United States v. Conley (290 F. Supp. 3d 647, 2017)

United States District Court for the Eastern District of Kentucky 2017-11-30

Crimes and Criminal Procedure

Citations

Full opinion text

Gregory F. Van Tatenhove, United States District Judge

This matter is before the Court upon Movant Timothy Alexander Conley's petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [R. 153.] Consistent with local practice, this matter was referred to Magistrate Judge Robert E. Wier, who filed a Recommended Disposition recommending that Conley's motion be denied. [R. 159.]

Under Federal Rule of Civil Procedure 72(b)(2), a petitioner has fourteen days after service to register any objections to the recommended disposition or else waive his rights to appeal. In order to receive de novo review by this Court, any objection to the report and recommendation must be specific. Mira v. Marshall , 806 F.2d 636, 637 (6th Cir. 1986). A specific objection "explain[s] and cite[s] specific portions of the report which [counsel] deem[s] problematic." Robert v. Tesson , 507 F.3d 981, 994 (6th Cir. 2007) (citation omitted). A general objection that fails to identify specific factual or legal issues from the report and recommendation, however, is not permitted, since it duplicates the Magistrate's efforts and wastes judicial economy. Howard v. Secretary of Health and Human Services , 932 F.2d 505, 509 (6th Cir. 1991).

Defendant Conley filed timely objections to the Recommended Disposition. [R. 163.] Conley's four objections are sufficiently definite to trigger the Court's obligation to conduct a de novo review. See 28 U.S.C. § 636(b)(1)(c). The Court has satisfied that duty, reviewing the entire record, including the pleadings, the parties' arguments, relevant case law, and statutory authority, as well as applicable procedural rules. For the following reasons, Conley's objections will be OVERRULED .

I

Judge Wier's Recommended Disposition accurately sets forth the factual and procedural background of the case. Below, the Court mentions the key facts to frame its discussion and analysis, but, chooses to incorporate Judge Wier's discussion of the record into this Order.

Mr. Timothy Alexander Conley was indicted, along with two co-defendants, on December 5, 2013, for honest services mail fraud in violation of 18 U.S.C. § 1341, theft or bribery concerning programs receiving federal funds in violation of 18 U.S.C. §§ 666(a)(1)(A) & 2, and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). [R. 1.] On August 26, 2014, Conley pled guilty to Count 3, which encompassed a violation of 18 U.S.C. § 1341, honest services mail fraud. [R. 87.] A Presentence Investigation Report ("PSR") was prepared in which Conley's recommended Sentencing Guideline Range was determined to be 70 to 87 months based on a total offense level, subsequent a three-level acceptance of responsibility reduction, of 27 and a criminal history category of I. [R. 134.] The defendant filed no objections to the PSR. [See id. ] Although the Government moved for an upward departure [R. 117], that motion was denied, and on January 27, 2015, the Court sentenced Mr. Conley to 87 months imprisonment followed by three years of supervised release. [R. 127.] Conley filed a timely appeal to the Sixth Circuit Court of Appeals, which subsequently dismissed the appeal on June 2, 2016, because Conley's plea agreement contained a waiver of appeal. [R. 152.] Conley did not file a petition for a writ of certiorari with the United States Supreme Court. [R. 159.]

On September 6, 2016, Conley, through counsel, filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. [R. 153.] Conley's motion was referred to Judge Robert E. Wier to review and prepare a Recommended Disposition. Conley based his motion on the overall effect that McDonnell v. United States , --- U.S. ----, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016), has on his case. [Id. at 1.] Conley did not request, and the Magistrate Judge did not hold, an evidentiary hearing on this motion. [R. 159 at 31.] On February 16, 2017, Judge Wier filed a Recommended Disposition calling for Conley's motion to be denied. [Id. at 32.] Conley filed objections to Judge Wier's Recommended Disposition pursuant to his rights under 28 U.S.C. § 636 (b)(1). [R. 163.]

II

The Court finds that Conley raised four objections to Judge Wier's Recommended Disposition that are adequately specific to trigger de novo review by this Court. See U.S.C. § 636(b)(1)(c); Mira , 806 F.2d at 637. Conley objects to the Magistrate's finding that (A) McDonnell neither applies to the merits of Conley's case nor renders Conley's conviction void; (B) Conley's plea was entered knowingly, voluntarily, and intelligently; (C) Conley did not receive ineffective assistance of counsel prior to his conviction and sentencing; and (D) Conley should not receive a reduction based on an "official acts" sentencing enhancement. [R. 163.] While the objections raised initially formed, without much substantive difference, the basis for Conley's § 2255 Motion, the Court nonetheless addresses Conley's objections in turn.

Before addressing Conley's objections, the Court first analyzes the unraised issue of procedural default. Where a movant fails to raise a claim on direct appeal, the movant is procedurally defaulted from seeking § 2255 relief on that claim. Bousley v. United States , 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ; Regalado v. United States , 334 F.3d 520, 528 (6th Cir. 2003). A claim that could have been raised on direct appeal, but was not, "may be raised in habeas only if the defendant can first demonstrate either 'cause' and actual 'prejudice,' or that he is 'actually innocent.' " Bousley , 523 U.S. at 622, 118 S.Ct. 1604 ; Ray v. United States , 721 F.3d 758, 761 (6th Cir. 2013). In attempting to show cause for default, a defendant cannot rely on futility where bringing his claim on direct appeal would have been premature. See Bousley , 523 U.S. at 623, 118 S.Ct. 1604 (citing Engle v. Isaac , 456 U.S. 107, 130 n.35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) ("[F]utility cannot constitute cause if it means simply that a claim was 'unacceptable to that particular court at that particular time.' ")). "To establish actual innocence, 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 , 523 U.S. at 623, 118 S.Ct. 1604 (citation omitted). In cases where the Government fails to argue default, as is true here, the Government may forfeit the right to defend on default grounds. Elzy v. United States , 205 F.3d 882, 886 (6th Cir. 2000) (citing Trest v. Cain , 522 U.S. 87, 118 S.Ct. 478, 139 L.Ed.2d 444 (1997) ). Although not required to do so, the Court may, on its own, raise the procedural default question in a habeas context. Elzy , 205 F.3d at 886.

