author: MURPHY, Circuit Judge. KELLY, Circuit Judge,

text:
    Christopher Jay MARTIN, Petitioner-Appellant, v. John FAYRAM, Warden, Respondent-Appellee.
    No. 15-3523
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 13, 2016
    Filed: February 24, 2017

      Counsel who presented argument on behalf of the appellant was Alfredo G. Parrish, of Des Moines, IA. of Des Moines, IA. The following attorney(s) appeared on the appellant brief; Alfredo G. Parrish, of Des Moines, IA.
    Counsel who presented argument on behalf of the appellee was Benjamin Milton Parrott, AAG, of Des Moines, IA. The following attorney(s) appeared on the ap-pellee brief; Benjamin Milton Parrott, AAG, of Des Moines, IA.
    Before LOKEN, MURPHY, and KELLY, Circuit Judges.
   MURPHY, Circuit Judge.

Christopher Martin filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his Iowa conviction for first degree murder. The district court dismissed the appeal as untimely under the Antiterrorism and Effective Death Penalty Act’s (AEDPA) one year statute of limitations. We granted Martin a certificate of appealability on whether his petition was timely filed and, if not, whether he was entitled to equitable tolling. Martin also challenges the denial of his request for independent counsel. We affirm.

I.

Christopher Martin was convicted in Iowa state court of first degree murder. The Iowa Court of Appeals affirmed the conviction and on December 8, 2004 the Iowa Supreme Court declined to review Martin’s case. Martin did not seek a writ of certiorari from the United States Supreme Court within the 90 days permitted by court rule. See Supreme Court Rule 13(1). In late December, Martin was transferred to a different prison and lacked access to his paperwork for “quite some time.” He eventually retained new counsel and filed an application for postconviction relief in Iowa state court on February 14, 2006, alleging among other claims that both his trial and appellate counsel had provided ineffective assistance. The state court denied relief, the Iowa Court of Appeals affirmed that denial, and on July 25, 2014 the Iowa Supreme Court once again declined to review Martin’s case.

Martin then sought habeas relief in federal court. Martin had lost approximately 97% of his vision in college which limited his ability to read and review documents. He was unable to access the prison email system because of its font, size and lack of a voice synthesizer. Martin therefore relied on others, including his attorney and family, to keep him updated on the status of his case and to help him prepare court filings. Martin’s state postconviction counsel assisted him with preparing a pro se federal habeas petition raising the ineffective assistance of counsel claims. Counsel sent Martin a petition to review and sign shortly after the Iowa Supreme Court denied further review. According to Martin, that draft petition was held up in the prison mailroom for six days until his counsel called and requested that it be delivered. Because of his blindness, Martin also had to wait for his counselor to read him the petition aloud. As a result of these delays, Martin’s petition was not filed until August 22, 2014, 28 days after the Iowa Supreme Court had declined to review his case.

The state moved to dismiss Martin’s ha-beas petition as untimely. The district court appointed Martin’s state postconviction counsel to represent him in the habeas proceeding. Because Martin could potentially seek equitable tolling of the limitations period based on his counsel’s pre filing conduct, the district court ordered Martin to waive his right to bring a claim challenging that counsel’s assistance. Martin moved for the appointment of independent counsel to advise him on whether to waive any such claim. The district court denied the motion for independent counsel, after which Martin waived his right to bring a claim based on his counsel’s effectiveness. The district court subsequently dismissed Martin’s habeas petition, concluding that it was untimely filed and that Martin was not entitled to equitable tolling. Martin appeals.

II.

The parties dispute which event triggered the running of AEDPA’s limitations period. Martin argues that the limitations period did not begin to run until his ineffective assistance of counsel claims were exhausted in state court through postconviction proceedings. The district court concluded that the limitations period began to run at the conclusion of Martin’s direct appeal. After reviewing its interpretation of AEDPA’s limitations period de novo, Earl v. Fabian, 556 F.3d 717, 725 (8th Cir. 2009), we agree with the district court.

Under AEDPA, habeas petitioners have one year from the latest of four triggering events to file an application for habeas relief in federal court. 28 U.S.C. § 2244(d)(1). Two of these triggering events are relevant here. First, AEDPA’s limitations period may start to run from the date on which the relevant “judgment became final by the conclusion of direct review or [at] the expiration of the time for seeking such review.” 28 U.S.C. •§ 2244(d)(1)(A). Second, the limitations period may start to run from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). Under either circumstance, the limitations period is tolled for the “time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).

Martin argues that the relevant final “judgment” referred to in § 2244(d)(1)(A) is the state court’s denial of his application for postconviction relief because that is the first decision which addressed his ineffective assistance of counsel claims. His interpretation of § 2244(d)(1)(A) is inconsistent with the text of the statute, however. We must construe the statute “as a whole,” considering its various subparts and the ways in which these subparts relate to one another. Cody v. Hillard, 304 F.3d 767, 776 (8th Cir. 2002). Words or phrases that “may seem ambiguous in isolation [are] often clarified by the remainder of the statutory scheme,” such as when “the same terminology is used elsewhere in a context that makes its meaning clear.” United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). That is the situation here.

The statutoxy provision setting forth AEDPA’s statute of limitations states that the “1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1) (emphasis added). The subsection within the provision at issue here states that the limitations period shall ran from “the date on which the judgment became final.” 28 U.S.C. § 2244(d)(1)(A) (emphasis added). The most reasonable reading of this statute is that “the judgment” described in subsection (d)(1)(A) is the same judgment described in section (d)(1), i.e., the judgment pursuant to which a petitioner is “in custody.” Habeas petitioners such as Martin are “in custody” because of the criminal convictions they challenge, not because of subsequent post-conviction decisions. See Magwood v. Patterson, 561 U.S. 320, 333-34, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010). We therefore conclude that Martin’s conviction was the relevant “judgment” under 28 U.S.C. § 2244(d)(1)(A), and that that conviction became final at the conclusion of Martin’s direct appeal.

Martin argues alternatively that the factual predicate for his ineffective assistance of counsel claims arose during state postconviction proceedings, which triggered AEDPA’s limitations period. See 28 U.S.C. § 2244(d)(1)(D). The factual predicates of claims are the “vital facts underlying those claims.” Earl, 556 F.3d at 725 (quoting McAleese v. Brennan, 483 F.3d 206, 214 (3rd Cir. 2007)). Knowledge of the “vital facts” of a claim may be distinct from knowledge of their “legal significance,” Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000), or from evidence used to support the claim, see Earl, 556 F.3d at 726.

Here, the vital facts underlying Martin’s claims were known to him before the conclusion of his direct appeal. His ineffective assistance of trial counsel claim turned on his trial counsel’s failure to object to certain aspects of the prosecution’s closing argument. Martin was already aware of the prosecution’s statements and his counsel’s failure to object to those statements by the conclusion of the trial. See Keeling v. Warden, 673 F.3d 452, 461 (6th Cir. 2012). Martin’s ineffective assistance of appellate counsel claim turned on his appellate counsel’s failure to raise his trial counsel’s alleged ineffective assistance. Martin would have been aware of his appellate counsel’s failure to raise that claim on appeal as soon as he had “read the brief filed on his behalf.” Owens, 235 F.3d at 360. That Martin may not have recognized the legal significance of these facts at the time they occurred, or may have wanted to develop additional evidence, does not mean he was not actually aware of the vital facts supporting a Sixth Amendment claim before the conclusion of his direct appeal.

We agree with the district court that the latest triggering event for AEDPA’s limitations period was at the conclusion of Martin’s direct appeal from his criminal conviction. That conviction became final on March 8, 2005, 90 days after the Iowa Supreme Court’s had declined to review Martin’s case, when he could no longer timely seek a petition for a writ of certio-rari from the United States Supreme Court. See Boston v. Weber, 525 F.3d 622, 624 (8th Cir. 2008). Absent statutory tolling, Martin therefore had one year from March 8, 2005 to file an application for federal habeas relief.

Martin notes that he could not have obtained federal habeas relief on his ineffective assistance of counsel claims until he had exhausted those claims in state court, and argues that it makes little sense to run the statute of limitations from long before his Sixth Amendment claims became ripe for federal adjudication. Martin is correct that there is a tension between AEDPA’s one year limitations period and the requirement that petitioners exhaust state .court remedies before pursúing federal ha-beas relief. In Iowa, for example, Martin had three years from the conclusion of his direct appeal to file a motion for state postconviction relief and only one year, excluding the time during which a properly filed state postconviction motion was pending, to file a petition seeking federal habe-as relief. See Iowa Code § 822.3. Martin moved for state postconviction relief long before those three years expired, but by the time he did so, 343 of his 365 days to file a habeas petition in federal court had passed. AEDPA is designed so that a petitioner may not wish to use the full time permitted by a state to seek postconviction relief if he also intends to seek federal review of his conviction. We have declined to conclude that principles of equity and comity require tolling of AEDPA’s statute of limitations during the entire time allowed under state law for seeking state postconviction relief. See Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001). The time between the conclusion of Martin’s direct appeal and his motion for postcon-viction relief therefore counted toward AEDPA’s one year limitations period.

Martin filed his application for state postconviction relief on February 14, 2006, 343 days after his conviction became final, leaving only 22 days of AEDPA’s one year limitations period. That state postconvietion filing statutorily tolled AEDPA’s limitations period until July 25, 2014, when the Iowa Supreme Court declined to review the denial of Martin’s request for postcon-viction relief. See 28 U.S.C. § 2244(d)(2). Martin filed his federal habeas petition on August 22, 2014, 28 days after the Iowa Supreme Court’s decision and 6 days after AEDPA’s one year limitations period had expired. We therefore agree with the district court and conclude that Martin’s ha-beas petition was untimely filed.

III.

