Holland v. Baltazar

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JEFFREY HOLLAND, No. 3:17-CV-01301

Petitioner, (Chief Judge Brann)

v.

J. BALTAZAR,

Respondent.

MEMORANDUM OPINION

NOVEMBER 22, 2021

I. BACKGROUND

In 2002 Jeffrey Holland was convicted—following a jury trial—of numerous

crimes including, as relevant here, using a firearm during a drug trafficking crime,

in violation of 18 U.S.C. § 924(c).1 The § 924(c) conviction arose after one of the

individuals to whom Holland sold drugs—Adrienne Stewart—traded a firearm to

Holland in exchange for eighty dollars and 3.5 grams of cocaine base.2 Holland was

ultimately sentenced to two consecutive life terms of imprisonment, along with a

consecutive sixty-month term of imprisonment for the § 924(c) conviction.3

Holland filed an unsuccessful 28 U.S.C. § 2255 motion in 2005, which was

followed by several unsuccessful § 2241 petitions. Finally, in 2017 Holland filed

1 Doc. 33-2 at 3.

2 Id.

this § 2241 petition arguing that his § 924(c) conviction is now invalid based upon

the United States Supreme Court’s decision in Watson v. United States,4 wherein the

Supreme Court held that a person does not use a firearm pursuant to § 924(c) when

he sells drugs and receives a firearm in return, although he does use a firearm if he

sells that firearm for drugs.5 Holland argues that, as a result of Watson, he is now

actually innocent of his § 924(c) conviction.6

In March 2019, this Court denied Holland’s petition.7 Although the Court

found that Holland’s claim was properly raised in a § 2241 petition,8 it denied the

petition after concluding that Stewart had violated § 924(c) by trading a firearm for

drugs, and Holland was guilty of using a firearm in relation to a drug trafficking

offense because he had aided and abetted Stewart when she violated § 924(c).9

Holland appealed that determination and, in May 2021, the United States

Court of Appeals for the Third Circuit reversed this Court’s decision.10 The Third

Circuit concluded that, based upon the available evidence, “Stewart might not have

violated § 924(c).”11 Although the Third Circuit acknowledged that Stewart had used

a firearm by trading it for cocaine base, it noted that she would only have used a

4 552 U.S. 74 (2007).

5 Doc. 1.

6 Id.; Doc. 15; Doc. 49 at 3.

7 Docs. 27, 28.

8 Doc. 27 at 9-11.

9 Id. at 12-16.

10 Doc. 33.

firearm in relation to a drug trafficking crime if the drug offense that she committed

was a felony.12 Because Stewart purchased 3.5 grams of cocaine base, that offense

would be a felony if Stewart had a prior conviction for possessing cocaine base,

which was not clear based upon the record before the Third Circuit.13 Since Stewart

may not have violated § 924(c), Holland likewise may not have violated § 924(c),

as “[h]e could not have aided or abetted Stewart in a crime that she did not

commit.”14

Because it was not clear on the record that Holland had violated § 924(c), the

Third Circuit vacated this Court’s decision and remanded the matter so that this

Court could “consider Stewart’s conduct” and determine whether Stewart’s

possession of 3.5 grams of cocaine base was a felony offense such that Holland

aiding and abetting that offense could support his § 924(c) conviction.15

Upon remand, this Court scheduled an evidentiary hearing to permit

Respondent to present evidence related to whether Stewart’s prior criminal history

supported the notion that her possession of cocaine base was a felony; that hearing

was held on November 10, 2021.16 At the hearing, and in a submission to the Court

prior to the hearing, Respondent presented Stewart’s criminal record, which contains

12 Id. at 9-10.

13 Id. at 10.

14 Id. at 11.

15 Id. at 12.

a 1993 Pennsylvania state court conviction for unlawful delivery of an imitation

controlled substance, in violation of 35 Pa. Stat. Ann. § 780-113(a)(30).17

Prior to the evidentiary hearing, Holland filed a motion in limine seeking to

preclude Respondent from introducing any new evidence on remand.18 Specifically,

Holland contends that, on remand, new evidence may be introduced only after the

Court considers whether Respondent provided an adequate explanation for failing to

produce such evidence previously, and whether there is prejudice to Holland—both

of which weigh against admitting any new evidence.19 Holland further argues that,

even if the Court considers any new evidence, his § 2241 petition should be granted

because no reasonable juror could have convicted him of aiding and abetting

Stewart’s violation of § 924(c) by simply purchasing a firearm from her.20

Respondent contends that new evidence may be admitted, as the general rule

against reopening the record on remand is inapplicable given the nature of this case.