In Conley's appeal to the Sixth Circuit, he did not argue the effects McDonnell had on his case as McDonnell had not yet been decided. See Reply Brief, 2016 WL 2848803, United States v. Conley , No. 15-5148 (6th Cir. May 12, 2016), ECF No. 31. Rather, Conley claimed his plea was entered without a full understanding as to the elements underlying honest services mail fraud, that his attorney at the time of his plea did not understand the elements of honest services mail fraud, and that during the plea colloquy there was never any statement made as to Conley's use of the mail in committing the offense of conviction. Id. at 3-5. While Conley's § 2255 Motion makes neither an argument of cause and actual prejudice, nor an assertion of actual innocence, his Objections to the Magistrate's Recommended Disposition does raise the question of innocence. [R. 163 at 9.] Given the unique posture of the case, the procedural default doctrine raises interesting concerns. However, the Court, like the Magistrate Judge, declines to sua sponte opine on the procedural default issue and, instead, addresses the merits of Mr. Conley's objections.

A

Mr. Conley first objects to Judge Wier's determination that McDonnell neither applies to the merits of Conley's case nor renders Conley's conviction void. [R. 163 at 3.] At the heart of Conley's § 2255 Motion, and his subsequent Objections to the Magistrate's Recommended Disposition, is the definition of "official acts" as that term relates to honest services fraud statutes. Although "official acts" has a statutory definition, the McDonnell Court clarified that definition as follows:

[A]n "official act" is a decision or action on a "question, matter, cause, suit, proceeding, or controversy." The "question, matter, cause, suit, proceeding, or controversy" must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is "pending" or "may by law be brought" before a public official. To qualify as an "official act," the public official must make a decision or take an action on that "question, matter, cause, suit, proceeding, or controversy," or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an "official act," or to advise another official, knowing or intending that such advice will form the basis for an "official act" by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)-without more-does not fit that definition of "official act."

136 S.Ct. at 2371-72. Thus, there are two requirements for an official act: (1) "the Government must identify a question, matter, cause, suit, proceeding, or controversy that may at any time be pending or may by law be brought before a public official;" and (2) "the Government must prove that the public official made a decision or took an action 'on' that question, matter, cause, suit, proceeding or controversy, or agreed to do so." McDonnell , 136 S.Ct. at 2368 ; see also 18 U.S.C. § 201(a)(3). The McDonnell Court went to great lengths to provide substantive meaning to the statutory language. As to the first requirement, the Court concluded that § 201(a)(3) requires a "focused and concrete" question, matter, cause, suit, proceeding, or controversy "involve[ing] a formal exercise of governmental power that is similar in nature to a lawsuit, administrative determination, or hearing." Id. at 2370. Regarding the second requirement, the Court determined that § 201(a)(3) requires "that the public official must make a decision or take an action on that question or matter, or agree to do so." Id. (emphasis in original). In satisfying the second requirement, it is enough that "a public official uses his official position to provide advice to another official, knowing or intending that such advice will form the basis for an 'official act' by another official...." Id.

Conley's first objection is, thus, bifurcated. He initially argues that the Government failed to identify a question, matter, cause, suit, proceeding, or controversy that may at anytime be pending or may by law be brought before any public official. [R. 163 at 4.] Conley asserts that "modifying a bid is not a question, matter, cause, suit, proceeding, or controversy," and that "there was no question, matter, cause, suit, proceeding or controversy pending before Conley." [Id. ] Next, Conley argues he never "made a decision or took an action on one of the questions, matters, causes, suits, proceedings, or controversies." [R. 163 at 6.] His theory is that "non-sanctioned, or illegal conduct cannot be an official act under 18 U.S.C. § 201." [Id. ]

1

Mr. Conley contends the Government failed to meet McDonnell 's first prong because it never identified a question, matter, cause, suit, proceeding, or controversy that may at anytime be pending or may by law be brought before any public official. [R. 163 at 4.] At the time the offense was committed, Conley was the Morgan County Judge Executive, and, as such, also a member of the Morgan County Fiscal Court. See [R. 163 at 5]; KRS § 67.040. One responsibility of the Fiscal Court is to oversee the solicitation of bids and the awarding of contracts for certain public construction projects. See [R.159 at 9-10]; KRS § 178.140. The gist of Conley's argument is that his bid-rigging conduct does not qualify as a question, matter, cause, suit, proceeding or controversy because that conduct occurred prior to the bids being submitted to the Fiscal Court for awarding of the contracts. [R. 163 at 4.] Although Conley acknowledges that "[t]he only question that was arguably pending in front of any public official or body was the question of what company would be awarded contracts ...," he argues such a question was pending not before him but before the Morgan County Fiscal Court. [Id. ]

In satisfaction of McDonnell 's first prong, the United States identified a focused and concrete question, matter, cause, suit, proceeding, or controversy that is similar in nature to an administrative determination or hearing. The Government identified as questions, matters, causes, suits, proceedings, or controversies "the bidding on the public project," "[t]he bidding process for bridge construction contracts," and "[t]he selection of the winning bidder for bridge projects." [R. 159 at 9-10.] Additionally, Conley's indictment and plea agreement also outline certain questions, matters, causes, suits, proceedings, or controversies. The indictment identified "the formal process for hiring construction contractors" for Morgan County projects and described the bidding process used to award such contracts. [R. 1.] The plea agreement described the bidding process used by Morgan County in awarding certain bridge construction contracts in 2013. [R. 124 at 2.] Conley, in his plea agreement, admitted to rigging certain bids and submitting the rigged bids under false pretenses to the Morgan County Fiscal Court. [Id. ] The process by which certain public construction contracts were awarded in Morgan County in 2013 constituted a "question, matter, cause, suit, proceeding, or controversy" that may at any time be pending or may by law be brought before a public official. The bidding process and the awarding of the contract was at a time pending before, and by law brought before, the Morgan County Judge Executive and the Morgan County Fiscal Court, which had the final approval authority to award such contracts. Thus, the Government satisfied the first prong of the McDonnell test.

