                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-6756


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

RALPH LEON JACKSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.     Samuel G. Wilson,
District Judge.   (5:10-cr-00026-SGW-RSB-1; 5:12-cv-80410-SGW-
RSB)


Argued:   December 10, 2013                 Decided:   February 7, 2014


Before TRAXLER, Chief Judge, and WILKINSON and DAVIS, Circuit
Judges.


Vacated and remanded by unpublished per curiam opinion.           Judge
Wilkinson wrote a dissenting opinion.


ARGUED: Robert Leonard Littlehale, III, PAUL, WEISS, RIFKIND,
WHARTON & GARRISON LLP, Washington, D.C., for Appellant.
Anthony Paul Giorno, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellee.      ON BRIEF: Molissa Farber,
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, Washington, D.C.,
for Appellant.     Timothy J. Heaphy, United States Attorney,
Jordan McKay, Special Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Ralph    Leon    Jackson,      a     federal       prisoner,     appeals    the

district court’s order summarily denying relief on his pro se 28

U.S.C. § 2255 motion in district court, in which he asserted,

inter       alia,   that     his    legal       counsel     provided      ineffective

assistance by failing to advise him properly with regard to his

guilty plea.        For the following reasons, we vacate the district

court’s order and remand for further proceedings.

                                           I.

        In November 2010, a federal grand jury returned a five-

count    superseding       indictment      charging   Jackson      with    assaulting

Christina Shay Floyd with intent to commit murder, in violation

of 18 U.S.C. §§ 7(3), 113(a)(1) (“Count One); assaulting Floyd

with    a   dangerous      weapon   with    intent    to    do   bodily    harm,   and

without just cause or excuse, in violation of 18 U.S.C. §§ 7(3),

113(a)(3) (“Count Two”); willfully, deliberately, maliciously,

and with premeditation and malice aforethought, killing Timothy

Phillip Davis by shooting him with a firearm, in violation of 18

U.S.C. §§ 7(3), 1111(a) (“Count Four”); and two counts of using,

carrying, and discharging a firearm, during and in relation to

crimes of violence, in violation of 18 U.S.C. § 924(c)(1)(A)

(“Count      Three”    and   “Count     Five”).       Count      Five   specifically

alleged that, in committing that § 924(c) violation, Jackson did

unlawfully kill Davis through the use of a firearm, and that the

                                            3
killing constituted murder under § 1111(a), in violation of 18

U.S.C. § 924(j).

      All     of    the    charges    stemmed    from     Jackson’s     senseless

shooting of Davis and Floyd, whom he did not know, while they

were parked at a look-out point on the Blue Ridge Parkway in

Virginia on April 5, 2010.           The statement of facts submitted in

conjunction with Jackson’s plea agreement sets forth a detailed

description of the events that occurred that day.                       By way of

summary,    Davis    and    Floyd    were   sitting     together   on    a    wooden

guardrail that separated the overlook’s parking lot from the

National Forest.           Jackson drove his vehicle into the parking

area and, approximately fifteen minutes later, fired a shotgun

and mortally wounded Davis.             According to Floyd, Jackson then

got out of the vehicle and fired a second shot that hit her.

Jackson then engaged in a physical struggle with Floyd, dropping

his gun at some point.          Floyd managed to get away from Jackson,

and   ended    up    approximately      six     feet    below   the     guardrail.

Jackson then proceeded to throw rocks down at Floyd, causing her

to suffer two skull fractures and a broken finger.                           At some

point, Jackson returned to retrieve his gun and Floyd took that

opportunity to climb back up the hill to the Parkway.                   A passing

motorist and his wife took the blood-drenched Floyd into their

vehicle and brought her to safety.                 Jackson fled the scene.

Shortly thereafter, responding emergency personnel located Davis

                                        4
several hundred feet below the guardrail.                      He was airlifted to

the hospital, but died several days later.