Martin argues that even if he untimely filed his habeas petition, the district court erred by denying him equitable tolling. We review the denial of equitable tolling de novo. Earl, 556 F.3d at 722. Equitable tolling is only appropriate if a petitioner shows “ ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (quoting Pace, 544 U.S. at 418, 125 S.Ct. 1807). An extraordinary circumstance must be “beyond a prisoner’s control,” Jackson v. Ault, 452 F.3d 734, 736 (8th Cir. 2006), and rise above a “garden variety claim of excusable neglect,” Holland, 560 U.S. at 651, 130 S.Ct. 2549 (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)). Here, even assuming Martin acted diligently, we con-' elude that he has failed to establish that an extraordinary circumstance prevented his timely filing of the federal habeas petition.

Martin argues that his blindness constitutes an extraordinary circumstance, either by itself or in conjunction with certain conditions of his confinement. Whether equitable tolling is appropriate is a fact intensive inquiry that depends on the totality of the circumstances present in a particular case. See Holland, 560 U.S. at 649-50, 130 S.Ct. 2549. Thus, although Martin is correct that a physical or mental impairment may support equitable tolling, whether it will do so will depend on its “degree and duration.” Nichols v. Dormire, 11 Fed.Appx. 633, 634 (8th Cir. 2001) (per curiam). Here, Martin has not alleged that his disability was so severe that it precluded him from filing court documents or seeking the assistance of others to do so. Actually, Martin and his family and attorney had created a system to help him manage and monitor his court proceedings. That their system led in part to an untimely filing in this case is an unfortunate, but not extraordinary, circumstance.

We also conclude that the additional circumstances alleged by Martin were not so extraordinary as to warrant equitable tolling. Martin’s brief lack of access to certain court documents early in the limitations period was a reasonably anticipated condition of confinement. Jihad v. Hvass, 267 F.3d 803, 806-07 (8th Cir. 2001). Although a significant delay in delivering a prisoner his mail could support equitable tolling, Martin has not alleged that the six day delay here was far beyond the “ordinary time that it takes to deliver the mail.” See Spencer v. Sutton, 239 F.3d 626, 630 (4th Cir. 2001) (emphasis omitted). Martin also chose to communicate via mail rather than phone “despite the impending due date” and therefore voluntarily took the risk of a minimal mail delay. Paige v. United States, 171 F.3d 559, 561 (8th Cir. 1999). Finally, we note that tolling is less appropriate in circumstances where a petitioner was represented by counsel as here. Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000). Considering the totality of the circumstances, we conclude that Martin has failed to establish that extraordinary circumstances prevented him from timely filing his habeas petition. He is therefore not entitled to equitable tolling of AEDPA’s one year limitations period.

IV.

Martin argues that the district court erred by requiring him to waive any claims against his counsel without providing independent counsel to advise him on the waiver. We review the denial of a motion to appoint counsel for a habeas petitioner for abuse of discretion. See Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994).

District courts may appoint indigent habeas petitioners counsel in the interests of justice. 18 U.S.C. § 3006A(a)(2)(b); see 28 U.S.C. § 2254(h). In exercising its discretion to appoint counsel, however, the district court “should first determine whether ... [the] petitioner has presented a nonfrivolous claim,” Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir. 1994), and then “should consider the legal complexity of the case, the factual complexity of the case, and the petitioner’s ability to investigate and present his claims, along with any other relevant factors,” see Hoggard, 29 F.3d at 471.

Here, even assuming that the legal issue was complex (as is much of habe-as jurisprudence) any argument for tolling based on Martin’s counsel’s pre filing conduct would have been close to frivolous. That is because the Supreme Court has made clear that attorney negligence, such as the miscalculation of a filing deadline, is not an extraordinary circumstance. See Lawrence v. Florida, 549 U.S. 327, 336-37, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007). Rather, a petitioner must show that their counsel’s misconduct amounted effectively to abandonment. See Holland, 560 U.S. at 659, 130 S.Ct. 2549 (Alito, J., concurring). Martin could not have done so here. His counsel communicated with him before the limitations period had expired and actively worked with him to file a federal habeas petition less than one month after the Iowa Supreme Court had declined to review his case. The district court therefore did not abuse its discretion in denying Martin’s request to appoint independent counsel to advise him on whether to waive any arguments based on his-counsel’s conduct.

V.

Accordingly, we affirm the district court order dismissing Martin’s habeas petition as untimely.

KELLY, Circuit Judge,

dissenting.

In my view, it was error not to appoint independent counsel to advise Martin whether or not he should waive his right to bring a claim regarding the assistance of his attorney. To expect Martin’s current counsel to attack his own competence would be unreasonable. See Robinson v. Norris, 60 F.3d 457, 460 (8th Cir. 1995). Thus, Martin has not yet had an opportunity to recount any circumstances that might form the basis of a claim that counsel had “abandoned” him. As such, it is premature to conclude that such a claim would be frivolous. Accordingly, I would decline to reach the merits of the case, and would instead reverse and remand it to the district court to appoint independent counsel to advise Martin on the waiver in the first instance. For this reason, I respectfully dissent.

      . The Honorable Stephanie M. Rose, United States District Judge for the Southern District of Iowa.

      . The Iowa Supreme Court denied further review on November 29, 2004 and issued procedendo (which is similar to a mandate from this court, see Dixon v. Wachtendorf, 758 F.3d 992, 993 n.2 (8th Cir. 2014)) on December 8, 2004. Because the parties measure the tolling period from the issuance of procedendo and that date is more favorable to Martin, we will use it for purposes of determining the statute of limitations in his appeal.

      . The Supreme Court has suggested that petitioners may mitigate this tension "by filing a 'protective' petition in federal court” and asking it to stay and abey a habeas proceeding "until state remedies are exhausted.” Pace v. DiGuglielmo, 544 U.S. 408, 416, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). If there is good cause for the failure to exhaust state remedies, district courts should “stay, rather than dismiss,” a premature habeas petition. See Rhines v. Weber, 544 U.S. 269, 278, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005).


source: Caselaw Access Project

author: LOKEN, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Dontre D’Sean MCHENRY, Defendant-Appellant
    No. 16-1266
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 21, 2016
    Filed: February 24, 2017

      Counsel who presented argument on behalf of the appellant was Caroline Durham, of Saint Paul, MN.
    Counsel who presented argument on behalf of the appellee was Michael L. Cheever, AUSA, of Minneapolis, MN.
    Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
   LOKEN, Circuit Judge.

Dontre D’Sean McHenry pleaded guilty to one count of sex trafficking a minor in violation of 18 U.S.C. § 1591. The district court varied downwards from his advisory guidelines range, life in prison, and sentenced McHenry to 293 months. McHenry appeals his conviction and sentence, arguing the district court erred in denying his timely motion to withdraw his guilty plea without an evidentiary hearing; committed procedural sentencing error by imposing an obstruction-of-justice enhancement and denying an aeceptanee-of-responsibility reduction, see U.S.S.G. §§ 3C1.1 and 3E1.1; and improperly weighed the 18 U.S.C. § 3553(a) sentencing factors in imposing a substantively unreasonable sentence. We affirm.

I. Background.

A. McHenry’s Arrest. On March 12, 2014, Minneapolis Police Sergeant Sherral Schmidt, investigating sex trafficking, discovered an “escort” advertisement on backpage.com featuring photographs of a girl listed as “Available Now” who resembled a juvenile previously rescued from sex traffickers and recently reported missing from her home. Sergeant Grant Snyder reviewed the ad, agreed the girl looked like a known sex trafficking victim, and called the phone number listed in the ad to set up a “date.” A female answered, identified herself as “Honey,” and told Sergeant Snyder to get a hotel room and call her back. Believing the ad depicted a known juvenile being exploited by sex traffickers, Snyder submitted an Exigent Circumstance Request Form (“E911 Form”) to T-Mobile, the service provider for the cell phone number listed in the advertisement. Snyder certified that an emergency existed because a “Juvenile sex trafficking victim [was being] held against her will and trafficked by organized conspiracy.” T-Mobile advised that it listed Tony Brown as the subscriber for the phone. T-Mobile also provided real-time location data for the phone number, which soon informed officers that the victim’s likely location was a Motel 6 in Roseville, Minnesota.

When the officers arrived at the Motel 6, staff provided information indicating the juvenile was in room 114, recently rented to Jennifer VonHagen. Observing VonHa-gen leaving room 114, Sergeant Snyder showed her the advertisement pictures. VonHagen said the juvenile in the ad was in room 114 with an adult male and consented to officers entering the room. Inside, the officers found McHenry with J.E., a 17-year-old juvenile female. J.E. was not the known juvenile they were expecting to find, but J.E. confirmed that the ad depicted photographs of her for the purpose of soliciting sex for money. The officers arrested McHenry, finding a small amount of methamphetamine and a Visa card used to pay for the ad. They secured the room and applied for a search warrant. Minneapolis Police executed the warrant the next day, finding seven cell phones, including the black T-Mobile phone referenced in the advertisement. A subsequent warrant search of the phone revealed that the settings listed J.E.’s email account, and that J.E. used the phone’s Instagram application. According to VonHagen, McHen-ry used a different phone.

McHenry was charged with sex trafficking of minors in violation of 18 U.S.C. §§ 1591 and 1594(c). The district court appointed attorney Paul Edlund to represent McHenry at his June 2014 detention hearing. Edlund had successfully defended McHenry in a state court prosecution charging him with third degree sexual conduct against a 17-year-old victim, a case dismissed in 2013. The district court detained McHenry pending trial and ordered him to refrain from contacting any victim because he had repeatedly called J.E. and had directed his father to visit J.E. A July superseding indictment charged McHenry with three counts of sex trafficking of a minor and one count of sex trafficking by force, fraud, or coercion in violation of 18 U.S.C. §§ 1591 and 1594(a).