2

Mr. Conley next focuses on the second prong of the McDonnell test arguing he never made a decision or took an action on any question, matter, cause, suit, proceeding, or controversy. [R. 163 at 6.] He contends that "non-sanctioned, or illegal conduct cannot be an official act under 18 U.S.C. § 201." [Id. ] His dispute concentrates heavily on his fraudulent activity of altering a contractor's bid, and asserts that such fraudulent conduct, "by virtue of its fraudulence, cannot ever be performed in an official capacity." [Id. ] For support, Conley looks to McDonnell 's finding that certain acts, "absent an ulterior motive, [are] perfectly acceptable function[s] of Government." [Id. ] Conley also asserts he neither "used his official position to exert pressure on another official to perform an 'official act,' " nor "provide[d] advice or information forming a decisional basis for other officials to award construction projects." [Id. ]

Conley's admitted conduct satisfies the second prong of the McDonnell test as he clearly made a decision or took an action on the "question, matter, cause, suit, proceeding, or controversy." Conley's focus on the rigging of bids as an official act is misplaced. Instead, the official act here is the bidding process and awarding of certain public construction contracts by the Fiscal Court, to whom Conley submitted information that formed the basis for the Fiscal Court's decisions. These activities are generally acceptable governmental functions; however, Conley's ulterior motive of receiving kickbacks from certain contractors who were awarded contracts removes the activity from the category of generally acceptable acts. To be certain, Governor McDonnell and at least one other district court have acknowledged that the awarding of a governmental contract satisfies the pre- and post- McDonnell definitions of an official act. See McDonnell , 136 S.Ct. at 2365 ; United States v. Pomrenke , 198 F.Supp.3d 648, 701 (W.D. Va. 2016). As McDonnell noted, it is enough that "a public official uses his official position to provide advice to another official, knowing or intending that such advice will form the basis for an 'official act' by another official...." 136 S.Ct. at 2370. Conley admitted to selecting and submitting bids to the Morgan County Fiscal Court in order to have certain contracts awarded to PBTHNOJJ Construction, from whom Conley received monetary kickbacks. [R. 124 at 2.] Conley provided the Fiscal Court with the information it needed in order to award those construction contracts. [R. 124 at 2.]

As Judge Executive, Conley was charged with selecting the lowest bidder for construction contracts and presenting those selections to the Fiscal Court for approval and contract award. [See R. 159 at 10; R. 124 at 2; R. 1 at 1-2.] For certain projects, Conley "selected PBTHNOJJ Construction as the lowest bidder and later presented his selection for approval by the Morgan County Fiscal Court." [R. 159 at ----10.] On at least one of those projects, Conley rigged PBTHNOJJ's bid to make it appear to be the lowest submitted bid. [Id. ] Because Conley knew he would receive monetary kickbacks if PBTHNOJJ Construction was awarded the contracts, he provided the information to the Fiscal Court knowing or intending that such advice would form the basis for the Fiscal Court's official act of awarding the contracts to PBTHNOJJ Construction. [R. 124 at 2.] Conley avers that the Fiscal Court was "not required to always select the bids proposed." [R. 163 at 7]; see also KRS 178.140. While the Fiscal Court was free to reject all bids, if it opted to award a contract, it was obligated to award the contract to the lowest bidder meeting certain other statutory requirements. See KRS 178.140(2) ("The contract shall be awarded to the lowest and best bidder, who shall furnish satisfactory security in an amount equal to the amount of the contract in question, to be approved by the county judge/executive of the county.").

Even if McDonnell applies to the merits of Conley's case, habeas relief is not warranted under this objection because the two-prong McDonnell test regarding official acts has been met. First, the Government identified the process by which certain public construction contracts were awarded in Morgan County as a question, matter, cause, suit, proceeding, or controversy that may at any time be pending or may by law be brought before a public official, to wit, the Morgan County Judge Executive and/or the Morgan County Fiscal Court. Second, Conley, as Morgan County Judge Executive, used his official position to provide advice and information, albeit under false pretenses, to the Morgan County Fiscal Court knowing or intending that such advice would form the basis for the Morgan County Fiscal Court's decision to award certain contracts to PBTHNOJJ Construction, from whom Conley received monetary kickbacks. For these reasons, the Court denies § 2255 relief on these grounds.

B

In his second objection, Mr. Conley urges the Court to vacate his conviction because his guilty plea was not entered knowingly, voluntarily, and intelligently. [R. 163 at 8.] The basis of this objection is that his understanding of the law regarding honest services mail fraud was not in line with McDonnell 's subsequent clarification of "official acts," which, when applied to Conley's conduct, exonerates him of honest services mail fraud. [Id. ] Conley argues that because the term "official act" has a specific definition as to an element of honest services mail fraud, and because his understanding of that term was different than the McDonnell definition, his plea was involuntary and unintelligent. [Id. at 8-9.]

A plea of guilty is valid only if, under the totality of the circumstances, the plea is "entered knowingly, voluntarily, and intelligently by the defendant." Brady v. United States , 397 U.S. 742, 748-49, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) ; United States v. Webb , 403 F.3d 373, 378 (6th Cir. 2005). Substantively speaking, "a guilty plea is involuntary where the defendant lacks knowledge of one of the elements required for conviction." In re Hanserd , 123 F.3d 922, 926 (6th Cir. 1997) (citing Henderson v. Morgan , 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) ). However, as Judge Wier astutely noted, a subsequent legal clarification as to an element of the crime does not, without more, render an otherwise intelligent guilty plea involuntary or invalid. [R. 159 at 23]; see also United States v. Riascos-Suarez , 73 F.3d 616, 622-24 (6th Cir.), cert. denied , 519 U.S. 848, 117 S.Ct. 136, 136 L.Ed.2d 84 (1996), superseded by statute , An Act to Throttle Criminal Use of Guns, Pub. L. No. 105-386, 112 Stat. 3469,as recognized in United States v. Mackey , 265 F.3d 457, 461 (6th Cir. 2001). The subsequent change must be one of such significance that it yields a defendant who pled guilty to conduct that was not a crime. Waucaush v. United States , 380 F.3d 251, 258 (6th Cir. 2004). Additionally, a guilty plea is invalid and unintelligent where "neither [the defendant], nor his counsel, nor the court correctly understood the essential elements of the crime with which [the defendant] was charged." Id. at 258 (quoting Bousley , 523 U.S. at 618, 118 S.Ct. 1604 ).

