               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0633n.06

                                       Case No. 18-2442

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                           Dec 20, 2019
 KEVIN IKE OBI,                                  )
                                                 )                     DEBORAH S. HUNT, Clerk
         Petitioner-Appellant,                   )
                                                 )         ON APPEAL FROM THE UNITED
 v.                                              )         STATES DISTRICT COURT FOR
                                                 )         THE WESTERN DISTRICT OF
 UNITED STATES OF AMERICA,                       )         MICHIGAN
                                                 )
         Respondent-Appellee.                    )                      OPINION
                                                 )



BEFORE: SUTTON, NALBANDIAN, and READLER, Circuit Judges.

       NALBANDIAN, Circuit Judge. Nora Lares spent an evening at Kevin Obi’s apartment.

Obi provided heroin to Lares, which Lares ingested. And Lares died soon after. But her autopsy

revealed other drugs in her system, including ethanol, codeine, and morphine. As a result, Lares

died from “[m]ixed drug toxicity.” (R. 161-3, Autopsy Report, Page ID # 980.) We consider

whether Obi is responsible for Lares’s death despite only giving her heroin.

       As to his contraband, Obi wants to tell us that these are not the drugs we are looking for.

And that might be true, from a certain point of view. Yet he only offers speculative evidence for

another cause of Lares’s death—his only hope of showing actual innocence. And Obi doesn’t

believe the expert testimony given at trial supports his conviction. That is why he fails. We

AFFIRM.
No. 18-2442, Obi v. United States


                                                I.

       Kevin Obi and Nora Lares knew each other for years. They met in high school and had an

on-again, off-again romantic relationship from 2001 until 2004. They had also taken heroin

together several times. In September 2004, Obi and Lares went drinking at a bar with a group of

friends. Crystal Brow, a member of the group, observed that Lares frequently went into the

bathroom that evening. So Brow suspected Lares consumed cocaine or ecstasy during those

bathroom visits.

       Later that night, the group went to Obi’s house. And they took heroin. The group had access

to heroin because Obi was a small time drug dealer. Obi claims Lares snorted .04 grams of heroin,

which he supplied, and then snorted another .04 grams a few minutes later. This occurred around

3:20 a.m. After taking the drugs, Lares had sex with Obi.

       Soon after, Obi went to his kitchen for a postcoital snack. He found Lares unresponsive

when he returned. So Obi and another member of the group tried taking Lares to an urgent care

center. That facility was closed, so they called 911. Emergency responders arrived at the urgent

care around 4:04 a.m. but could not save Lares. They pronounced her dead at 4:51 a.m. When

police arrived on the scene, Obi lied about his and Lares’s drug use.

       This case centers on the cause of Lares’s death. Her death certificate states that she died

from “[m]ixed drug intoxication from Heroin, Ethanol[.]” (R. 164-1, Certificate of Death, Page ID

# 1030.) And it describes Lares’s death as an “accident” resulting from “ingestion of heroin &

ethanol to toxic levels.” (Id.) Dr. David Allen Start, a forensic pathologist employed by the Office

of the Medical Examiner for Kent County, conducted Lares’s autopsy. He found Lares died by

“[m]ixed drug toxicity” suffered by “[a]ccident.” (R. 161-3, Autopsy Report, Page ID # 980.)




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       After the incident, Obi pleaded guilty to distributing heroin resulting in serious bodily

injury and death in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). In his agreement, Obi

stipulated to the facts of the incident and acknowledged the mandatory minimum sentence of 20

years. Following the Federal Sentencing Guidelines, the district court sentenced Obi to 300

months’ imprisonment. This calculation included an obstruction of justice enhancement because

Obi lied to the police about drug use on the night of Lares’s death. So Obi appealed his sentence,

arguing that his lie did not severely delay the investigation and therefore the obstruction of justice

enhancement should not have applied. And the Sixth Circuit agreed with Obi, so it remanded his

case for resentencing without the obstruction of justice enhancement. At his resentencing hearing,

Obi again received a 300-month sentence. Yet he never challenged the adequacy of his plea on

direct appeal. After unsuccessfully appealing his second sentence, Obi filed a petition under 28

U.S.C. § 2255 in November 2014.

       In his § 2255 petition, Obi argued the Supreme Court’s decision in Burrage v. United

States, 571 U.S. 204 (2014), rendered his guilty plea invalid. Under Burrage, a defendant cannot

be guilty for a death caused by distributing drugs unless he is the but-for cause, or an independently

sufficient cause, of death. And this rule applies retroactively—a fact the government does not

contest.

