                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-6910


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

DAYVON BRYAN RILEY,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Terrence W. Boyle, District Judge. (7:12-cr-00140-BO-1; 7:14-cv-00240-
BO)


Submitted: June 29, 2018                                          Decided: July 13, 2018


Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Raymond C. Tarlton, TARLTON POLK PLLC, Raleigh, North Carolina, for Appellant.
Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Seth Morgan
Wood, Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Dayvon Bryan Riley appeals the district court’s order dismissing his 28 U.S.C.

§ 2255 (2012) motion, but granting a certificate of appealability as to Riley’s allegations

that he is actually innocent of his conviction for aggravated identity theft. See 18 U.S.C.

§ 1028A(a)(1) (2012). Riley, relying on Flores-Figueroa v. United States, 556 U.S. 646,

657 (2009) (holding § 1028A(a)(1) requires proof “that the defendant knew that the

means of identification at issue belonged to another person”), contends that the

Government proffered an insufficient factual basis relating to § 1028A(a)(1)’s knowledge

requirement. He therefore claims that he is actually innocent of this charge, and that plea

counsel rendered ineffective assistance by not presenting this issue to the district court.

For the reasons that follow, we affirm.

       In 2013, Riley pleaded guilty to aggravated identity theft, among other charges,

and was sentenced to 156 months’ imprisonment. On direct appeal, we affirmed the

validity of Riley’s guilty plea and dismissed his sentencing claims based on the appeal

waiver contained in his written plea agreement. United States v. Riley, 581 F. App’x 206

(4th Cir. 2014). In his pro se § 2255 motion, Riley alleged that his plea counsel was

ineffective for failing to challenge the factual basis supporting his aggravated identity

theft conviction.   Following the Government’s motion to dismiss, the district court

appointed counsel to help develop Riley’s ineffective assistance claim.           Counsel,

however, responded to the Government’s motion by claiming that Riley was actually

innocent of aggravated identity theft. The district court erroneously determined that

Riley’s ineffective assistance claim was procedurally defaulted, see Massaro v. United

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States, 538 U.S. 500, 503 (2003) (“[T]here is no procedural default for failure to raise an

ineffective-assistance claim on direct appeal.”), and concluded that, because Riley failed

to establish his actual innocence, the purported default could not be overcome.

Nevertheless, the court granted a COA on Riley’s allegations of actual innocence.

       At the outset, we acknowledge that the COA is somewhat ambiguous as to

whether it is meant to cover only Riley’s actual innocence claim, or whether it is intended

to cover Riley’s ineffective assistance claim as well. Viewing the COA in the context of

the district court’s order, we conclude that the COA is broad enough to cover both

claims. * Once a COA has been granted, we review the district court’s denial of habeas

relief de novo. Gordon v. Braxton, 780 F.3d 196, 200 (4th Cir. 2015)

       “To establish actual innocence, [the] petitioner must demonstrate that, in light of

all the evidence, it is more likely than not that no reasonable juror would have convicted

him.” Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotation marks

omitted).   Importantly, “‘actual innocence’ means factual innocence, not mere legal

insufficiency.” Id. Here, Riley contests the sufficiency of the factual basis, but does not

colorably assert that he is, in fact, innocent of aggravated identity theft. Riley has

therefore failed to demonstrate that no reasonable juror would have found him guilty

beyond a reasonable doubt.




       *
         Riley has not moved to expand the scope of the COA.             See 4th Cir. R.
22(a)(2)(A).


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       To succeed on a claim of ineffective assistance of counsel, the movant bears the

burden to show that counsel’s performance was constitutionally deficient and that such

deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668,

687-88, 692 (1984). To satisfy the performance prong, the movant must demonstrate

“that counsel’s representation fell below an objective standard of reasonableness” as

evaluated “under prevailing professional norms.” Id. at 688. To satisfy the prejudice

prong, the movant must show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

To establish prejudice in the guilty plea context, the movant “must demonstrate a

reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Christian v. Ballard, 792 F.3d 427, 443-44 (4th

Cir. 2015) (internal quotation marks omitted).

       At the time of Riley’s Fed. R. Crim. P. 11 hearing, the only evidence supporting

the disputed knowledge element of aggravated identity theft was Riley’s admission, in his

plea agreement, to a generic recitation of the elements of the offense. Putting aside the

question of whether plea counsel should have objected to the factual basis, Riley has not

shown a reasonable probability that he would have proceeded to trial had plea counsel

alerted him to the possibly deficient factual basis. Indeed, in consideration for Riley

pleading guilty, the Government dismissed two of the six counts charged in the

indictment. Thus, in exchange for the opportunity to hold the Government to its burden

of proof on the aggravated identity theft charge, Riley would have had to stand trial on

the two dismissed counts, as well as the other three counts to which he pleaded guilty.

                                            4
Because Riley offers no basis to conclude that he would have insisted on going to trial

despite the substantial risk involved, he has failed to satisfy Strickland’s prejudice prong.

       Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.

                                                                                 AFFIRMED




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