Conley rests his objection on the McDonnell clarification of an "official act," and argues that, regardless of whether his conduct was criminal, he could not have entered a plea knowingly, voluntarily, and intelligently because he did not understand all of the elements of honest services mail fraud. [R.163 at 8.] During Conley's Rule 11 plea colloquy, the Government articulated the elements of honest services mail fraud as they existed at the time. [R. 136 at 26-27.] When the Court inquired of Mr. Conley whether he thought the Government could prove those elements at a trial, Conley answered in the affirmative. [Id. at 27.] The Court then directed Conley's attention to the more detailed facts outlined in the negotiated plea agreement [R. 124 at 2-3], and asked whether those facts were true. [R. 136 at 27.] After consulting with his attorney, Conley again answered in the affirmative. [Id. ] While it is true that during the Rule 11 colloquy, Conley himself did not articulate with great clarity his conduct in relation to the elements of the charged offense, the Court was satisfied that Conley was "competent and capable of entering an informed plea." [Id. at 33.]

The facts to which Conley admitted, as articulated on the record and outlined in his plea agreement, continue to satisfy the elements of honest services mail fraud, even post- McDonnell. The McDonnell clarification does not take Conley's conduct out of the reach of the honest services mail fraud statute. As stated in the Recommended Disposition, "[a]n elected official taking kickbacks for doctoring bids and shepherding false bids through the procurement process presents conduct not clarified and not in need of clarification by McDonnell. " [R. 159 at 26.] Part of that procurement process, as admitted in the plea agreement and plea colloquy, certainly involved submitting, via mail, requests for state funding from the Kentucky Transportation Cabinet. [R. 124 at 3.] Neither the defendant, nor the attorneys, nor the Court were mistaken as to the elements of honest services mail fraud at the time Conley entered his plea, and Conley's criminal conduct was not made innocent by the McDonnell clarification. As such, Conley's request for § 2255 relief on this ground is denied.

C

Next, Mr. Conley objects to Judge Wier's determination that defense counsel was not ineffective for failing to advise on McDonnell leading up to and during Conley's plea and sentencing. [R. 163 at 9.] Conley argues that his attorney did not properly inform him of the elements the Government would have to prove if Conley went to trial. [Id. at 10.] Although Conley stated his satisfaction with counsel at his sentencing, the subsequent holding in McDonnell rendered that satisfaction void because McDonnell clarified an element of Conley's count of conviction, that being the definition of an "official act," on which Conley was otherwise misinformed. [Id. ] Conley claims that because Governor McDonnell's trial was pending at the time of Conley's plea, Conley's attorney should have advised him that an area of law pertinent to the McDonnell case-and, as Conley argues, his own case-was unsettled. [See id. ] Conley further contends the hesitancy exhibited in his plea colloquy provides evidence as to how he was prejudiced by his counsel's ineffective assistance. [See R. 165 at 2-3.]

In order to prove ineffective assistance of counsel, Conley must demonstrate: (1) counsel's performance was deficient; and (2) he was prejudiced by the deficient assistance so as to render his trial unfair. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Campbell v. Bradshaw , 674 F.3d 578, 586 (6th Cir. 2012). For Conley to establish Strickland prejudice in the context of his guilty plea, he "must show the outcome of the plea process would have been different with competent advice." See Lafler v. Cooper , 566 U.S. 156, 163, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). A defendant may show prejudice "by demonstrating a 'reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' " Lee v. United States , --- U.S. ----, 137 S.Ct. 1958, 1965, 198 L.Ed.2d 476 (2017) (quoting Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ). However, as several Sixth Circuit cases have noted, failure to anticipate or predict a future Supreme Court decision or holding does not, without more, satisfy the Strickland analysis. See Thompson v. Warden , 598 F.3d 281, 288 (6th Cir. 2010) ; Nichols v. United States , 563 F.3d 240, 253 (6th Cir. 2009) (en banc ); United States v. Burgess , 142 Fed.Appx. 232, 240 (6th Cir. 2005).

As Judge Wier noted in his Recommended Disposition, Conley failed to satisfy Strickland 's two-prong test for ineffective assistance of counsel; Conley neither demonstrated that his counsel was deficient, nor established that he suffered prejudice as a result of his deficient counsel. [R. 159 at 28-30.] Conley acknowledges that McDonnell's case was proceeding through trial at the time Conley entered his plea, and that Conley's pretrial counsel was "not expected to be a fortune-teller." [R. 163 at 10.] However, Conley claims his attorney should have had "knowledge of significant cases that [were] pending," and "[a]t a minimum ... should have advised him that this area of the law was unsettled." [Id. ] Governor McDonnell had not yet been sentenced when Conley pled guilty and the undersigned sentenced Conley. Thus, Conley could not have relied on McDonnell in any proceeding leading up to his sentencing. Because McDonnell had not been decided at the time Conley was sentenced, Conley's objection requires that his pretrial counsel predict not only the outcome of McDonnell's criminal trial, but also the result of any and all subsequent appellate proceedings. Following this Circuit's precedent, the effectiveness of Conley's pretrial counsel will not be adjudged for failing to predict or anticipate a subsequent development in the law. Thus, Conley fails to show his trial counsel was deficient.

Conley attempts to establish prejudice and show a potential different outcome by relying on Lee v. United States , --- U.S. ----, 137 S.Ct. 1958, 198 L.Ed.2d 476 (2017). Conley's states that "in light of the Supreme Court's subsequent opinion in McDonnell , it is clear that Conley's counsel did not correctly advise him of what the Government had to prove to attain a conviction at trial." [R. 163 at 10.] Conley argues that his plea and sentencing colloquies provide ample proof of prejudice in that he was hesitant to enter his guilty plea, and, at sentencing, he felt like "a volleyball in a world of two teams that wants to win." [R. 165 at 2-3.] Conversely, in Lee , trial counsel repeatedly and incorrectly advised the defendant that pleading guilty would not result in deportation. Lee , 137 S.Ct. at 1963. Lee provided "substantial and uncontroverted evidence" that "deportation was the determinative issue in ... whether to accept the plea," and that he would not have pled guilty had he known that deportation was a consequence of such a plea. Id. at 1963, 1968. The Court noted that "[d]eportation is always 'a particularly severe penalty.' " Id. at 1968 (quoting Padilla v. Kentucky , 559 U.S. 356, 365, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) ). The Court concluded that Lee showed by a "reasonable probability that, but for his counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 1969 (quoting Hill , 474 U.S. at 59, 106 S.Ct. 366 ).

