Petitioners Brief — Bousley v. United States

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> FILED

' NOV 12 1997

No. 96-8516 CLERK

In The

Supreme Court of the United States

October Term, 1997

KENNETH E. BOUSLEY,

Petitioner,

vs.

JOSEPH M. BROOKS, WARDEN,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

BRIEF FOR PETITIONER

L. MARSHALL SMITH

2473 West 7th Street,

Suite 307

St. Paul, MN 55116

(612) 646-6635

Counsel for Petitioner

QUESTIONS PRESENTED

1. Does this Court’s decision in Bailey v. United

States, apply retroactively, so that a defendant who pled

guilty to a charge of using a firearm in violation of 18

U.S.C. § 924(c) is entitled to collateral relief upon proof

that he was not told that the facts of his case do not

amount to “use” under § 924(c)?

2. Does a guilty plea waive the defendant's right to

attack his conviction, where a subsequent change in the

law makes the facts upon which the plea was based non-

criminal?

TABLE OF CONTENTS

QUESTIONS PRESENTED .......... 6... 066 e ee eues

TABLE OF CONTENTS........ 2.2.5... sceeuees

TABLE OF AUTHORITIES ............. 6.6 66000000

OPINION BELOW ..............cceececcceeeeeeenes

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STATUTES AND CONSTITUTIONAL PROVISIONS

DE Chseghbeedadcoedsecencccvccccessocees

I. THE INTERPRETATION OF § 924(c)

ANNOUNCED IN BAILEY v. UNITED STATES

SHOULD BE APPLIED TO AFFORD PETI-

TIONER COLLATERAL RELIEF FROM HIS

GE DME oc cnc cccseccdcsoccccecceccecces

A. HABEAS CORPUS IS THE PROPER PRO-

CEDURE TO LITIGATE PETITIONER’S

CLAIMS OF FACTUAL INNOCENCE AND

DENIAL OF HIS RIGHT TO BE INFORMED

OF THE NATURE OF THE CHARGES HE

B. BOUSLEY’S CLAIMS ARE PROPERLY

RAISED THROUGH HABEAS CORPUS,

FOR THEY ESTABLISH FUNDAMENTAL

FLAWS IN THE UNDERLYING FEDERAL

CRIMINAL PROCEEDINGS WHICH COM-

PLETELY UNDERMINE HIS JUDGMENT

OF CONVICTION AND THE SENTENCE

TABLE OF CONTENTS - Continued

Page

C. THE INTERPRETATION OF § 924(c)

ANNOUNCED IN BAILEY SHOULD BE

APPLIED TO ALL OF THE ISSUES IN THIS

CASE BECAUSE ANY OTHER RESULT

WOULD CONTRAVENE THE INTENT OF

Il. BOUSLEY’S GUILTY PLEA COULD NOT WAIVE

HIS RIGHT TO BE INFORMED OF THE

NATURE OF THE CHARGES HE FACED OR

CURE THE FUNDAMENTAL DEFECTS IN THE

PROCEEDINGS BY WHICH HE WAS CON-

A. A GUILTY PLEA DOES NOT “WAIVE”

FUNDAMENTAL DEFECTS IN PROCEED-

INGS WHICH APPEAR ON THE FACE OF

CE SEED oc cccccwectcccccececcccccccs

B. PETITIONER’S ATTACK ON HIS GUILTY

PLEA SHOULD NOT BE DEFAULTED,

BECAUSE IT IS BASED ON A FUNDAMEN-

TAL DEFECT IN THE PROCEEDINGS

WHICH APPEARS ON THE FACE OF THE

BEE on chee dn cuvecéddbiccavsvbenctovce

1. Procedural Default Has No Application

To Bousley’s Claims....................

2. Imposing Procedural Default in this Case

Would Defeat the Goal of Judicial Econ-

C. BOUSLEY IS ENTITLED TO RELIEF IN ANY

EVENT, BECAUSE HE HAS ESTABLISHED

“CAUSE,” “PREJUDICE,” AND A FUNDA-

MENTAL MISCARRIAGE OF JUSTICE.....