     Upon his arrest, Jackson admitted purchasing the shotgun

approximately       one    week     before       the     shooting,        and    admitted

shooting Davis and Floyd.            In his defense, Jackson claimed that

he   believed      that    Davis    and     Floyd       were   his   son-in-law       and

daughter,    and    that    he    thought       Davis    was   “f------     with    [his]

daughter.”      J.A. 64.          Jackson claimed that he shot at Davis

after Davis looked at him a few times and that he only realized

that Floyd and Davis were not his daughter and son-in-law when

he exited his vehicle.             He stated “that he tried to grab . . .

Floyd, but that she ran[,] and that there was a struggle, but

she got away.”        J.A. 64.          He stated that he fired the shotgun

twice.   He denied throwing rocks at Floyd and denied touching

Davis after he shot him.

     At his legal counsel’s request, Jackson was evaluated by a

psychiatrist,      Dr.    Bruce    J.    Cohen.         According    to    Dr.    Cohen’s

report, Jackson thought Davis and Floyd were his son-in-law and

daughter, and that his son-in-law “sneer[ed] at him while also

pulling his daughter’s top down and groping her.”                               J.A. 224.

Jackson then “stuck his rifle out the window and fired at the

individual whom he perceived to be his son-in-law in order to

‘burn him’ with birdshot, but not to kill him.”                      J.A. 224.        Dr.



                                            5
Cohen goes on to relate the story, as told to him by Jackson, as

follows:

     After the man fell, the woman yelled at him and upon
     hearing her voice, he realized that she was not, in
     fact, his daughter.   She was headed toward the cliff
     and he jumped out of his car and ran toward her to
     stop her from going over it. She fought him and asked
     him what he was doing.    “I said, ‘I don’t know, I’m
     crazy,’ because I realized what I’d done.”         They
     struggled and she scratched him and ultimately pulled
     his shirt off and then started down the cliff.     [He]
     threw rocks down at her, “Not to hurt her, but to
     direct her away from the cliff’s edge.”      A vehicle
     then pulled up and she got in and he fired a round “up
     in the air, over the car,” because he thought it was a
     park warden in the car and that they are instructed
     not to get into armed confrontations and that this
     would make him drive away.      He denied ever having
     directly shot at the woman, and he stated that he only
     recalled having fired two shots, the first one being
     at the man, and the second one being over the car.

J.A. 224.

     Based   largely      on   the   reports   of   Jackson   and    his   family

members,    Dr.   Cohen   expressed     the    following   opinion    regarding

Jackson’s mental state at the time of the shooting:

     Mr. Jackson clearly has a history [of] chronic poly-
     substance     dependence,     which    had     escalated
     significantly in the weeks leading up to the present
     offense.    His judgment and thinking were impaired,
     along   with   a   decrease  in   work  attendance   and
     motivation, likely attributable to this increasing
     substance usage.    He apparently has no prior history
     of violent or aggressive behaviors and he has had a
     stable employment and social history. While we do not
     find evidence of an underlying psychiatric illness
     such     as    depression,    bipolar    disorder,    or
     schizophrenia, or a medical illness leading to changes
     in mental status, he does appear to have been impaired
     at the time of the offense, likely due to a
     combination of intoxication and emotional distress.

                                        6
J.A. 128.

       In return for the government declining to seek the death

penalty and dismissing Count Two, Jackson agreed to plead guilty

to Counts One, Three, Four and Five, and accept a sentence of

life    imprisonment.     The    court      accepted   the    guilty   plea   and

sentenced    Jackson     to     life     imprisonment        plus   420   months

(consisting of 240 months on Count One and life on Count Four

(concurrent), and 120 months on Count Three and 300 months on

Count 5 (consecutive)).        No appeal was filed.

                                       II.

       Jackson filed this pro se motion under 28 U.S.C. § 2255,

seeking to vacate his guilty plea and proceed to trial on the

original    charges.      In    his    accompanying      pleadings,       Jackson

reiterated that he believed Davis and Floyd were his son-in-law

and daughter, that he “snapped” when Davis “exposed [Floyd’s]

breasts . . . in an indecent manner, and turned and sneered at”

him, and that he “took a shot at [the man he believed was his

son-in-law] to scare him,” but not “to kill him, or even hit

him.”    J.A. 110.     According to Jackson, he “does not [otherwise]

have a clear recall of the actual event.”              J.A. 111.