B. The Suppression Motion. Attorney Edlund filed a motion to suppress all physical evidence obtained as a result of the “warrantless entry and search of The Motel 6, Room 114, Roseville, Minnesota on March 12, 2014.” At the August 13 eviden-tiary hearing, the government introduced the search warrant into evidence without objection and presented testimony by Officer John Jorgensen Jr. of the Roseville Police Department. Edlund cross-examined Officer Jorgensen at length about his contact with VonHagen, and whether he had consent to enter, the motel room and probable cause to arrest McHenry. The defense called no witnesses. The government argued that the warrant contained evidence of probable cause because “Sgt. Snyder had been tracking the phone number listed on that Backpage ad, had made calls, had communication with who he believed to be a minor, identified herself as honey and they were arranging to set up a date.” Edlund’s post-hearing brief argued the probable cause and consent issues. On August 26, Magistrate Judge Franklin Noel issued a Report and Recommendation recommending the motion to suppress be denied because “GPS data obtained pursuant to a tracking order” supported a finding that the officers had probable cause to arrest McHenry for promotion of prostitution. McHenry did not file objections to the Report and Recommendation, and the district court adopted it. See United States v. McHenry, 2014 WL 4626491 (D. Minn. Sept. 15, 2014).

C. McHenry Pleads Guilty. On October 8, with trial scheduled to begin October 21, the government sent Edlund a letter setting a deadline of October 10 for McHenry to accept a plea agreement the government offered on August 13. McHenry accepted the agreement, pleading guilty to one count of sex trafficking of a minor in violation of 18 U.S.C. § 1591. At the October 17 change-of-plea hearing, the parties revised the plea agreement to allow McHenry to challenge a sentencing enhancement, and the hearing was delayed thirty minutes to allow McHenry to discuss the plea agreement with attorney Ed-lund. After the prosecutor and Edlund thoroughly explained to McHenry the terms of the plea agreement and the rights he was waiving by pleading guilty, McHen-ry and attorney Edlund signed the agreement. •

Before accepting the guilty plea, the district court asked McHenry several questions to ensure he understood .the consequences of pleading guilty:

THE COURT: ... First, I want to ask you whether you’re here voluntarily to plead guilty today. Are you?
THE DEFENDANT: Yes.
THE COURT: And in that sense, has anybody forced you to come here, threatened you, coerced you, or done anything to get you to come here this morning to plead guilty?
THE DEFENDANT: No.
⅜ ⅜ ⅝ ¾; ⅜
THE COURT: Now, once you plead guilty, it’s very difficult to unplead; do you understand that?
THE DEFENDANT: Yes.
THE COURT: And that’s why I want to go over some of the very same things that you’ve already been asked about. For example, you have a right to have counsel here ... I know Mr. Edlund has been here before me a number of times. He’s a very good lawyer. The question for you is has he been a good lawyer for you?
THE DEFENDANT: Yes.
THE COURT: Has he answered all of your questions?
THE DEFENDANT: Yes.
THE COURT: Has he told you what he thinks would happen if you went to trial in this case?
THE DEFENDANT: Yes.
THE COURT: Has he told you what he thinks will happen — he can’t know for sure — but what he thinks will happen under this plea agreement?
THE DEFENDANT: Yes.
THE COURT: And you’re willing to accept his advice today?
THE DEFENDANT: Yes.
THE COURT: Have you had enough time to talk with him to discuss all of your concerns?
THE DEFENDANT: Yes.

The court then accepted McHenry’s plea as knowing and voluntary.

D. McHenry Moves To Withdraw the Plea. On November 13, 2014, McHenry sent a pro se letter requesting to withdraw his plea, alleging that Edlund rarely visited or spoke with McHenry, never explained McHenry’s rights, and pressured McHenry into pleading guilty. McHenry claimed he had difficulty understanding the rights he was waiving at the change-of-plea hearing due to his poor hearing and fetal alcohol syndrome, and he complained that the prosecution was attempting to add new charges and that the guidelines were not being properly applied. McHenry followed with another letter dated November 28. On December 5, attorney Edlund moved to withdraw, and the district court appointed new counsel.

Following appointment of new counsel, the government produced the E911 Form Sergeant Snyder submitted to T-Mobile to obtain GPS tracking of the cell phone number listed in the backpage.com advertisement. In a memorandum supporting McHenry’s pro se motion to withdraw the plea, new counsel argued that the E911 Form “confirmed that the Minneapolis Police Department did not obtain a search warrant prior to having T-Mobile place an ‘Emergency 911’ GPS trace on the cell phone that ultimately led law enforcement to ... Mr. McHenry.” Therefore, counsel argued, McHenry had a “fair and just reason” to withdraw his guilty plea, see Fed. R. Crim. P. 11(d)(2)(B), either because the E911 Form was new evidence supporting his motion to suppress, or because Edlund provided ineffective assistance in failing to challenge the warrant-less search of the cell phone’s location data. In addition, counsel argued, the combination of McHenry’s hearing impairment, fetal alcohol syndrome, the short time he was given to consider the plea agreement, his flawed relationship with Edlund, and confusion during the plea colloquy provided a fair and just reason to withdraw the plea.

The district court denied McHenry’s motion to withdraw without' a hearing, concluding first, “the record shows that [McHenry’s] plea was intelligent, knowing, and voluntary,” and second, McHenry could not establish he was prejudiced by Edlund’s failure to raise the GPS tracking issue in the motion to suppress because it was “undisputed that the cell phone at issue belonged to J.E., and McHenry [did] not provide any reason why he had a legitimate expectation of privacy in the phone or in its location.” United States v. McHenry, 2015 WL 2402475, at *4-5 (D. Minn. May 20, 2015). McHenry filed a request to file a Motion for Reconsideration, asserting that McHenry would testify at an evidentiary hearing that he purchased and used the black T-Mobile phone, establishing a legitimate expectation of privacy in its location. The district court denied the request without a hearing. Even if McHenry owned the cell phone and had a reasonable expectation of privacy in its real-time location information, the court explained, “law enforcement believed that the number was associated with a minor trafficking victim,” and therefore exigent circumstances justified GPS tracking of the phone, and the Stored Communications Act authorized T-Mobile to disclose this information. The court again stated that “McHenry’s admission of guilt at the plea hearing was knowing, intelligent, and voluntary,” and noted that “he has not asserted his innocence of the charges against him.”

II. Denial of the Motion to Withdraw.

McHenry argues the district court abused its discretion in denying the motion to withdraw his guilty plea and request for reconsideration. “We review both the denial of a motion to withdraw and the refusal to hold a hearing under the abuse of discretion standard.” United States v. Morrison, 967 F.2d 264, 268 (8th Cir. 1992). “When a defendant has entered a knowing and voluntary plea of guilty at a hearing at which he acknowledged committing the crime, the occasion for setting aside a guilty plea should seldom arise.” Id. (quotation omitted). Even if a defendant shows a fair and just reason for withdrawal, “the court must consider other factors before granting the motion, namely, whether the defendant asserts his innocence of the charge, the length of time between the guilty plea and the motion to withdraw it, and whether the government will be prejudiced if the court grants the motion.” United States v. Cruz, 643 F.3d 639, 642 (8th Cir. 2011) (quotation omitted). '

McHenry argues that he should be allowed to withdraw his plea and reliti-gate the motion to suppress. As we have noted, production of the E911 Form after McHenry pleaded guilty was not newly discovered evidence supporting a claim that evidence found in the Motel 6 hotel room was the fruit of a Fourth Amendment violation in tracking the T-Mobile cell phone location. The use of exigent GPS tracking was disclosed at the suppression hearing, if not sooner. More significantly, “[a] guilty plea waives all suppression issues not expressly reserved by a conditional plea.” United States v. Freeman, 625 F.3d 1049, 1052 (8th Cir. 2010). Therefore, “a belated desire to appeal [or reargue] a suppression ruling is not fair and just reason warranting the withdrawal of a plea of guilty.” United States v. Smith, 422 F.3d 715, 724 (8th Cir. 2005), cert. denied, 546 U.S. 1127, 126 S.Ct. 1112, 163 L.Ed.2d 921 (2006).

McHenry responds that Ed-lund’s ineffective assistance in failing to challenge GPS tracking of the black T-Mobile cell phone without a warrant provides fair and just reason for withdrawal of his guilty plea. Edlund’s “performance can serve as the requisite ‘fair and just reason’ for withdrawal only if [McHenry] demonstrates both that his attorney’s performance was deficient and that he was prejudiced by it.” Cruz, 643 F.3d at 642 (quotation omitted). To establish prejudice, a defendant who claims that counsel ineffectively failed to challenge a search or seizure “must prove that the [Fourth Amendment] claim is meritorious.” United States v, Luke, 686 F.3d 600, 605 (8th Cir. 2012) (citations omitted). “To demonstrate a fair and just reason for withdrawal of a plea, appellant must do more than desire to contest the search; he must demonstrate that his position has merit.” United States v. Jones, 479 F.3d 975, 978 (8th Cir. 2007). McHenry cannot meet this rigorous standard.

As the district court recognized, the record raises substantial doubt that McHenry had standing to assert Fourth Amendment rights in a cell phone registered to another subscriber and being used by J.E. at the time of the GPS tracking. See United States v. Stringer, 739 F.3d 391, 396 (8th Cir. 2014). And even if he had standing to raise this claim, there is substantial doubt that McHenry had a reasonable expectation of privacy in cell phone location information voluntarily provided to T-Mobile. See United States v. Skinner, 690 F.3d 772, 777-81 (6th Cir. 2012). But like the district court, we can leave those serious questions unanswered. Sergeant Schmidt and Sergeant Snyder had a good faith belief that exigent circumstances — a known juvenile victim of sex trafficking currently being victimized by one or more traffickers — justified the request that T-Mobile disclose subscriber information and conduct exigent GPS tracking of the cell phone number, as authorized by the Storage Communications Act. See United States v. Gilliam, 842 F.3d 801, 805 (2d Cir. 2016) (“exigent circumstances based on credible information” of child prostitution justified obtaining cell phone location information without a warrant); Caraballo, 831 F.3d at 104-06.

McHenry further contends that Edlund’s failure to prepare McHenry for the change-of-plea hearing, his confusion about the plea and deficient hearing, and his lack of adequate time to consider pleading guilty provided fair and just reason to withdraw the plea. This contention is “plainly contradicted by the Rule 11 colloquy at [McHenry’s] change-of-plea hearing.” United States v. Trevino, 829 F.Sd 668, 672 (8th Cir. 2016); see Cruz, 643 F.3d at 642-43; United States v. Green, 521 F.3d 929, 932 (8th Cir. 2008). Allegations that contradict a defendant’s statements at the change of plea hearing “are inherently unreliable.” United States v. Harris-Thompson, 751 F.3d 590, 603 (8th Cir.), cert. denied, — U.S. -, 135 S.Ct. 415, 190 L.Ed.2d 301 (2014).

The district court expressly found at the change-of-plea hearing and in denying the motion to withdraw that McHenry entered a knowing, intelligent, and voluntary guilty plea. Tellingly, McHenry has never asserted his innocence of the crime which he admitted committing. The district court did not abuse its discretion in denying the motion to withdraw and request for reconsideration without a hearing.

III. Sentencing Issues.

A. Alleged Procedural Errors. The advisory guidelines provide for a 2-level adjustment if the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing' of the instant offense of conviction.” U.S.S.G. ■ § 3C1.1. Examples of conduct to which this adjustment applies include “threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so.” Id. at comment. n.4(A).

The district court’s June 2014 Order for Detention ordered that McHenry “shall have no contact either directly or indirectly ... with any of the named and unnamed victims and witnesses, including J.E., N.A., J.V., and K.P.” The August 2014 Plea Agreement provided that McHenry “understands and agrees ... that the Court is required to order the defendant to make restitution to the victims of his crime.” While awaiting sentencing, McHenry sent a long letter from jail to J.E., the victim of his offense of conviction. Toward the end, McHenry wrote: “if you could look out for me one last time sweetheart and send me a couple dollars. Anything would help.”

The Presentence Investigation Report recommended an obstruction of justice adjustment based on this letter. McHenry timely objected. The district court overruled the objection, finding that McHen-ry’s conduct met the obstruction of justice standards because, “[i]n the letter, [McHenry] manipulates the victim[], attempts to re-establish their relationship, and asks her for money, and acknowledges there is a no contact order in place.” On appeal, McHenry argues the district court erred in finding that his conduct constituted obstruction of justice because his “asking for help and financial support ... is more similar to the examples of non-obstructive conduct set forth at Application Note 5” to § 3C1.1. We disagree.

When he wrote the letter, McHenry had agreed that the court could order him at sentencing to pay restitution to J.E., the victim of his offense. J.E. was entitled to participate in the restitution proceedings, for example, by filing an affidavit relating to the amount of her loss. See 18 U.S.C. § 3664(d)(2)(A)(vi). Thus, McHenry’s pre-sentencing letter begging J.E. to send him money not only violated the court’s no-contact order, but was also an unlawful attempt to influence a prospective witness in the sentencing proceedings. Indeed, the attempt may well have been successful, as the district court’s Judgment in a Criminal Case recites that mandatory restitution was not being ordered “because the victim[] elected to not participate in any phase of determining the restitution order (18 U.S.C. § 3664(g)(1)).” The district court did not clearly err in imposing the obstruction of justice adjustment. See United States v. Replogle, 628 F.3d 1026, 1029-30 (8th Cir.), vacated on other grounds, 565 U.S. 938, 132 S.Ct. 401, 181 L.Ed.2d 251 (2011), adhered to, 678 F.3d 940 (8th Cir. 2012).

The guidelines provide for a 2-level reduction “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). When the defendant’s conduct results in an obstruction of justice adjustment, he does not qualify for an acceptance of responsibility reduction except in “extraordinary cases.” Id. at cmt. n.4. The district court imposed the obstruction of justice adjustment and denied McHenry an acceptance of responsibility reduction, finding that the “conduct in violation of his no contact order indicate[d] his lack of acceptance of responsibility,” and no extraordinary circumstances warranted an exception to the general rule. On appeal, McHenry argues the district court erred by imposing the obstruction of justice adjustment and therefore he should have received the acceptance of responsibility reduction. As we have upheld the obstruction of justice adjustment, the district court did not clearly err in denying acceptance of responsibility. In addition, we note that, during allocution at sentencing, McHenry stated, “I would like the record to show that I do not want this plea, and I wish to withdraw my plea.” “A defendant’s attempt to withdraw his guilty plea may be evidence that he did not accept responsibility for his offense.” United States v. Bastian, 603 F.3d 460, 465 (8th Cir. 2010).

B. Substantive Reasonableness. McHenry argues the district court abused its discretion and imposed a substantively unreasonable sentence when it failed to consider all the 18 U.S.C. § 3553(a) sentencing factors and gave inadequate weight to mitigating factors — his untreated depression, self-medicating with alcohol and drugs, and fetal alcohol syndrome. McHenry’s sentence of 293 months in prison, though clearly substantial, was a substantial downward variance from his advisory guidelines sentence of life in prison. “[I]t is nearly inconceivable that the court abused its discretion in not varying downward still further.” United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009). After careful review of the record, we conclude the district court did not abuse its wide sentencing discretion. See United States v. Roberts, 747 F.3d 990, 992 (8th Cir. 2014).

The judgment of the district court is affirmed.

      . The Honorable David S. Doty, United States District Judge for the District of Minnesota.

      . The Stored Communications Act authorizes an electronic communication service provider to disclose subscriber information to a law enforcement officer "if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of .information relating to the emergency.” 18 U.S.C. § 2702(c)(4). Snyder requested current subscriber information, call detail records with cell site information, and real-time location of the mobile device. See generally United States v. Caraballo, 963 F.Supp.2d 341, 346, 350 (D. Vt. 2013), aff'd, 831 F.3d 95, 99-100 (2d Cir. 2016).

      . This claim is without merit. The government introduced at the suppression hearing Sergeant Schmidt’s March 12, 2014 state court Application for Search Warrant and Supporting Affidavit. In that Application, Schmidt averred:
      An exigent tracking order was put up [on] the phone number in the ad. The GPS data indicated the phone was at the Motel 6 in Roseville, MN and the phone was showing in the north east section of the hotel.

        Even if the government did not produce the E911 Form until after new counsel was appointed, the defense knew no later than the suppression hearing that exigent GPS tracking of the phone number had led police to
      Room 114 of the Motel 6, where J.E.’s admissions resulted in McHenry’s arrest. Magistrate Judge Noel found that the GPS data supported his finding of probable cause to arrest McHenry.


author: RILEY, Chief Judge.

text:
    Patricio GUZMAN-ORTIZ, Petitioner-Appellant v. UNITED STATES of America, Respondent-Appellee
    No. 15-3184
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 21, 2016
    Filed: February 27, 2017

      Counsel who presented argument on behalf of the appellant and appeared on the brief was Ronald A. Parsons, Jr., of Sioux Falls, SD.
    Counsel who presented argument on behalf of the appellee was Kevin Koliner, AUSA, of Sioux Falls, SD. The following attorney appeared on the appellee brief; Stephanie Carlson Bengford, AUSA, of Sioux Falls, SD.
    Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
   RILEY, Chief Judge.

Patricio Guzman-Ortiz was convicted of conspiring to distribute 500 grams or more of a mixture or substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. This court affirmed his conviction and sentence along with those of a co-defendant on direct appeal. See United States v. Chantharath, 705 F.3d 295, 298 (8th Cir. 2013). Guzman-Ortiz then moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255(a). The district court denied his request for post-conviction relief without granting an evidentiary hearing. Guzman-Ortiz appeals, arguing (1) he was unconstb tutionally deprived of effective assistance of counsel, and (2) at a minimum, the district court should have held an eviden-tiary hearing. We disagree and affirm.

1. BACKGROUND

Following his March 2010 arrest, Guzman-Ortiz and nine co-defendants were charged with knowingly and intentionally conspiring to distribute a controlled substance. Guzman-Ortiz and a co-defendant, Viengxay Chantharath, were tried jointly. See Chantharath, 705 F.3d at 298.

At trial, the government sought to prove the defendants were members of the same conspiracy to distribute methamphetamine. See id. at 298-300. In opening remarks, the government explained the jury would not hear “that these two defendants knew each other” because this “was not a small conspiracy involving just two people, but instead was a much larger conspiracy involving a variety of people, not all of whom knew each other, a conspiracy that was forced to evolve as members of that conspiracy were arrested.” Evidence demonstrated Chantharath, who was distributing methamphetamine in Worthington, Minnesota, and Sioux Falls, South Dakota, became acquaintéd with co-defendant Aurelio Solorio in 2009 and began dealing to Solorio. See id. at 298. Later, Solorio started obtaining methamphetamine directly from Chantharath’s supplier, Mario Maldonado. See id. In summer 2009, law enforcement began surveillance of a motel in Sioux Falls where Chantharath had allegedly been selling methamphetamine. See id. at 298-99. Chantharath was eventually arrested in connection with that surveillance, but was released in November 2009. Id. at 299. After his release, Solorio helped Chantharath get back in business by giving Chantharath methamphetamine to sell. Id Chantharath was arrested one month later when law enforcement raided a motel room in Sioux Falls and Chanthar-ath arrived at the room with 12.1 grams of methamphetamine on him. Id.

Guzman-Ortiz, on the other hand, was distributing methamphetamine in St. Cloud, Minnesota, and out of a “stash house” in Monticello, Minnesota. Id. In January 2010, Guzman-Ortiz met Solorio when Guzman-Ortiz happened to enter a bathroom in a Minneapolis nightclub and came upon Solorio using methamphetamine. Id. Guzman-Ortiz offered to get Solorio methamphetamine, and Solorio accepted. Id. Guzman-Ortiz and Solorio met again on three separate occasions. See id. at 299-300. On their final meeting, Guzman-Ortiz was following Solorio in a separate vehicle out of Sioux Falls on their way to Worthington when Guzman-Ortiz was pulled over. Id. at 300. Law enforcement recovered from Guzman-Ortiz’s vehicle $29,000 in cash and a scale with white, powdery residue, and Guzman-Ortiz was arrested. Id. Later, law enforcement executed search warrants in Guzman-Ortiz’s apartment and stash house and recovered a 9-millimeter pistol, a modified AK-47 rifle, an SKS rifle, and a 9-millimeter rifle. Id.

The jury found both defendants guilty of entering the charged conspiracy. The district court sentenced Guzman-Ortiz to 262 months imprisonment — later reduced to 210 months. See U.S.S.G. § 2Dl.l(c)(3). On direct appeal, we affirmed the sufficiency of the evidence supporting Guzman-Ortiz’s conviction, the application of a sentencing enhancement, and the substantive reasonableness of his sentence. See Chantharath, 705 F.3d at 301-02, 304-05.

In April 2014, asserting he was denied effective assistance of counsel in violation of his Sixth Amendment right under the United States Constitution, Guzman-Ortiz filed a pro se motion to vacate, set aside, or correct his sentence. See 28 U.S.C. § 2255(a). Guzman-Ortiz contended his counsel’s performance was unconstitutionally deficient because his counsel failed to (1) cross-examine Solorio competently, “the supposed linchpin between Guzman-Ortiz and Chantharath, regarding the charge that Guzman-Ortiz and Chanthar-ath were part of the same conspiracy”; (2) present a competent closing argument to the jury; and (3) challenge the drug quantities attributed to him at his sentencing hearing. As a result, Guzman-Ortiz claimed the jury was left “with the incorrect but uneontested impression that Guzman-Ortiz, as charged, was part of a single and far larger drug trafficking conspiracy than was actually the case,” and the district court sentenced Guzman-Ortiz at a higher base offense level due to incorrect drug quantity calculations.

Guzman-Ortiz’s counsel submitted a sworn affidavit denying Guzman-Ortiz’s claims. The government denied the allegations set forth in the petition and moved to dismiss. The petition was referred to a magistrate judge, who issued a comprehensive report and recommendation proposing that the district court deny the § 2255 motion without an evidentiary hearing. Adopting the magistrate judge’s report and recommendation, the district court decided no evidentiary hearing was necessary and denied Guzman-Ortiz’s claim to relief. Guzman-Ortiz subsequently moved for a certificate of appealability, see id. § 2253(c)(2); Fed. R. App. P. 22(b)(1), which the district court granted. Guzman-Ortiz appeals. See 28 U.S.C. §§ 1291, 2253(a) (appellate jurisdiction over a final order in a § 2255 proceeding).

II. DISCUSSION

“When addressing post-conviction ineffective assistance claims brought under § 2255, we review the ineffective assistance issue de novo and the underlying findings of fact for clear error.” United States v. Regenos, 405 F.3d 691, 692-93 (8th Cir. 2005). A district court’s denial of an evidentiary hearing on a § 2255 motion is reviewed for an abuse of discretion. See id. at 693.

To demonstrate he received ineffective assistance of counsel, Guzman-Ortiz must show (1) his counsel’s performance was deficient, and (2) the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Demonstrating deficient performance requires showing “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). To satisfy the second prong of Strickland, the defendant is required to show “ ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

At the heart of Guzman-Ortiz’s claim is his assertion that his attorney should have focused his defense strategy around attacking the existence of the conspiracy and arguing, to the extent Guzman-Ortiz was involved in the distribution of methamphetamine, he was involved only in a smaller, Minnesota-based drug distribution network unrelated to the charged conspiracy. Contending Solorio was his only connection to the conspiracy, Guzman-Ortiz asserts it was “essential” his counsel’s cross-examination of Solorio forced Solorio “into admitting that Solo-rio’s relationship with Guzman-Ortiz only began once Solorio’s connection with Chan-tharath had ended.”

Guzman-Ortiz’s counsel’s cross-examination strategy was to undercut the government witnesses’ credibility by (1) exposing their history with drugs and reduced ability to recall, and (2) attacking their self-serving incentive to testify. In his cross-examination of Solorio, counsel covered So-lorio’s history with drug use and his prior drug convictions. Counsel also questioned Solorio about the life sentence Solorio would have faced had he gone to trial, his plea deal with the government, his duty under that deal to cooperate with the government, and the sentence reduction the government would award him as a result of his cooperation at trial.

The district court concluded cross-examination of Solorio was not deficient because “[w]ith or without that testimony, the jury could find that Guzman-Ortiz was a part of the conspiracy because he entered into the conspiracy with one of the co-conspirators.” Guzman-Ortiz claims the district court “misses the point” because the “jury would have been much more likely to accept the defense theory” had counsel cross-examined Solorio on the varying timelines. Guzman-Ortiz merely speculates this line, of questioning would have influenced the jury. On direct appeal we made clear that, even absent evidence Guzman-Ortiz and Chantharath “knew one another or were aware of each other’s role in the conspiracy,” the evidence presented at trial was sufficient to support the jury’s finding that Guzman-Ortiz and Chantharath were involved “in a single overall conspiracy to distribute methamphetamine.” Chantharath, 705 F.3d at 301. The point Guzman-Ortiz wanted to make was not lost on the jury because Chantharath’s attorney, who had the first opportunity to cross-examine Solorio, actually made that point by questioning Solorio about when Solo-rio’s relationship with Chantharath ended and when his relationship with Guzman-Ortiz began. Solorio admitted that by the time he met Guzman-Ortiz in January 2010, he was no longer dealing with Chan-tharath.

Attacking a witness’s credibility and motives are reasonable cross-examination strategies. In this case, they were not the only available strategies, and perhaps not the most effective, but they were not “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052; cf. United States v. Orr, 636 F.3d 944, 952 (8th Cir. 2011) (recognizing two instances in which our court has held counsel’s cross-examination was incompetent: (1) “ ‘allowing] inadmissible devastating evidence before the jury,’ ” and (2) “ ‘failing] to cross-examine a witness who made grossly inconsistent prior statements’ ” (quoting Whitfield v. Bowersox, 324 F.3d 1009, 1017 (8th Cir.), vacated in part on other grounds, 343 F.3d 950, 950 (8th Cir. 2003))). The choice to focus on “some issues to the exclusion of others” carries with it “a strong presumption that [counsel] did so for tactical reasons rather than through sheer neglect.” Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003). That presumption in favor of competent counsel applies with “particular force where a petitioner bases his ineffective-assistance claim solely on the trial record,” as Guzman-Ortiz does here. Id. The district court did not err in ruling counsel’s cross-examination was not constitutionally deficient.

Next, Guzman-Ortiz claims his counsel’s closing argument was deficient for the same reason — because he failed to emphasize the utter disconnect between Guzman-Ortiz and Chantharath. “[Deference to counsel’s tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage.” Id. at 6, 124 S.Ct. 1. Accordingly, review of closing argument is “highly deferential” to counsel’s chosen trial strategy. Id.

Although the major theme in Guzman-Ortiz’s counsel’s closing was the lack of credibility of the government’s witnesses, counsel did argue that, to the extent the jury believed Guzman-Ortiz had been involved in dealing methamphetamine, he was only involved in a separate, smaller conspiracy. Counsel also highlighted that no one had found Guzman-Ortiz in possession of methamphetamine and no witness affirmatively had connected Chantharath and Guzman-Ortiz. Counsel directed the jury’s attention to juror instruction number five, which covered multiple conspiracies. Counsel proclaimed that there was no “credible proof, much less credible proof beyond a reasonable doubt, that [Guzman-Ortiz] was distributing drugs with the particular conspiracy alleged by the Government. That’s not a technicality. Look at Jury Instruction No. 5. That’s the law.” This was not a deficient closing argument.

Guzman-Ortiz also contends his counsel was incompetent because he failed to challenge the quantities of methamphetamine attributable to him for purposes of sentencing. See U.S.S.G. § 2Dl.l(c)(3). Guzman-Ortiz inaccurately describes the record because his attorney did challenge the quantities attributable to him by objecting to Guzman-Ortiz’s pre-sentence report and renewing his objection at the sentencing hearing. While the district court overruled his objection and ultimately attributed 1,713.3 grams of methamphetamine to Guzman-Ortiz, the district court explained it gave Guzman-Ortiz “every benefit that was based on the testimo-' ny received,” saying “if a person testified to a range, I always took the smaller range.” Dismissing this argument as a basis for ineffective assistance of counsel, the district court commented that not only was counsel’s strategy “not deficient,” it was actually “an effective strategy.” We agree.

Finally, it was not an abuse of discretion by the district court to forgo holding an evidentiary hearing before dismissing Guzman-Ortiz’s § 2255 motion. A district court may deny an evidentiary hearing where (1) accepting the petitioner’s allegations as true, the petitioner is not entitled to relief, or (2) “the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” United States v. Sellner, 773 F.3d 927, 929-30 (8th Cir. 2014) (citation omitted). In denying Guzman-Ortiz’s request for an evidentiary hearing, the district court concluded Guzman-Ortiz’s allegations “are either contradicted by the record or would not entitle him to relief.” Review of the trial and sentencing transcripts demonstrates Guzman-Ortiz incorrectly portrayed the record in his challenges to his counsel’s representation during closing argument and at the sentencing hearing; thus, no further factual development of his claims was necessary before determining those claims did not entitle Guzman-Ortiz to relief.

III. CONCLUSION

Because we agree with the district court’s conclusion that Guzman-Ortiz was not deprived of his constitutional right to effective assistance of counsel, we affirm the dismissal of his § 2255 motion without further hearing.

      . The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, adopting the report and recommendation of the Honorable Veronica L. Duffy, United States Magistrate Judge for the District of South Dakota.

      . A more complete version of the facts supporting the underlying conviction is set forth in Chantharath, 705 F.3d at 298-300.

      . At the time of sentencing, the quantity of methamphetamine the district court found attributable to Guzman-Ortiz resulted in a base offense level of 34. Amendment 782 to the United States Sentencing Guidelines (U.S.S.G.) retroactively reduced each rung of the drug quantity table in U.S.S.G. § 2Dl.l(c) by two levels, therefore reducing Guzman-Ortiz’s base offense level to 32 and the bottom of his amended guidelines range from 262 to 210 months imprisonment.

      . Before the district court, Guzman-Ortiz also argued his counsel was ineffective on Guzman-Ortiz's direct appeal, but he has not raised that basis in his appeal to our court.

      . The instruction stated, in part: "[I]f the United States has failed to prove beyond a reasonable doubt that the defendant was a member of the conspiracy which is charged, then you must find the defendant not guilty even though he may have been a member of some other conspiracy.”

      . Guzman-Ortiz also asserts his counsel should have challenged the quantities in cross-examination of the witnesses at trial. But counsel’s trial strategy was to emphasize the untrustworthiness of the witnesses, and, as the government suggests, "additional cross questions regarding drug quantity might have yielded responses that only served to reinforce to the jury the number of times that Guzman-Ortiz was involved in drug transactions.”


author: MELLOY, Circuit Judge.

text:
    Edward BLACKORBY, Plaintiff-Appellee v. BNSF RAILWAY COMPANY, Defendant-Appellant Secretary of Labor, Amicus on Behalf of Appellee
    No. 15-3192
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 21, 2016
    Filed: February 27, 2017.
    Rehearing and Rehearing En Banc Denied April 4, 2017

      Counsel who presented argument on behalf of the appellant was Bryan P. Neal, of Dallas, TX. The following attorneys appeared on the appellant brief; Kendall Paul Day, of Kansas City, MO., David M. Pryor, of Fort Worth, TX., Olawale O. Akinmola-dun, of Kansas City, MO.
    Counsel who presented argument on behalf of the appellee was Jeff R. Dingwall, of San Diego, CA. The following attorneys also appeared on the appellee brief; Erica Mynarich, of Springfield, MO., Charles Kiel Garella, of Charlotte, NC.
    Couhsel who presented argument on behalf of the amicus, Secretary of Labor, in support of the appellee was Sarah J. Starrett, US Department of Labor, of Washington, DC. The following attorney appeared on the amicus brief; Cerissa Cafasso, US Department of Labor, of Washington, DC.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

       Judge Riley and Judge Kelly did not participate in the consideration or decision of this matter.

   MELLOY, Circuit Judge.

BNSF Railway Company (“BNSF”) disciplined its employee, Edward Blackorby, for not promptly reporting a workplace injury. Blackorby sued, claiming BNSF’s discipline violated the employee-protections provision of the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109(a)(4). The case went before a jury, and after the close of evidence, the jury was instructed that Blackorby need not establish intentional retaliation to prevail on his claim. The jury found for Blackorby and awarded him damages for emotional distress. Because we conclude that this Court’s decision in Kuduk v. BNSF Railway Co., 768 F.3d 786 (8th Cir. 2014), required Blackorby to establish intentional retaliation and that the jury instructions did not compel such a finding, we reverse and remand.

I.

Blackorby worked on a traveling steel gang that repaired and maintained track for BNSF. While working on a dusty, windy day, Blackorby began to experience discomfort in his right eye-. After work, Blackorby told a union foreman that he thought something had entered his eye, and the foreman recommended saline drops. The drops soothed Blackorby’s eye, but it still felt “scratchy.” Two days after the discomfort began, Blackorby had an unrelated root canal, the dentist gave him pain pills, and he went home to bed. But when Blackorby woke up,on the third day, he noticed his eye had begun to swell. And by the fourth day, a Sunday, Blackorby’s eye had significantly worsened. He went to the only place he thought an eye doctor would be available on a Sunday: a'mall LensCrafters. There, a doctor removed a small metallic object from the surface of Blackorby’s cornea.

Under Rule 1.2.5 of BNSF’s Maintenance of Way Operating Rules, “[a]ll cases of personal injury, while on duty or' on company property, must be immediately reported to the proper manager and the prescribed form completed.” The rule further provides that “[i]f an employee receives a medical diagnosis of occupational illness, the employee must report it immediately to the proper manager.”

Accordingly, Blackorby called Assistant Roadmaster Douglas Turney, a BNSF manager, immediately after the doctor removed the object from his eye. Blackorby told Turney that an object entered his eye at work, that a doctor removed the object, and that he had a follow-up appointment with the doctor the next day. Turney then relayed this information to James Sadler, also a BNSF manager. Sadler asked to accompany Blackorby to his follow-up appointment. Blackorby called his union representative, and the representative said it would be fine if Sadler went to the doctor’s appointment so long as Sadler did not go into the examining room or ask for Blac-korby’s records. As a result, Blackorby acquiesced to Sadler’s request, but he did not “feel comfortable” with Sadler coming to his appointment.

The next day, Blackorby went to his follow-up appointment and learned that his eye would be okay. After receiving the good news, Blackorby walked out to the lobby of the LensCrafters where Sadler was waiting. According to Blackorby, Sad-ler asked him if he wanted to formally report the injury. Blackorby said he did want to report the injury, but Sadler “was kind of adamant on [Blackorby] not reporting it.” Sadler told him that Blackorby “didn’t have to say it happened at work,” and that he “could say it happened at home or ... say it happened somewhere else if [Blackorby] felt comfortable with that.” Blackorby asked whether he would “have to go through an investigation” if he reported the injury. Sadler said that he “hated investigations, [and] he’d rather not have them.” Nevertheless, Sadler said “it was up to [Blackorby]”' to decide whether to formally report the injury.

Blackorby “was pretty upset” about the conversation with Sadler and called Tur-ney to make clear that he wanted to file a formal injury report. Although Turney already knew about Blackorby’s injury, Blackorby felt the need to make the phone call because he “didn’t know what [Sad-ler’s] intention was.” During this phone call, Turney told Blackorby that it would be “late reporting” if Blackorby reported the injury. Blackorby felt like Turney and Sadler “were discouraging [him] from reporting.”

Six days after Blackorby first began experiencing discomfort in .his eye, he filed his formal injury report. Soon after, Blac-korby received a letter informing him that he was being investigated by BNSF. He “wasn’t too happy” about the letter. He did not think his injury was reported late because he had immediately told Turney about the injury after the doctor discovered the metal in his eye. According to Blac-korby, he would have reported the injury the day he began experiencing discomfort if he had known at the' time he had metal in his eye.

After an investigation and hearing, Sad-ler determined that Blackorby had violated Rule 1.2.5. Accordingly, Blackorby received a Level S (Serious), 30-Day Record Suspension and a one-year probationary period. The effect of this discipline was that Blackorby faced a 80-day suspension without pay if he committed another rule violation during the one-year probationary period.

Blackorby did not ultimately receive any time off without pay as a result of his Record Suspension. In the meantime, however, Blackorby appealed the discipline within BNSF. Blackorby then filed a complaint with the Occupational Health and Safety Administration, which issued find--ings that BNSF violated Blackorby’s rights under the FRSA. These findings were challenged before an administrative law judge, but while the challenge was still pending, Blackorby filed the present action in federal district court for de novo review pursuant to 49 U.S.C. § 20109(d)(3).

The facts detailed above were presented to a jury through evidence and testimony. At trial, Sadler testified that Blackorby could not have been disciplined under Rule 1.2.5 had Blackorby not filed the injury report. BNSF, moreover, stipulated that “management/personnel[ ] may earn bonuses based in part on the rates and/or occurrence of employee injuries.” Blackor-by also testified of the worry and stress he experienced during the year-long probationary period. He stated, “[I]t was pretty upsetting because you know you can’t mess up. I mean, when that’s on your record, something major could actually end your career, and you ain’t going to go out and get another railroad job. It ain’t going to happen.”

After the close of evidence, the district court instructed the jury on the elements of Blackorby’s FRSA claim. The jury was instructed that “Blackorby is not required to show that the defendant had a retaliatory motive but such motive will prove a violation of [the FRSA] if it contributed or tended to affect in any way the outcome of the decision to take adverse action.” As to the damages, BNSF proposed an instruction stating that any emotional distress damages “must be supported by competent evidence of genuine injury.” The district court rejected this instruction, however, instead instructing the jury as follows: “[Y]ou must award plaintiff such sum as you find will fairly and justly compensate plaintiff for any damages you find plaintiff sustained as a direct result of the defendant’s decision to discipline plaintiff. You must determine the amount of any damages sustained by plaintiff, such as emotional distress damages.”

The jury returned a verdict for Blackor-by, awarding him $58,280 in damages for emotional distress. The district court denied BNSF’s motion for judgment as a matter of law, denied BNSF’s motion for a new trial, and awarded costs and attorneys’ fees to Blackorby. BNSF now appeals.

II.

Although BNSF raises several arguments, we resolve the present appeal on the issue of the district court’s jury-instructions. “We review a district court’s jury instructions for an abuse of discretion.” McCoy v. Augusta Fiberglass Coatings, Inc., 593 F.3d 737, 744 (8th Cir. 2010). “A district court possesses ‘broad discretion in instructing the jury, and jury 'instructions do not need to be technically perfect or even a model of clarity.’ ” Id. (quoting Brown v. Sandals Resorts Int’l, 284 F.3d 949, 953 (8th Cir. 2002)). But the jury instructions, “taken as a whole,” must “fairly and adequately represent the evidence and applicable law in light of the issues presented to the jury in a particular case.” Id. (quoting Brown, 284 F.3d at 953). “[Ejven if we find that a district court erroneously instructed the jury, we will reverse only where the error affects the substantial rights of the parties.” Am. Bank of St. Paul v. TD Bank, N.A., 713 F.3d 455, 468 (8th Cir. 2013) (alteration in original) (quoting Per v. Connolly, 666 F.3d 1120, 1126 (8th Cir. 2012)).

“[A] district court’s decision to reject a proposed jury instruction also is reviewed for an abuse of discretion.” Retz v. Seaton, 741 F.3d 913, 919 (8th Cir. 2014). “A party ‘is not entitled to a particularly worded instruction.’ ” Id. (quoting United States v. Meads, 479 F.3d 598, 601 (8th Cir. 2007)). And “[tjhere is no ábuse of discretion in a denying a [party’s] requested instruction ‘if the instruction[s] actually given by the trial court adequately and correctly cover[ ] the substance of the requested instruction.’ ” Id. (first alteration added) (quoting Meads, 479 F.3d at 601).

A.

The FRSA’s employee-protections provision protects certain acts by railroad employees. See 49 U.S.C. § 20109(a). It provides that “[a] railroad carrier ... may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee’s lawful, good faith act done ... (4) to notify, or attempt to notify, the railroad carrier ... of a work-related personal injury or work-related illness.” Id. To establish a prima facie case under the employee-protections provision, an employee must show “(i) he engaged in a protected activity; (ii) [the railroad carrier] knew or suspected, actually or constructively, that he engaged in the protected activity; (iii) he suffered an adverse action; and (iv) the circumstances raise an inference that the protected activity was a contributing factor in the adverse action.” Kuduk, 768 F.3d at 789 (citing 49 U.S.C. § 42121(b)(2)(B)®); see also 49 U.S.C. § 20109(d)(2) (incorporating into the FRSA the standards and burdens of proof set forth under 49 U.S.C. § 42121(b)).

In the present case, the parties dispute whether the contributing-factor causation standard required Blackorby to show that BNSF intentionally retaliated against him for reporting his injury. Blackorby and the United States (as amicus curiae) both urge this Court to follow Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152 (3d Cir. 2013). In Araujo, the Third Circuit considered whether an employee’s injury report was a contributing factor to his discipline. Id. at 160. The court noted that “the term ‘contributing factor’ is a term of art that has been elaborated upon in the context of other whistleblower statutes.” Id at 158. The court stated that a contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of [the employer’s] decision. This test is specifically intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a significant, motivating, substantial, or predominant factor.” Id at 158 (emphasis omitted) (quoting Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993)); see also 135 Cong. Rec. 5033 (1989) (using the same language to explain why Congress incorporated the contributing-factor standard into the Whistleblower Protection Act). The court further noted that, in the context of other whistleblower statutes employing the contributing-factor standard, “an employee ‘need, not demonstrate the existence of a retaliatory motive on the part of the employee taking the alleged prohibited personnel action in order to establish that his disclosure was a contributing factor to the personnel action.’ ” Araujo, 708 F.3d at 158 (quoting Marano, 2 F.3d at 1141).

The Third Circuit extended this interpretation of the contributing-factor standard to the FRSA’s employee-protections provision. Id. at 159-61. In so doing, the court noted that the contributing-factor standard was incorporated into the FRSA in 2007 after Congress examined systemic problems in the railroad industry. Id. at 157, 159-61. The court explained that “the House Committee on Transportation and Infrastructure held a hearing to ‘examine allegations ... suggesting that railroad safety management programs sometimes either subtly or overtly intimidate employees from reporting on-the-job injuries.’” Id. at 159 (alteration in original) (quoting Impact of Railroad Injury, Accident, and Discipline Policies on the Safety of America’s Railroads: Hearing Before the H. Comm, on Transp. and Infrastructure, 110th Cong, at v (2007) (memorandum from Committee’s Majority Staff)). The court noted congressional concern that “the underreporting of railroad employee injuries has long been a particular problem.” Id (quoting Impact of Railroad Injury, 110th Cong, at vi). And the court noted concerns “that some railroad supervisors intimidated employees from reporting injuries to the [Federal Railroad Administration (“FRA”) ], in part, because their compensation depended on low numbers of FRA reportable injuries within their supervisory area.” Id. at 161 n.7. Citing this problematic history of injury reporting and railroad programs, the court reasoned that Congress incorporated the contributing-factor standard into the FRSA in order to “reduce[ ] an employee’s burden in making a prima facie case.” Id. According to the Araujo court, this reduced burden meant— consistent' with whistleblower statutes using the contributing-factor standard — that “an employee need not ascribe motive to the employer.” See id.

BNSF, however, argues that this Court has already rejected Araujo. In Kuduk, we considered whether, under the FRSA, an employee established a prima facie case that BNSF terminated the employee for his safety report. 768 F.3d at 789-92. In that case, a supervisor, who was aware of the employee’s prior safety report, reported the employee for walking between the rails — a serious violation of BNSF rules. Id. at 788. Because the employee already had other serious violations on his record, the employee was discharged by BNSF. Id. Relying on Araujo and a “cat’s paw” theory of causation, the employee argued that, because the supervisor knew about the employee’s safety report and because it was disputed whether the employee even violated BNSF rules, the employee had established that the safety report was a contributing factor to the supervisor reporting the employee. Id. at 790-91. The Kuduk court, however, disagreed. Id. at 791. The court concluded that “the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” Id. (emphasis added). The court then noted that there was no evidence to suggest that the supervisor reacted negatively to the safety report. Id. Further, the court noted that there was no evidence that the BNSF manager who actually disciplined the plaintiff knew about the safety report and, therefore, affirmed the district court’s grant of summary judgment to BNSF. Id. at 791, 793. .

We find Kuduk controlling. The court reasoned from the general language of the statute that the “essence” of the FRSA’s employee-protections provision is “discriminatory animus.” Id at 791 (quoting Staub v. Proctor Hosp., 562 U.S. 411, 1193, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011)). And, in a footnote, the court expressly rejected the Araujo conclusion which Blackorby now urges this panel to adopt. Id. at 791 n.4 (“In our view, the Araujo panel may have improperly relied on Maraño ... for its no-need-to-show-motive conclusion because the court in Maraño was construing a federal employee whistleblower statute that required only an ultimate showing of causation in fact (‘because of), not discrimination.”).

Accordingly, regardless of whether we find Araujo persuasive, we are bound to follow Kuduk. See United States v. Anderson, 771 F.3d 1064, 1066 (8th Cir. 2014) (“[I]t is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel.” (alteration in the original) (quoting United States v. Betcher, 534 F.3d 820, 823 (8th Cir. 2008))). Because we find no plausible way for this panel to distinguish Kuduk’s conclusion that a showing of intentional retaliation is required under the FRSA’s employee-protections provision, we hold that the district court abused its discretion when it instructed the jury that Blackorby need not establish intentional retaliation. “Taken as a whole,” the instruction did not “fairly and adequately represent” the law in this Circuit. See McCoy, 593 F.3d at 744 (quoting Brown, 284 F.3d at 953). Under Kuduk, a jury must find intentional retaliation prompted, at least in part, by the protected activity. The jury instruction in the present case did not require the jury to make such a finding.

Having found the jury instruction improper, we consider the proper disposition of this case. Blackorby argues that he has presented sufficient evidence of intentional retaliation under the contributing-factor standard and is therefore entitled to a new trial on remand. We agree. Under the contributing-factor standard, “[a] prima facie case does not require that the employee conclusively demonstrate the employer’s retaliatory motive.” Kuduk, 768 F.3d at 791 (alteration in original) (emphasis added) (quoting Coppinger-Martin v. Solis, 627 F.3d 745, 750 (9th Cir. 2010)). Indeed, the standard is “more lenient” than other causation standards. Id. at 792. Viewed in the light most favorable to Blackorby, the evidence shows that two BNSF managers repeatedly discouraged him from filing his injury report. BNSF stipulated, moreover, that managers may earn bonuses based on the rates of employee injuries — one of the very concerns examined by Congress before incorporating the contributing-factor standard into the FRSA. See Araujo, 708 F.3d at 159, 161 n.7. This evidence, taken together, sufficiently “raise[s] an inference” that Blac-korby’s injury report prompted, at least in part, intentional retaliation by BNSF. See Kuduk, 768 F.3d at 789.

B.

Before concluding, we briefly address whether the district court erred in rejecting BNSF’s proposed jury instruction regarding emotional distress damages. BNSF proposed an instruction stating that claims of emotional distress “must be supported by competent evidence of genuine injury.” We agree that this instruction correctly states the law. See Forshee v. Waterloo Indus., Inc., 178 F.3d 527, 531 (8th Cir. 1999) (“An award of damages for emotional distress must be supported by competent evidence of ‘genuine injury.’ ” (quoting Carey v. Piphus, 435 U.S. 247, 264 n.20, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978))). But we disagree that the district court abused its discretion by rejecting the instruction. Such an instruction, without more, may be misleading because emotional distress damages need not be supported by “medical or other expert evidence.” See Bennett v. Riceland Foods, Inc., 721 F.3d 546, 552 (8th Cir. 2013). Further, “[a] plaintiffs own testimony, along with the circumstances of a particular case, can suffice to sustain the plaintiffs burden in this regard.” Kim v. Nash Finch Co., 123 F.3d 1046, 1065 (8th Cir. 1997) (quoting Turic v. Holland Hosp., Inc., 85 F.3d 1211, 1215 (6th Cir. 1996)).

III.

Under Kuduk, a plaintiff must establish intentional retaliation to prevail on an FRSA claim. Because the instruction in this case did not require the jury to make such a finding, we reverse and remand for proceedings consistent with this opinion.

      . In effect, Blackorby argues that we should overrule Kuduk. He may properly raise this contention in a petition for rehearing en banc.


text:
    Kelly HEIM, Plaintiff-Appellant v. BNSF RAILWAY COMPANY, Defendant-Appellee
    No. 15-3532
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 21, 2016
    Filed: February 27, 2017
    Rehearing and Rehearing En Banc Denied April 7, 2017

      Counsel who presented argument on behalf of the appellant was James H. Raster, of Minneapolis, MN. The following attorney(s) appeared on the appellant brief; Matthew H. Morgan, of Minneapolis, MN., Nick D. Thompson, of Minneapolis, MN., and Adam W. Hansen of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Katherine Q. Martz, of Lincoln, NE. In addition to Ms. Martz, the following attorney(s) appeared on the appellee brief; Thomas Carl Sattler, of Lincoln, NE., Bryan P. Neal, of Dallas, TX., and Micah Randall Prude, of Dallas, TX.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

       Judge Riley and Judge Kelly did not participate in the consideration or decision of this matter.

   MELLOY, Circuit Judge.

Kelly Heim, a track worker for BNSF Railway Company (“BNSF”), was seriously injured when a rail rolled onto his foot. BNSF disciplined Heim for alleged violations of BNSF rules that led to this injury. Heim sued, claiming BNSF’s discipline violated the employee-protections provision of the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109(a)(4). The district court granted summary judgment for BNSF, and we now affirm.

I.

On the day of his injury, Heim was working as part of a section gang near Douglas, Wyoming. The section gang was responsible for replacing worn material underneath the rail. This process, known as “rail seat abrasion,” requires de-clipping and swinging the rail into the center of the track. The loose rail, however, remains under tension, and there is a risk that it may roll or tip unpredictably. During a morning safety briefing, the gang was allegedly warned of this risk and instructed to remain out of the “danger zone.” The danger zone is the area between the loose and fixed rail. In this zone, the loose rail could move and pinch a worker against a fixed rail. Loose rail tends to tip towards fixed rail, but can tip either way. No BNSF rule directly prohibits employees from stepping into the danger zone, but general BNSF rules require employees to take precautions to avoid injury.

At the time of his injury, Heim was responsible for picking up “other track material” (e.g., clips, spikes, and anchors). BNSF workers pick up these materials because they may pose a tripping hazard or get “tamped into the ballast.” While performing this task, Heim noticed a stray rail clip in the danger zone. According to Heim, the loose rail was sitting flat at the time and did not appear to be moving. He looked both ways to locate the nearest on-track machines and, believing it was safe under the circumstances, stepped between the loose and fixed rails to retrieve the clip. After Heim did so, the loose rail jumped onto his left foot, fracturing it. The rail pinned Heim’s foot to the ground, but the rail did not pinch him against the fixed rail — the “danger” typically associated with the danger zone. Heim called out to his coworkers for help, and after the rail was finally removed from his foot 30 minutes later, Heim was transported to the hospital.

According to Heim, his immediate supervisor, Jim White', pressured him into filling out a formal personal injury report at the hospital. Heim did not want to fill out the form at the time because he had taken prescription pain medication. White, however, “insisted that it needed to be filled out right then and there.” When Heim filled out the report and checked the box indicating that the injury was caused by the conduct of another person, White “coached” Heim to change his answer. Heim acquiesced, scratching out his original answer and indicating that the injury was not caused by another person. Heim also wrote that he could have prevented the injury by picking up the clip from the other side of the rail or leaving the clip until he could retrieve it later.

One week after Heim’s injury, he received a notice of investigation from BNSF. The notice requested that Heim attend a hearing to determine “his responsibility, if any, in connection with [his] alleged failure to comply with instructions given at the morning briefing and failure to be alert & attentive when [he] placed his foot in harms [sic] way between the loose rail and fixed rail.” At the hearing, Heim stated that he believed it was safe to step between the rail under the circumstances and that he could not have prevented the injury without also failing to perform his job that day (ie., remove debris from the track). A BNSF Division Engineer, Samuel Turnbull, reviewed the transcript from the hearing and determined that Heim violated BNSF rules requiring employees to be alert, attentive, and careful to prevent injury. As a result, Heim was given a Level S (Serious), 30-Day Record Suspension and a one-year probationary period. The effect of this discipline was that Heim faced a 30-day suspension without pay if he committed another rule violation during the one-year probationary period. Heim ultimately did not receive any time off without pay as a result of his Record Suspension.

Heim filed suit against BNSF, claiming that its discipline violated the FRSA. In his discovery deposition, Turnbull testified that he was “probably guilty” of stepping too close to the loose rail himself, and that “there probably isn’t an engineering employee out on the track that at one point in time has not either stepped that close [to loose rail] or seen somebody do it.” Turn-bull, however, stated that he was not aware of any other employee in his “territory” who had been disciplined for stepping too close to loose rail. He also stated that he had never personally set up an investigation for such a violation. But, according to Turnbull, Heim’s incident warranted discipline because it was a “pretty significant event” due to Heim’s injury.

Additionally, Turnbull, White, and a BNSF corporate representative testified about a BNSF incentive compensation program. BNSF’s corporate representative testified-that 15% of the compensation program depended upon meeting or exceeding BNSF goals for reducing injuries reportable to the Federal Railroad Administration. The representative further testified that this component of the compensation program is important to incentivize employees to have “processes, such as [a] safety action plan ... that are going to reduce arid eliminate injury, pain, and suffering.” Turnbull testified that his bonus from the compensation program is based on the number of injuries reported company-wide, not the number of injuries reported under individual managers. He stated, “I could have zero [injuries] and the next guy could have 10 and it makes no difference, everybody is going to get the same. But at the local level you’re also evaluated on your safety and it’s not based off the number of injuries. It’s based off of what you’re doing to change behaviors, what you’re doing to fix the environment[.]” Further, Turnbull and White both testified that they had been trained not to retaliate against employees for reporting injuries, and White testified that he has witnessed a coworker fired for such retaliation.

The parties filed cross-motions for summary judgment, and the district court granted judgment to BNSF. The district court reasoned that Heim was required to demonstrate that BNSF intentionally retaliated against Heim for reporting his injury. Further, the district court found that 'Heim failed to produce sufficient evidence of intentional retaliation. Heim now appeals.

II.

“We review a district court’s grant of a motion for summary judgment de novo, viewing all evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party.” Helmig v. Fowler, 828 F.3d 755, 760 (8th Cir. 2016). “Summary judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’.” Id. (quoting Fed. R. Civ. P. 56(a)).

Under the FRSA, “[a] railroad carrier .... may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee’s lawful, good faith act done ... (4) to notify, or attempt to notify, the railroad carrier ... of a work-related personal injury or work-related illness.” 49 U.S.C. § 20109(a). To establish a prima facie case under this section, an employee must show “(i) he engaged in a protected activity; (ii) [the railroad carrier] knew or suspected, actually or constructively, that he engaged in the protected activity; (iii) he suffered an adverse action; and (iv) the circumstances raise an inference that the protected activity was a contributing factor in the adverse action.” Kuduk v. BNSF Ry. Co., 768 F.3d 786, 789 (8th Cir. 2014).

In the present case, Heim contends that he was disciplined for suffering an injury, not because he stepped near the loose rail. As evidence, he points to Turnbull’s comments that others have not been disciplined for stepping near loose rail and that Heim’s injury is what made his violation different. Thus, because Turnbull would not have learned about the violation without the injury report and because there would have been no injury report without Heim’s injury, Heim argues that his injury report is “inextricably intertwined” with his discipline. According to Heim, this factual connection, without more, is sufficient to establish the contributing-factor element of his prima facie case. See Ray v. Union Pac. R.R. Co., 971 F.Supp.2d 869, 888 (S.D. Iowa 2013) (“Under these circumstances ..., Plaintiff has demonstrated a genuine issue of material fact as to whether his protected activity was a contributing factor in his termination ... because Plaintiff’s report is inextricably intertwined with the adverse employment action.” (emphasis added)).

But this Court has previously held that, under the FRSA’s employee-protections provision, “the contributing factor ... an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” Kuduk, 768 F.3d at 791. For the reasons set forth in our opinion issued today in Blackorby v. BNSF Railway Co., No.15-3192, 849 F.3d 716, 721-23, 2017 WL 744037, at *4-5 (8th Cir. Feb. 27, 2017), we are bound to follow Kuduk. Heim therefore must demonstrate more than a mere factual connection between his injury report and his discipline in order to establish a prima facie case under the contributing-factor standard. Heim need not “conclusively demonstrate [BNSF’s] retaliatory motive” to establish a prima facie case, but he must demonstrate that BNSF’s discipline was, at least in part, intentional retaliation prompted by his injury report. See Kuduk, 768 F.3d at 791 (quoting Coppinger-Martin v. Solis, 627 F.3d 745, 750 (9th Cir. 2010)).

Viewing the evidence in the light most favorable to Heim, we conclude that no reasonable factfinder could conclude that Heim’s supervisors intentionally retaliated against him for filing his injury report. To start, there is no dispute that White requested Heim submit a formal injury report. On the contrary, Heim contends that White pressured him to fill out the report. The remaining evidence, moreover, is insufficient to suggest that Turn-bull intentionally retaliated against Heim. While the Kuduk court “acknowledge[d] that the more lenient ‘contributing factor’ standard will increase to some extent the probative value of temporal proximity,” it also “rejected] the notion ... that temporal proximity, without more, is sufficient to establish a prima facie case” under the FRSA. Id. at 792. We conclude that BNSF’s compensation program is insufficient, by itself, to provide the “more” necessary for Heim’s claim to survive summary judgment; the record demonstrates that bonus calculations are based on a company-wide reduction of reportable injuries and not based on reportable injuries under individual managers like Turnbull. And Turnbull’s alleged admission that the rules were selectively enforced against Heim is likewise insufficient. Although Turnbull admitted that most employees have probably stepped too close to loose rail and were not disciplined, we agree with the district court that, unless they were injured like Heim, their violations most likely “would have gone unnoticed.” Therefore, without more specific evidence of an improper retaliatory motive, we find that Heim failed to establish his prima facie case.

III.

The judgment of the district court is affirmed.

      . The Honorable John M. Gerrard, United States District Judge for the District of Nebraska.

      . Turnbull testified he was "pretty sure" Heim's injury was an injury reportable to the Federal Railroad Administration.