                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 15-1297
LOGAN M. GAYLORD,
                                               Petitioner-Appellant,

                                v.

UNITED STATES OF AMERICA ,
                                              Respondent-Appellee.
                    ____________________

        Appeal from the United States District Court for the
                    Central District of Illinois.
         No. 4:14-cv-4092 — James E. Shadid, Chief Judge.
                    ____________________

       ARGUED JUNE 1, 2016 — DECIDED JULY 12, 2016
                    ____________________

   Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit
Judges.
   FLAUM, Circuit Judge. Logan Gaylord pled guilty to con-
spiracy to distribute and to distribution of oxycodone. Ryan
Evins ingested the oxycodone pills distributed by Gaylord, as
well as cocaine from another source, and died. Gaylord was
sentenced to 240 months imprisonment, the mandatory mini-
mum sentence when death results from the distribution of a
controlled substance under 21 U.S.C. § 841(b)(1)(C). Gaylord
2                                                           No. 15-1297

later brought a 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence, arguing that as a result of ineffective as-
sistance of counsel, the “death results” enhancement of
§ 841(b)(1)(C) was inappropriately applied to his sentence.
Specifically, Gaylord contended that the oxycodone he dis-
tributed was not shown to be the but-for cause of Evins’s
death, and thus counsel was ineffective for failing to object to
the sentencing enhancement incorporated in the plea agree-
ment. The district court dismissed Gaylord’s § 2255 motion.
For the reasons that follow, we vacate the district court’s dis-
missal of Gaylord’s § 2255 motion and remand to the district
court for an evidentiary hearing on Gaylord’s claim of ineffec-
tive assistance of counsel.
                              I. Background
    On August 11, 2011, Gaylord pled guilty to conspiracy to
distribute oxycodone and to the distribution of oxycodone in
violation of 21 U.S.C. § 841(a)(1). 1 Gaylord admitted to dis-
tributing twelve oxycodone pills to Kelsey Demaught, who
gave seven of those pills to Evins. Evins ingested the pills, as
well as cocaine that he obtained from another source, and was
found dead the following day. The coroner’s postmortem re-
port and the forensic pathology report both stated that the
cause of Evins’s death was “oxycodone and cocaine intoxica-
tion.” The forensic pathology report also stated that “[t]he ox-
ycodone concentration is consistent with those that have re-
sulted in fatalities. The cocaine demonstrates acute use and


    1 Gaylord also pled guilty to possession of a firearm with an oblite-
rated serial number in violation of 18 U.S.C. § 922(k) and possession of an
unregistered firearm in violation of 26 U.S.C. § 5861(d). He does not chal-
lenge these convictions in this appeal.
No. 15-1297                                                          3

may result in a fatality.” Gaylord contends that his counsel
never showed him these reports.
    The presentence investigation report (“PSR”) mischarac-
terized the postmortem and forensic pathology reports, stat-
ing that “[t]he autopsy showed that Evins had a lethal amount
of oxycodone and a large amount of cocaine in his system.”
Similarly, the factual basis in the plea agreement stated that
the oxycodone caused Evins’s death. At Gaylord’s plea hear-
ing, the prosecutor recited this statement from the plea agree-
ment, and the district court asked Gaylord if the facts were
correct. Gaylord responded affirmatively.
   As part of his guilty plea, Gaylord waived his rights to ap-
peal and to collaterally attack his conviction and sentence. He
confirmed at his plea hearing that he was voluntarily waiving
these rights.
   Section 841(b)(1)(C) sets forth a mandatory minimum sen-
tence of 240 months imprisonment for conspiracy to distrib-
ute oxycodone and for the distribution of oxycodone “if death
or serious bodily injury results from the use of such sub-
stance[.]” Without this mandatory minimum, Gaylord’s
guidelines range would have been 210 to 262 months based
on an offense level of 37 and a criminal history category of I.2
At sentencing, the government recommended the mandatory
minimum sentence, and Gaylord’s attorney agreed that 240
months imprisonment was the minimum sentence the court
could impose. The district court sentenced Gaylord to 240