Conley's arguments fall short of the "substantial and uncontroverted evidence" provided in Lee and the "reasonable probability" standard established in Hill. Other than merely claiming prejudice, Conley fails to concretely establish that an area of law subsequently decided in McDonnell was either determinative in his case or would result in a particularly severe penalty to him. See Lee , 137 S.Ct. at 1963, 1968. Instead, Conley asserts only that "he saw no other option" than to plead guilty, and that "had he truly understood the nature of the charges against him he would have proceeded to trial." [R. 165 at 3.] Conley's claims fail to show a "reasonable probability that, but for his counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." See Hill , 474 U.S. at 59, 106 S.Ct. 366. As such, Conley does not establish that "the outcome of [his] plea process would have been different with competent advice." See Lafler , 566 U.S. at 163, 132 S.Ct. 1376.

Because Conley neither establishes that his defense counsel was deficient, nor shows that he was so prejudiced by deficient representation as to render his trial unfair, the Court overrules this objection and denies habeas relief on the claim of ineffective assistance of counsel.

D

Finally, Mr. Conley calls for the Court to reduce his sentence because the "official acts" sentencing enhancement was improperly applied in his case. [R. 163 at 11.] In support of this argument, Conley states, "[n]ow that McDonnell has limited the scope of actions which constitute 'official acts,' Conley no longer qualifies" for the four-level official acts enhancement. [Id. ]

As noted by Judge Wier, Conley neither specifies which Guideline allows for an official acts enhancement, nor establishes where in the record such an enhancement was applied to his sentencing guideline calculation. [R. 159 at 30, n.20.] The Court has reviewed Conley's Presentence Investigation Report. [R. 134]. Conley correctly states his total offense level was calculated to be 27; however, he incorrectly claims a four-level official acts enhancement was part of that calculation. [R. 163 at 11.] The only four-level enhancement applied to his guideline calculation is under U.S.S.G. § 2C1.1(b)(3) because the offense involved an elected public official. While it is true, based on the Background Commentary to § 2C1.1, a criminal defendant may receive a four-level enhancement under § 2C1.1(b)(3) where a payment is made "for the purpose of influencing an official act by certain officials," that is not the reason for the enhancement in Conley's case. Conley, as Morgan County Judge Executive, was an elected public official. As such, Conley received the four-level enhancement under the plain language of § 2C1.1(b)(3) because his offense involved an elected public official. The Court therefore denies § 2255 relief on this ground.

III

In conclusion, after reviewing de novo the entire record, as well as the relevant case law and statutory authority, the Court agrees with Judge Wier's analysis of Conley's claims. The Court also denies a certificate of appealability pursuant to 28 U.S.C. § 2253(c) as to each issue asserted. Under Rule 11 of the Federal Rules Governing § 2255 Proceedings, the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant...." A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). As set forth by the United States Supreme Court, this standard requires the petitioner to "demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ; see also Miller-El v. Cockrell , 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Under this standard, the Court believes that this Order, which adopts and incorporates by reference the Magistrate Judge's Recommendation, is not debatable enough to issue a certificate of appealability. Accordingly, and the Court being otherwise sufficiently advised, it is hereby ORDERED as follows:

1. Defendant/Movant Conley's Objections to the Recommended Disposition [R. 163 ] are OVERRULED ;

2. The Magistrate Judge's Recommended Disposition [R. 159 ] is ADOPTED as and for the opinion of this Court;

3. The Defendant's § 2255 Petition [R. 153 ] is DISMISSED WITH PREJUDICE ;

4. A Certificate of Appealability is DENIED as to all issues raised by the Defendant; and

5. JUDGMENT in favor of the Respondent will be entered contemporaneously herewith.

RECOMMENDED DISPOSITION

Robert E. Wier, United States Magistrate Judge

Tim Conley admitted paradigmatic local-government corruption: in exchange for receiving kickbacks, he, as Morgan County Judge/Executive, favorably altered PBTHNOJJ Construction project bids and presented those bids to the Morgan County Fiscal Court for approval. When PBTHNOJJ got a contract, as the (manipulated) low bidder, Conley got a kickback, wrongfully siphoning public tax dollars, through this scheme, into his own pocket. Although Conley agreed not to bring a collateral attack against the federal conviction, he now mounts this 28 U.S.C. § 2255 challenge. He argues (essentially) that his conduct, because it was fraudulent or illegal, could not be an "official act" under the Supreme Court's recent guidance in McDonnell v. United States , --- U.S. ----, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016), requiring the Court to vacate the conviction. For the reasons that follow, the Court rejects Conley's arguments and, accordingly, RECOMMENDS that the District Judge fully DENY § 2255 relief (DE # 153) and issue NO Certificate of Appealability.

I. BACKGROUND INFORMATION

On December 5, 2013, a grand jury indicted Conley (then Morgan County Judge/Executive; now a federal inmate), along with two co-Defendants, on four counts of violating 18 U.S.C. § 1341, one count of violating § 666(a)(1)(A) and § 2, and one count of violating § 1956(h). DE # 1 (Indictment). Conley pleaded guilty to Count 3 (a § 1341 honest services mail fraud charge), pursuant to a plea agreement, on August 26, 2014. DE ## 87 (Rearraignment Minute Entry); 124 (Plea Agreement); 89 (Sealed Supplement). Judge Van Tatenhove sentenced Conley on January 27, 2015. DE # 126 (Sentencing Minute Entry). Movant received a prison sentence of 87 months, followed by 3 years of supervised release. DE # 127 (Judgment). Conley appealed; the Sixth Circuit dismissed the appeal based on the appellate-waiver provision of the Plea Agreement. DE # 152 (Sixth Circuit Order). On September 6, 2016, Conley timely submitted, through counsel, a § 2255 motion to vacate. DE # 153. The Government responded in opposition. DE # 157. Conley replied. DE # 158. The matter is ripe for consideration. Per normal practice, the District assigned the matter to the undersigned for a recommended disposition. The Court wholly rejects Movant's claims and recommends dismissal. No basis exists for a Certificate of Appealability.

