This standard "is a 'relatively low bar.'" Bruce, 868 F.3d at 185 (quoting United States v. Smith, 723 F.3d 510, 518 (4th Cir. 2013)). Indeed, to establish reasonable likelihood, "[t]he Government need not show that such a communication, had it occurred, would have been federal beyond a reasonable doubt, nor even that it is more likely than not."
This standard "is a ‘relatively low bar.’ " Bruce, 868 F.3d at 185 (quoting United States v. Smith, 723 F.3d 510, 518 (4th Cir. 2013) ). Indeed, to establish reasonable likelihood, "[t]he Government need not show that such a communication, had it occurred, would have been federal beyond a reasonable doubt, nor even that it is more likely than not."
The Fourth Circuit has held that Fowler applies retroactively to cases on collateral review. United States v. Smith, 723 F.3d 510, 515 (4th Cir. 2013) (“[W]e agree that the Fowler right has been ‘newly recognized' by the Supreme Court and that it is retroactively applicable to cases on collateral review.”). [W]here the defendant kills a person with an intent to prevent communication with law enforcement officers generally, that intent includes an intent to prevent communications with federal law enforcement officers only if it is reasonably likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer.
Under this Circuit's precedent, however, Said did not meet his burden of showing that the error in the jury instructions had a "substantial and injurious effect or influence in determining the jury's verdict." United States v. Smith , 723 F.3d 510, 512 (4th Cir. 2013) (quoting Brecht v. Abrahamson , 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ). Accordingly, we reverse the district court's judgment in relevant part and remand with instructions to enter an order denying Said's § 2255 petition as to the two counts in question.
Where, as here, a defendant mounts a collateral attack on a jury instruction that erroneously instructs on an element of an offense, the courts in this circuit apply a less-stringent "harmless error" standard than that applicable on direct appeal. Indeed, to uphold a jury verdict on direct appeal, the reviewing court must find an instructional error harmless beyond a reasonable doubt; but on habeas review, courts evaluate "whether the error had a substantial and injurious effect or influence in determining the jury's verdict." United States v. Smith , 723 F.3d 510, 517 (4th Cir. 2013). Nevertheless, under the "substantial and injurious effect" standard "[t]he inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error."
equire careful, case-by-case analysis,’ " but "provid[ing] as examples of such evidence ‘proof that there was a federal investigation in progress at the time’ of the witness tampering, or ‘that the defendant had actual knowledge of the federal nature of the offense’ " (quoting United States v. Lopez , 372 F.3d 86, 91 (2d Cir.2004) )). The Court notes that it is not clear whether the "reasonable likelihood" standard is only satisfied if it was reasonably likely that the victim would have communicated directly with a federal law enforcement officer or judge, see, e.g., Fowler v. United States, 563 U.S. 668, 677–78, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011) (noting that this standard is satisfied "if it is reasonably likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer " (emphasis added)), or if this standard is also satisfied by a reasonable likelihood of indirect communications, seeUnited States v. Smith, 723 F.3d 510, 518 (4th Cir.2013) ("[T]he government did put forth ‘additional appropriate evidence’ showing the reasonable likelihood that [the victim's] reports would have been brought to the attention of federal law enforcement officers." (emphasis added)).
While the Supreme Court did not decide in its Fowler opinion whether Fowler would apply retroactively, the United States Court of Appeals for the Fourth Circuit has held that Fowler does apply retroactively to cases on collateral review. United States v. Smith, 723 F.3d 510, 515 (4th Cir. 2013) ("[W]e agree that the Fowler right has been 'newly recognized' by the Supreme Court and that it is retroactively applicable to cases on collateral review."). Petitioner, while not raising the issue explicitly, essentially contends that a jury instruction based on the Fowler case would have changed the outcome of his trial.
Fowler therefore announced a new rule of substantive law that applies retroactively in cases on collateral review. Accord United States v. Smith , 723 F.3d 510, 515 (4th Cir. 2013). The constitutional foundation for the retroactive application of new substantive rules lends further support to Dorsainvil 's interpretation of § 2255's saving clause.
(holding an error is harmless unless it had a “substantial and injurious effect or influence in determining the jury's verdict”); see also United States v. Smith, 723 F.3d 510, 517 (4th Cir. 2013) (holding Brecht's harmless-error review standard, applicable to § 2254 cases, is also applicable to § 2255 cases). An error is harmless on collateral review unless it had a “substantial and injurious effect” on the defendant's conviction.
Claims raised in a § 2255 motion, which assert an error in the jury instructions provided at trial based on a newly created interpretation of law, are subject to harmless error review. See United States v. Smith, 723 F.3d 510, 515 (4th Cir. 2013). Some courts have considered a defendant's stipulation to felony status to be binding against a later attempt to deny that status or knowledge of it.