Although it is generally true that the record may not be reopened on remand,

Respondent argues that, because Holland asserts actual innocence, the Court must

consider all evidence, and not simply the existing record—which necessarily means

that Respondent must be permitted to offer new evidence into the record on

remand.21 Respondent further argues that the Third Circuit sub silentio “affirmed the

17 Doc. 52.

18 Doc. 48.

19 Doc. 49 at 7-14.

20 Id. at 14-17.

[C]ourt’s application of the aider/abettor analysis” and, because Stewart violated

§ 924(c), this Court should deny Holland’s § 2241 petition on the ground that he

aided and abetted Stewart in violating § 924(c).22

Holland has filed a reply brief, and the matter is now ripe for resolution.23 For

the following reasons, the Court concludes that: Respondent may supplement the

record with additional evidence; the additional evidence confirms that Stewart

violated § 924(c); and Holland aided and abetted Stewart in her violation and

therefore was himself properly convicted of violating § 924(c). Accordingly, both

Holland’s motion in limine and his § 2241 petition will be denied.

II. DISCUSSION

A. Whether Respondent May Supplement the Record

First, the parties disagree on whether Respondent should be permitted to

submit new evidence on remand. Holland relies on a series of criminal cases which

hold that the record ordinarily should not be reopened on remand.24 It is certainly

true that the Government “ordinarily is only afforded one opportunity to carry its

burden” at sentencing, and the Third Circuit holds a general “distaste for a second

bite at apple” in sentencing matters.25 Accordingly, as a general matter,

supplementation of the record will be permitted only “when the Government has

22 Id. at 7.

23 Doc. 55.

24 Doc. 49 at 7-9.

25 United States v. Rowe, 919 F.3d 752, 762-63 (3d Cir. 2019) (internal citations and quotation

tendered a persuasive reason why fairness requires that the sentencing court provide

the government with an additional opportunity to present evidence on remand.”26 In

determining whether to reopen a proceeding, courts must consider both “the

paramount factor . . . [of] whether reopening, if permitted, would prejudice the party

opposing it” and whether the party that seeks to reopen the record has “provide[d] a

reasonable explanation for its failure to initially present the evidence.”27

However, Holland’s argument against reopening the record fails for two

reasons. First, the Third Circuit’s instructions on remand are not nearly as ambiguous

as Holland believes. The Third Circuit stated that it could not “tell whether Stewart

was guilty of § 924(c) without more facts” and therefore directed this “Court to look

into this issue.”28 The clear implication of this language is that the Court must obtain

additional facts to aid in a determination of whether Stewart violated § 924(c).

Second, even if the Third Circuit’s remand instructions were ambiguous, this

matter comes before the Court in a unique procedural posture, as Holland asserts

that he is actually innocent of his § 924(c) conviction.29 This renders inapplicable

the Third Circuit’s general aversion to reopening the record on remand.

To sustain a claim of actual innocence, “[a] petitioner must demonstrate that,

‘in light of all the evidence,’ ‘it is more likely than not that no reasonable juror would

26 Id. at 763 (brackets, ellipsis, and internal quotation marks omitted).

27 United States v. Smith, 751 F.3d 107, 114 (3d Cir. 2014).

28 Holland, 998 F.3d at 76 (emphasis added).

have convicted him.’”30 A “petitioner may demonstrate ‘actual innocence’ by

pointing to post-conviction decisions ‘holding that a substantive criminal statute

does not reach his conduct.’”31 However, the United States Supreme Court has

iterated that “[i]t is important to note in this regard that ‘actual innocence’ means

factual innocence, not mere legal insufficiency.”32 Consequently, “the Government

is not limited to the existing record to rebut any showing that petitioner might make.

Rather, on remand, the Government should be permitted to present any admissible

evidence of petitioner’s guilt even if that evidence was not presented during” any

earlier proceedings.33

The plain reading of the Supreme Court’s holding is that a respondent—or a

petitioner—may always supplement the record with evidence that is relevant to the

question of whether the petitioner is actually innocent, even on remand. To hold

30 Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298,

327-28 (1995)).

31 United States v. Davies, 394 F.3d 182, 192 (3d Cir. 2005) (quoting Bousley, 523 U.S. at 620

(brackets omitted)). Although Holland argues that only “new” evidence may be admitted in

cases that argue actual innocence, Doc. 55 at 3-6, the Third Circuit’s decision in Davies makes

clear that the general rule regarding “new” evidence does not apply when a claim of actual

innocence is based on a post-conviction decision, rather than newly discovered evidence.