II. STANDARD OF REVIEW

Under 28 U.S.C. § 2255, a federal prisoner may obtain post-conviction relief if his sentence violates the Constitution or federal law, the federal court lacked jurisdiction to impose such sentence, or the sentence exceeds the maximum authorized by law. 28 U.S.C. § 2255(a) ; Mallett v. United States , 334 F.3d 491, 496-97 (6th Cir. 2003) ("In order to prevail upon a § 2255 motion, the movant must allege as a basis for relief: '(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.' " (quoting Weinberger v. United States , 268 F.3d 346, 351 (6th Cir. 2001) )). A defendant alleging a constitutional basis must establish "an error of constitutional magnitude" and show that the error had a "substantial and injurious effect or influence on the proceedings" in order to obtain § 2255 relief. Watson v. United States , 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson , 507 U.S. 619, 113 S.Ct. 1710, 1721-22, 123 L.Ed.2d 353 (1993) ). When alleging a non-constitutional error, a defendant must prove that the error constituted a " 'fundamental defect which inherently results in a complete miscarriage of justice,' or, an error so egregious that it amounts to a violation of due process." United States v. Ferguson , 918 F.2d 627, 630 (6th Cir. 1990) (quoting Hill v. United States , 368 U.S. 424, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962) ); see also Watson , 165 F.3d at 488. In making a § 2255 motion, a movant generally bears the burden of proving factual assertions by a preponderance of the evidence. McQueen v. United States , 58 Fed.Appx. 73, 76 (6th Cir. 2003) (per curiam ) ("Defendants seeking to set aside their sentences pursuant to 28 U.S.C. § 2255 have the burden of sustaining their contentions by a preponderance of the evidence.").

III. ANALYSIS

In his § 2255 motion, Conley raises a variety a claims centering on the alleged impact or effect of McDonnell v. United States , --- U.S. ----, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016), on the case. Generally speaking, the claims are that (1) McDonnell applies on the merits to Conley and renders his conviction void; (2) in light of McDonnell , Conley's plea was not knowing and voluntary; (3) Conley's plea agreement collateral-attack waiver does not bar this collateral attack; (4) trial counsel rendered ineffective assistance by not anticipating and advising Conley of McDonnell ; and (5) alternatively, McDonnell renders void any "official acts" sentencing enhancement, requiring resentencing. All theories conclusively fail under 28 U.S.C. § 2255.

Before proceeding, the Court generally comments on its handling of Conley's claims. The Government raises Conley's collateral-attack waiver as the first reason to dismiss the § 2255 motion. See DE # 157, at 5-8. Due to the interconnectedness of Conley's claims (for instance, the continued validity of the plea agreement waiver (already enforced in the appellate context by the Sixth Circuit) depends upon the knowing and voluntary nature of the plea, which Conley also attacks through merits application of McDonnell ), the Court perceives the motion to fairly require assessment of McDonnell 's substantive application to Conley's case. The Court thus proceeds with an appropriate and plenary analysis.

A. McDonnell's Impact

Conley, a former Morgan County Judge/Executive, stands convicted by his own admission of honest services mail fraud, in violation of 18 U.S.C. § 1341. In his plea agreement, Conley waived the right to appeal, but he appealed nevertheless. The Sixth Circuit found the appellate-waiver knowing and voluntary and accordingly enforced it, dismissing Conley's appeal on June 2, 2016. DE # 152. Less than a month later, on June 27, 2016, the Supreme Court issued its opinion in McDonnell , which treated 18 U.S.C. § 201 as defining the honest services crime and addressed the meaning of the requisite "official act." 136 S.Ct. at 2367-72. The Court assumes without deciding (especially in light of the Government not disputing the premise, in this ably-briefed case) that because Conley's conviction was not final at the time of McDonnell 's issuance, McDonnell properly applies here. E.g. , United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 769, 160 L.Ed.2d 621 (2005) (applying "both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act ... to all cases on direct review"); Griffith v. Kentucky , 479 U.S. 314, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) ("[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final[.]"). A case is not "final," for example, until "the time for a petition for certiorari elapse[s.]" Id. at 712 n.6. Other courts, in analogous contexts, have proceeded similarly. Becker , 502 F.3d at 128 ; English , 42 F.3d at 479 ; see also English , 42 F.3d at 485 & 485 n.1 (Browning, J., concurring).

The Indictment charged that Conley "devised and intended to devise a scheme and artifice to defraud, to obtain money and property by means of materially false and fraudulent pretenses, and to deprive Morgan County and its citizens of their right to [his] honest and faithful services ... through bribery, kickbacks, and the concealment of material information hereto[.]" DE # 1, at 2-3. "Honest services mail fraud requires the government to prove that the defendant used the mail to carry out a scheme or artifice to defraud another of the intangible right of honest services. That intangible right covers only schemes in which the defendant participates in a bribery or kickback scheme, which requires an agreement to receive something of value in exchange for an official act." United States v. Dimora , 750 F.3d 619, 626-27 (6th Cir. 2014) (internal quotation marks, citations, and alterations removed). "[T]he term 'official act,' " in turn, as the parties here agree, and per McDonnell , "means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit." 18 U.S.C. § 201(a)(3).

McDonnell adopted a "bounded interpretation of 'official act.' "

136 S.Ct. at 2368. "The text of § 201(a)(3) sets forth two requirements for an 'official act': First, the Government must identify a 'question, matter, cause, suit, proceeding or controversy' that 'may at any time be pending' or 'may by law be brought' before a public official. Second, the Government must prove that the public official made a decision or took an action 'on' that question, matter, cause, suit, proceeding, or controversy, or agreed to do so." Id.

On the first requirement, the words "cause, suit, proceeding or controversy" "connote a formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination." Id. A "question" or "matter," though more general verbiage, "must be similar in nature to a 'cause, suit, proceeding or controversy.' " Id. at 2369. Next, the terms "pending" or "may at law be brought" "suggest something that is relatively circumscribed-the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete." Id. "In particular, 'may by law be brought' conveys something within the specific duties of an official's position-the function conferred by the authority of his office. The word 'any' conveys that the matter may be pending either before the public official who is performing the official act, or before another public official." Id. Overall, the pertinent "question, matter, cause, suit, proceeding or controversy" must be "focused and concrete" and involve "a formal exercise of governmental power that is similar in nature to a lawsuit, administrative determination, or hearing." Id. at 2370.

