonstration of ‘either cause and actual

prejudice or that he is actually innocent.’” United States

v. McKinney,

F.4th

, 2023 WL 2028440, at *3

(4th Cir. 2023) (citing Bousley, 523 U.S. at 622). Dr.

Dimkpa’s argument that the government did not have a

factual basis for the guilty plea does not meet this test;

the evidence summarized in the presentence report,

Doc. 12, and the government’s proffer, Doc. 2, easily

support an inference that Dr. Dimkpa knew his acts were

inappropriate. See Doc. 12 at 25. But his argument about

his guilty plea requires closer consideration.

A.

Cause and Prejudice

To demonstrate actual prejudice on collateral review

of a guilty plea, a defendant must show it is likely that

“had he known of the error” he “would not have pled

29a

Appendix B

guilty.” McKinney, 2023 WL 2028440, at *6.6 As to the

involuntariness of his guilty plea, Dr. Dimkpa has made

a strong showing of prejudice. His sentencing materials

were largely directed to his argument that he had treated

Mr. Cohen as a person with complex medical needs

including chronic pain and addiction, see Doc. 14, implicitly

contending he had not known the prescribing of oxycodone

to someone using heroin and cocaine was inappropriate if

that person had other legitimate medical needs supporting

the prescription. That is what Dr. Dimkpa says now,

see e.g., Doc. 37 at 8, and it is consistent with what was

presented earlier in this case. Dr. Dimkpa probably would

not have pled guilty if he had realized the government

would have to prove that he knew the distribution of

oxycodone was inappropriate. See McKinney, 2023 WL

2028440, at *6.

But prejudice alone, without good cause, is not

sufficient to overcome the procedural default. And Dr.

Dimkpa has not shown good cause.

“Generally, the existence of cause for procedural

default turns on whether some objective factor external

to the defense prevented counsel from raising the claim

on direct appeal.” McKinney, 2023 WL 2028440, at *3

(cleaned up). Dr. Dimkpa states that he did not previously

raise this issue, on appeal or otherwise, because it was

“not available” until June 2022 when the Supreme Court

decided Ruan. Doc. 27 at 13-14.

6. In McKinney, the Fourth Circuit cited the test established

in United States v. Dominguez Benitez, 542 U.S. 74 (2004), a

direct appeal.

30a

Appendix B

A change in the law constitutes “cause” only if “a

constitutional claim [was] so novel that its legal basis [was]

not reasonably available to counsel.” Reed v. Ross, 468 U.S.

1, 16 (1984); see also McKinney, 2023 WL 2028440, at *3.

“[A]lleged futility cannot serve as ‘cause’ for a procedural

default in the context of collateral review . . . if it means

simply that a claim was unacceptable to that particular

court at that particular time.” Whiteside v. United States,

775 F.3d 180, 185 (4th Cir. 2014) (en banc) (citing Bousley,

523 U.S. at 623).

Dr. Dimkpa cannot demonstrate that the argument

was not reasonably available at the time of his guilty plea.

Dr. Dimkpa’s argument had not been foreclosed by the

Supreme Court, see Ruan, 142 S. Ct. at 2381 (noting that

a past case discussing this general issue “did not directly

address . . . the mens rea required to convict under

the statute”), and defendants continued to raise these

challenges. See, e.g., United States v. Purpera, Nos. 18CR-19, 19-CR-16, 2020 WL 5237521, at *3 (W.D. Va. Sept.

2, 2020) (appeal pending). Indeed, the Supreme Court

had been persuaded by defense arguments addressing

the knowledge requirement in another statute just a few

months before Dr. Dimkpa’s guilty plea.7 This argument

7. On June 21, 2019, just a few months before Dr. Dimkpa’s

guilty plea on September 11, 2019, the Supreme Court examined

whether the word “knowingly” in 18 U.S.C. § 924(a)(2) modified

and applied to the requirement that a person have a status that

makes it a crime to possess a firearm. Rehaif v. United States,

139 S. Ct. 2191 (2019). The Court held that it did. Id. at 2195-2197

(so holding, noting that “[t]he cases in which we have emphasized

scienter’s importance in separating wrongful from innocent acts

are legion” and collecting cases).

31a

Appendix B

was reasonably available to Dr. Dimkpa. See Bousley,

523 U.S. at 623; Whiteside, 775 F.3d at 185; cf. Reed, 468

U.S. at 16.

B. Actual Innocence Following a Guilty Plea

A claim of actual innocence can also overcome

procedural default. See McKinney, 2023 WL 2028440, at

*2-3. To prevail on actual innocence, Dr. Dimkpa must

establish that, in light of all the evidence available, “it is

more likely than not that no reasonable juror would have

convicted him” of any charge. Bousley, 523 U.S. at 623.

Dr. Dimkpa has not demonstrated actual innocence.

He has not filed any additional evidence to support this

claim, and the facts in the record support the opposite

finding. See Doc. 2 at 3-4 (showing that Dr. Dimkpa

prescribed oxycodone to Mr. Cohen on multiple occasions

“despite the fact that [Mr. Cohen] had just tested positive

for heroin and/or cocaine” and that an expert concluded

that this conduct was “outside the course of usual medical

practice” and “not medically legitimate”); Doc. 12 at

¶¶ 4, 7-8, 20 (same); id. at ¶ 20 (expert statements that

Dr. Dimkpa never requested Mr. Cohen’s past medical

records or conducted a “creditable physical exam”); id.

at 25 (addendum to the presentence report in which the

Probation Officer stated that “[t]he indicia of [Mr.] Cohen’s

addiction and abuse clearly reflects the defendant knew

or had reason to know that the prescriptions he issued

beginning on January 29, 2015, were for illegitimate

purposes or were not within the scope of usual medical

practice. Furthermore, the fact that [Mr.] Cohen had

32a

Appendix B

legitimate medical problems is not sufficient to reflect

that the defendant prescribed medications in good faith”).