Davies, 394 F.3d at 192.

32 Bousley, 523 U.S. at 623.

33 Id. at 624. See also United States v. Tyler, 732 F.3d 241, 253 (3d Cir. 2013) (“On remand, the

District Court shall conduct an evidentiary hearing, in accordance with Bousley, to allow Tyler

to prove his claim of actual innocence. Tyler is free to ‘rest on the record as it now stands,’ and

the Government may present additional admissible evidence to refute Tyler’s actual innocence

claim”); Davies, 394 F.3d at 192 (noting that “[t]he District Court properly . . . and, in

accordance with Bousley, held an evidentiary hearing at which the Government was permitted

to introduce evidence demonstrating that Davies was not actually innocent of” his crime of

conviction); United States v. Garth, 188 F.3d 99, 107 (3d Cir. 1999) (noting that the Supreme

Court in Bousley held that “[t]he government was not limited to the record on remand because

otherwise would be to ignore the Supreme Court’s clear instruction that courts must

account for “all the evidence” in reaching a determination.34 It would be, at best,

counterintuitive to ignore compelling evidence of guilt or innocence when

determining whether an individual is “actually innocent” of his crime of conviction.

Consequently, the Court concludes that Respondent may supplement the record on

remand with additional evidence related to Holland’s guilt, and the Court will

account for that evidence in reaching a decision with respect to Holland’s § 2241

petition.

B. Merits of Holland’s Petition

Turning to the merits of Holland’s § 2241 petition, as previously noted,

Holland was convicted of using a firearm in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c). That section provides, in relevant part, that “any

person who, during and in relation to any . . . drug trafficking crime . . . for which

the person may be prosecuted in a court of the United States, uses or carries a

firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in

addition to the punishment provided for such . . . drug trafficking crime” be

sentenced to a mandatory minimum term of five years’ imprisonment.35 That statute

further defines a drug trafficking crime as “any felony punishable under the

Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import

34 Bousley, 523 U.S. at 623.

and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.”36 A felony is any

offense for which the maximum term of imprisonment exceeds one year.37

As the Third Circuit noted on appeal, given the unique posture of this case,

the only offense that could properly undergird Holland’s § 924(c) conviction is the

offense of aiding and abetting Stewart in her violation of § 924(c) when she traded

a firearm to Holland in exchange for cocaine base.38 And, as the Third Circuit further

noted, since Stewart only purchased/possessed 3.5 grams of cocaine base, Holland

could only have aided and abetted Stewart in committing a felony if Stewart had

previously been convicted of certain qualifying crimes, such as possession of

cocaine base.39

The possession of 3.5 grams of cocaine base generally constitutes only a

misdemeanor offense.40 However, possessing cocaine base becomes a felony offense

under two subsections of 21 U.S.C. § 844(a). First, as the Third Circuit emphasized

on appeal, Stewart’s conduct would constitute a felony under the 1996 version of

§ 844(a) if she had previously been “convicted under this subsection for the

possession of a mixture or substance which contains cocaine base.”41 Second, the

1996 version of § 844(a) provides that, if an individual violates that Section “after a

36 Id. § 924(c)(2).

37 18 U.S.C. § 3559(a); Folajtar v. Att’y Gen. of the U.S., 980 F.3d 897, 900 (3d Cir. 2020).

38 Holland, 998 F.3d at 76.

39 Id. at 75-76.

40 21 U.S.C. § 844(a) (1996).

prior conviction under this subchapter or subchapter II of this chapter, or a prior

conviction for any drug, narcotic, or chemical offense chargeable under the law of

any State, has become final, he shall be sentenced to a term of imprisonment for not

less than 15 days but not more than 2 years.”42

The evidence submitted by the Government demonstrates that Stewart was

convicted in 1993—prior to the events that gave rise to Holland’s conviction—for

unlawful delivery of an imitation controlled substance, in violation of 35 Pa. Stat.

Ann. § 780-113(a)(30).43 This plainly qualifies as a “conviction for any drug,

narcotic, or chemical offense chargeable under the law of any State.”44 Because

Stewart had a prior qualifying offense, her possession of cocaine base was a felony

under § 844(a), and she therefore violated § 924(c) by using a firearm in furtherance

of that felony offense.