Regarding the second requirement, an act is not necessarily a "decision or action on" a topic "even if" or merely because it "is related to a pending question or matter." McDonnell , 136 S.Ct. at 2370. "Instead, something more is required"-"the public official must make a decision or take an action on that question or matter, or agree to do so." Id. (emphasis in original). However, a "public official may also make a decision or take an action on a 'question, matter, cause, suit, proceeding or controversy' by using his official position to exert pressure on another official to perform an 'official act.' In addition, if a public official uses his official position to provide advice to another official, knowing or intending that such advice will form the basis for an 'official act' by another official, that too can qualify as a decision or action for purposes of § 201(a)(3)." Id. (emphasis in original). Indeed, "a public official is not required to actually make a decision or take an action on a 'question, matter, cause, suit, proceeding or controversy'; it is enough that the official agree to do so. The agreement need not be explicit, and the public official need not specify the means that he will use to perform his end of the bargain. Nor must the public official in fact intend to perform the 'official act,' so long as he agrees to do so." Id. at 2370-71 (citation removed).

The Supreme Court then applied these principles to Governor McDonnell:

Setting up a meeting, hosting an event, or calling an official (or agreeing to do so) merely to talk about a research study or to gather additional information, however, does not qualify as a decision or action on the pending question of whether to initiate the study. Simply expressing support for the research study at a meeting, event, or call-or sending a subordinate to such a meeting, event, or call-similarly does not qualify as a decision or action on the study, as long as the public official does not intend to exert pressure on another official or provide advice, knowing or intending such advice to form the basis for an 'official act.' Otherwise, if every action somehow related to the research study were an 'official act,' the requirement that the public official make a decision or take an action on that study, or agree to do so, would be meaningless.

136 S.Ct. at 2371. The Court concluded:

In sum, an 'official act' is a decision or action on a 'question, matter, cause, suit, proceeding or controversy.' The 'question, matter, cause, suit, proceeding or controversy' must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is 'pending' or 'may by law be brought' before a public official. To qualify as an 'official act,' the public official must make a decision or take an action on that 'question, matter, cause, suit, proceeding or controversy,' or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an 'official act,' or to advise another official, knowing or intending that such advice will form the basis for an 'official act' by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)-without more-does not fit that definition of 'official act.'

Id. at 2371-72.

Conley's admitted conduct in this case fits squarely, indeed inarguably, within McDonnell 's conceptualization of "official acts." Accordingly, McDonnell does not compel vacation of or in any way affect Conley's conviction.

First -the Government identified a "question, matter, cause, suit, proceeding or controversy" that "may at any time be pending" or "may by law be brought" before any public official. The United States specifically identified "the bidding on the public project," "[t]he bidding process for bridge construction contracts," and "[t]he selection of the winning bidder for bridge projects." DE # 157, at 8, 9. The Government further recounted that Conley "presented modified PBTHNOJJ bids to the Fiscal Court as the winning bids on bridge projects"-i.e. , he "receiv[ed] bids for public projects, open[ed] them, and present[ed] the winner to the Fiscal Court." Id. at 8. Conley admitted the conduct; he confessed "rigging purportedly competitive bidding processes in order to ensure the appearance that PBTHNOJJ Construction submitted the lowest bids for certain Morgan County construction projects. After rigging these bids, [he] then secured approval from the Morgan County Fiscal Court under the fraudulent pretenses that these bidding processes were fair and competitive." DE # 124, at ¶ 3(b). Conley fully admitted, in one example, "open[ing] ... bids outside of public view and alter[ing] PBTHNOJJ Construction's bid prices, to ensure that they appeared slightly lower than the other contractor's bid prices." Id. at ¶ 3(c). Conley "selected PBTHNOJJ Construction as the lowest bidder and later presented his selection for approval by the Morgan County Fiscal Court." Id.

These specific topics-government-funded construction project bid acceptance, consideration, and approval-unquestionably fit within McDonnell 's framework. Surely, nothing is more concrete than concrete, and the bid process addressed the ultimate decision to spend public monies for specific, tangible construction projects. The projects qualify as "question[s], matter[s], cause[s], suit[s], proceeding[s] or controvers[ies]" because they are "focused and concrete" and involve "a formal exercise of governmental power that is similar in nature to a lawsuit, administrative determination, or hearing." McDonnell , 136 S.Ct. at 2370. The topics at issue further implicate specific examples of Conley's behavior (opening and altering submitted PBTHNOJJ bids "to ensure that they appeared slightly lower than" other contractors' bids and submitting the bids to the Fiscal Court for approval) and a specific company with which Conley partnered (PBTHNOJJ Construction). See also DE # 1, at 5 (Indictment Count 3, listing the particulars). This easily falls under the degree of focus and concreteness the Supreme Court approved in McDonnell. See 136 S.Ct. at 2370 (approving "(1) 'whether researchers at any of Virginia's state universities would initiate a study of Anatabloc'; (2) 'whether the state-created Tobacco Indemnification and Community Revitalization Commission' would 'allocate grant money for the study of anatabine'; and (3) 'whether the health insurance plan for state employees in Virginia would include Anatabloc as a covered drug' " as "questions or matters under § 201(a)(3)" and "focused and concrete"). Whether the Morgan County Fiscal Court would formally accept a bid from and award a public construction contract to PBTHNOJJ, or another company, similarly fits.

These topics also clearly involve "a formal exercise of governmental power that is similar in nature to a lawsuit, administrative determination, or hearing." Conley admitted to "secur[ing] approval from the Morgan County Fiscal Court" for the rigged bids as well as to "select[ing] PBTHNOJJ Construction as the lowest bidder and later present[ing] his selection for approval by the Morgan County Fiscal Court." The Fiscal Court's consideration and approval of construction bids obviously is "a formal exercise of governmental power" similar to an administrative determination or a hearing. See KRS 178.140 ;

McDonnell , 136 S.Ct. at 2370 (approving qualification, under this prong, of " 'whether the state-created Tobacco Indemnification and Community Revitalization Commission' would 'allocate grant money for the study of anatabine' "); United States v. Pomrenke , 198 F.Supp.3d 648, 701 (W.D. Va. 2016) ("The award of a contract by a public entity is 'a formal exercise of governmental power,' similar in nature to 'a lawsuit, hearing, or administrative determination.' ... [W]hile the BVU Board of Directors may have had final approval over contracts, Pomrenke possessed the real power, along with her co-conspirator Rosenbalm, to decide who did business with BVU."); Jones , 207 F.Supp.3d at 581-82 (finding two "questions or matters": "(1) whether to use official law enforcement authority to cause Verizon to produce text messages belonging to Defendant's wife; and (2) whether to use official law enforcement authority and discretion to disclose Defendant's wife's text messages to Defendant in his capacity as a private citizen"); id. ("[O]btaining text messages and then disclosing them to a third-party falls squarely within the specific duties of a TFO for the FBI.").