       Read quite liberally, the thrust of Jackson’s motion is

that his legal counsel was aware, through Jackson’s statements

and Dr. Cohen’s opinions, that he was impaired at the time of

the killing and that this evidence would have been admissible at

                                        7
trial to rebut the government’s evidence that Jackson had the

requisite      specific       intent    to        commit   first     degree    murder.

Jackson argues that counsel should have formulated a defense on

this basis rather than recommending that he plead guilty for a

sentence of life imprisonment.                    Instead, Jackson contends that

his counsel erroneously told him that his intoxication was not a

defense to the charges against him.                   See J.A. 82 (“Counsel said

it was not a mitigating factor and could not be raised in trial

or before the court.”); J.A. 105 (“Counsel advised movant that a

mental defense of mental impairment wasn’t allowed in federal

court.”).         Jackson further argues that, had he known that his

voluntary intoxication could have been submitted to rebut the

government’s evidence of specific intent, and reduce his first

degree murder to a lesser offense, he would have rejected the

plea   offer      and     proceeded    to    trial.        Without   waiting    for     a

response from the government to the § 2255 motion, the district

court summarily denied Jackson’s motion as frivolous.

                                            III.

                                             A.

       Rule 4(b) of the Rules Governing Section 2255 Proceedings

authorizes a district court to summarily dismiss a claim without

obtaining     a    response    from    the       Government,   but   only     “[i]f    it

plainly appears from the motion, any attached exhibits, and the

record   of       prior    proceedings       that    the    moving    party    is     not

                                             8
entitled to relief.”            Rules Governing Section 2255 Proceedings

for the United States District Courts, Rule 4(b).                                Otherwise,

the district court shall order the government to file a response

or take other appropriate action.                See id.; 28 U.S.C. § 2255(b)

(“Unless      the    motion    and    the    files    and     records       of    the    case

conclusively show that the prisoner is entitled to no relief,

the   court    shall    cause      notice     thereof    to    be    served       upon    the

United     States      attorney,       grant     a    prompt        hearing       thereon,

determine the issues and make findings of fact and conclusions

of law with respect thereto.”); see also United States v. Dyess,

730   F.3d    354,    359     (4th    Cir.    2013)     (noting      that    “vague       and

conclusory allegations contained in a § 2255 petition may be

disposed      of    without     further       investigation         by   the       District

Court”) (internal quotation marks omitted); cf. Raines v. United

States, 423 F.2d 526, 529 (4th Cir. 1970) (“Where the files and

records conclusively show that the prisoner is entitled to no

relief, summary dismissal is appropriate.                       If the petition be

frivolous or patently absurd on its face, entry of dismissal may

be made on the court’s own motion without even the necessity of

requiring a responsive pleading from the government.”).

      However, as we long ago recognized, “[i]n most cases, . . .

the better practice would be to require, at the very least, a

responsive      pleading      so     that    United   States        attorneys       may    be

afforded the opportunity to state the government’s position and

                                             9
sometimes, as not infrequently occurs, to admit the merit or

veracity      of       some    or     all    of        the       petitioner’s         assertions.”

Raines, 423 F.2d at 529.                    And, of course, when evaluating the

pleadings, evidence, and record, we must view the facts in the

light most favorable to the petitioner.                                 See United States v.

Poindexter, 492 F.3d 263, 267 (4th Cir. 2007).

       In     this      case,        we    granted           a    limited       certificate         of

appealability on the issue of whether the district court erred

in    ruling       that       Jackson’s      counsel             was    not     constitutionally

deficient in advising Jackson that evidence of his voluntary

intoxication would not be admissible, pursuant to United States

v. Worrell, 313 F.3d 867 (4th Cir. 2002), to establish that he

lacked      the    requisite         specific       intent         to    commit     first      degree

murder.        We denied a certificate of appealability as to the

other       claims      raised       in     Jackson’s            informal       brief,       and    we

appointed         counsel      to    represent         Jackson          on    his   appeal.         At

appointed counsel’s request, we also granted Jackson’s motion to

expand the COA to include as an issue whether Jackson’s counsel

was   also     constitutionally             deficient            in    advising       Jackson      that

evidence of his voluntary intoxication would not be admissible

to    establish        that     he    lacked      the        specific         intent    to     commit

assault with intent to commit murder.