Holland nevertheless argues that, even if Stewart violated § 924(c), no

reasonable juror could have convicted him of aiding and abetting Stewart in that

criminal act, as they were not confederates.45 The Supreme Court has held that, to

find an individual guilty for aiding and abetting a violation of § 924(c), the

Government must prove “that the defendant actively participated in the underlying

drug trafficking or violent crime with advance knowledge that a confederate would

42 Id.

43 Doc. 52.

44 21 U.S.C. § 844(a) (1996).

use or carry a gun during the crime’s commission.”46 Advance knowledge “means

knowledge at a time the accomplice can do something with it—most notably, opt to

walk away.”47 “[I]f a defendant continues to participate in a crime after a gun was

displayed or used by a confederate, the jury can permissibly infer from his failure to

object or withdraw that he had such knowledge.”48

Under that standard, Holland clearly aided and abetted Stewart in violating

§ 924(c). Holland knew that Stewart was attempting to use a firearm in connection

with a drug trafficking offense, as Stewart was trading the firearm to Holland in

exchange for cocaine base, and Holland directly aided that crime by trading the

cocaine base to Stewart.49 Importantly, Holland was not simply facilitating the

purchase of cocaine base, which would not have rendered he and Stewart

confederates. Rather, he was facilitating the use of a firearm during a drug trafficking

crime, which is not part and parcel of a simple sale of drugs. Because Holland

“actively participated in the underlying drug trafficking . . . crime” by selling the

cocaine base to Stewart in exchange for the firearm, and did so “with advance

knowledge” that Stewart, his “confederate[,] would use or carry a gun during the

crime’s commission,” the evidence is sufficient to establish Holland’s liability as an

46 Rosemond v. United States, 572 U.S. 65, 67 (2014).

47 Id. at 78.

48 Id. at 78 n.9.

49 Holland also had advance knowledge that Stewart was attempting to use a firearm in relation

to the drug trafficking crime. As the Third Circuit noted, Stewart called Holland to inform him

that she had a firearm, Holland, 998 F.3d at 72, which gave Holland ample opportunity to

aider and abetter.50

While Holland argues that Stewart was not his confederate, the Third Circuit

has already addressed this exact scenario, albeit in an unpublished opinion. In

Solomon v. Warden Lewisburg USP, that court considered the merits of a § 2241

petition in which petitioner sought “to vacate one of his convictions pursuant to 18

U.S.C. §§ 2 and 924(c)(1)(A) based on the Supreme Court’s decision in Rosemond

v. United States.”51 The Third Circuit noted that “[a]t Solomon’s trial, the

Government presented evidence that Solomon exchanged cocaine for a fully loaded

Glock semiautomatic firearm from Keith Edwards; Solomon was familiar with the

firearm before he arranged the exchange with Edwards.”52 “The trial court instructed

the jury that Solomon would be liable for aiding and abetting a § 924(c) offense if

Edwards knowingly traded his firearm for drugs and Solomon knew of and

facilitated that trade.”53 The court concluded that “the record does not support

Solomon’s claim of actual innocence” because “the record evidence indicates that

Solomon had advance knowledge of the use of a gun in a drug trafficking crime

when he facilitated the firearm exchange with Edwards.”54

50 Rosemond, 572 U.S. at 67.

51 Solomon v. Warden Lewisburg USP, 764 F. App’x 140, 141 (3d Cir. 2019).

52 Id.

53 Id.

Here too Holland exchanged cocaine base for a firearm from Stewart.55 And,

similar to Solomon, the jury here was instructed that Holland may be convicted of

violating § 924(c) if the jury found that “he helped or encouraged the crime with the

intent that it be committed” with respect to his actions in giving “an amount of crack

cocaine and money to Adrienne Stewart in exchange for a handgun.”56 The evidence,

like the evidence presented in Solomon, is sufficient for a reasonable juror to have

concluded that Holland aided and abetted Stewart in violating § 924(c). Therefore,

the evidence does not establish that Holland is actually innocent of his § 924(c)

conviction.