       Yet the retroactive Burrage test does not grant an automatic merits review in § 2255

petitions. A defendant must mount a procedurally valid collateral attack on his conviction—for

instance, by claiming an involuntary guilty plea. But because Obi never challenged the validity of

his guilty plea on direct appeal, this claim fell subject to the procedural default rule. That meant

that to excuse his procedural default, Obi had to show actual innocence, i.e., that no reasonable

juror would have found him guilty based on evidence in the record.




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No. 18-2442, Obi v. United States


       To resolve this dispute, the district court held an evidentiary hearing. At the hearing, Dr.

Start reviewed Lares’s autopsy report (which he prepared) and her toxicology report. And he

concluded the only drugs present in Lares’s system that could have caused her death, aside from

heroin, were ethanol and morphine. He testified that Lares had a blood alcohol level of .13 percent

when she died. But fatal blood alcohol levels are usually .35 percent or higher. Dr. Start also

testified that heroin metabolizes into morphine. That explained the morphine in Lares’s toxicology

report. Morphine is deadly at 200 nanograms per milliliter, and Lares’s blood contained

315 nanograms per milliliter. So Dr. Start reasoned that, but for the heroin, Lares would not have

died. But he also stated that fatal levels of morphine depend on the individual, and especially upon

prior drug use. Yet he admitted a lack of knowledge about Lares’s drug use history. That matters

because a first time user would likely die from the morphine present in Lares’s bloodstream, while

a repeat user with a higher tolerance might be able to withstand morphine levels greater than 200

nanograms per milliliter.

       Along with Dr. Start, the court heard from Dr. Benedict Kuslikis, the Director of

Toxicology at Spectrum Health, who signed off on Lares’s toxicology report. When he reviewed

the toxicology report, Dr. Kuslikis did not know Lares’s medical history. Addressing Lares’s cause

of death, Dr. Kuslikis testified that the ethanol present in Lares’s system did not reach a lethal

level. Moreover, another heroin metabolite, 6-monoacetylmorphine, in Lares’s system suggested

consumption of heroin within three hours of death. But Dr. Kuslikis also stated that some morphine

may have come from codeine, and not just heroin. He also disagreed with Dr. Start’s statement

that death is almost certain at 315 nanograms per milliliter of morphine. Death, according to Dr.

Kuslikis, depends on past usage; a first time heroin user is more likely to die from a lower amount

of morphine than an addict. Yet Dr. Kuslikis also stated he would not expect anyone to die from




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No. 18-2442, Obi v. United States


the mixture of non-morphine drugs present in Lares’s system. And he agreed that death could

result from the amount of morphine in Lares’s system.

       After hearing the testimony of Dr. Start and Dr. Kuslikis, the district court denied Obi’s

§ 2255 motion. It did so because the evidence failed to show Obi’s actual innocence under the

Burrage causation test. Obi now appeals, asking this court to invalidate his guilty plea. He argues

that the lower court erred by admitting Dr. Kuslikis and Dr. Start’s testimonies as evidence and in

its analysis of those testimonies.

                                                II.

       This court reviews denials of § 2255 petitions de novo for questions of law. Peveler v.

United States, 269 F.3d 693, 698 (6th Cir. 2001). But we uphold factual findings unless they are

clearly erroneous. Id.

       Obi contends that he did not enter a knowing and voluntary guilty plea given the later-

announced causation rule in Burrage. Such an error generally provides valid grounds for relief.

Baker v. United States, 781 F.2d 85, 88 (6th Cir. 1986) (“Baker correctly argues that for a guilty

plea to be valid it must be both knowing and voluntary.”). But Obi first made this argument in his

§ 2255 petition, which he acknowledges. A defendant’s failure to raise a claim on direct appeal

typically bars the defendant from raising it during collateral review. Benton v. Brewer, 942 F.3d

305, 307 (6th Cir. 2019). That rule applies for a defendant challenging the validity of his guilty

plea. Waucaush v. United States, 380 F.3d 251, 254 (6th Cir. 2004).

       Yet procedural default is not an absolute bar. A defendant can raise a claim in a § 2255

petition for the first time if he can show either (1) cause for the default and prejudice from the

claim being barred, or (2) actual innocence. Id. (citing Bousley v. United States, 523 U.S. 614, 622




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No. 18-2442, Obi v. United States


(1998)). Obi argues that the latter applies here. So this court considers whether Obi met the actual

innocence standard for distributing heroin resulting in Lares’s death.

       To succeed, Obi must show that “it is more likely than not that no reasonable juror would

have convicted him.” Bousley, 523 U.S. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327–28

(1995)). And actual innocence means “factual innocence, not mere legal insufficiency.” Id.

Applied here, this requires Obi to show that, under Burrage, he did not cause Lares’s death by

distributing heroin. Moreover, failure to meet this actual innocence standard is fatal to Obi’s

case—we can only consider the potential defects of Obi’s guilty plea if he makes a showing of

actual innocence. Id. at 623.