   2   Gaylord contends that his guidelines range would have been 57 to
71 months imprisonment without the “death results” enhancement, but
this range is unsupported by the record.
4                                                    No. 15-1297

months imprisonment on December 9, 2011. Gaylord did not
pursue a direct appeal.
    On January 27, 2014, approximately two years after Gay-
lord was sentenced, the U.S. Supreme Court held in Burrage v.
United States that but-for causation must be shown for the
“death results” enhancement of § 841(b)(1)(C) to apply. 134 S.
Ct. 881, 892 (2014). This but-for causation standard was al-
ready the law in our Circuit at the time of Gaylord’s sentenc-
ing. United States v. Hatfield, 591 F.3d 945, 948 (7th Cir. 2010).
    On October 10, 2014, Gaylord filed a pro se motion to va-
cate his sentence pursuant to § 2255, arguing that his in-
creased sentence violated the “new rule” announced in Bur-
rage. Gaylord contended that the oxycodone he distributed
was not determined to be the but-for cause of death, as re-
quired by Burrage for the “death results” enhancement to ap-
ply, and that his counsel provided ineffective assistance by
not using the postmortem and forensic pathology reports to
challenge the application of the enhancement.
    On February 2, 2015, the district court dismissed Gaylord’s
§ 2255 motion. The court gave several reasons for its ruling.
First, it explained that Gaylord’s Burrage claim is a non-consti-
tutional claim that could have been raised on direct appeal
but was not, and thus the claim had been waived and was not
cognizable under § 2255. Next, the court found that Gaylord’s
motion was untimely. Finally, the district court observed that
in his plea agreement, Gaylord had waived his right to bring
a collateral attack. According to the district court, Gaylord
failed to argue that the plea agreement was the result of inef-
fective assistance of counsel, so he was bound by the waiver.
The district court also denied Gaylord’s petition for a certifi-
cate of appealability.
No. 15-1297                                                    5

    On June 8, 2015, we granted Gaylord a certificate of ap-
pealability, concluding that Gaylord “made a substantial
showing that his conviction and sentence violate the rule an-
nounced in Burrage.” We appointed counsel to represent Gay-
lord on appeal and asked the parties to address the four ante-
cedent procedural questions identified by the district court:
(1) whether Gaylord can obtain relief under § 2255 for a non-
constitutional claim; (2) whether Burrage applies retroactively;
(3) whether the claim is timely; and (4) whether Gaylord
waived his right to bring this claim.
                          II. Discussion
    Gaylord argues on appeal that the district court erred in
dismissing his § 2255 motion. He challenges the application
of the “death results” enhancement of § 841(b)(1)(C), arguing
that the application of this sentencing enhancement was the
result of ineffective assistance of counsel.
   A. Procedural Issues
    Before addressing the merits of Gaylord’s § 2255 motion,
we note that the government has conceded three of the four
antecedent procedural issues. First, the government concedes
that a Burrage claim is cognizable under § 2255 because
§ 2255(a) provides relief for sentences “imposed in violation
of the Constitution or laws of the United States[.]” If a defend-
ant was improperly sentenced under § 841(b)(1)(C) as inter-
preted by Burrage, his sentence would be in violation of the
laws of the United States, and thus a Burrage claim is cogniza-
ble under § 2255. See Ragland v. United States 784 F.3d 1213,
1214 (8th Cir. 2015) (per curiam) (holding that a Burrage claim
is cognizable under § 2255). Second, the government
acknowledges that Burrage narrowed the scope of the “death
6                                                     No. 15-1297

results” enhancement of § 841(b)(1)(C) and thus applies retro-
actively. See Schriro v. Summerlin, 542 U.S. 348, 351 (2004)
(“New substantive rules generally apply retroactively. This in-
cludes decisions that narrow the scope of a criminal statute by
interpreting its terms … .”). Third, the government concedes
that Gaylord timely filed his claim within one year after Bur-
rage. See § 2255(f)(3) (setting forth a one-year period of limita-
tion for § 2255 motions).
    However, the government contends that Gaylord’s motion
is barred by two procedural hurdles. First, the government ar-
gues that the district court correctly held that Gaylord waived
his claim through the collateral attack waiver in his plea
agreement and by not raising a claim of ineffective assistance
of counsel in his § 2255 motion. We review de novo the en-
forceability of a plea agreement’s waiver of direct or collateral
review. Hurlow v. United States, 726 F.3d 958, 964 (7th Cir.
2013). Such waivers are generally enforceable but cannot be
invoked against a claim that counsel was ineffective in the ne-
gotiation of the plea agreement. Id.; see also Jones v. United
States, 167 F.3d 1142, 1145 (7th Cir. 1999) (“Justice dictates that
a claim of ineffective assistance of counsel in connection with
the negotiation of a cooperation agreement cannot be barred
by the agreement itself—the very product of the alleged inef-
fectiveness.”).
    We disagree with the district court’s conclusion that Gay-
lord failed to raise the issue of ineffective assistance of counsel
in his § 2255 motion. Though he did not cite Strickland v. Wash-
ington, 466 U.S. 668 (1984), or an analogous case, Gaylord did
argue that his guilty plea was “uninformed, therefore invol-
untary” because his counsel insufficiently investigated his
case. He claimed that his counsel did not provide him with
No. 15-1297                                                    7