       To    succeed      on    his       Sixth     Amendment           claim    of    ineffective

assistance        of    counsel,          Jackson      must       demonstrate          that:       (1)

                                                  10
counsel’s        failures        fell     below       an     objective         standard      of

reasonableness;          and    (2)     counsel’s          deficient       performance      was

prejudicial.         See Strickland v. Washington, 466 U.S. 668, 687

(1984).      In Hill v. Lockhart, the Supreme Court held that “the

two-part Strickland v. Washington test applies to challenges to

guilty pleas based on ineffective assistance of counsel.”                                   474

U.S. 52, 58 (1985).                  “[I]n order to satisfy the ‘prejudice’

requirement [in the guilty plea context], the [petitioner] must

show   that      there     is    a     reasonable      probability          that,    but    for

counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.”                          Id. at 59.            To be sure,

“[s]urmounting        Strickland’s         high      bar     is    never    an    easy     task.

Moreover, to obtain relief on this type of claim, a petitioner

must   convince      the       court    that    a    decision       to    reject    the    plea

bargain      would    have      been     rational          under    the     circumstances.”

Padilla     v.     Kentucky,      559    U.S.       356,    371-72       (2010)    (citations

omitted).

       As    the     district        court      correctly          observed,       under    the

Insanity Defense Reform Act of 1984, 18 U.S.C. § 17, (“IDRA”),

“voluntary intoxication is not . . . an affirmative defense” to

a   murder    charge.           J.A.    144.        However,        the    “IDRA    does    not

prohibit psychiatric evidence of a mental condition short of

insanity     when     such      evidence       is    offered       purely    to    rebut    the



                                               11
government’s evidence of specific intent, although such cases

will be rare.”         Worrell, 313 F.3d at 874.

     In its order sua sponte denying Jackson’s § 2255 motion,

the district court found no error in counsel’s purported advice

regarding the admissibility of evidence of Jackson’s voluntary

intoxication       as    relevant       to      the    government’s         evidence       of

Jackson’s    specific       intent       to     commit     murder,       and     found     no

prejudice from the purported advice.                      On the present record,

however,     we        cannot     affirm        the    district         court’s        legal

conclusions.       See id.; see also United States v. Darby, 37 F.3d

1059, 1064 (4th Cir. 1994) (discussing general intent verses

specific    intent       crimes     and       noting     that       “defenses      such    as

diminished mental capacity and voluntary intoxication are viable

only for specific intent crimes, because such defenses directly

negate the required intent element of those crimes”) (footnote

omitted).         Indeed,       while     the      government       argues      that      such

evidence would have been an unlikely winner at a jury trial and

that Jackson could have still faced a possible death sentence if

convicted of second degree murder, the government admits that

the evidence would have been admissible to refute the specific

intent necessary to obtain a first degree murder conviction.

     Setting      aside     for    the       moment    the      obvious      question       of

whether    such    a    defense    would        have   been     a    good    one    from     a

strategic point of view in light of the facts known and admitted

                                              12
to at the time, therefore, it does appear that the defense might

have been an available one.              However, it is premature at this

point to render a determination as to whether Jackson’s counsel

was constitutionally deficient or, if so, whether Jackson was

prejudiced as a result of counsel’s advice.                  There are a number

of   factual        inconsistencies      between       the   stipulated    facts

pertaining     to    the   shootings    that    day,   Dr.   Cohen’s   report   of

Jackson’s     version      of   the    facts,   and    Jackson’s   more   recent

factual representations regarding the events of the day and, in

particular, what he now purports to recall about them.                     Also,

because the district court denied the petition before obtaining

a response from the government, there is nothing in the record

from trial counsel as to what conversations took place between

him and Jackson, what advice counsel did or did not provide

Jackson regarding the general admissibility of the evidence of

his voluntary intoxication, and what advice counsel may or may

not have provided regarding the practical viability of such a

strategy in light of the government’s evidence and Jackson’s

admissions.

                                         B.

     Our colleague in dissent describes a view of this case in

which we need not evaluate the performance prong of Strickland

at all because the lack of any prejudice is so clear.                     And in



                                         13
the end, his belief that there was no prejudice may prove to be

correct.

       Nevertheless, the as-yet uncontested, sworn allegations are

that Jackson pled guilty to first degree murder and accepted a

sentence of life imprisonment because his counsel erroneously

advised him, in response to his specific inquiry, that evidence

of his intoxication and mental distress was not admissible in

federal court to reduce the first degree murder charge to a

lesser-included offense, or to otherwise mitigate his actions.

He likewise avers that had he been accurately advised, he would

have rejected the plea and insisted on going to trial.                   There is

no evidence, at this point, that Jackson’s primary motivation in

taking the guilty plea was to avoid the death penalty at all

costs.     In fact, the government has represented that the plea

agreement     was     negotiated   “[w]hile      the    Attorney     General    was

considering whether to authorize the United States Attorney to

seek   the    death    penalty.”        Appellee’s      Brief   at   2   (emphasis

added).      Clearly, the plea agreement contemplated that Jackson’s

guilty    plea   to    first   degree   murder    was    conditioned     upon    the

AUSA’s ability to obtain the Attorney General’s agreement not to

authorize death as a potential punishment for the crime.                        And,

of course, Jackson would have been free to withdraw his guilty

plea to first-degree murder if the Attorney General decided to

the contrary.         But this quid-pro-quo agreement cannot be viewed

                                         14
in    isolation       from   counsel’s     alleged       erroneous         representation

that Jackson had no defense to the first-degree murder charge,

no hope at all of obtaining a conviction to a lesser included

offense, and nothing to gain but the removal of the threat of

death    as     a   potential       punishment.         Thus,   we    can    envision      an

argument      that     Jackson,      had   he   known      that      the    evidence      was

admissible,         might    have    rejected     the    plea     and      hoped   for    the

possibility that the Attorney General would decline to authorize

the death penalty and that he would ultimately receive a less-

than-life sentence.             Again, we express no view as the ultimate

merits     of       Jackson’s       ineffective-assistance-of-counsel               claim.

However, viewing the present record in the light most favorable

to Jackson, we are unprepared to say that a decision to reject

the   plea      agreement     and     proceed   to      trial   would       have   been    an

irrational one on Jackson’s part, see Padilla, 559 U.S. at 372,

or that Jackson’s § 2255 claim is “frivolous or patently absurd

on its face,” Raines, 423 F.2d at 529.                          Rather than summary

dismissal, the better practice is to return Jackson’s § 2255

motion to the district court for a response and, if necessary,

an evidentiary hearing.

                                           C.

       To be sure, this was a terrible event, and we in no way

seek to diminish the atrocity that occurred that day.                              However,

in the absence of a fully developed record below, we simply

                                           15
cannot fairly evaluate whether Jackson’s counsel’s performance

fell below an objective standard of reasonableness or, even if

it   did,   whether   Jackson      was   prejudiced     as   a   result.

Accordingly,   we   vacate   the   district   court’s    order   denying

Jackson’s § 2255 motion and remand this case to the district

court for further proceedings consistent with this opinion.



                                                 VACATED AND REMANDED




                                   16
WILKINSON, Circuit Judge, dissenting:

     Counsel       here    may    well     have   spared         his     client    the     death

penalty.      He     may   well     have    saved         his    life.       For    that,    the

attorney    should       not   be   hung    on    an       ineffective        assistance      of

counsel claim.            I would affirm the judgment and respectfully

dissent.

                                            I.

