Whether a § 2255 petitioner who pleaded guilty to a charged offense based on conduct that is not a crime and who later seeks to rely on actual innocence to excuse procedural default of a claim for relief from incarceration for the invalid conviction must also show actual innocence of both more serious charges and equally serious charges forgone by the government during plea bargaining

QUESTION PRESENTED In Bousley v. United States, 523 U.S. 614 (1998), this Court held that when an individual who pleaded guilty to a § 924(c) offense later challenges the validity of that conviction under 28 U.S.C. § 2255, he may excuse procedural default of his claim with a showing of “actual innocence” of the challenged § 924(c) conviction. Id. at 623. In addition, the Court said, “[i]n cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.” Id. at 624. The Circuits have reached starkly differing conclusions about the purpose and scope of Bousley’s added hurdle to the actual-innocence exception to the procedural default rule in the case of plea bargains, with the Fourth, Fifth, and Eighth Circuits permitting a § 2255 petitioner to pursue defaulted claims that the Sixth and Seventh Circuits do not. The question presented is: Whether a § 2255 petitioner who pleaded guilty to a charged offense based on conduct that is not a crime and who later seeks to rely on actual innocence to excuse procedural default of a claim for relief from incarceration for the invalid conviction must also show actual innocence of both more serious charges and equally serious charges forgone by the government during plea bargaining. ii