the postmortem and forensic pathology reports stating that
the cause of death was oxycodone and cocaine intoxication.
Instead, he only saw the PSR and the plea agreement, which
indicated that oxycodone was the cause of death. Thus, Gay-
lord was mistakenly led to believe that the oxycodone he dis-
tributed was the but-for cause of Evins’s death. See Galbraith v.
United States, 313 F.3d 1001, 1006 (7th Cir. 2002) (“Due process
requires that a guilty plea, to be valid, be made voluntarily,
intelligently and knowingly.”). This is enough to raise a claim
of ineffective assistance of counsel, especially given the leni-
ent standard under which we review pro se filings. Warren v.
Baenen, 712 F.3d 1090, 1099–1100 (7th Cir. 2013) (explaining
that we construe pro se petitions liberally). And since Gaylord
argues that his plea agreement was the product of his coun-
sel’s ineffective assistance, he can overcome the waiver provi-
sion in the plea agreement. See Hurlow, 726 F.3d at 964.
    We note that Gaylord requests that we vacate the manda-
tory minimum sentence imposed on him under the “death re-
sults” enhancement and remand for resentencing. Alterna-
tively, he requests an evidentiary hearing on his ineffective as-
sistance of counsel claim. If Gaylord were merely challenging
his sentence in his § 2255 motion, this claim would be barred
by the collateral attack waiver in his plea agreement. In other
words, given this procedural posture, we address only Gay-
lord’s claim of ineffective assistance of counsel.
   Second, the government argues that Gaylord procedurally
defaulted his claim by not raising it on direct appeal. This ar-
gument fails because in Massaro v. United States, the Supreme
Court held that ineffective assistance of counsel claims can be
brought for the first time under § 2255, regardless of whether
the petitioner could have raised the claim on direct appeal.
8                                                   No. 15-1297

538 U.S. 500, 504 (2003). Therefore, we conclude that Gaylord’s
claim is not procedurally barred.
    B. Ineffective Assistance of Counsel
   We now turn to the merits of Gaylord’s § 2255 motion.
Gaylord argues that as a result of ineffective assistance of
counsel, the “death results” enhancement of § 841(b)(1)(C)
was inappropriately applied to his sentence.
    To succeed on a claim of ineffective assistance of counsel
in negotiating the plea agreement, Gaylord must first demon-
strate that his counsel’s performance was deficient. Strickland,
466 U.S. at 687. This requires a showing that “counsel’s repre-
sentation fell below an objective standard of reasonableness”
when measured against “prevailing professional norms.” Id.
at 688. In the plea bargaining context, reasonably competent
counsel will “attempt to learn all of the facts of the case, make
an estimate of a likely sentence, and communicate the results
of that analysis before allowing his client to plead guilty.”
Moore v. Bryant, 348 F.3d 238, 241 (7th Cir. 2003).
    Second, Gaylord must show that he was prejudiced by the
deficiencies in his counsel’s performance. Strickland, 466 U.S.
at 687. To show prejudice in the plea bargaining context, a de-
fendant must show that “there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded and
would have insisted on going to trial.” United States v.
Cieslowski, 410 F.3d 353, 359 (7th Cir. 2005) (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985)) (internal quotation marks
omitted). In other words, a defendant must demonstrate a
reasonable probability that “the outcome of the plea process
would have been different with competent advice.” Lafler v.
Cooper, 132 S. Ct. 1376, 1384 (2012).
No. 15-1297                                                      9