me STOTT TTT TTT Leet eeee

TABLE OF AUTHORITIES

Cases

Anders v. California, 386 U.S. 738 (1967)............ 33

Bailey v. United States, 116 S. Ct. 501 (1995).... passim

Blackledge v. Perry, 417 U.S. 21 (1974)... 11, 15, 16, 19

Borre v. United States, 940 F.2d 215 (CA7 1991)..... 25

Brady v. Maryland, 373 U.S. 83 (1963)............... 23

Callanan v. United States, 881 F.2d 229 (CA6 1989) .... 25

Davis v. United States, 411 U.S. 233 (1973)....... 11, 19

Davis v. United States, 417 U.S. 333 (1974)...15, 19, 25

Gerstein v. Pugh, 420 U.S. 103 (1975) ............... 14

Gray v. Netherland, 116 S. Ct. 2074 (1996) .......... 20

Henderson v. Morgan, 426 U.S. 637 (1976)........ 11, 16

Hill v. United States, 368 U.S. 424 (1962)............ 34

Johnson v. United States, 117 S. Ct. 1544 (1997)..... 33

Kyles v. Whitley, 514 U.S. 419 (1995)................ 23

Lomelo v. United States, 891 F.2d 1512 (CA11

WE es os vcccucqgbwtssccdbovbtdsdeksdenddpecccccce. 25

McCarthy v. United States, 394 U.S. 459 (1969)...... 31

McCleskey v. Zant, 499 U.S. 467 (1991).............. 20

McNally v. United States, 483 U.S. 350 (1987) ....... 25

Menna v. New York, 423 U.S. 61 (1975) .. 11, 16, 18, 19

Murray v. Carrier, 477 U.S. 478 (1986)... .12, 20, 33, 35, 36

TABLE OF AUTHORITIES - Continued

Page

Price v. United States, 959 F. Supp. 310 (E.D. Va.

DU cenbnabeschesccsnscncetevececcesesescccovece 24

Reed v. Ross, 468 U.S. 1 (1984) ..............005. 11, 35

Rivers v. Roadway Express, Inc., 511 U.S. 298

SPU Chncdecedendnedececadscocececcececcececccccs 23

Riverside v. McLaughlin, 500 U.S. 44 (1991)......... 14

Sawyer v. Whitley, 505 U.S. 333 (1992)... 11, 20, 21, 36

Schlup v. Delo, 513 U.S. 298 (1995) ...11, 12, 20, 21, 36

Stanback v. United States, 113 F.3d 651 (CA7 1997).... 24

Sunal v. Large, 332 U.S. 174 (1947)...............4.. 19

Teague v. Lane, 489 U.S. 288 (1989) .............. 25, 26

Triestman v. United States, 124 F.3d 361 (CA2

Ps noth ebb p Lia tdbce dds bes USCiee ctcvivece cee 24

United States v. Andrade, 83 F.2d 729 (CA5 1996) .... 24

United States v. Barnhardt, 93 F.3d 706 (CA10

and eedheeand Rida dees dak bner ounce 9, 24

United States v. Bousley, 97 F.3d 284 (CA8 1996). . . . passim

United States v. Brett, 872 F.2d 1365 (CA8), cert.

denied, 110 S. Ct. 322 (1989)............... 6, 7, 9, 32

United States v. Broce, 488 U.S. 563 (1989) ...16, 27, 28

United States v. Cota-Loaiza, 936 F. Supp. 751 (D.

