Decided: December 31, 2012
The Fourth Circuit Court of Appeals affirmed the ruling of the district court in denying Fugit’s motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Fugit plead guilty to enticing or attempting to entice a minor to engage in illegal sexual activity.
Mr. Fugit on two separate occasions posed as “Kimberly” on an online chat website and held conversations with girls aged eleven and ten. During both of these conversations with the two minors, he engaged in inappropriate sexual conversation. During a search of Mr. Fugit’s home, police discovered that he sent child pornography over e-mail and attempted to contact children through his computer and telephone. Fugit admitted the facts contained in the pre-sentence report (PSR). On December 19, 2007, Fugit was sentenced to 310 months of imprisonment. On October 1, 2009, Fugit filed a motion for post-conviction relief. The district court denied the motion in its entirety. Two issues were heard on appeal. The first was “whether Fugit’s stipulated conduct constituted attempted inducement of ‘sexual activity’ of a minor within the meaning of 18 U.S.C. § 2422(b),” and the second issue was “whether Fugit’s counsel rendered ineffective assistance by advising him to stipulate to the inducement of ‘sexual activity’ and guilt under 18 U.S.C. § 2422(b).”
During appeal the government argued that the doctrine of procedural default barred Fugit’s claim because he failed to raise it during his initial plea proceedings or on direct appeal. There are two circumstances in which a procedural default may be excused. The first instance is one in which actual innocence can be proven. The second is an establishment of cause for the default and prejudice resulting therefrom. The court found that Fugit’s actual innocence claim failed because he could not prove that “it is more likely than not that no reasonable juror would have convicted him.” The court determined that it need not consider Fugit’s ineffective assistance argument because his statutory claim failed on the merits.