Dr. Dimkpa did file written and chronological

summaries of Mr. Cohen’s medical treatment before

sentencing, see Docs. 11-1 and 11-2, that generally show

that Mr. Cohen complained of chronic pain to Dr. Dimkpa.

See, e.g., Doc. 11-1 at 2-4, 7; Doc. 11-2 at 13-15, 35-36.

He contended at his sentencing hearing that he had

prescribed oxycodone to Mr. Cohen in an effort to help

him with his chronic pain issues after making a “medical

assessment,” Doc. 14 at 4, recognizing that if he did not

prescribe oxycodone Mr. Cohen was likely to return to

street drugs such as heroin. See id. at 5-6.

But Dr. Dimkpa knew Mr. Cohen was a drug addict

who wanted pain medicine because of his addiction;

Mr. Cohen’s brother told him so. Doc. 12 at ¶ 6; see also

Doc. 14 at 4 (Dr. Dimkpa’s sentencing memorandum

acknowledging this fact). And he knew that despite the

oxycodone prescriptions, Mr. Cohen was using cocaine

and heroin. See, e.g., Doc. 11-2 at 29 (Dr. Dimkpa’s medical

records showing Mr. Cohen tested positive for cocaine); id.

at 31 (same); id. at 16 (same for heroin metabolite); id. at

20 (same); see also Doc. 14 at 5, 9. He knew that Mr. Cohen

was not following his recommendations to seek treatment

from a long-term pain management specialist. Doc. 14 at

5. Yet he continued to prescribe oxycodone over a span of

nineteen months. See Doc. 12 at ¶¶ 6-7.

The inference that Dr. Dimkpa knew prescribing

these medicines was not appropriate is strong. Even

33a

Appendix B

assuming that a jury might credit the evidence that Mr.

Cohen was experiencing ongoing pain and presented

complex issues because of his addiction, Dr. Dimkpa has

presented no evidence that any other medical professional

would have considered it to be appropriate medical care

to continue to prescribe oxycodone to an addict known

to be using heroin and cocaine. A rational juror would be

skeptical of Dr. Dimkpa’s assertion that he did not know

this was unauthorized. Those assertions, on their own, are

not enough to show that it is more likely than not that no

reasonable juror would have convicted him of any of his

six charges. See Bousley, 523 U.S. at 623.

V. Conclusion

Dr. Dimkpa’s claim for collateral relief is procedurally

defaulted. Because he has not established cause or actual

innocence, his motion to vacate will be denied.

The Court is aware of no published case by the

Fourth Circuit addressing the application of either the

cause-and-prejudice exception or the actual-innocence

exception to the procedural default of an involuntary guilty

plea argument in the Ruan context. In McKinney, ___

F.4th ___, 2023 WL 2028440 (4th Cir. 2023), the Fourth

Circuit recently addressed procedural default of a claim

of an involuntary guilty plea in the § 2255 context, but

that case concerned acts which were no longer a crime

because of changes in the case law, a quite different

situation than here. Dr. Dimkpa has raised a substantial

question about how the Supreme Court’s decision in Ruan

affects procedurally defaulted claims, and this issue may

34a

Appendix B

impact his constitutional rights concerning a knowing and

voluntary guilty plea. Therefore, the Court will issue a

certificate of appealability so that the appellate court can

evaluate the case and determine whether the procedural

default rule has been appropriately applied here, should

Dr. Dimkpa appeal.

IT IS THEREFORE ORDERED AND ADJUDGED

that:

1.

The petitioner’s motion to vacate, set aside, or

correct sentence, Doc. 27, is DENIED.

2.

The Court issues a certificate of appealability.

This the 3rd day of March, 2023.

/s/ Catherine C. Eagles

UNITED STATES DISTRICT JUDGE

35a

Appendix

C UNITED STATES

APPENDIX C — ORDER

OF THE

COURT OF APPEALS FOR THE FOURTH CIRCUIT,

FILED MAY 1, 2026

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-6245

(1:19-cr-00443-CCE-1)

(1:22-cv-00770-CCE-LPA)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OKECHUKWU DIMKPA,

Defendant-Appellant.

Filed May 1, 2026

ORDER

The petition for rehearing en banc was circulated to

the full court. No judge requested a poll under Fed. R.

App. P. 40. The court denies the petition for rehearing

en banc.

For the Court

/s/ Nwamaka Anowi, Clerk

36a

Appendix D TRANSCRIPT OF

APPENDIX D — EXPEDITED

CHANGE OF PLEA FOR THE UNITED STATES

DISTRICT COURT, MIDDLE DISTRICT OF NORTH

CAROLINA, DATED SEPTEMBER 11, 2019

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

NORTH CAROLINA

Case No. 1:19CR443-1

UNITED STATES OF AMERICA

vs.

OKECHUKWU DIMKPA,

Defendant.

Greensboro, North Carolina

September 11, 2019

2:05 p.m.

EXPEDITED TRANSCRIPT OF CHANGE OF

PLEA AT ARRAIGNMENT HEARING

BEFORE THE HONORABLE CATHERINE C. EAGLES

UNITED STATES DISTRICT JUDGE

[2]PROCEEDINGS

(Defendant present.)

MR. DEFRANCO:

I approach briefly?

Your Honor, may Mr. Lee and

37a

Appendix D

THE COURT:

record?

You may. Does it need to be on the

MR. DEFRANCO:

MR. LEE:

I don’t think so.

No.

(A bench conference was held, not recorded.)

THE COURT:

Okay.