i ci teddieis duane sehuademneeede sees ess 24

United States v. Cruz-Rojas, 101 F.3d 283 (CA2

ai sbddabidedhbadedehectudeocs bebe aneGes ov eex 24

United States v. Damico, 99 F.3d 1431 (CA7 1996) .... 24

TABLE OF AUTHORITIES - Continued

Page

United States v. Frady, 456 U.S. 152 (1982)....... 19, 31

United States v. Hayman, 342 U.S. 205 (1952) ....... 13

United States v. Horne, 4 F.3d 579 (CA8 1994) ....... 9

United States v. Johnson, 457 U.S. 537 (1982)........ 22

United States v. Mackey, 401 U.S. 667 (1971) ..... 13, 26

United States v. Matra, 831 F.2d 837 (CA8 1988)... .6, 7

United States v. McPhail, 112 F.3d 197 (CA5 1997) .... 24

United States v. Mims, 440 F.2d 643 (CA8 1971)..... 19

United States v. Mitchell, 104 F.3d 649 (CA4 1997) .... 24

United States v. Murphy, 899 F.2d 714 (CA8 1990) .... 19

United States v. Staples, 85 F.3d 461 (CA9 1996)..... 24

United States v. Timmreck, 441 U.S. 780 (1979)...... 30

United States v. Ulland, 638 F.2d 1150 (CA8 1981) .... 19

United States v. Wacker, 72 F.3d 1453 (CA10 1995) .... 24

United States v. Young, 927 F.2d 1060 (CA8 1991) .... 19

Wainwright v. Sykes, 433 U.S. 72 (1977)............. 31

STATUTES AND RULES

BD Dts WP GED ccc ccccceccccscccsccccccsesens passim

SD Diln WF ED 6 oc ccc ccccsccvvcceccveveesesacses 4, 6

BD Geis ED ccc ccccvcccedecccccescccdeccassace 1

BD Wee WF Me cc ccccccccsccccncnccccoveccosoet 7, 21

i ii vs drink dk ia dts cokcddo tn bee 20

vii

TABLE OF AUTHORITIES - Continued

Page

ar i 2, 7, 13, 15, 21

CONSTITUTIONAL PROVISIONS

United States Constitution, Article I, Section 9 ...... 18

United States Constitution, Amendment Five

anbseducddbahe sdbndiiekhanéadeed dbseeens és 1, 11, 16, 32

United States Constitution, Amendment Six

pede ehahAnenh sekeds 0bbbeeed sae keeadn 1, 11, 16, 31, 32

OPINION BELOW

The opinion of the Court of Appeals is reported at 97

F.2d 384 (1996) and reproduced in the Appendix. The

unreported Order of the District Court in No. 5-94-87,

May 18, 1995, from which the appeal was taken and the

Report and Recommendation which it adopted without

change, are reproduced in the Appendix.

JURISDICTION

The final judgment of the Court of Appeals for the

Eighth Circuit was entered December 18, 1996 when that

court denied Petitioner’s timely petition for rehearing

from its October 3, 1996 ruling.

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

Amendments to the United States Constitution.

Amendment V

No persor. . . . shall be compelled in any

criminal case to be a witness against himself,

nor be deprived of life, liberty, or property,

without due process of law... .

Amendment VI

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district

wherein the crime shall have been commit-

ted, . . . and to be informed of the nature and

cause of the accusation; to be confronted with

the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his

defense.

This case also involves the following statutes:

18 U.S.C. § 924(c)(1)

[W]Jhoever, during and in relation to any . . . drug traf-

ficking crime, . . . uses or carries a firearm is subject to

imprisonment for five years.

28 U.S.C. § 2255

A prisoner in custody under sentence of a court estab-

lished by Act of Congress claiming the right to be

released upon the ground that the sentence was imposed

in violation of the Constitution or laws of the United

States, or that the court was without jurisdiction to

impose such sentence, or that the sentence was in excess

of the maximum authorized by law, or is otherwise sub-

ject to collateral attack, may move the court which

imposed the sentence to vacate, set aside or correct the

sentence.

A motion for such relief may be made at any time.

If the court finds that the judgment was rendered without

jurisdiction, or that the sentence imposed was not autho-

rized by law or otherwise open to collateral attack, or that

there has been such a denial or infringement of the con-

stitutional rights of the prisoner as to render the judg-

ment vulnerable to collateral attack, the court shall vacate

and set the judgment aside and shall discharge the pris-

oner or resentence him or grant a new trial or correct the

sentence as may appear appropriate.

STATEMENT

On the afternoon of March 19, 1990, police officers

entered Petitioner Kenneth E. Bousley’s house through

the unlocked kitchen door to execute a search warrant.

Presentence Investigation Report (“PSI”) para 17, JA 37.

Police had obtained the warrant based on information

supplied by a confidential informant about meth-

amphetamine trafficking at that location, and about a

purchase that the informant had made there one or two

days earlier, PSI para 6-8, JA 34. There was no mention of

firearms in any of the information supplied by the

informant, PSI para 6-9, JA 34-35; Habeas Petition, Ex. D.

The officers arrested Bousley, who was watching tele-

vision in the bedroom. Bousley told the officers where to

find two small bags of methamphetamine in the bedroom,

and a coffee can in the garage which contained more

methamphetamine. He also told the officers about two

pistols that were stored in the bedroom, one in the head-

board of the bed, and another inside a closed, zippered

vinyl bag in the cabinet next to the bed, PSI para 8-9, 17

JA 34-35, 37.

Bousley gave the officers keys to the garage, where

officers found the coffee can and two coolers, each with a

briefcase containing a substantial amount of meth-

amphetamine, PSI para 7-8, JA 34. One of the coolers also

contained two loaded handguns and one unloaded hand-

gun.

Bousley was initially charged with possession of

methamphetamine with intent to distribute, in violation

of 21 U.S.C. § 841(a)(1). A superceding indictment added

the charge that Bousley “knowingly and intentionally

used the following firearms during and in relation to a

drug trafficking crime. . . . in violation of Title 18 United

States Code, Section 924(c),” JA 5. Bousley was not

charged with “carrying” a firearm.

Section 924(c)(1) mandates an additional term of

imprisonment for one who uses or carries a firearm “dur-

ing and in relation to any crime of violence or drug

trafficking crime . . . for which he may be prosecuted in a

court of the United States.” As defined in section

924(c)(2), a “drug trafficking crime” includes any felony

punishable under the Controlled Substances Act, 21

U.S.C. § 801, et seq.