       The parties raise a threshold question that we must answer before deciding whether Obi

can show actual innocence: What evidence can district courts use to resolve an actual innocence

claim? We begin with Bousley, which informs us that “the Government is not limited to the

existing record . . . [and] should be permitted to present any admissible evidence of [the]

petitioner’s guilt” to rebut a defendant’s actual innocence challenge to a guilty plea. Id. at 624.

Thus, trial courts should permit the government “to present any admissible evidence of [the]

petitioner’s guilt even if that evidence was not presented during the petitioner’s plea colloquy.” Id.

But Obi contends we “do not have any guidance from the Court on what type of proof Bousley

allows” in post-Burrage challenges to pleas. (Appellant Br. at 26.) Especially when the challenge

involves expert testimony given at an evidentiary hearing.

       In Burrage, the Supreme Court clarified the causation requirement of 21 U.S.C. § 841(a)(1)

and (b)(1)(C), the same statute governing Obi’s case. Burrage, 571 U.S. at 206–07. There, the

Court examined the “results from” phrase, which the statute does not define. Id. at 210. And it

found the ordinary meaning of “results from” implies either “but-for causality” or that the




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No. 18-2442, Obi v. United States


defendant’s action must have been an “independently sufficient cause of the victim’s death[.]” Id.

at 210–19.

        So the Court applied that test to a case of “mixed drug intoxication[,]” where the victim’s

autopsy revealed multiple drugs in his system at the time of death. Id. at 207 (citation omitted).

Because the government conceded that the victim’s death did not occur only because of his heroin

use, the Court found that the heroin provider could not have been a but-for cause of the victim’s

death. Id. at 219. And providing a drug that combined with other drugs to kill a victim, without

proof that the other drugs would have killed the victim on their own, only amounts to a

“contributing cause[.]” Id. at 218 (citation omitted). That analysis led the Court to reverse the

underlying conviction because contributing causes do not create liability under 21 U.S.C. § 814.

Id. at 218–19.

       To obtain a conviction after Burrage, the government must show the drug distributed by

the defendant would have killed the victim independent of other drugs in the victim’s system or

that the drug caused a death that would not have otherwise occurred. Id. at 216. (“The language

Congress enacted requires death to ‘result from’ use of the unlawfully distributed drug, not from

a combination of factors to which drug use merely contributed.”). Thus even if the drug in question

would not have caused the victim’s death on its own, the person who provided the drug is still

liable if the drug “was the straw that broke the camel’s back.” Id. at 211. In short, Burrage only

permits overturning a conviction if the defendant shows uncertainty over whether taking the drug

produced a death that would not have otherwise occurred. Id. at 215–16.

       The alleged tension between Burrage and Bousley matters because we held in Harrington

v. Ormond that Burrage applies retroactively on collateral review. 900 F.3d 246, 249 (6th Cir.

2018). But we remanded the habeas petition in Harrington because we lacked an evidentiary




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No. 18-2442, Obi v. United States


record to determine whether a reasonable juror would have convicted the defendant under Burrage.

Id. at 250. Obi’s case differs from Harrington because Obi received an evidentiary hearing before

the district court denied his § 2255 motion. And the Harrington defendant didn’t enter a plea but

went to trial. So we now consider the limits on admitting evidence at an evidentiary hearing

stemming from a § 2255 challenge to a guilty plea.

       By challenging the evidentiary hearing under Bousley, Obi gets the question right but the

answer wrong. While Obi correctly flags Bousley as controlling, he incorrectly reads the case as

narrowing the scope of evidence that the government can present. In short, he claims Bousley

restrains the government from offering evidence that “would not normally have been offered

before” Burrage. (Appellant Br. at 28). But this gets Bousley backward.

       Conspicuously, Obi omits the “even if” predicate before the alleged limitation on admitting

pre-Burrage evidence. Bousley, 523 U.S. at 624 (“[T]he Government should be permitted to

present any admissible evidence of petitioner's guilt even if that evidence was not presented during

petitioner's plea colloquy and would not normally have been offered before our decision in

Bailey.”) (emphasis added). What’s more, Bousley states that the government is “not limited to the

existing record” created on direct appeal and expands the type of evidence the government may

introduce in response to an argument raised on collateral review. Id. Nowhere does Bousley impose

a restriction for evidence rebutting a defendant’s actual innocence claim. In short, Bousley

empowers the government to introduce any otherwise-admissible evidence to disprove the

defendant’s actual innocence. This is true even if the government failed to present the evidence

during the defendant’s plea colloquy. So the government can introduce evidence showing guilt

under Burrage for the first time at an evidentiary hearing, so long as it complies with the Federal

Rules of Evidence.