     Gaylord is entitled to an evidentiary hearing on his claim
of ineffective assistance of counsel if he has alleged “facts that,
if proven, would entitle him to relief.” Bruce v. United States,
256 F.3d 592, 597 (7th Cir. 2001) (citation and internal quota-
tion marks omitted); see also Osagiede v. United States, 543 F.3d
399, 412 (7th Cir. 2008) (“Ineffective assistance claims gener-
ally require an evidentiary hearing if the record contains in-
sufficient facts to explain counsel’s actions as tactical.”). How-
ever, such a hearing is not required if “the motion and the files
and records of the case conclusively show that the prisoner is
entitled to no relief.” Bruce, 256 F.3d at 597 (quoting § 2255)
(internal quotation marks omitted). Nor is a hearing required
if the petitioner makes allegations that are “vague, conclusory,
or palpably incredible,” rather than “detailed and specific.”
Id. (citation and internal quotation marks omitted).
       1. Deficient Performance
   Gaylord argues that his counsel performed deficiently in
several ways. He contends that his counsel inadequately in-
vestigated his case and failed to provide him with the post-
mortem and forensic pathology reports stating the cause of
death so that Gaylord could make an informed decision about
whether to plead. Relatedly, Gaylord criticizes his counsel for
not challenging the application of the “death results” en-
hancement on the basis that his actions did not fit the statu-
tory language of the enhancement.
    Gaylord has alleged facts sufficient to support his claim of
deficient performance. There is a substantial probability that
the application of the “death results” enhancement to Gay-
lord’s sentence is inconsistent with the causation requirement
set forth in Burrage, 134 S. Ct. at 892, and Hatfield, 591 F.3d at
948. In Burrage, the Supreme Court held that:
10                                                 No. 15-1297

       [A]t least where use of the drug distributed by
       the defendant is not an independently sufficient
       cause of the victim’s death or serious bodily in-
       jury, a defendant cannot be liable under the pen-
       alty enhancement provision of 21 U.S.C.
       § 841(b)(1)(C) unless such use is a but-for cause
       of the death or injury.
134 S. Ct. at 892. Burrage was decided after Gaylord was sen-
tenced. However, the but-for causation test was already the
law of our Circuit at the time of Gaylord’s plea negotiations
and sentencing, as stated in Hatfield. 591 F.3d at 948 (explain-
ing that for the “death results” enhancement to apply, “the
government at least must prove that the death or injury would
not have occurred had the drugs not been ingested: ‘but for’
(had it not been for) the ingestion, no injury”).
    In Gaylord’s case, there was no evidence that the oxyco-
done he distributed was the but-for cause of death. Rather, the
postmortem and forensic pathology reports stated that the
cause of death was “oxycodone and cocaine intoxication.” (em-
phasis added). In other words, even without the oxycodone,
the cocaine concentration may have been enough to result in
Evins’s death. It is unclear from the record whether Gaylord’s
counsel was aware of the but-for cause standard of Hatfield,
examined the postmortem and forensic pathology reports,
and provided Gaylord with the information necessary for a
knowing and voluntary guilty plea. Thus, Gaylord may have
a viable claim of deficient performance. See Moore, 348 F.3d at
241 (“[R]easonably competent counsel will attempt to learn all
of the facts of the case, make an estimate of a likely sentence,
and communicate the results of that analysis before allowing
his client to plead guilty.”).
No. 15-1297                                                             11

    The government argues that Gaylord’s plea and sentence
are consistent with Hatfield and Burrage because of an excep-
tion to the requirement of but-for causation. Burrage states
that the but-for causation test applies “at least where use of
the drug distributed by the defendant is not an independently
sufficient cause of the victim’s death … .” 3 134 S. Ct. at 892 (em-
phasis added). Thus, the government argues that the oxyco-
done supplied by Gaylord was an independently sufficient
cause of Evins’s death and that it need not establish that the
oxycodone was the but-for cause of Evins’s death. To support
this position, the government relies on the forensic pathology
report, which states that the cause of death was “oxycodone
and cocaine intoxication” and that “[t]he oxycodone concentra-
tion is consistent with those that have resulted in fatalities.” (em-
phasis added). The government argues that the report shows
that the level of oxycodone was itself sufficient to cause
Evins’s death, and thus Gaylord’s counsel did not perform de-
ficiently in negotiating his plea agreement and in not object-
ing to the sentencing enhancement.
   We disagree. The forensic pathology report does not state
that the oxycodone was an independently sufficient cause of