Additionally, each question, matter, cause, suit, proceeding or controversy here was "pending" or "may by law [have been] brought before" Conley, or another public official, in his "official capacity." The circumstances here are precisely what the Supreme Court envisioned in McDonnell -"the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete." 136 S.Ct. at 2369. The construction-project bid submission, consideration, and selection process has all these hallmarks: it depends on deadlines, is put on the Fiscal Court's formal agenda, can be tracked for progress (by Fiscal Court members, the bid applicants, and concerned members of the public), and can finally be checked off as complete upon final approval of a bid. The matters properly pended before Conley in his official capacity as Judge/Executive and a member of the Fiscal Court. See Ky. Const. § 144 ; KRS 178.140, 67.710, 67.710(3), 67.710(6), 67.080(2)(a) & (b).

Second -Conley made a decision or took an action on one of these questions, matters, causes, suits, proceedings or controversies. He admitted as much: he "rigg[ed] purportedly competitive bidding processes," "selected PBTHNOJJ Construction as the lowest bidder," affirmatively and under "false pretenses" "presented" rigged bids to the Fiscal Court "for approval," and actively "secured approval from the Morgan County Fiscal Court[.]" DE # 124, at ¶¶ 3(b)-(c). These are all decisional steps "within ... the function conferred by the authority of his office." McDonnell , 136 S.Ct. at 2369. Additionally, Conley qualifies under the "decision or action on" prong utilizing the alternative method-he "us[ed] his official position to exert pressure on another official to perform an 'official act' " or "to provide advice to another official, knowing or intending that such advice will form the basis for an 'official act' by another official[.]" Id. at 2370 (emphasis in original).

Conley unquestionably qualifies under this analysis. He used his position as Judge/Executive and member of the Fiscal Court to exert pressure on or provide advice or information forming a decisional basis for other officials (other Fiscal Court members) to award construction projects via rigged bids. DE # 124, at ¶ 3(c) (Conley admitting he "presented his selection for approval by the Morgan County Fiscal Court" (emphasis added)); see Birdsall , 34 S.Ct. at 514 (holding that Birdsall "giv[ing] money to Brents and Van Wert ... so that they would advise the Commissioner of Indian Affairs, contrary to the truth that upon facts officially known to them leniency should be granted to the persons who had been convicted and sentenced" fell within the scope of "official act"). McDonnell fully endorsed that Birdsall, by supplying false clemency information, made or took "a decision or action to advise another official on the pending question whether to grant leniency." 136 S.Ct. at 2371 (emphasis in original). Being a deceitful cog in the decisional machine is enough, per Birdsall. Conley was that and more.

Conley also admitted to "secur[ing] approval from the Morgan County Fiscal Court under the fraudulent pretenses that these bidding processes were fair and competitive." Id. at ¶ 3(b). This likewise fits within McDonnell 's approved scope. See, e.g. , United States v. Greenhut , No. 2:15-cr-477-CAS-1, 2016 WL 6652681, at *5 (C.D. Cal. Nov. 8, 2016) ("The government's purchase of office supplies falls squarely within McDonnell 's construction of the term 'official act.' ... Deciding who does business with the government constitutes a formal exercise of power. The Court further finds that the evidence presented at trial was sufficient to conclude that the decision to purchase of [sic] office supplies is a 'pending' question or matter that 'may be brought' before an official because purchasing office supplies is within the specific duties of government supply technicians." (citation removed)); United States v. Bills , No. 14 CR 135-1, 2016 WL 4528075, at *3 (N.D. Ill. Aug. 29, 2016) ("Here, not only did Bills set up meetings, he also actively assisted Redflex with its RFP by providing Redflex with insider information regarding the selection criteria and provided Redfex [sic] with invaluable insight on how to present its proposal, and then advocated to the City to accept the RFP by influencing other members of the Selection Committee and personally voting for Redflex's proposal[.] ... Bills actively took numerous actions to Redflex's benefit in exchange for bribes, including voting for Redflex's RFP in 2003 as a member of the selection committee, participating in contract negotiations to Redflex's benefit, and then, after Redflex won the contract, working to expand Redflex's contract to a sole source contract.").

Other case law interpreting McDonnell supports the Court's conclusion on McDonnell / § 201(a)(3) qualification here. For example, a legislator merely "proposing legislation" is an official act after McDonnell (so self-evident, according to the Second Circuit, that "[n]o reasonable jury could fail to find" it). United States v. Stevenson , 660 Fed.Appx. 4, 7 n.1 (2d Cir. 2016). If an Assemblyman, by simply proposing a piece of legislation, takes an action on a question, matter, cause, suit, proceeding or controversy within the meaning of McDonnell , even though he ultimately could not unilaterally control whether the legislation became law, Judge/Executive Conley submitting a bid he rigged for approval to the Morgan County Fiscal Court surely also qualifies. Similarly, if a top official of a public utility's actions regarding "[t]he award of a contract" qualifies, Conley's (also involving a public entity's award of construction contracts) likewise neatly fits. See Pomrenke , 198 F.Supp.3d at 700-03. The same principle holds regarding an individual "providing ... invaluable insight" to a company seeking a city contract, "advocat[ing] to the City to accept" that company's proposal, and "influencing other members of the Selection Committee[.]" See Bills , 2016 WL 4528075, at *3. Conley presents squarely analogous facts. As one court cogently explained: "Deciding who does business with the government constitutes a formal exercise of power." Greenhut , 2016 WL 6652681, at *5. If the mere "purchase of office supplies" counts under this analysis after McDonnell , see id. , Conley's actions regarding the fraudulent consideration and award of government construction contracts clearly also qualify. Conley's formal hand in the concrete public construction projects is a far cry from the marginal activities of the McDonnell clan, merely "[s]etting up a meeting, talking to another