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No. 18-2442, Obi v. United States


       We follow Bousley to resolve Obi’s objections relating to his evidentiary hearing. See

Waucaush, 380 F.3d at 257 (“Bousley, however, stressed that the Government’s evidence refuting

actual innocence must be admissible.”). Under Bousley, the district court had to let the government

introduce “any admissible evidence of petitioner’s guilt[.]” 523 U.S. at 624. And despite Obi’s

contention to the contrary, Burrage did not change Bousley’s evidentiary standard. So we ask

whether the district court properly admitted the doctors’ testimony at the § 2255 evidentiary

hearing.

       Obi claims the district court improperly admitted the medical testimony for two reasons:

(1) the doctors made unfounded assumptions about Lares’s prior drug use and (2) the doctors

lacked personal knowledge of the case. Both arguments invoke the same evidentiary doctrine: the

need for proper foundation. But Obi did not make this objection during the hearing, so he must

show the court committed plain error by admitting the doctors’ testimony. United States v. Combs,

369 F.3d 925, 938 (6th Cir. 2004).

       In essence, Obi argues the lower court erred by relying on testimony from Dr. Kuslikis and

Dr. Start because they did not have firsthand knowledge of Lares’s drug use history. But neither

doctor testified about the details of Lares’s medical history, aside from acknowledging their

unfamiliarity with Lares’s drug use when they prepared and reviewed her reports. Instead, the

doctors only gave generalized testimony about morphine’s effects on experienced and

inexperienced users. And the government showed that each witness had proper qualifications in

the medical field.

       While Obi has a point that Lares’s drug history is relevant, he cites no rule that expert

testimony must engage with all relevant facts or that medical testimony must consider particular

attributes of the victim. That’s because there is no such rule. See In re Scrap Metal Antitrust Litig.,




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No. 18-2442, Obi v. United States


527 F.3d 517, 530 (6th Cir. 2008) (explaining that weakness in the factual basis of an expert

opinion bears on the weight of the evidence and not admissibility). Obi argued below that the

witnesses, especially Dr. Kuslikis, did not establish that the heroin Obi provided caused Lares’s

death because they could not explain why 315 nanograms per milliliter of morphine could kill an

experienced heroin user. But the doctors testified about the nature of ethanol, heroine, and

morphine and how those drugs explain the reports they reviewed. Far from making an unsupported

guess, both doctors relied on their medical background and the facts in Lares’s reports. For that

reason, the district court did not commit plain error by admitting the doctors’ testimony.

       Finding the district court committed no error of law when it admitted Dr. Start and Dr.

Kuslikis’s testimonies, we review the district court’s factfinding only for clear error. Obi claims

that the expert medical testimony did not show a causal connection, at least under the Burrage

standard, between his distribution of heroin and Lares’s death. To make his case, he contends that

the experts merely speculated on why the toxicology report showed codeine in Lares’s system. He

also states that the record does not rule out that the heroin causing Lares’s death came from a

source other than Obi. And finally he stresses that Dr. Kuslikis opined that the amount of morphine

in Lares’s system might not have been lethal, especially for a repeat heroin user.

       But none of these challenges establishes that the lower court committed clear error in its

factual determination. See Village of Milford v. K-H Holding Corp., 390 F.3d 926, 936 (6th Cir.

2004) (“[C]ausation is a question of fact, [so] this court reviews the finding for clear error.”) To

rule for Obi, the lower court needed to conclude that no reasonable juror could find the heroin

provided by Obi would have killed Lares independent of the other substances in her system.

Looking at the doctors’ testimony about the minimal importance of Lares having ethanol and

codeine in her system and about the medically lethal amount of morphine, the district court ruled




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No. 18-2442, Obi v. United States


against Obi. Obi offers this court speculative reasons why that ruling might have been wrong, such

as Lares ingesting heroin from another source or using a different drug earlier in the night. But we

cannot overturn the lower court’s factfinding based on speculative counterarguments alone. And

the lower court relied on valid expert testimony stating that the heroin and heroin byproduct in

Lares’s system reached a fatal level. Although Obi can point to evidence in the record supporting

his case, he cannot show why reviewing the lower court “leaves us with the definite and firm

conviction that a mistake has been committed.” See United States v. House, 872 F.3d 748, 751 (6th

Cir. 2017) (quoting United States v. Yancy, 725 F.3d 596, 598 (6th Cir. 2013)). And that is what

he must do to prevail under the clear error standard. Id. Thus, Obi fails to offer a compelling

argument for his actual innocence. Without a successful actual innocence showing, Obi cannot

overcome procedural default for challenging his guilty plea.

                                                III.

       Because Obi cannot establish an exception to procedural default, we need not consider his

other arguments. Thus, we AFFIRM the district court’s order denying Obi’s § 2255 motion.




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