MR. DEFRANCO: Your Honor, the next matter

is on for plea at arraignment. It’s United States of

America versus Okechukwu Dimkpa, 1:19CR443-1. He’s

represented by Bruce Lee, Your Honor.

THE COURT:

MR. LEE:

Good afternoon, Mr. Lee.

Good afternoon, Your Honor.

THE COURT: Have you had enough time to consult

with your client and to review the discovery and other

relevant information?

MR. LEE:

Yes, Your Honor.

THE COURT: And are you ready to proceed with

the change of plea hearing?

MR. LEE:

Yes, Your Honor.

38a

Appendix D

THE COURT: And is it -- can you tell me how to

pronounce his last name?

[3]MR. LEE:

Dimkpa.

THE COURT:

Dimkpa?

THE DEFENDANT:

THE COURT:

“p” together.

Yes, ma’am, that’s correct.

It’s confusing with that “k” and that

THE DEFENDANT: The “k” and “p” together, yes.

THE COURT:

So Dimkpa?

THE DEFENDANT:

THE COURT:

correct?

MR. LEE:

Yes, ma’am.

All right. And it’s Dr. Dimkpa,

Yes, ma’am.

And we want you to take a stab at his first name.

THE COURT:

MR. LEE:

That’s okay.

Okay.

THE COURT: I would do my best, but it would

probably not come out very well with my Arkansas accent.

39a

Appendix D

All right. Do you believe that Dr. Dimkpa understands

the charges and the nature of this hearing?

MR. LEE:

Yes, I do, Your Honor.

THE COURT: And does he want to enter a plea

of guilty, pursuant to a plea agreement, to six counts of

unlawful distribution of oxycodone?

MR. LEE:

Yes, Your Honor.

THE COURT: Has anyone made any threats

or promises to induce that guilty plea, other than the

promises in the plea agreement?

[4]MR. LEE:

No, Your Honor.

THE COURT: Is it your recommendation that the

Court accept his -- accept his guilty plea?

MR. LEE:

Yes, Your Honor.

THE COURT:

Okay. Dr. Dimkpa, good afternoon.

THE DEFENDANT:

Good afternoon.

THE COURT: The courtroom deputy will swear

or affirm you to give truthful answers to my questions.

(The Defendant was duly sworn.)

40a

Appendix D

THE COURT: All right. Dr. Dimkpa, you are under

oath, and it is a crime to tell me a lie.

Do you understand that?

THE DEFENDANT:

THE COURT:

Tell me your full name.

THE DEFENDANT:

THE COURT:

Fifty years old.

And you’re a medical doctor?

THE DEFENDANT:

THE COURT:

Okechukwu Dimkpa.

How old are you?

THE DEFENDANT:

THE COURT:

Yes, Your Honor.

Yes, Your Honor.

Where did you go to school?

THE DEFENDANT: Rostov State Medical University

in Russia.

(Court reporter requested clarification.)

THE COURT:

Say it again.

THE DEFENDANT: Rostov State Medical University.

[5]THE COURT:

And where is that?

41a

Appendix D

THE DEFENDANT:

THE COURT:

In Russia?

THE DEFENDANT:

THE COURT:

medicine?

It’s in Russia.

Yes, Your Honor.

Okay. Do you take any prescription

THE DEFENDANT:

No, Your Honor.

THE COURT: Have you recently been treated for

any mental illness or addictions?

THE DEFENDANT:

No, Your Honor.

THE COURT: When was the last time you had any

alcohol, drugs, or medicine?

THE DEFENDANT:

None. Never, Your Honor.

THE COURT: And are -- and you don’t take any

-- haven’t had any prescription medicine -THE DEFENDANT:

THE COURT:

No, Your Honor.

-- in several months at least?

THE DEFENDANT:

No, Your Honor.

THE COURT: A re you able to hear me and

understand what is going on today?

42a

Appendix D

THE DEFENDANT:

Yes, Your Honor.

THE COURT: How long have you been in the United

States?

THE DEFENDANT:

THE COURT:

From 2006, I think.

So 13 years?

[6]THE DEFENDANT:

THE COURT:

And --

THE DEFENDANT:

THE COURT:

No -- excuse me -- 1996.

1996.

THE DEFENDANT:

THE COURT:

Yes, Your Honor.

Yes, Your Honor.

Okay. So well over 20 years then?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: Okay. Your English is very good.

Do you have any trouble understanding English?

THE DEFENDANT:

THE COURT:

No, Your Honor.

And can you read English?

THE DEFENDANT:

Yes, Your Honor.

43a

Appendix D

THE COURT:

here?

Did you study it before you moved

THE DEFENDANT:

Yes, Your Honor.

THE COURT: And did you receive a copy of the

information, which is the written charge against you,

signed by the prosecutor?

THE DEFENDANT:

THE COURT:

Yes, Your Honor.

Were you able to read it?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: Do you understand the information

and the charges you are facing?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: Have you had enough time to talk to

your lawyer about your case?

[7]THE DEFENDANT:

Yes, Your Honor.

THE COURT: And have you fully discussed the

charges with him and talked to him about your situation,

the evidence against you, and any defenses you might

have?

THE DEFENDANT:

Yes, Your Honor.

44a

Appendix D

THE COURT: Have you talked to him about the

penalties for these crimes and the consequences of a

guilty plea?

THE DEFENDANT:

T H E COU RT:

representation?

Yes, Your Honor.

A r e you s at i s f ie d w it h h i s

THE DEFENDANT:

Yes, Your Honor.

THE COURT: Now, we are here this afternoon

because you have signed a written plea agreement

indicating you want to plead guilty to six counts of

unlawful distribution of oxycodone pursuant to a plea

agreement.

Before you can do that, I have a number of things to

ask you to be sure that’s a knowing and voluntary guilty

plea, and to be sure we’re all on the same page about your

plea agreement and the penalties for this crime and your

expectations about what’s going to happen.

After we go through all of those things, I will ask you

how you plead to these charges, and you’ll let me know

guilty or not guilty. Even though you’ve signed a written

plea agreement, you can change your mind while we’re

talking and decide that you would rather have a trial; and

if that’s what happens, you just tell me at any point.

45a

Appendix D

[8]Once you plead guilty, if you do, and I accept your

guilty plea, that is very, very hard to get set aside. So you

do need to be sure before you plead guilty.

Do you understand?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: Any questions about how we will

proceed this afternoon?

THE DEFENDANT:

THE COURT:

No, Your Honor.

Am I talking too fast for you?

THE DEFENDANT:

No, Your Honor.

THE COURT: Okay. You appear to be following

along, but sometimes I talk too fast. So if I do, you just

stop me. I’ll be glad to slow down.

Now, a person charged with a crime in the United

States has a number of rights associated with a fair

trial. You have the right to plead not guilty to any and

all charges, and to have a jury decide whether you are

guilty or not guilty. If you plead not guilty, at trial you

are presumed innocent, and the burden of proof is on

the Government to prove your guilt beyond a reasonable

doubt. This means the Government must prove each and

every element of the crime charged beyond a reasonable

doubt before you can be found guilty of that charge.

Do you understand those rights?

46a

Appendix D

THE DEFENDANT:

Yes, Your Honor.

THE COURT: You have the right to the assistance

of [9]counsel at all stages of the proceedings, including a

trial; and if you plead not guilty, Mr. Lee will continue to

represent you; and if for some reason he cannot and you

cannot afford to hire another attorney, the Court will

appoint a lawyer to represent you at no cost to you.

Do you understand that right?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: You have a right to be present for

the trial, and to see and hear the testimony of all the

witnesses. We would have a jury sit over there in the

jury box. They would listen to all of the evidence, the

Government’s evidence and any evidence you wanted to

present, and the jury would decide whether you were

guilty or not guilty.

You could be present -- you can be present for the

entire trial, and you should be present. You can confront

the witnesses, and your lawyer can ask the Government’s

witnesses questions on cross-examination. You can present

evidence, if you wish, though you’re not required to do so;

and if you have witnesses you want to call to testify, you

can make them come to court at no cost to you.

You can also testify if you want to, though you have an

absolute privilege not to testify; and if you choose not to

testify or not to present evidence, the Court will instruct

47a

Appendix D

the jury not to consider this in any way in determining

your guilt.

Do you understand these rights?

[10]THE DEFENDANT:

Yes, Your Honor.

THE COURT: Do you have any questions about

any of these rights related to trial I’ve just summarized

for you?

THE DEFENDANT:

No questions, Your Honor.

THE COURT: You also have a right to have these

charges presented to the grand jury. The grand jury

makes a preliminary determination that there’s probable

cause to believe a crime has been committed and that you

committed it. It’s a preliminary matter before a jury trial

that we just talked about. You do have that right, and I

want to be sure you understand that.

Do you have any questions about your rights to have

the case presented to the grand jury?

THE DEFENDANT:

No, Your Honor.

THE COURT: If you plead guilty today, you’re

giving up your right to a jury trial and other important

rights.

Do you understand that?

48a

Appendix D

THE DEFENDANT:

Yes, Your Honor.

THE COURT: And your plea agreement calls for

you to give up your right to have the matter presented

to the grand jury, and I see here you’ve signed a form

agreeing to that.

Is that right as well?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: Okay. I see you’ve got a written plea

agreement, and it looks like you signed it on page 7.

[11]Do you have a copy of it there, Mr. Lee?

MR. LEE:

Yes, Your Honor. He has it before him.

THE COURT: All right. Is that your signature on

page 7, Dr. Dimkpa?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: And it looks like there is a plea

bargain in this case in paragraph 5.

Can you summarize that, Mr. Lee?

MR. LEE: Your Honor, the plea bargain in this case

is that if Dr. Dimkpa qualifies for a two-level reduction

in the offense level, the Government will recommend one

additional level, and he understands that the Court is not

bound by that recommendation.

49a

Appendix D

THE COURT: All right. And it looks like he’s

agreeing to the amount of the offense -- I mean amount

of the drugs?

MR. LEE:

Yes, Your Honor, in paragraph (e).

Also, Your Honor, part of the plea agreement in (f) and

important is he agrees to surrender his DEA registration

numbers. There are two of those numbers.

THE COURT:

accurate?

Okay. All right. Mr. Dimkpa, is that

THE DEFENDANT:

Yes, Your Honor.

THE COURT: Has anybody made any other

promises to you in exchange for your guilty plea?

[12]THE DEFENDANT:

No, Your Honor.

THE COURT: And does the written plea agreement

contain all of the terms and conditions of your plea

arrangement with the Government?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: Do you have any questions at all

about the plea agreement?

THE DEFENDANT:

No, Your Honor.

50a

Appendix D

T HE COU RT: In t he plea ag reement , t he

Government has agreed to make a recommendation about

your guideline calculation and acceptance of responsibility.

That is a recommendation only. It is not binding on the

Court. If the Court does not follow that recommendation,

that is not a reason to withdraw your guilty plea.

Do you understand that?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: Has anyone threatened you or

otherwise attempted to force you to plead guilty against

your wishes?

THE DEFENDANT:

No, Your Honor.

THE COURT: And can I ask counsel, the agreement

about the drug amount, that’s relevant to guideline

calculation. We’re not talking about any sort of mandatory

minimum?

MR. LEE:

No, Your Honor.