     For many years, couples young and old have pulled their

vehicles off the Blue Ridge Parkway onto a scenic overlook and

watched    their     affections          glow    in       the    shadows      of   Virginia’s

beautiful     Blue    Ridge      Mountains.           For       that   joyful      and    wholly

innocent activity, one member of the couple here paid with his

life.     The other was seriously injured, and scarred for the rest

of hers.

     Counsel       was     presented       with       a    perfectly         dreadful      case.

There   was   no     question       of    innocence.             No    one    disputes      that

Jackson committed heinous crimes.                     According to the stipulation

of facts agreed to by Jackson as part of his plea, Jackson shot

Davis at least twice with a shotgun, ultimately killing him.

Davis fell over the guardrail and Jackson fired again, this time

hitting Floyd and causing one of her lungs to collapse.                                  To this

day Floyd has eight shotgun pellets lodged in her back.                                     Even

after Jackson realized that Floyd was not his daughter –- his

purported reason for attacking Davis -- he continued to struggle

                                            17
with her, causing her to fall to the ledge approximately half a

story below.       Jackson blocked Floyd’s attempt to escape and then

threw rocks at her, causing two skull fractures and a broken

finger.      According    to    witnesses,       when    Floyd   escaped     in    the

vehicle that rescued her, Jackson fired at it.                      These are the

facts counsel was left with to do the best he could.

     The    legal    standards    applicable        to    this     case   are     well

established.        The two-part performance and prejudice test of

Strickland v. Washington, 466 U.S. 668, 687 (1984), applies to

ineffective assistance of counsel challenges to guilty pleas.

Hill v. Lockhart, 474 U.S. 52, 58 (1985).                  As the Supreme Court

has emphasized, it’s enough, and often preferable, to say there

wasn’t     prejudice     in    rejecting     a    Strickland        claim.        See

Strickland, 466 U.S. at 697; see also Hill, 474 U.S. at 60

(rejecting     a    plea-bargaining     Strickland         claim    on    prejudice

grounds without analyzing performance).

     Although the prejudice prong turns on whether “there is a

reasonable    probability      that,   but   for        counsel's    errors,      [the

defendant] would not have pleaded guilty and would have insisted

on going to trial,” Hill, 474 U.S. at 59, the “petitioner must

convince the court that a decision to reject the plea bargain

would have been rational under the circumstances,” Padilla v.

Kentucky, 559 U.S. 356, 372 (2010).               These inquiries will often

be determined by the counterfactual trial outcome: “[W]here the

                                       18
alleged error of counsel is a failure to advise the defendant of

a potential . . . defense to the crime charged, the resolution

of the ‘prejudice’ inquiry will depend largely on whether the

. . . defense likely would have succeeded at trial.”                 Hill, 474

U.S. at 59.    And, as in the ordinary Strickland case, the trial

outcome is to be determined “objectively, without regard for the

‘idiosyncrasies of the particular decisionmaker.’”                   Id. at 60

(quoting Strickland, 466 U.S. at 695).

     Given the horrific facts of this case, a better outcome

than that which Jackson received was highly unlikely, and thus

equally unlikely would have been Jackson’s decision to go to

trial.     Not only were the facts as unsympathetic as they could

possibly    have   been,    but    counsel      undoubtedly    recognized    that

pressing Jackson’s sole defense of “voluntary intoxication” was

unlikely to gain traction.           Voluntary intoxication is well known

to be a weak defense to present to a jury, both because it is

voluntary and, in this case, even after Jackson was fully aware

that he knew none of the people involved, he continued to visit

mayhem upon them.        The chances that a trial would have produced

a better outcome than the plea bargain did were slim to none.

     Moreover,     the     chances    of    a   worse   outcome   were     clearly

present.      Jackson      would     have    been   eligible   for   the    death

sentence upon a conviction of first-degree murder.                   18 U.S.C.