    3 The Burrage Court explained that “[t]he most common (though still
rare) instance of [when but-for causation is not required] occurs when
multiple sufficient causes independently, but concurrently, produce a re-
sult.” Id. at 890. The Court supplied an example: A stabs B and inflicts a
fatal wound, while at the same moment, X shoots B in the head and inflicts
a fatal wound. B dies from the combined effects of the two wounds. A will
generally be liable for homicide even though his conduct was not a but-
for cause of B’s death (since B would have died from X’s gunshot anyway).
In this situation, A and X were independently sufficient causes of B’s
death. Id. However, the Burrage Court stopped short of accepting or reject-
ing a special rule for independently sufficient causes.
12                                                 No. 15-1297

death. Rather, the report indicates that the concentration of
oxycodone has resulted in the death of others. This merely
suggests that the oxycodone could have independently caused
Evins’s death. It does not establish that the oxycodone alone
actually resulted in Evins’s death, especially since the same
concentration of a drug may have different effects on different
people. See United States v. Ilayayev, 800 F. Supp. 2d 417, 428
(E.D.N.Y. 2011) (citing NAT’L DRUG INTELLIGENCE CTR., U.S.
DEP’T OF JUSTICE, NATIONAL PRESCRIPTION DRUG THREAT
ASSESSMENT 2009, at 2 (2009)) (explaining that extended and
continuous exposure to oxycodone can lead to increased tol-
erance to the drug’s effects). Further, the forensic pathology
report states that “[t]he cocaine demonstrates acute use and
may result in a fatality,” thus indicating that the cocaine con-
centration may have been enough to independently cause
Evins’s death. Hence, the report does not demonstrate that the
oxycodone was an independently sufficient cause of death.
    In sum, Gaylord has alleged facts to support his claim that
his counsel performed deficiently by failing to provide him
with the postmortem and forensic pathology reports and not
challenging the application of the “death results” enhance-
ment to his sentence.
       2. Prejudice
    Next, we turn to the prejudice prong of the Strickland test
for ineffective assistance of counsel. Gaylord has alleged suf-
ficient facts to support a claim of prejudice, or to show that
“the outcome of the plea process would have been different
with competent advice.” Lafler, 132 S. Ct. at 1384. Without the
“death results” sentencing enhancement, Gaylord’s sentenc-
ing guidelines range would have been 210 to 262 months im-
prisonment. With the enhancement, the mandatory minimum
No. 15-1297                                                   13

sentence was 240 months imprisonment and the maximum
sentence was life in prison. Additionally, Gaylord alleged in
his § 2255 motion that he made his decision to plead guilty
based on incomplete information. He claimed that his counsel
did not show him the postmortem and forensic pathology re-
ports or explain the issue of causation, and thus his plea was
involuntary and uninformed. Construing this pro se filing lib-
erally, this is enough to establish a reasonable probability that
but for counsel’s ineffective assistance, Gaylord would not
have pled guilty. See Warren, 712 F.3d at 1099–1100 (explain-
ing that we construe pro se petitions liberally).
       3. Evidentiary Hearing
     Therefore, Gaylord has demonstrated that he is entitled to
an evidentiary hearing on his ineffective assistance of counsel
claim. An evidentiary hearing will provide Gaylord’s counsel
with an opportunity to explain whether he was aware of Hat-
field’s but-for causation requirement and whether he exam-
ined the postmortem and forensic pathology reports and
shared the results of his analysis with Gaylord. See Osagiede,
543 F.3d at 409 (“All lawyers that represent criminal defend-
ants are expected to know the laws applicable to their client’s
defense.” (citation and internal quotation marks omitted));
Moore, 348 F.3d at 241 (explaining that before allowing a client
to plead guilty, reasonably competent counsel will attempt to
learn the facts of the case, estimate a likely sentence, and com-
municate his analysis to the client). Counsel may have had a
strategic reason for not contesting the “death results” en-
hancement under Hatfield, but the record before us does not
contain sufficient information to allow us to make this deter-
mination. See Osagiede, 543 F.3d at 412 (explaining that inef-
fective assistance claims often require an evidentiary hearing
14                                              No. 15-1297

to more fully develop the record). Thus, we conclude that an
evidentiary hearing is warranted.
                       III. Conclusion
    For the foregoing reasons, we VACATE the judgment of the
district court dismissing Gaylord’s § 2255 motion and
REMAND to the district court for an evidentiary hearing on
Gaylord’s claim of ineffective assistance of counsel.