MR. DEFRANCO:

That’s correct.

THE COURT: Okay. Dr. Dimkpa, you’ve been

charged [13]with six counts of unlawful distribution of

oxycodone. The elements of this offense are -- I’m just

going to tell you the elements once, and then we’ll go

through the dates separately for each count, okay.

51a

Appendix D

The elements are that you knowingly or intentionally

caused to be distributed a quantity of a mixture or

substance containing a detectable amount of oxycodone,

a Schedule II controlled substance, knowing that at the

time you intended to distribute the mixture, and you did

so outside the usual course of professional practice.

Do you understand those elements?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: And for Count One -- I think all of

these offenses occurred in Cabarrus County, according

to the information, and the dates of distribution are: On

June 4th, 2015, that’s Count One. July 1st, 2015, that’s

Count T wo. July 23rd, 2015, that’s Count Three.

September 16th, 2015, that’s Count Four. Count Five is

October 12th, 2015, and Count Six is December 7th, 2015.

Do you understand the elements?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: If you plead not guilty and go to trial,

the Government has to prove all of those things beyond

a reasonable doubt. If you plead guilty, you’re admitting

each and every one of those things.

[14]Do you understand?

THE DEFENDANT:

Yes, Your Honor.

52a

Appendix D

THE COURT: This offense carries a possible prison

term of up to 20 years followed by supervised release for

at least three years, and that’s the penalty for each one of

those six offenses. So in theory, that’s 120 years.

Do you understand that?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: A fine of up to a million dollars can

be imposed on each count or twice the gross gain or loss

caused by the crime should that be greater. Forfeiture and

restitution are authorized by statute, and it is required

by law that you pay a special assessment of a hundred

dollars on each count. So that’s going to be $600 you’re

going to have to pay.

Do you have any questions about those penalties?

THE DEFENDANT:

No, Your Honor.

THE COURT: Parole has been abolished, and if you

are sentenced to prison, you will not get out early on parole.

If you do get an active prison sentence, the Court will

be required to impose supervised release after that prison

term. It would have to be at least three years by statute,

and it could be as long as life. The Court will decide at

your sentencing hearing how long the supervised release

period should be and what the conditions are that you’ll

have to comply with when you get out of prison if you get

an active [15]sentence.

53a

Appendix D

If you violate those conditions, the Court can revoke

your supervised release and send you back to prison, and

that additional prison term can be substantial, and it can

be followed by more time on supervised release.

Do you understand?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: Do you have any questions about

supervised release?

THE DEFENDANT:

No, Your Honor.

THE COURT: There are other consequences to

a guilty plea. You will have a felony -- you will have six

felony convictions, and it will be illegal for you to possess

a firearm or ammunition. You will lose certain civil rights,

at least for a time, such as the right to vote, the right to

hold public office, and the right to serve on a jury. And

if you are not a citizen, your guilty plea may well affect

your immigration status, and you will almost certainly

be deported.

Where were you born?

THE DEFENDANT:

THE COURT:

I was born in Nigeria.

In Nigeria?

THE DEFENDANT:

Yes, Your Honor.

54a

Appendix D

THE COURT:

Are you a citizen –

THE DEFENDANT:

THE COURT:

Yes, Your Honor.

-- of the United States?

[16]THE DEFENDANT:

THE COURT:

Yes, Your Honor.

Since when?

THE DEFENDANT:

Since 2011.

THE COURT: Okay. Now, let’s turn to sentencing.

If you plead guilty and the Court accepts your guilty plea,

your sentencing hearing will be in the fall or early winter.

In the meantime, the probation office will prepare

a presentence report. That report will have a lot of

information in it about you and your background and

circumstances and about the crimes that you’ve pled guilty

to. It will also contain a proposed sentencing guideline

range calculated specifically for your case and taking into

account things like the nature of the crimes, any actual

harm from the crime, any other relevant conduct, and any

prior criminal history, things like that.

Do you have any questions about that so far?

THE DEFENDANT:

No, Your Honor.

THE COURT: You and your attorney, as well as the

Government, will have a chance to review that report. If

55a

Appendix D

there are mistakes in it or if you disagree with the way

your guideline range is calculated, you can object to that,

and your attorney will file objections. At your sentencing

hearing, I will resolve any objections, and I always make

the final determination about the guideline range whether

there are objections or not.

The Court always considers the guideline range once

it has [17]figured out what it is. It’s important, but it is not

binding. It is advisory only. So the Court will take it into

account, but another sentence may be more appropriate

in a particular case.

The Court will decide your sentence only after

considering the presentence report and any other evidence,

the guideline range, any statements and arguments by the

lawyers, and any statement that you make to me.

Do you understand how the sentencing process works?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: You’ve been nodding along with me,

so I assume Mr. Lee explained this to you before?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: All right. And do you have any

questions about how it works?

THE DEFENDANT:

No, Your Honor.

56a

Appendix D

THE COURT: As you can see, no one today knows

what your sentence is going to be, and no one today knows

what your guideline range is going to be. Your attorney

may have suggested some numbers to you as possibilities

based on his experience with the guidelines, but those

are estimates only. So any numbers your attorney has

suggested to you are not binding on the Court, and if your

guideline range or your sentence turns out to be different

from those estimates, that is not a reason to withdraw

your guilty plea.

[18]Do you understand?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: Has anybody made any promises

or guarantees to you about your guideline range or your

sentence?

THE DEFENDANT:

THE COURT:

get probation?

No, Your Honor.

Has anybody promised you, you will

THE DEFENDANT:

No, Your Honor.

THE COURT: You and the Government have certain

rights to appeal any sentence that the Court imposes.

Do you have questions about your appeal rights?

