Submitted: December 15, 2017
from United States District Court for the Northern District
of Iowa - Cedar Rapids
WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
2007, a jury convicted Lorenzo Roundtree of distributing
heroin, resulting in death, after a prior felony drug
conviction. The district court sentenced Roundtree to life
imprisonment, the sentence mandated by 21 U.S.C. §
841(b)(1)(C) "if death or serious bodily injury results
from the use of such substance." The conviction and
sentence were affirmed on direct appeal. Roundtree filed a 28
U.S.C. § 2255 motion to vacate, set aside, or correct
his sentence, asserting claims of ineffective assistance of
counsel and insufficient evidence. The district court denied
relief, Roundtree appealed, and we remanded for a hearing on
his claim that trial counsel was ineffective for failing to
advise that he faced a potential mandatory life sentence.
Roundtree v. United States, 751 F.3d 923, 927 (8th
our remand, the Supreme Court decided Burrage v. United
States, 134 S.Ct. 881, 892 (2014), holding that, if
"the drug distributed by the defendant is not an
independently sufficient cause of the victim's death or
serious bodily injury, a defendant cannot be held liable
under the penalty enhancement . . . of . . . §
814(b)(1)(C) unless such use is a but-for cause of the death
or injury." Roundtree moved to expand the § 2255
hearing to include consideration of a claim under
Burrage that his sentence was enhanced based on an
erroneous jury instruction. The district court denied the
motion and then denied relief on the remanded issue.
Roundtree appealed. We affirmed denial of relief on the
remanded issue but granted a certificate of appealability on
the Burrage claim. On remand, the district court
concluded in a lengthy opinion that Roundtree was
procedurally barred from asserting that claim, denied relief,
and issued a certificate of appealability. Reviewing de
novo whether Roundtree's § 2255 claim is
procedurally barred, we affirm.
evidence at trial established that Roundtree sold heroin to
Nick Howe and Michelle Eash who then met Wes Gridley and
picked up the victim, C.H., at a bar. Howe and Eash shared
the heroin purchased from Roundtree with Gridley and the
intoxicated C.H. Shortly after using the heroin, C.H. became
unresponsive and died. The medical examiner, Dr. Julia
Goodin, testified that C.H. died as a result of alcohol and
drug intoxication. C.H.'s lungs were filled with fluid, a
common result of opiate overdose, which deprives the body of
jury was instructed that, if it found Roundtree guilty of
distributing heroin, it must decide whether the government
proved beyond a reasonable doubt -
that the heroin distributed by the defendant contributed to
C.H.'s death. In other words . . . was a factor that
resulted in the death of C.H. Although the heroin distributed
by the defendant need not be the primary cause of C.H.'s
death, it must at least have played a part in the death of
jury found beyond a reasonable doubt that Roundtree
distributed heroin that resulted in the death of C.H. The
parties agree that Burrage requires proof meeting a
heightened standard of causation, rather than the
"contributing factor" standard used to instruct the
jury that convicted Roundtree. In this § 2255 motion,
Roundtree argues that his life sentence should be vacated for
resentencing because his sentence was enhanced on the basis
of an erroneous jury instruction.
trial, Roundtree did not object to the jury instruction at
issue, nor did he raise this instruction issue on direct
appeal. Thus, the issue was procedurally defaulted, which
means that, to obtain collateral relief, Roundtree "must
clear a significantly higher hurdle than would exist on
direct appeal." United States v. Frady, 456
U.S. 152, 166 (1982). "[T]o obtain collateral relief
based on trial errors to which no contemporaneous objection
was made, [Roundtree] must show both (1) 'cause'
excusing his double procedural default, and (2) 'actual
prejudice' resulting from the errors of which he
complains." Id. at 168. A claim of actual
prejudice resulting from an instruction error requires a
showing that "the ailing instruction by itself so
infected the entire trial that the resulting conviction
violates due process." Id. at 169 (quotation
omitted). This rigorous standard "requires that the
degree of prejudice resulting from instruction error be
evaluated in the total context of the events at trial."
Id. We need not determine whether Roundtree has
shown cause if "he suffered no actual prejudice of a
degree sufficient to justify collateral relief."
Id. at 168.
government relied on Dr. Goodin's testimony to prove that
C.H.'s death "result[ed] from the use of"
heroin Roundtree distributed. On direct examination, Dr.
Goodin testified that alcohol and morphine -- the metabolized
form of heroin --worked "synergistically" to
depress C.H.'s respiratory system, causing her to list
"both acute drug, meaning morphine, and ethanol
intoxication as a cause of death." Dr. Goodin opined
that the percent of alcohol found in C.H.'s bloodstream,
0.16%, was not enough to cause death "if that were the
only thing that was in his blood." On cross-exam, Dr.
Goodin opined that the alcohol and morphine "probably
worked together, " but "the morphine alone [could]
have caused his death."
agree with the district court that, based on Dr. Goodin's
uncontradicted testimony, the incorrect jury instruction did
not result in prejudice excusing Roundtree's procedural
default under Burrage. In the first place, Dr.
Goodin's opinion that "the morphine alone [could]
have caused [C.H.'s] death" would permit a
reasonable jury to find that Roundtree's offense
warranted the § 841(b)(1)(C) sentencing enhancement
because "the drug distributed by the defendant [was] an
independently sufficient cause of the victim's
death." Burrage, 134 S.Ct. at 892. Moreover,
given Dr. Goodin's testimony that alcohol and metabolized
heroin worked synergistically to cause C.H.'s death, but
the level of alcohol in his bloodstream by itself was not
enough to cause death, no reasonable jury would have found
that the heroin provided by Roundtree was a contributing
factor, but not a but-for cause, of C.H.'s death.
Accord United States v. Schneider, 665 Fed.Appx.
668, 673-74 (10th Cir. 2016) (harmless error review). As the
Supreme Court explained in Burrage:
where A shoots B, who is hit and dies, we can say that A
[actually] caused B's death, since but for A's
conduct B would not have died. The same conclusion follows if
the predicate act combines with other factors to produce the
result, so long as the other factors alone would not have
done so -- if, so to speak, it was the straw that broke the
camel's back. Thus, if poison is administered to a man
debilitated by multiple diseases, it is a but-for cause of
his death even if ...