§ 1111(b).     A lot of times prosecutors bluff with the death

                                        19
penalty in order to get a plea of life imprisonment.                                       Given

these    facts,       however,       there    is     reason      to    believe       that     the

prosecution was not bluffing, and that counsel acted wisely in

getting the death penalty off the table.                         In sum, a more lenient

disposition than that in the plea agreement was unlikely and a

stricter disposition was hardly implausible.

       Even    if    Jackson     is    correct       that    a     defense    of     voluntary

intoxication would have lowered the conviction from first- to

second-degree murder, he would still have faced the prospect of

a death sentence.            18 U.S.C. § 924(j)(1) clearly provides that

any “murder (as defined in [18 U.S.C. §] 1111)” caused “through

the use of a firearm” in the course of violating § 924(c) may be

“punished by death or by imprisonment for any term of years or

for life.”          Section 1111(a) defines murder as being one of two

types:    first      or    second      degree.        Section       924(c)(1)(A),          under

which    the     government       charged       Jackson      and      to    which     he     pled

guilty,       criminalizes       the    use     of    a     firearm        “during     and    in

relation       to    any     crime     of     violence.”              Thus,   as      we     have

recognized,         the    law   clearly     permits        “the    enhanced       punishment

provided for under . . . § 924(j)(1)” for second-degree murder.

United States v. Williams, 342 F.3d 350, 356 (4th Cir. 2003).

       This    conclusion        is    supported       by    the      Eleventh       Circuit’s

careful analysis in United States v. Julian, 633 F.3d 1250 (11th

Cir.    2011).        Julian     held    that      “[t]he     main      point    of    section

                                              20
924(j) is to extend the death penalty to second-degree murders

that   occur    in      the   course     of    violations      of   section      924(c).”

Julian, 633 F.3d at 1256.                 In coming to this conclusion, the

Eleventh Circuit examined the heading of that section of the

Violent Crime Control and Law Enforcement Act of 1994 that added

§ 924(j): “Death Penalty for Gun Murders During Federal Crimes

of   Violence     and    Drug      Trafficking      Crimes.”        Pub.   L.    103-322,

§ 60013, 108 Stat. 1796, 1973.                     Given the statutory text and

this   clear    indication         of   congressional     intent,      I   can    see   no

error in the district court’s reasoning that Jackson would still

have been death eligible had he been convicted of the second-

degree murder charge he now asks us to let him face at trial.

       If convicted of second- or first-degree murder -- as is

highly probable considering the gruesome and largely uncontested

facts of the case -- Jackson could have been sentenced to death

under at least three of the gateway mental states in 18 U.S.C.

§ 3591(a)(2).         There is more than enough evidence to conclude,

even   in   the      face     of   a    voluntary-intoxication         defense,     that

Jackson intended to kill Davis, see 18 U.S.C. § 3591(a)(2)(A);

intentionally inflicted serious bodily injury that resulted in

Davis’s death, see id. § 3591(a)(2)(B); or “intentionally and

specifically engaged in an act of violence [shooting at Davis],

knowing that the act created a grave risk of death to a person

. . . such that participation in the act constituted a reckless

                                              21
disregard for human life and the victim died as a direct result

of the act,” id. § 3591(a)(2)(D).                       Although Jackson argues that,

on   the   balance           of     aggravating       and   mitigating      factors      in   18

U.S.C. § 3592, no jury could have sentenced him to death, this

wishful thinking ignores the heinous and degenerate nature of

Jackson’s crime.              Importantly, this balancing test would be the

same were Jackson convicted of second- or first-degree murder.

       During Jackson’s Rule 11 plea colloquy, the court made sure

that Jackson understood that the government would not seek the

death penalty on the first-degree murder charge and that Jackson

would instead be sentenced to life in prison on his guilty plea.

The court also twice confirmed that Jackson was “fully satisfied

with the counsel, representation and advice given to [him] in

this     case     by        [his]    attorneys.”            Throughout,      Jackson     never

exhibited        any        hesitation      or   second       thoughts      about    pleading

guilty.           Given           that     “in    the       absence    of     extraordinary

circumstances, the truth of sworn statements made during a Rule

11     colloquy        is     conclusively       established,”         United       States    v.

Lemaster,        403     F.3d       216,    221-22      (4th    Cir.    2005),      Jackson’s

conduct in his Rule 11 colloquy taken together with his plea

bargain     make       clear        that   his   primary       motivation     for    pleading

guilty     was    to        avoid    the    death     penalty.        Moreover,      I   cannot

accept the argument that because Jackson was 57-years old at the

time of his plea bargain, he may have been willing to roll the

                                                 22
dice and face a possible death penalty at trial.                A reasonable

person of even an advanced age still values his life.

       The majority advances the odd hypothesis that, because the

Attorney General had not yet decided whether to authorize the

death penalty in this case at the time Jackson agreed to the

plea   bargain,   “[t]here   is   no    evidence,   at   this   point,   that

Jackson’s primary motivation in taking the guilty plea was to

avoid the death penalty at all costs.”          Maj. op. at 14.       On the

contrary, the evidence is clearly there in the text of the plea

agreement itself.     The only plea provision –- set, no less, in

all caps -- that would explicitly allow Jackson to withdraw his

plea to first-degree murder was if the government sought the

death penalty.    The agreement reads:

       It is further agreed that if I comply with my
       obligations under the plea agreement, the United
       States will not seek the death penalty as to any death
       eligible charge to which I have pled guilty.     IT IS
       EXPRESSLY AGREED AND UNDERSTOOD THAT THE DECISION TO
       SEEK OR NOT SEEK THE DEATH PENALTY IS SOLELY IN THE
       DISCRETION OF THE ATTORNEY GENERAL OF THE UNITED
       STATES AND THE AGREEMENT NOT TO SEEK THE DEATH PENALTY
       IS CONDITIONED UPON HIS WRITTEN APPROVAL.      IF SUCH
       APPROVAL IS NOT GRANTED, THE UNITED STATES AND I AGREE
       THAT I MAY WITHDRAW MY PLEA OF GUILTY TO ANY DEATH
       ELIGIBLE COUNT SET FORTH IN THE SUPERSEDING INDICTMENT
       AND PROCEED TO TRIAL ON SUCH COUNTS. J.A. 22.

       While the majority speculates what the government might or

might not have done at a trial, the defendant decided not to

take that risk.     A critical purpose of a plea agreement is to

limit downside risk.     That was done.        In other words, the very

                                       23
lynchpin of the plea agreement was that Jackson would be spared

a possible death sentence.            The reality -– as opposed to the

majority’s speculation –- is that the government did not seek a

capital sentence and let the plea agreement stand.

                                         II.

       Although we need not reach the performance prong, in this

case there is some overlap between prejudice and performance,

because the result that was achieved was realistically a good

one.    As for the performance prong, had the lawyer persuaded his

client to go to trial, and a poor outcome ensued, we would have

another ineffective assistance of counsel claim before us: that

counsel    performed       deficiently     in    not    properly        advising     his

client to accept the plea.           This darned-if-you-do/darned-if-you-

don’t situation is one in which ineffective claims are the least

justifiable,    because      they    illustrate        the     perils    of   applying

hindsight bias to permissible strategic choices.                        See Premo v.

Moore, 131 S. Ct. 733, 741 (2011).

       Jackson today is not on death row.               The lawyer did his job.

Jackson    received    a    considerable        benefit      and   buyer’s     remorse

should not be dressed in the garb of an ineffective assistance

of   counsel   claim.        While   the       majority      recognizes       that   the

district    court     was    permitted     by     law     to    dismiss       Jackson’s

petition without obtaining a response from the government or

holding a hearing, it         proposes just such proceedings and argues

                                         24
that they would be “better practice.”                  Maj. op. at 15.       But a

response and a hearing are only needed where there is something

to   respond   to   or    be    heard.       Under    Strickland,    there   is    no

reasonable probability that Jackson or any reasonable defendant

would   have   gone      to    trial   had    he     been   told   that   voluntary

intoxication was a possible defense to first-degree murder.                       The

district court did not err in dismissing the petition, and I

would affirm its judgment.




                                         25