57a

Appendix D

THE DEFENDANT:

No, Your Honor.

THE COURT: If you plead guilty, you’re admitting

the elements of these six crimes, you’re giving up your

constitutional rights to a trial, and you are accepting the

terms of the written plea agreement.

Do you understand?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: Do you have any questions at all

about anything we’ve talked about here today or otherwise

about your case?

THE DEFENDANT:

No, Your Honor.

THE COURT: How do you plead to six counts of

unlawful distribution of oxycodone?

THE DEFENDANT:

Guilty.

[19]THE COURT: And are you pleading guilty

because you are, in fact, guilty?

THE DEFENDANT:

Yes, Your Honor.

THE COURT: You’re admitting that you’re guilty

of all six crimes; is that right?

THE DEFENDANT:

Yes, Your Honor.

58a

Appendix D

THE COURT: The Court accepts the waiver as to

his rights to have the case presented to the grand jury;

and the Court finds that the Defendant is competent and

capable of entering an informed plea, he is aware of the

nature of the charges and the consequences of a guilty

plea, and his plea of guilty is knowing and voluntary.

I saw the written factual basis provided by the

Government and filed -- well, my copy doesn’t show it was

filed, but I assume it was.

Have you seen it?

MR. LEE: I’ve seen it, Your Honor. It was filed,

but it doesn’t have a file stamp on it. It’s on PACER, so I

assume that it was filed.

THE COURT:

If it’s there, it’s been filed.

You’ve gone over it with Dr. Dimkpa?

MR. LEE:

I have, Your Honor.

THE COURT: And, Dr. Dimkpa, have you seen

that written factual basis provided by the Government

summarizing the evidence against you in a little more

detail?

[20]THE DEFENDANT:

THE COURT:

Yes, Your Honor.

Do you have any questions about it?

59a

Appendix D

THE DEFENDANT:

THE COURT:

factual basis?

MR. LEE:

No, Your Honor.

Mr. Lee, are there objections to the

No, Your Honor.

THE COURT: Do you agree and stipulate it

provides an independent basis in fact for each element of

all six crimes?

MR. LEE:

I do.

THE COURT:

add?

Anything the Government wants to

MR. DEFRANCO: No, Your Honor, only that the

factual basis was filed August 26th.

THE COURT: Okay. Thank you. I don’t know why

my copy doesn’t have that printed.

MR. LEE:

Mine wasn’t stamped either, Your Honor.

THE COURT: Okay. The Court finds that the

Defendant’s plea of guilty is supported by an independent

basis in fact containing each of the essential elements

of the offense. His plea of guilty is accepted, and the

defendant, Dr. Dimkpa, is adjudged guilty of six counts

of unlawful distribution of oxycodone.

60a

Appendix D

The Court directs the probation office to prepare a

presentence report.

They’ll want to interview you, Dr. Dimkpa, and your

attorney can be present with you for that interview.

[21]I believe you all told me at the bench this is not a

mandatory detention offense, and I take it he’s -- this is

an information, so he hasn’t been before the magistrate

judge?

MR. LEE:

He has, Your Honor, this morning.

THE COURT:

He went this morning. Okay.

MR. LEE: And he was released with the condition to

surrender his passport, which he’s going to do in Salisbury

tomorrow.

THE COURT: Okay. And those conditions are

agreeable to the Government?

MR. DEFRANCO:

Yes, Your Honor.

THE COURT: Okay. I’ll let him remain out of

custody pending sentencing subject to the terms and

conditions imposed by the magistrate judge.

I can do sentencing on December 16th at 2:00, unless

somebody knows there’s a reason that won’t work? No?

61a

Appendix D

MR. LEE:

No, Your Honor, I think it will work.

THE COURT:

Monday, December 16th at 2:00.

Dr. Dimkpa, sometimes these things have to be

rearranged or postponed for some reason or another, but

assuming that doesn’t happen, I’ll see you in court on that

day. Just stay in touch with Mr. Lee about scheduling.

Do you have any questions for me?

THE DEFENDANT:

THE COURT:

No, Your Honor.

Have I forgotten anything? No?

[22]MR. DEFRANCO:

THE COURT:

MR. LEE:

No, Your Honor.

All right. Thank you.

Thank you.

THE DEFENDANT:

MR. DEFRANCO:

Thank you.

Thank you, Your Honor.

(Proceedings concluded at 2:26 p.m.)

62a

Appendix

E

APPENDIX E — PLEA

AGREEMENT

OF THE

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF NORTH CAROLINA,

FILED AUGUST 26, 2019

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

NORTH CAROLINA

1:19CR443-1

UNITED STATES OF AMERICA

v.

OKECHUKWU DIMKPA

Filed August 26, 2019

PLEA AGREEMENT

NOW COME the United States of America, by and

through Matthew G. T. Martin, United States Attorney for

the Middle District of North Carolina, and the defendant.

OKECHUKWU DIMKPA, in his own person and through

his attorney, Bruce A. Lee, and state as follows:

1. The defendant, OKECHUKWU DIMKPA, is

presently charged in an Information in case number

1:19CR443-1, which charges him in Counts One, Two,

Three, Four, Five, and Six with violations of Title 21.

United States Code, Section 841(a)(1) and (b)(1)(C).

63a

Appendix E

2. The defendant, OKECHUKWU DIMKPA, will

enter a voluntary plea of guilty to the Information herein.

The nature of these charges and the elements of these

charges, which must be proved by the United States

beyond a reasonable doubt before the defendant can be

found guilty thereof, have been explained to him by his

attorney.

a. The defendant understands that as to the

Information herein he shall be sentenced to a term of

imprisonment of not more than twenty years, a fine not

to exceed $1,000,000, or both, as to each count. If any

person derived pecuniary gain from the offense, or if

the offense resulted in pecuniary loss to a person other

than the defendant, OKECHUKWU DIMKPA, the

defendant may, in the alternative, be fined not more than

the greater of twice the gross gain or twice the gross

loss unless the Court determines that imposition of a

fine in this manner would unduly complicate or prolong

the sentencing process. The fine provisions are subject

to the provisions of Title 18, United States Code, Section

3571, entitled Sentence of Fine. Any sentence imposing a

term, of imprisonment shall impose a term of supervised

release of at least three years in addition to such term of

imprisonment.

b. The defendant, OKECHUKWU DIMKPA,

also understands that, as to the Information herein, the

Court may order that the defendant make restitution in

accordance with Title 18, United States Code, Section

3663(c)(1).

64a

Appendix E

c. The defendant, OKECHUKWU DIMKPA,

further understands that the sentence to be imposed

upon him is within the discretion of the sentencing

court subject to the statutory maximum and mandatory

minimum penalties set forth above. The sentencing court

is not bound by the sentencing range prescribed by the

United States Sentencing Guidelines. Nevertheless, the

sentencing court is required to consult the Guidelines

and take them into account when sentencing. In so doing,

the sentencing court will first calculate, after making

the appropriate findings of fact, the sentencing range

prescribed by the Guidelines, and then will consider that

range as well as other relevant factors set forth in the

Guidelines and those factors set forth in Title 18, United

States Code, Section 3553(a) before imposing the sentence.

d. The defendant, OKECHUKWU DIMKPA,

understands that if he is not a citizen of the United

States that entering a plea of guilty may have adverse

consequences with respect to his immigration status.

The defendant, OKECHUKWU DIMKPA, nevertheless

wishes to enter a voluntary plea of guilty regardless of

any immigration consequences his guilty plea might entail,

even if such consequence might include automatic removal

and possibly permanent exclusion from the United States.

The defendant, OKECHUKWU DIMKPA, further

understands that in the event he is a naturalized citizen,

entering a plea of guilty may result in denaturalization

proceedings being instituted against him leading to his

removal and possible permanent exclusion from the United

States.

65a

Appendix E

3. By voluntarily pleading guilty to the Information

herein, the defendant, OKECHUKWU DIMK PA,

knowingly waives and gives up his constitutional rights

to plead not guilty, to compel the United States to prove

his guilt beyond a reasonable doubt, not to be compelled

to incriminate himself, to confront and cross-examine

the witnesses against him, to have a jury or judge

determine, his guilt on the evidence presented, and other

constitutional rights which attend a defendant on trial in

a criminal case.

4. The defendant, OKECHUKWU DIMKPA, is

going to plead guilty to the Information herein because

he is, in fact, guilty and not because of any threats or

promises.

5. The extent of the plea bargaining in this case is

as follows:

a. It is understood that if the Court determines at

the time of sentencing that the defendant, OKECHUKWU

DIMKPA, qualifies for a 2-point decrease in the offense

level under Section 3E1.1(a) of the Sentencing Guidelines

and that the offense level prior to the operation of Section

3E1.1(a) is 16 or greater, then the United States will

recommend a decrease in the offense level by 1 additional

level pursuant to Section 3E1.1(b) of the Sentencing

Guidelines. This portion of the Plea Agreement is made

pursuant to Rule 11(c)(1)(B) of the Federal Rules of

Criminal Procedure.

66a

Appendix E

b. The defendant, OKECHUKWU DIMKPA,

hereby abandons interest in, and consents to the official

use, destruction, or other disposition of each item seized

and/or maintained by any law enforcement agency

during the course of the investigation, unless such item

is specifically provided for in another section of this plea

agreement. The defendant, OKECHUKWU DIMKPA,

waives any and all notice of any proceeding to implement

the official use, destruction, or other disposition of such

items.

c. The United States of A mer ica and the

defendant, OKECHUKWU DIMKPA, agree and stipulate

that there is a sufficient factual basis to support the

material allegations contained in the Information.

d. It is further agreed that the defendant,

OKECHUKWU DIMKPA, will waive in open court

prosecution by indictment and consent to be charged in

an information.

e. The defendant agrees that the substance

involved in the offense alleged in the Information herein

is approximately 24,000 mg of oxycodone (actual), which

is the equivalent of at least 150 kilograms but less than

170 kilograms of marihuana, pursuant to U.S.S.G. § 2D1.1

comment. (n.(8)(D)).

f. The defendant agrees to surrender his DEA

registration numbers FD5949067 and BD9370848.

67a

Appendix E

6. The defendant, OKECHUKWU DIMKPA, agrees

that pursuant to Title 18, United States Code, Section

3613, all monetary penalties, including restitution imposed

by the Court, shall be due immediately upon judgment

and subject to immediate enforcement by the United

States. The defendant agrees that if the Court imposes a

schedule of payments, the schedule of payments shall be

merely a schedule of minimum payments and shall not be

a limitation on the methods available to the United States

to enforce the judgment.

7. The defendant, OKECHUKWU DIMKPA, agrees

that his debt resulting from the criminal monetary

penalties due under the criminal judgment will be

submitted to the Treasury Offset Program even if he

is current in his payments under any Court imposed

payment schedule.

8. It is further understood that the United States

and the defendant, OKECHUKWU DIMKPA, reserve the

right to bring to the Court’s attention any facts deemed

relevant for purposes of sentencing.

9. The defendant, OKECHUKWU DIMK PA,

further understands and agrees that pursuant to Title

18, United States Code, Section 3013, for any offense

committed on or after October 11, 1996, the defendant

shall pay an assessment to the Court of $100 for each

offense to which he is pleading guilty. This payment shall

be made at the time of sentencing by cash or money order

made payable to the Clerk of the United States District

Court. If the defendant is indigent and cannot make the

68a

Appendix E

special assessment payment at the time of sentencing,

then the defendant agrees to participate in the Inmate

Financial Responsibility Program for purposes of paying

such special assessment.

10. No agreements, representations, or understandings have been made between the parties in this case

other than those which are explicitly set forth in this Plea

Agreement, and none will be entered into unless executed

in writing and signed by all the parties.

This the 22nd day of August

MATTHEW G.T. MARTIN

United States Attorney

, 2019.

/s/ Bruce A. Lee

BRUCE A. LEE

Attorney for Defendant

/s/ Michael A. DeFranco

/s/ Okechukwu Dimkpa

MICHAEL A. DeFRANCO

OKECHUKWU DIMKPA

NCSB #23072

Defendant

Assistant United States Attorney

101 S. Edgeworth St., 4th Flr.

Greensboro, NC 27401

336/333-5351

69a

AppendixBASIS

F

APPENDIX F — FACTUAL

FOR PLEA OF

THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF NORTH CAROLINA,

DATED AUGUST 26, 2019

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

NORTH CAROLINA

1:19CR443-1

UNITED STATES OF AMERICA

v.

OKECHUKWU DIMKPA

FACTUAL BASIS

NOW COMES the United States of America, by and

through Matthew G.T. Martin, United States Attorney for

the Middle District of North Carolina, and as a factual

basis under Rule 11, Fed. R. Crim. P., states as follows:

In Oc t ober of 2 016 , t he D r ug En forcement

Administration (DEA) received complaints that Dr.

Okechukwu Dimkpa, an Internist, was over-prescribing

prescription medication, specifically oxycodone, a

Schedule II controlled substance. At that time, Dr.

Dimkpa owned and operated Care Plus Medical Clinic in

Kannapolis, North Carolina. After conducting multiple

interviews, DEA investigators learned that Dr. Dimkpa

was prescribing opioids to known “drug seekers” with

70a

Appendix F

little or no physical examination and for cash. According

to multiple witnesses, Dr. Dimkpa charged $400 for an

initial consultation and $300 for each subsequent visit.

The investigation soon focused on one of Dr. Dimkpa’s

patients, Adam Cohen, who died in Florida on August

28, 2016, five days after receiving a prescription for

oxycodone from Dr. Dimkpa. The Miami-Dade County

Medical Examiner determined that Adam Cohen died of

“Acute Combined Drug Toxicity (oxycodone, alprazolam).”

Investigators obtained Adam Cohen’s CSRS (controlled

substance reporting system) data which shows that Dr.

Dimkpa was prescribing him oxycodone despite the fact

that he was routinely testing positive for heroin and cocaine.

Adam Cohen first saw Dr. Dimkpa on April 28, 2014. Dr.

Dimkpa’s intake sheet indicates Adam sought treatment

for “pain.” According to Dr. Dimkpa, on June 12, 2014, he

discussed with Adam the possibility of using the drugs

vivitrol or suboxone as alternatives to oxycodone. Dr.

Dimkpa noted on a July 1, 2014, appointment that Adam

stated he was not ready to try suboxone and on July 15,

2014, he was still complaining of pain. Dr. Dimkpa noted

no change after a July 29, 2014, visit by Adam Cohen.

Investigators were able to locate and interview Adam

Cohen’s brother Jeff, who owned a dental office nearby Dr.

Dimkpa’s clinic. Jeff Cohen advised that his brother Adam

approached him in August of 2014, seeking help with his

addiction to pain pills. In response, Jeff accompanied Adam

to an appointment with Dr. Dimkpa. In Jeff’s presence,

Adam advised Dr. Dimkpa that he did not have back

71a

Appendix F

pain; rather he was addicted to pain pills. Adam further

advised that his brother, for when he worked, was going

to fire him if he didn’t stop using prescription opioids. In

response, Dr. Dimkpa prescribed suboxone (designed to

treat opioid addiction) to Adam. For approximately four

months Dr. Dimkpa prescribed suboxone to Adam. For

reasons unknown, in January of 2015 Dr. Dimkpa again

began prescribing oxycodone periodically to Adam until

his death on August 28, 2016. The data shows that Adam

received an oxycodone prescription from Dr. Dimkpa just

five days before his death.

The CSRS data shows multiple dates on which Dr.

Dimkpa prescribed oxycodone to Adam despite the fact

that he had just tested positive for heroin and/or cocaine.

6/4/15:

180 mg of oxycodone/oxycontin after positive

heroin test.

7/1/15:

120 mg of oxycodone/oxycontin after positive

heroin test.

7/23/15: 180 mg of oxycodone after positive heroin

test.

9/16/15: 210 mg of oxycodone/oxycontin after positive

cocaine test.

10/12/15: 210 mg of oxycodone/oxycontin after positive

cocaine test.

12/7/15: 180 mg of oxycodone after positive cocaine

test.

72a

Appendix F

In furtherance of the investigation Dr. Gene Kennedy

reviewed Dr. Dimkpa’s medical chart for Adam Cohen. Dr.

Kennedy concluded that, in his expert medical opinion, Dr.

Dimkpa’s prescription of oxycodone to Adam Cohen was

“outside the course of usual medical practice” and “not

medically legitimate.”

This the 26th day of August, 2019.

Respectfully submitted,

MATTHEW G.T. MARTIN

United States Attorney

/S/ MICHAEL A. DeFRANCO

Assistant United States Attorney

NCSB #23072

United States Attorney’s Office

Middle District of North Carolina

101 S. Edgeworth Street, 4th Floor

Greensboro, NC 27401

Phone: 336/333-5351