This determination is in accordance with the Third Circuit’s decision on

appeal. In Holland’s initial brief, he argued that, even if Stewart had violated

§ 924(c) when she traded the firearm for cocaine base, no reasonable juror could

conclude that Holland had aided and abetted that offense, as there was no evidence

that the two were confederates.57 After the Third Circuit issued its opinion in this

matter without addressing that argument, Holland filed a petition for a panel

rehearing, asserting that the Third Circuit’s opinion “overlooks the impact of

Rosemond v. United States, . . . as well prior precedential opinions from this Court,

with respect to whether Holland is actually innocent of aiding and abetting the

55 Holland, 998 F.3d at 72.

56 Doc. 27 at 13-14.

57 Brief for Appellant at 36-40, Holland v. Warden Canaan USP, No. 19-1800 (3d Cir. July 29,

charged violation of 18 U.S.C. § 924(c), even if Adrienne Stewart committed that

offense.”58 The Third Circuit denied that petition and expressed no view on the

issues raised by Holland.59

Although the Third Circuit declined to expressly rule on Holland’s arguments,

it likewise did not adopt those arguments, and remanded this matter for the Court to

determine if Stewart violated § 924(c). The Third Circuit’s decision to remand the

matter with specific instructions to investigate Stewart’s conduct would make little

sense if the result of Holland’s petition would be the same regardless of whether

Stewart violated § 924(c). This is so because the Third Circuit generally will not

remand a matter if “any remand would be futile.”60 The fact that the Third Circuit

declined to adopt Holland’s arguments—arguments that would have been

dispositive of this case regardless of whether Stewart violated § 924(c)—and instead

remanded this matter for the Court to determine whether Stewart violated § 924(c),

supports the conclusion that the Third Circuit believed that the elements of aiding

and abetting were satisfied by Holland’s conduct.

Holland cites primarily to two cases in opposition to this conclusion.

However, both cases are inapposite. First, Holland cites to Abuelhawa v. United

58 Appellant’s Petition for Panel Rehearing at 1-2, Holland v. Warden Canaan USP, No. 19-1800

(3d Cir. June 28, 2021), ECF No. 78.

59 Holland v. Warden Canaan USP, No. 19-1800 (3d Cir. July 1, 2021).

60 United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020). See also CBS Corp. v. F.C.C., 663

F.3d 122, 170 (3d Cir. 2011) (“remand is not required where a proper application of the correct

States, wherein the Supreme Court held that “[w]here a transaction like a sale

necessarily presupposes two parties with specific roles . . . it would be odd to speak

of one party as facilitating the conduct of the other.”61 That opinion, however,

determined that an individual may not commit a felony through facilitating the

distribution of controlled substances merely by arranging to purchase those

controlled substances, and limited the Government from attempting to convert clear

misdemeanor conduct into a felony offense.62 Here, however, the § 924(c) offense

does not rely on a sale that presupposes two specific roles. Nothing about Stewart’s

role as a drug purchaser necessitated a violation of § 924(c), and nothing about

Holland’s role as the seller in that transaction required that he aid Stewart in violating

§ 924(c). It was their independent decision to involve a firearm in the transaction

that elevated the seriousness of the offense, and brought it outside the ambit of an

ordinary buyer-seller transaction.

Second, Holland cites United States v. Swiderski, a case that addressed the

question of “whether joint purchasers and possessors of a controlled substance, who

intend to share it between themselves as users, may be found guilty of the felony of

possession ‘with intent to distribute’ . . . as distinguished from simple possession in

violation of § 844, which is a misdemeanor.”63 The United States Court of Appeals

61 556 U.S. 816, 820 (2009).

62 Id. at 818.

for the Second Circuit answered in the negative, concluding that an “agent who

delivers to his principal performs a service in increasing the distribution of narcotics”

since, without “the agent’s services the principal might never come into possession

of the drug. Purchasers who simultaneously acquire a drug jointly for their own

purpose, however, do not perform any service as links in the chain; they are the

ultimate users.”64 To find that one person aided and abetted the other “would be to

write out of the Act the offense of simple possession, since under such a theory every

drug abuser would be liable for aiding and abetting the distribution which led to his

own possession.”65 Again, however, those circumstances are different from those

between Holland and Stewart. Stewart was actually committing a felony offense and,

by accepting a firearm from Stewart, Holland aided Stewart in committing a felony

§ 924(c) offense that was distinct from a simple drug transaction. This is markedly

different from two individuals who simply jointly purchase a controlled substance.

III. CONCLUSION

For the foregoing reasons, the Court concludes that Stewart committed a

felony when she possessed 3.5 grams of cocaine base and, accordingly, violated 18

U.S.C. § 924(c). The Court further concludes that Holland aided and abetted that

violation, and he has therefore failed to demonstrate that he is actually innocent of

64 Id. at 451.

65 Id.

his § 924(c) conviction. Consequently, the Court will deny Holland’s motion in

limine, and deny his § 2241 petition.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge