Michael Cobbs V United States
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-3140
MICHAEL COBBS,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:22-cv-3141 — Sue E. Myerscough, Judge.
____________________
ARGUED FEBRUARY 27, 2025 — DECIDED JUNE 26, 2025
____________________
Before ST. EVE, LEE, and MALDONADO, Circuit Judges.
LEE, Circuit Judge. Michael Cobbs pleaded guilty in 2017 to
three crimes: attempted Hobbs Act robbery in violation of 18
U.S.C. § 1951; using, carrying, or brandishing a firearm during
and in relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii); and being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). The attempted Hobbs Act
robbery served as the predicate crime of violence for the
§ 924(c) charge.
2 No. 23-3140
Four years after the entry of the judgment, Cobbs returned
to the district court to collaterally attack his 25-year prison
sentence under 28 U.S.C. § 2255. His theory is that his § 924(c)
conviction is invalid based on United States v. Taylor, where
the Supreme Court held that an attempted Hobbs Act robbery
is not a crime of violence for purposes of § 924(c). 596 U.S. 845
(2022). The district court denied Cobbs’s petition. Because
Cobbs admitted to facts that support a conviction on the
§ 924(c) count as alleged in the indictment before us, we af-
firm.
I
Early in the morning of September 11, 2017, Cobbs entered
the Brickstone Restaurant in Bourbonnais, Illinois, with a
semiautomatic pistol. He was on supervised release for a pre-
vious armed robbery conviction at the time.
Once inside the restaurant, Cobbs used duct tape to bind
the hands of several Brickstone employees and took at least
one of their cell phones. He then came upon Brickstone’s
owner, who was in his office counting the proceeds. Cobbs
bound the owner with duct tape as well and put the money
into the backpack he was carrying. All the while, Cobbs was
brandishing the pistol.
As Cobbs was trying to flee the restaurant, he ran into
Brickstone’s manager, Matthew Offerman. When Offerman
tried to use his cell phone to call for help, Cobbs grabbed the
cell phone from his hand, and a struggle ensued. Cobbs even-
tually broke free and ran out the door, but Offerman pursued
him. At some point, Offerman tried to tackle Cobbs and was
able to wrestle the backpack away from him. But Cobbs es-
caped.
No. 23-3140 3
A short time later, law enforcement officers found Cobbs
hiding in a nearby dumpster. He had a roll of duct tape as
well as a cell phone belonging to one of Brickstone’s employ-
ees.
A grand jury charged Cobbs in a three-count indictment.
Because the precise language in the indictment is important
for our analysis, we recount it here.
Count 1, entitled “Attempted Obstructing of Commerce by
Robbery,” charged Cobbs under 18 U.S.C. §§ 1951 and 1952
(also known as the Hobbs Act). It alleged that Cobbs, on Sep-
tember 11, 2017:
unlawfully obstructed, delayed, and affected, and at-
tempted to obstruct, delay, and affect commerce … by
robbery … in that [Cobbs] unlawfully took and ob-
tained, and attempted to take and obtain, personal
property, including but not limited to, cellular phones
and United States Currency, from the persons and in
the presence of the owners of the property, against
their will by means of actual and threatened force, vi-
olence, and fear of injury, immediate and future, to
said persons, that is [Cobbs] brandished a firearm as he
bound the owners of the property with duct tape and
took the property.
Count 2 charged Cobbs with violating 18 U.S.C.
§ 924(c)(1)(A)(ii). It alleged that Cobbs, on September 11, 2017:
possessed and brandished a firearm … in furtherance
of a crime of violence that was a felony … that is, a vi-
olation of Title 18, United States Code, Section 1951, as
set forth in Count One of this Indictment.
4 No. 23-3140
Lastly, Count 3, not relevant here, charged Cobbs with pos-
sessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1).
On January 16, 2018, Cobbs appeared before a magistrate
judge by consent and pleaded guilty to all three counts. Dur-
ing the hearing, the government recited the elements it had to
prove to obtain a conviction for the three counts in the event
of a trial. In the process, the government described “[t]he first
count being an Hobbs Act robbery in violation of 18 U.S.C.
Section 1951, that’s obstructing or attempting to obstruct com-
merce by robbery.” The government also specified that it
would have to prove that Cobbs “knowingly attempted to ob-
tain money or other property from the victims outlined in the
indictment.” Cobbs agreed to the government’s recitation.
After detailing the penalties associated with the three
charges and explaining the sentencing procedure to Cobbs,
the magistrate judge discussed Cobbs’s appeal rights. The
magistrate judge first noted that Cobbs was entering an open
plea (that is, Cobbs would plead guilty without the benefit of
a plea agreement), and Cobbs’s lawyer confirmed that the
government had not provided any written plea offers. Then,
the magistrate judge told Cobbs that he would have the right
to appeal the conviction and the sentence. After that, the gov-
ernment presented the factual basis for the plea. Here too the
details matter, and so we present the factual basis here:
[O]n September 11, 2017, [ ] at approximately 7:45 in
the morning, the defendant entered the Brickstone Res-
taurant in Bourbonnais, Illinois. Once he was inside, he
forced two employees into a back utility room; bound
their hands with duct tape and put duct tape over their
mouths; found another employee, duct taped him,
bound him in the same way with duct tape; and then
No. 23-3140 5
found the owner who was counting money in the front
office. He pulled the chair out from under the owner,
and, again, bound the owner with duct tape, and then
proceeded to take the money the owner was counting
and stuffed it in a backpack. At the same time he was
brandishing a Glock, Model 22, semiautomatic pistol.
At the same time he was attempting to flee the restau-
rant, he encountered the manager who he wrestled
with. The bag that the defendant was carrying was
wrestled away from the defendant and the defendant
fled. Within an hour, the defendant was found in the—
approximately—in a dumpster, approximately 300
yards away from the restaurant. He had a roll of duct
tape in his possession. Alongside him was a cell phone
that belonged to one of the employees of the Brickstone
Restaurant.
Cobbs then acknowledged that he did what the government
said he did.
In the end, the district court sentenced Cobbs to one day
of imprisonment as to Count 1 and Count 3 to run concur-
rently, and 300 months of imprisonment on Count 2 to run
consecutively to the one-day sentence for Counts 1 and 3.
Cobbs did not appeal.
Four years later, the Supreme Court decided Taylor, 596
U.S. at 852, where it held that “attempted Hobbs Act robbery
does not qualify as a crime of violence” under § 924(c). See 18
U.S.C. § 924(c)(3)(A). The following month, Cobbs filed the in-
stant petition to vacate, set aside, or correct his sentence pur-
suant to 28 U.S.C. § 2255. In it, he asserts that the Taylor deci-
sion renders invalid his § 924(c) conviction in Count 2 for
brandishing a firearm during a crime of violence. As Cobbs
6 No. 23-3140
sees it, his § 924(c) conviction was predicated on his admis-
sion of an attempted Hobbs Act robbery under Count 1.
Therefore, he claims, after Taylor, his guilty plea to Count 1
does not support his conviction of the § 924(c) violation
charged in Count 2.
The district court denied Cobbs’s petition. In doing so, the
court determined that Cobbs had procedurally defaulted his
claim that attempted Hobbs Act robbery does not qualify as a
predicate crime of violence under § 924(c). The district court
also found no cause for Cobbs’s procedural default, and it
concluded that he failed to show actual innocence excusing
that default. The district court nevertheless granted Cobbs a
certificate of appealability, and this appeal followed.
II
Section 2255(a) permits a federal prisoner to petition for
relief “upon the ground that the sentence was imposed in vi-
olation of the Constitution or laws of the United States.” 28
U.S.C. § 2255(a). When reviewing a denial of a § 2255 petition,
we review the district court’s legal conclusions de novo and its
factual findings for clear error. See Bridges v. United States, 991
F.3d 793, 799 (7th Cir. 2021) (citing Martin v. United States, 789
F.3d 703, 705 (7th Cir. 2015)).
On appeal, Cobbs contests the district court’s determina-
tion that he procedurally defaulted his Taylor-based claim, as
well as the district court’s conclusion that the default cannot
be excused. There is no question that Cobbs procedurally de-
faulted his current claim—he did not directly appeal his con-
viction or sentence. See White v. United States, 8 F.4th 547, 554
(7th Cir. 2021) (citing McCoy v. United States, 815 F.3d 292, 295
(7th Cir. 2016)) (“A claim not raised on direct appeal generally
No. 23-3140 7
may not be raised for the first time on collateral review and
amounts to procedural default.”). Thus, we are left to review
whether the procedural default should be excused.
A
A petitioner can overcome procedural default by showing
“either cause for the default and actual prejudice from the al-
leged error, or that he is actually innocent.” Yang v. United
States, 114 F.4th 899, 912 (7th Cir. 2024) (quoting White, 8 F.4th
at 554), cert. denied, 145 S. Ct. 1182 (2025); see also Bousley v.
United States, 523 U.S. 614, 622 (1998). On appeal, Cobbs does
not dispute the district court’s conclusion that he failed to es-
tablish cause. 1 We thus confine our analysis to the actual in-
nocence excuse. 2
1 Having found no cause for his procedural default, the district court
refrained from separately analyzing whether Cobbs was prejudiced.
Cobbs likewise does not argue that he was prejudiced on appeal.
2 Cobbs argues, in the alternative to actual innocence, that his proce-
dural default should be excused to correct a miscarriage of justice. The
problem is he did not make this argument to the district court and thus
waived it by raising it for the first time on appeal. See McCoy, 815 F.3d at
295. Moreover, even assuming that Cobbs had preserved the argument, it
is unclear how the argument is distinct from his protestation of actual in-
nocence. Actual innocence and miscarriage of justice are intertwined con-
cepts when it comes to excusing procedural default. See, e.g., Sawyer v.
Whitley, 505 U.S. 333, 339 (1992) (“We emphasized that the miscarriage of
justice exception is concerned with actual as compared to legal inno-
cence[.]”); Dixon v. Williams, 93 F.4th 394, 403 (7th Cir. 2024) (“A habeas
petitioner may use a claim of actual innocence to overcome a procedurally
defaulted and time-barred habeas claim, as a way to prevent a miscarriage
of justice.”), reh’g denied, No. 21-1375, 2024 WL 1510579 (7th Cir. Apr. 8,
2024).
8 No. 23-3140
Here, Cobbs’s claim of actual innocence is based on the
Supreme Court’s decision in Taylor, which resulted in a
change in the law underlying Cobbs’s conviction in Count 2
under 18 U.S.C. § 924(c). Specifically, in Taylor, the Supreme
Court held that attempted Hobbs Act robbery does not qual-
ify as a crime of violence under § 924(c)(3)(A). 596 U.S. at 851.
This subsection, commonly referred to as “the elements
clause,” defines a crime of violence as a felony offense that has
as an element “the use, attempted use, or threatened use of
physical force against the person or property of another.” See
18 U.S.C. § 924(c)(3)(A).
Measured against the elements clause is a conviction for
attempted Hobbs Act robbery, which requires proof beyond a
reasonable doubt that a defendant (1) intended to unlawfully
take or obtain personal property by means of actual or threat-
ened force, and (2) completed a substantial step toward that
end. See Taylor, 596 U.S. at 851 (citing United States v. Resendiz-
Ponce, 549 U.S. 102, 107 (2007)).
Comparing the two, the Supreme Court reasoned that
“[w]hatever one might say about completed Hobbs Act rob-
bery, attempted Hobbs Act robbery does not satisfy the ele-
ments clause” because an “intention” to take property by
force or threat is no more than an intention, and “whatever a
substantial step requires, it does not require the government
to prove that the defendant used, attempted to use, or even
threatened to use force against another person or his prop-
erty.” Id. (emphasis in original).
Cobbs argues that the change in the law announced in Tay-
lor excuses his procedural default through the actual inno-
cence exception by effectively nullifying his § 924(c)(1)(A)(ii)
conviction. And, as we have held, “[a]ctual innocence, if
No. 23-3140 9
proved, serves as a gateway through which a petitioner may
pass whether the impediment is a procedural bar ... or ... ex-
piration of the statute of limitations.” Lund v. United States, 913
F.3d 665, 667 (7th Cir. 2019) (citation modified); see also Schlup
v. Delo, 513 U.S. 298, 317 (1995) (holding that a petitioner who
procedurally defaults his claims can overcome the procedural
bar if he successfully raises a claim of actual innocence—that
is, if he “raise[s] sufficient doubt about [his] guilt to under-
mine confidence in the result”). This is because the actual in-
nocence rule is “grounded in the equitable discretion of ha-
beas courts to see that federal constitutional errors do not re-
sult in the incarceration of innocent persons.” Herrera v. Col-
lins, 506 U.S. 390, 404 (1993) (internal quotation marks omit-
ted). “To establish actual innocence, ‘a petitioner must show
that it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt.’”
Lund, 913 F.3d at 667 (quoting Schlup, 513 U.S. at 327).
At the outset, Cobbs’s invocation of Taylor presents two
threshold questions. First, can a change in the law—rather
than, for example, newly discovered evidence—serve as the
basis for the actual innocence gateway to circumvent proce-
dural default? To date, we have declined opportunities to an-
swer this question. See, e.g., Lund, 913 F.3d at 667–68 (recog-
nizing that this court has never explicitly held that the actual
innocence exception “can be used in situations where a sub-
sequent change to the scope of a law renders the conduct the
petitioner was convicted for no longer criminal” and declin-
ing to take a position on the issue); Gladney v. Pollard, 799 F.3d
889, 897 (7th Cir. 2015) (acknowledging that the petitioner’s
argument raised a “new question in this circuit” of whether
the “actual innocence standard can be satisfied by a change in
10 No. 23-3140
law rather than new evidence,” but finding that question un-
necessary to resolve).
Second, in addition to invoking Taylor to circumvent pro-
cedural default, Cobbs relies on it to support the merits of his
§ 2255 petition. This raises the question of whether Taylor is
available to Cobbs as both his procedural default lifeboat and
the source of his relief on the merits. Although we have not
definitively decided this question either, we have expressed
some doubt that actual innocence can serve such double duty
where, as here, a habeas petitioner has not presented an un-
derlying constitutional claim. See Perrone v. United States, 889
F.3d 898, 903 (7th Cir. 2018); see also Lund, 913 F.3d at 668 (not-
ing that the point of the actual innocence exception is “to en-
sure that federal constitutional errors do not result in the in-
carceration of innocent persons,” which “suggests that the un-
derlying claim must be a constitutional claim, rather than a
statutory claim”) (citation modified).
As in previous cases, however, we need not answer these
thorny questions (neither of which the district court or the
parties addressed) to resolve this case. Even assuming, for the
sake of argument, that the actual innocence exception is avail-
able to Cobbs in the dual manner he suggests, his claim of ac-
tual innocence fails (and, thus, cannot excuse procedural de-
fault) because Cobbs has not demonstrated his actual inno-
cence as to Count 2 as charged in the indictment.
B
To resolve this case, the parties invite us to decide whether
the Supreme Court’s holding in Bousley applies here. In that
case, Kenneth Bousley had pleaded guilty to “using” a
No. 23-3140 11
firearm in violation of 18 U.S.C. § 924(c)(1). 3 523 U.S. at 616.
Five years later, the Supreme Court held in Bailey v. United
States that § 924(c)(1)’s “use” prong requires the government
to show “active employment of the firearm” such as “bran-
dishing, displaying, bartering, striking with, and, most obvi-
ously, firing or attempting to fire” the weapon. 516 U.S. 137,
146, 148 (1995). “[M]ere possession” will not do. Bousley, 523
U.S. at 617 (citing Bailey, 516 U.S. at 143).
Citing Bailey, Bousley sought habeas relief, arguing that
“neither the evidence nor the plea allocution” showed a con-
nection between the firearms found in his bedroom and the
drugs found in his garage. Id. (internal quotation marks omit-
ted). But, because he had failed to challenge the validity of his
plea on direct appeal, Bousley had to overcome the barrier of
procedural default by demonstrating “cause and actual prej-
udice … or that he is actually innocent.” Id. at 622 (citation
modified).
The Supreme Court easily dispatched with Bousley’s
cause arguments but observed that the district court had
failed to address Bousley’s actual innocence. And so, the Su-
preme Court remanded the case to permit Bousley to attempt
to make a showing of actual innocence to overcome the pro-
cedural default of his habeas claim. Id. at 623.
3 The relevant subsection provides, in pertinent part, that “any person
who, during and in relation to any crime of violence … for which the per-
son may be prosecuted in a court of the United States, uses or carries a fire-
arm … shall, in addition to the punishment provided for such crime of
violence” be sentenced to certain minimum terms of imprisonment as set
forth in the section. 18 U.S.C. § 942(c)(1)(A) (emphasis added).
12 No. 23-3140
In the process, the Supreme Court provided some guid-
ance to the lower courts on remand. First, it noted that actual
innocence “means factual innocence, not mere legal insuffi-
ciency.” Id. Accordingly, it permitted the government on re-
mand to rebut Bousley’s claim of actual innocence with any
admissible evidence of his guilt, “even if that evidence was
not presented during petitioner’s plea colloquy.” Id. at 624.
The Court then delivered the instruction that is the center of
this dispute: “In cases where the Government has forgone
more serious charges in the course of plea bargaining, [a] pe-
titioner’s showing of actual innocence must also extend to
those charges.” Id. In other words, under Bousley, to establish
actual innocence, a habeas petitioner must prove his inno-
cence as to both the offense of conviction and any more serious
charge that the government relinquished in the course of plea
negotiations. See Lewis v. Peterson, 329 F.3d 934, 936 (7th Cir.
2003) (citing Bousley, 523 U.S. at 623–24).
Employing this framework, the Supreme Court in Bousley
found no indication that the government had elected not to
charge Bousley with “carrying” a firearm in exchange for his
agreement to plead guilty to “using” a firearm in violation of
§ 924(c)(1). See Bousley, 523 U.S. at 624. Accordingly, to show
actual innocence, Bousley needed to demonstrate only that he
had not “used” a firearm as the Supreme Court had inter-
preted that term in Bailey. Id.
After Bousley, we have observed that the charge the gov-
ernment abandoned in plea discussions need not be more se-
rious than the charge to which the petitioner pleaded guilty.
See Lewis, 329 F.3d at 937. Rather, “[i]t is enough that it is as
serious.” Id. The idea behind Bousley, we said, is that, had the
government foreseen the change in the law, “it would not
No. 23-3140 13
have dropped the charge and so the petitioner, who we know
wanted to plead guilty, would probably have pleaded guilty
to that charge instead.” Id. at 936. Furthermore, if the aban-
doned charge was more serious or no less serious than one to
which the petitioner pleaded guilty, he “would probably have
incurred a lawful punishment no less severe than the one im-
posed on him.” Id.
All of this to say, as the law stands, in order to establish
the actual innocence exception to procedural default after a
guilty plea, a habeas petitioner must show that he was actu-
ally innocent of the charge to which he pleaded, and he must
show that he was actually innocent of any charge that the gov-
ernment dropped during the course of plea discussion so long
as the dropped charge was more serious or equally serious to
the one that was the subject of the plea.
This discussion brings us to the district court’s decision in
this case. Applying Bousley and Lewis, the district court con-
cluded that the actual innocence exception to procedural de-
fault did not apply to Cobbs’s claim, because he had failed to
demonstrate that the result of the criminal proceedings
against him would have been different had Taylor been de-
cided prior to his guilty plea. As the court reasoned, although
Cobbs’s conviction and resulting sentence was for an at-
tempted Hobbs Act robbery, Cobbs admitted to facts during
his change-of-plea hearing that established the commission of
a completed Hobbs Act robbery. In the district court’s view,
had the government foreseen Taylor, it would have amended
the indictment, charged a completed Hobbs Act robbery, and
secured a conviction based on the facts Cobbs admitted, all of
which would have resulted in the same outcome for Cobbs.
14 No. 23-3140
But, of course, there is a material difference between the
situation before us and those contemplated in Bousley and
Lewis. Here, Cobbs entered an open plea, and there is no evi-
dence that the government forwent any charges in exchange
for his plea. Nevertheless, the district court dismissed the pe-
tition, relying on the principle from Bousley and Lewis that a
petitioner is not entitled to a “windfall” when he has not
shown that the result of his criminal proceedings would have
been different had the law changed prior to his guilty plea.
But this distinction makes us hesitant to extend Bousley
and Lewis to the facts of this case. Bousley itself contains no
indication that its logic reaches beyond the plea-bargaining
context, and Lewis’s reasoning is tethered to concepts intrinsic
to dealmaking. Ideas of what the government would or
would not have offered, and to what terms a defendant would
or would not have agreed are only relevant in the framework
of a negotiation. See Lewis, 329 F.3d at 936. Similarly, a defend-
ant can only secure a “windfall” if he receives an outsized
benefit compared to what he gave up. Id. Here, without evi-
dence of any offer made or deal reached between the parties,
the bargain-oriented concepts underpinning Bousley and
Lewis have questionable force.
That said, based on the record before us, it is not necessary
to decide the applicability of Bousley and Lewis to the present
facts in order for us to conclude that Taylor does not excuse
Cobbs’s procedural default. Cobbs seeks to vacate his § 924(c)
conviction in Count 2, arguing that he is actually innocent of
that charge. But Count 2 of the indictment charged Cobbs
with a violation of § 924(c), predicated on “a crime of violence
that was a felony … that is, a violation of Title 18, United
States Code, Section 1951, as set forth in Count One of this
No. 23-3140 15
Indictment.” In turn, the body of Count 1 asserted that Cobbs
“unlawfully obstructed, delayed, and affected, and attempted
to obstruct, delay, and affect commerce … by robbery.” In do-
ing so, this language described a completed Hobbs Act rob-
bery as well as an attempted one, and the factual admissions
Cobbs made during his plea satisfied both.
Recall that, as part of his plea colloquy, Cobbs acknowl-
edged that he had taken a cell phone from an employee of the
Brickstone after binding the individual with duct tape and
while brandishing a firearm. By acknowledging these facts,
Cobbs admitted that he had taken or obtained personal prop-
erty from the person of another, against that person’s will, by
means of actual or threatened force. In other words, he admit-
ted to a completed Hobbs Act robbery. See 18 U.S.C.
§ 1951(b). 4
4 We note that Cobbs’s assault of the restaurant’s owner and taking of
the restaurant’s money also arguably would constitute a completed viola-
tion of § 1951, which defines “robbery” to be “the unlawful taking or ob-
taining of personal property from the person or in the presence of another,
against his will, by means of actual or threatened force, or violence, or fear
of injury, immediate or future, to his person or property.” 18 U.S.C.
§ 1951(b)(1). Although he abandoned the backpack with the money, he
took the money from the owner with the intent to permanently deprive
the owner of the proceeds. See Smith v. United States, 291 F.2d 220, 221 (9th
Cir. 1961) (explaining that for a bank robbery conviction, which requires
the taking and carrying away of property, the “degree of the taking is im-
material, the least removing of the thing taken from the place it was before
with intent to steal it being sufficient” (internal quotation marks omitted));
see also 2 Wharton’s Criminal Law § 26:15 (16th ed.) (“There is an asporta-
tion when the actor carries away the property; any carrying away move-
ment, however slight, is sufficient. Given a taking and asportation, a lar-
ceny is committed even if immediately thereafter the defendant abandons
16 No. 23-3140
Accordingly, Cobbs’s guilt as to Count 2 does not depend
on whether he pleaded guilty to a completed or attempted
Hobbs Act robbery under Count 1. It is enough that the facts
he acknowledged satisfied the allegations in Count 2. In other
words, Cobbs admitted that he had committed a completed
Hobbs Act robbery, a crime of violence that Count 1 of the
indictment “set forth.” 5 Thus, the Supreme Court’s holding in
Taylor does not disturb Cobbs’s conviction as to Count 2.
We recognize that during the change-of-plea hearing, the
parties and the magistrate judge at times referred to Count 1
as attempted Hobbs Act robbery. We also appreciate other in-
dicia in the record, including in the judgment and by way of
the parenthetical title to the charge in the indictment, that the
prosecution concentrated on the attempt aspect of the charge
in Count 1. Still, the focus of Cobbs’s habeas claim is Count 2,
and he must show that he is actually innocent (legally and
factually) of Count 2 to survive procedural default. He cannot
do so for the reasons explained.
All told, assuming the actual innocence gateway exception
can be based on a change in the law, and that a change in stat-
utory law can simultaneously serve as grounds for the
the property or returns it to the owner, as long as the defendant acted, at
the time of the taking and asportation, with the intent to permanently de-
prive.”).
5 The parties dispute whether Count 1 sufficiently charged Cobbs
with completed Hobbs Act robbery in addition to attempted Hobbs Act
robbery. To Cobbs, the government’s endeavor to recast his guilty plea
amounts to a constructive amendment to the indictment, especially after
the government, in Cobbs’s view, had effectively narrowed the indictment
by demonstrating its intent to prove only the inchoate offense. Given the
language of Count 2, we need not wade into this issue.
No. 23-3140 17
gateway and for relief on the merits, the change in the law
announced by Taylor does not excuse Cobbs’s procedural de-
fault. Consequently, Cobbs’s petition was properly dis-
missed.
III
For these reasons, we AFFIRM the district court’s denial of
Cobbs’s 28 U.S.C. § 2255 petition to vacate, set aside, or correct
his sentence.