Bousley entered an agreement to plead guilty to both

the drug and the firearm charges, JA 7. At the change of

plea hearing, the trial judge asked if Bousley understood

what he was charged with under Count II, the § 924(c)

charge. The following colloquy then occurred:

DEFENDANT BOUSLEY: Possession of a fire-

arm.

THE COURT: Okay. Now, it also charges you

with possessing the firearms during, in, and in

relation to a drug crime, the type of

crime that was referred to in Count I. Would

oS tee

you tell me what kind of weapons you had at

the time in question?

MR. PAULSEN [Assistant U.S. Attorney]: Are

you satisfied, Mr. Peterson [Bousley’s counsel],

that there’s a factual basis?

MR. PETERSON: I’m satisfied under the state

of the law in this Circuit that there is a factual

basis for Count II [the § 924(c) charge]. Hearing

Tr. 13, 15, JA 25, 27.

The pre-sentence report noted that two pistols had

been “found in the defendant’s bedroom near the 6.9

grams of methamphetamine,” and that “Three other fire-

arms were found in the two briefcases containing the

bulk of the methamphetamine,” PSI para 8, JA 34.

The PSI also recited a written statement Bousley had

supplied, which included the following:

15. “Offense — Possession of firearms.

16. “Explanation For Possession - I had the

guns for when I wasn’t home so Jessie

[Bousley’s live-in girlfriend] had protection

because she had been raped and we didn’t want

something like that to happen again because the

guy was never caught.” PSI para 15-16, JA 37.

The trial court adopted these statements in its Find-

ing of Facts, as part of its Sentencing Memorandum. JA

90.

In accordance with the plea agreement, the district

court held an evidentiary hearing to determine the

amount of methamphetamine for which Bousley should

be held accountable for sentencing purposes. Plea Agree-

ment 5, JA 8-10. Bousley had denied knowledge of the

contents of the coolers, and following the hearing, the

trial court rejected the government's position, and found

Bousley accountable for but two of the seven pounds of

methamphetamine found in the coolers and the bedroom.

Findings of Fact 3-4, JA 78-80.

The court sentenced Bousley to a term of seventy-

eight months for the section 841(a)(1) drug charge and to

the consecutive mandatory sixty-month sentence under

§ 924(c). Judgment 2, JA 82-84. He has now completed his

entire sentence on the drug charge.!

Bousley, represented by the same attorney who had

represented him before the district court, unsuccessfully

appealed his § 841(a)(1) conviction (United States v.

Bousley, 950 F.2d 727 (CA8 1991) (table). Not surprisingly,

his attorney refused to raise any issues relating to the

§ 924(c) count in the appeal. Instead, counsel sent Bousley

two letters explaining his reasoning and citing United

States v. Brett, 872 F.2d 1365, 1370-71 (CA8), cert. denied

110 S. Ct. 322 (1989), and United States v. Matra, 831 F.2d

837, 843 (CA8 1988) for the proposition, which was well

settled in the Eighth Circuit until Bailey v. United States,

1 Bousley had completed the 78 month sentence by June of

1996. As of November 6, 1997, he had finished an amount

equivalent to the 2-level enhancement which would have been

imposed on Count I for possession of firearms under the

Sentencing Guidelines. In view of the § 924(c) charge,

enhancement was not imposed to avoid double counting

firearms possession. PSI para 24, JA 40. Even if the firearms

enhancement were to be added on resentencing, therefore,

Bousley has completed his sentence on Count I.

116 S. Ct. 501 (1995), that the mere presence and ready

availability of a firearm at a location where drug dealing

takes place constitutes “use” of a gun under § 924(c). Pet.

Reply to Mot. Dismiss, JA 135-141.

On July 5, 1994, Petitioner filed a pro se petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2241, which

was treated by the district court as a motion to vacate

sentence under 28 U.S.C. § 2255. JA 104, 115-117. In his

Petition, Bousley alleged that there was insufficient evi-

dence to support his conviction under § 924(c), that his

plea of guilty to the § 924(c)charge was not supported by

an adequate factual basis, and that § 924(c) is unconstitu-

tionally vague. JA 105-109.

Bousley’s habeas petition pointed out that at the

hearing on his change of plea, the trial judge told him

that he was charged with “possessing firearms during, in,

and relation to a drug trafficking crime. . . . ” Change of

Plea Tr. at 13, JA 25. The full transcript of those proceed-

ings was attached as Exhibit B to the habeas petition.

Bousley also included his trial counsel’s letters about

§ 924(c) in his Reply to the government’s motion to

dismiss. JA 135-143.

The government filed a motion to dismiss, asserting

that Bousley had waived his right to challenge the factual

basis for his plea by failing to raise it on appeal, and

contending in any event that a sufficient factual basis for

the plea was shown. JA 120 et seq. Among the cases the

government’s brief relied upon were the same ones

Bousley’s counsel had cited to him, United States v. Brett,

872 F.2d 1365 (CA8 1989) and United States v. Matra, 831

F.2d 837 (CA8 1988). Memorandum In Support of Motion

to Dismiss 4, JA 124-126.

The Magistrate Judge recommended summary dis-

missal of the habeas petition. Among its findings were

the following:

It is also well-settled in this Circuit that, in order

to show that the Petitioner “used” the firearms

in relation to his drug-trafficking activities, the

Government need not prove that he was in

actual possession of the firearm, or that he bran-

dished or discharged it. [citations omitted.]

Instead the Jury need only find a sufficient

nexus between the gun and the drug trafficking

crime. Report and Recommendation 8. JA

150-151.

The district court adopted the magistrate judge’s Report

without change on May 18, 1995, JA 154, and Petitioner

appealed pro se to the Eighth Circuit.

On December 6, 1995, this Court decided Bailey v.

United States, 116 S. Ct. 501 (1995), holding that a viola-

tion of § 924(c)(1) “requires evidence sufficient to show

an active employment of the firearm by the defendant, a

use that makes the firearm an operative factor in relation

to the predicate offense.” 116 S. Ct. 501, 505. “Active

employment,” this Court specified, “certainly includes

brandishing, displaying, bartering, striking with, and

most obviously, firing or attempting to fire, a firearm.” Id.

at 508. However,

[a] defendant cannot be charged under

§ 924(c)(1) merely for storing a weapon near

drugs or drug proceeds. Storage of a firearm,

without its more active employment, is not rea-

sonably distinguishable from possession. Id.

Bailey thus represented a major departure from prior

case law interpreting § 924(c) in the Eighth Circuit and in

other circuits, all of which had interpreted “use” to

include the mere “presence and availability” of a firearm

in relation to a drug trafficking offense. Compare United

States v. Brett, 872 F.2d 1365 (CA8 1989) and United States

v. Horne, 4 F.3d 579, 587 (CA8 1994) with Bailey, 116 S. Ct.

501, 508.

Subsequently, the circuit court appointed present

counsel to represent Bousley, who filed supplemental

briefing arguing that Bailey required reversal of the dis-

trict court ruling. Appellant's Supplemental Brief 1-2. The

circuit court affirmed the district court in a published

opinion, United States v. Bousley, 97 F.3d 284 (CA8 1996),

which found that Bousley had “waived” his right to

attack his guilty plea. JA 159. The court of appeals held:

The [district] court also advised Bousley that a

guilty plea would foreclose an appeal of his

conviction, and Bousley indicated that he under-

stood this. Bousley was fully advised of his

rights and understood that he was waiving

those rights by pleading guilty. Because there is

no indication that Bousley’s plea was involun-

tary or uninformed, he has waived the right to

collateral review of his conviction. 97 F.3d at

288, JA 162.

The circuit court acknowledged that its holding was

directly contrary to United States v. Barnhardt, 93 F.3d 706

(CA10 1996). 97 F.3d at 288, JA 161 n.4. Bousley’s petition

for rehearing was denied on December 18, 1996.

The Petition for a Writ of Certiorari was filed on

March 18, 1997. The Government filed a Brief (“US Brief”)

stating that Bousley’s claims had been correctly “pro-

cedurally defaulted,” and concluding, without explana-

tion, that Bousley had “not demonstrated cause for his

procedural default.” However, the government did con-

fess error on the part of the circuit court:

The court of appeals erred by failing to consider

whether petitioner had made a sufficient show-

ing of actual innocence to warrant reaching the

merits of his constitutional claim, notwithstand-

ing his failure to show and [sic] cause and preju-

dice. US Brief 9-10.

The Government's brief suggested that the petition

for a writ of certiorari should be granted, the judgment of

the court of appeals vacated, and the case remanded “for

further proceedings to determine whether petitioner

should be excused from his inability to show cause and

prejudice for his failure to advance his constitutional

claim on direct review.” US Brief 12. This Court instead

granted Certiorari on September 29, 1997.

SUMMARY OF ARGUMENT

Petitioner’s plea of guilty to charges that he “used” a

firearm in violation of § 924(c) is invalid, because he was

told at his change of plea hearing that he was charged

with “possession” of firearms, and the facts show his

conduct did not amount to “use,” as that term is

explained in Bailey v. United States, 116 S. Ct. 501 (1995).

This materially inaccurate explanation of § 924(c) violated

Bousley’s Si th Amendment right to be informed of the

nature of the charges he faced. See Henderson v. Morgan,

426 U.S. 637 (1976). He is entitled to relief through habeas

corpus, because the fundamental defect that undermines

the reliability of his guilty plea is apparent on the record,

and because he has not previously had an opportunity to

fully litigate this claim, first because the tools necessary

to enable him to attack his guilty plea were not available

until Bailey was decided, long after the judgment in the

underlying proceeding was final; and second because the

materially inaccurate information about the nature of the

charges given him by trial court and his attorney kept

him unaware that his rights had been violated until after

he commenced these proceedings. Davis v. United States,

417 U.S. 333 (1974).

Petitioner’s right to assert these claims was not

“waived,” because neither he nor his counsel was obliged

to predict the Bailey decision, and the Fifth and Sixth

Amendment rights he relies upon are so fundamental that

their denial is inconsistent with the rudimentary

demands of fair procedure. Davis, 417 U.S. at 346-47;

Menna v. New York, 423 U.S. 61 (1975). Similarly, pro-

cedural default should have no application in this case,

because it represents Bousley’s first opportunity to fully

and fairly litigate the denial of these fundamental rights.

See Blackledge v. Perry, 417 U.S. 21 (1974). But even if these

claims are viewed as defaulted, the denial of his right to

be informed of the charges he faced and the newness of

the Bailey decision establish cause for the alleged default,

Reed v. Ross, 468 U.S. 1 (1984), and Bousley’s incarceration

for conduct that does not amount to a violation of § 924(c)

establishes prejudice. Sawyer v. Whitley, 505 U.S. 333

(1992); see also Schlup v. Delo, 513 U.S. 298, 319-320 (1995).

Finally, as an independent ground of relief despite a

finding of procedural default, Bousley has proved a fun-

damental miscarriage of justice, because he is incarcer-

ated for conduct that does not violate § 924(c), he

asserted his rights a soon as he reasonably could, and he

is, in fact, innocent of the charge upon which he is now

imprisoned. See Murray v. Carrier, 477 U.S. 478 (1986);

Schlup v. Delo, 513 U.S. 298 (1995).

ARGUMENT

THE INTERPRETATION OF § 924(c) ANNOUNCED IN

BAILEY v. UNITED STATES SHOULD BE APPLIED TO

AFFORD PETITIONER COLLATERAL RELIEF FROM

HIS GUILTY PLEA

In Bailey v. United States, 116 S. Ct. 501 (1995), this

Court rejected the argument that Congress intended by

its 1984 amendment to § 924(c) to expand the meaning of

“use” so as to swallow the “carry” prong of the statute,

Id. at 507-08. Instead, “use” retains its active employment

component, requiring proof of acts such as “brandishing,

displaying, bartering, striking with, and most obviously,

firing or attempting to fire, a firearm.” Id. at 508.

Among the acts specifically listed in Bailey as not

triggering § 924(c) are storage of a firearm without active

employment, and hiding a gun so it would be ready for

an imminent confrontation. Moreover, “[i]f the gun is not

disclosed or mentioned by the offender, it is not actively

employed, and it is not “ ‘used,’” Id. at 508-09.

In this case, the undisputed evidence adduced on the

trial record and in the presentence report shows that

Bousley’s conduct did not amount to “use” of a firearm

under § 924(c), and that his guilty plea to that charge was

entered at proceedings where the court told him he was

charged with “possessing firearms during, in and in rela-

tion to a drug trafficking crime.” Change of Plea Tr. 13, JA

25. It is clear, moreover, that Bousley had no means of

litigating claims based on the correct interpretation of

§ 924(c) until after the judgment in the underlying crimi-

nal case was final, for this Court did not decide Bailey

until long after that case was affirmed on appeal. His

attorney’s advice during the appeal process, that mere

presence and ready availability amounted to “use,” Pet.

Reply to Motion to Dismiss, JA 135-138, simply reflected

settled Eighth Circuit holdings which would have ren-

dered pointless an appeal on the grounds asserted in

Bousley’s present habeas corpus petition.

Bousley has shown that his guilty plea to the § 924(c)

charge cannot stand because the proceedings in which it

was entered were fundamentally flawed, and that there is

substantial evidence of his factual innocence. The ques-

tion before this Court is whether habeas corpus? is avail-

able to afford Bousley relief.

2 The proceedings in this case have been treated as a motion

“to vacate, set aside or correct the sentence” pursuant to 28 U.S.C.

§ 2255, although Bousley filed under 28 U.S.C. § 2241, Habeas

Petition 1, App. __. Numerous cases have acknowledged that

the procedures and remedies available under § 2255 are

identical to those afforded by traditional habeas corpus. See, e.g.

United States v. Hayman, 342 U.S. 205 (1952); see also United States

v. Mackey, 401 U.S. 667, 682 n. 1 (1971) (opinion concurring and

dissenting in part). For simplicity, therefore, this Brief refers to

A. HABEAS CORPUS IS THE PROPER PROCEDURE

TO LITIGATE PETITIONER’S CLAIMS OF FAC-

TUAL INNOCENCE AND DENIAL OF HIS RIGHT

TO BE INFORMED OF THE NATURE OF THE

CHARGES HE F4CED

The circuit court’s conclusion that Bousley could not

use the writ of habeas corpus to establish his factual

innocence and to show that he was never properly

informed of the charges against him in the underlying

criminal case, 97 F.3d at 287, is inconsistent both with the

long history of the Great Writ and with recent cases

explaining its proper use.

In this case, Bousley was charged with a crime, but

the information the court and his counsel gave him about

the nature of the accusation was so inaccurate that it

caused him to plead guilty when he was, in fact, inno-

cent. In today’s world, this is worse than supplying no

information at all about the charges, for it is a common-

place that habeas corpus will be available to protect per-

sons who are imprisoned without being told the “nature

and cause of the accusation” they face. Gerstein v. Pugh,

420 U.S. 103, 114 (1975); Riverside v. McLaughlin, 500 U.S.

44 (1991). Bousley, on the other hand, was detained,

deprived of accurate information about the reasons for

his imprisonment, and never afforded access to the true

nature of the charges against him until long after the

judgment in his criminal case was final. To fail to afford

him relief through a writ of habeas corpus is surely

the procedure as habeas corpus, encompassing the procedure in

all its forms, except where otherwise indicated.

inconsistent with the long history of the writ and the

rights it exists to vindicate.

More recent cases also support this argument. In

Davis v. United States, 417 U.S. 333, 346-47 (1974), for

example, this Court held that “law of the case” could not

foreclose a federal prisoner’s right to prove that his con-

viction and punishment were for conduct that is not

criminal under a new rule of substantive law.

The circuit court opinion refused to apply Davis,

because before the Ninth Circuit panel announced the

new ruling Davis relied upon in his subsequent § 2255

motion, he had unsuccessfully presented his claim on

direct appeal after a trial, 97 F.3d 284, 288 n.3, JA 161 n.3.

Davis, however, does not rest on this ground or even

address the issue of procedural default. The circuit court

does not explain its conclusion, and no other cases that

discuss Davis adopt this line of reasoning. This approach

irrationally denies relief to prisoners who failed to fore-

see Bailey, and it is wholly unsupported. Not surprisingly,

this view has been disclaimed by the government, US

Brief 7, 10-11.

Davis is far from the only case illustrating the role of

habeas corpus where there is a fundamental defect that

renders a prisoner’s confinement unlawful. In Menna v.

New York, 423 U.S. 61, 62 (1975), for example, habeas relief

was available to the petitioner because the face of the

indictment to which he had pleaded guilty showed that

his conviction violated the Double Jeopardy Clause. To

the same effect is Blackledge v. Perry, 417 U.S. 21 (1974),

where a defendant had been charged and convicted in

state court with the misdemeanor of assault with a deadly

weapon. When he appealed, pursuant to state procedure,

to obtain a trial de novo, he was charged with felony

assault. His guilty plea to the more serious charge was

not immune to collateral attack, because he was asserting

his right not to be haled into court at all. Id. at 30-31.

Even cases which deny collateral relief have

explained that in circumstances likes Bousley’s, habeas

relief is proper. For example, United States v. Broce, 488

U.S. 563 (1989) specifically reaffirms the holdings of

Menna and Blackledge, explaining that proceedings which

are, on their face, constitutionally defective, can be collat-

erally attacked. 488 U.S. at 576.

Here Bousley, who was told that he was charged with

“possession” of a gun, Change of Plea Tr. 13, JA 25, was

deprived of his Fifth and Sixth Amendment rights when

he was convicted under § 924(c) for acts that did not

amount to “use” of a gun. The defects appear on the face

of the record, so even though the avenue of direct appeal

has been foreclosed, collateral attack should be available

to address them.

A defendant's right to be informed of the charges he

faces has always been fundamental to Anglo-American

notions of due process and justice. See Henderson v. Mor-

gan, 426 U.S. 637, 645 (1976). This right is made explicit in

the Sixth Amendment:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been commit-

ted, .. . and to be informed of the nature and

cause of the accusation.

The framers of the Constitution realized, moreover,

that this right requires a process to vindicate it. And as

Hamilton pointed out in The Federalist, No. 84, the writ

of habeas corpus has always been viewed as the means of

redress for persons accused without proper notice or

opportunity to respond:

The observations of the judicious Blackstone, in

reference to the latter, are well worthy of recital:

“To bereaye a man of life, [says he,] or by vio-

lence to confiscate his estate, without accusation

or trial, would be so gross and notorious an act

of despotism, as must at once convey the alarm

of tyranny throughout the whole nation; but

confinement of the person, by secretly hurrying

him to jail, where his sufferings are unknown or

forgotten, is a less public, a less striking, and

therefore a more dangerous engine of arbitrary

government.” And as a remedy for this fatal evil

he is everywhere peculiarly emphatical in his

encomiums on the habeas corpus act, which in

one place he calls “the BULWARK of the British

Constitution.” Federalist, 84, 6 (Hamilton).

Long before our Constitution was adopted, British

subjects were jealous of their right to relief through the

Great Writ. Indeed, one of the primary complaints made

in the Petition of Right in 1628 was that prisoners were

being brought before the justices pursuant to writs of

habeas corpus, yet

no cause was certified, but that they were

detained by your Majesty’s special command,

signified by the lords of your Privy Council, and

yet were returned back to several prisons, with-

out being charged with anything to which they

might make answer according to the law. From

The Constitution Papers (Electronic edition) Elec.

Text Corp. (1987).

The importance of habeas corpus in our constitution

is shown in the Suspension Clause, U.S. Constitution,

Art. 1, section 9. And while Congress has enacted statutes

which regulate the Great Writ’s use and prescribe pro-

cedures by which it may be invoked, there is nothing in

either the Constitution or the legislation to weaken or

eliminate its historical purpose of affording prisoners a

means of challenging their confinement when there has

been a total miscarriage of justice or a fundamental defect

that goes to the heart of due process of law.

Bousley’s guilty plea was the result of such a funda-

mental defect, and his current imprisonment is a com-

plete miscarriage of justice. Menna v. New York, 423 U.S.

61 (1975) holds that a plea of guilty does not bar a claim

that the defendant’s conviction is unconstitutional “ ‘no

matter how validly his factual guilt is established’ ” if the

facts he pled guilty to are subsequently determined not to

be criminal. Id. at 62. Here, Bousley is entitled to habeas

relief, because the acts for which he is now imprisoned

did not violate § 924(c), his guilty plea rests on materially

inaccurate information about the charges he faced, and he

was never before afforded a meaningful opportunity to

litigate these claims.

B. BOUSLEY’S CLAIMS ARE PROPERLY RAISED

THROUGH HABEAS CORPUS, FOR THEY ESTAB-

LISH FUNDAMENTAL FLAWS IN THE UNDERLY-

ING FEDERAL CRIMINAL PROCEEDINGS

WHICH COMPLETELY UNDERMINE HIS JUDG-

MENT OF CONVICTION AND THE SENTENCE

HE IS NOW SERVING

Collateral attack of the kind Bousley now makes on

his judgment of conviction is, of course, not a substitute

for an appeal. See Sunal v. Large, 332 U.S. 174, 178 (1947).

There are claims which must be raised on direct appeal or

defaulted, such as erroneous jury instructions, United

States v. Frady, 456 U.S. 152, 167 (1982) and challenges to

jury selection methods, Davis v. United States, 411 U.S. 233

(1973). Such claims can be fully addressed within the

confines of the trial court record, and do not necessarily

implicate the fundamental validity of the proceedings, so

it makes sense for them to be raised and litigated on

direct appeal. Defendants who fail to raise them at the

first appropriate opportunity are defaulted, and must

establish cause and prejudice for their failure in order to

be heard on the merits of the defaulted claims. Frady, 456

U.S. at 167-68.

By contrast, claims which cannot be adequately liti-

gated on direct appeal because they require proof of facts

not on the trial record cannot be the subject of procedural

default when they are raised in a first collateral proceed-

ing. The Eighth Circuit approach is typical, requiring that

claims of a coerced guilty plea and claims of ineffective

assistance of counsel ordinarily not be raised on direct

appeal. See, e.g., United States v. Young, 927 F.2d 1060, 1061

(CA8 1991); United States v. Murphy, 899 F.2d 714, 716

(CA8 1990); United States v. Ulland, 638 F.2d 1150, 1150

(CA8 1981) (per curiam); United States v. Mims, 440 F.2d

643, 644 (CA8 1971) (per curiam).

Also appropriate for habeas corpus are claims that

arise from violations of fundamental rights, and which

appear on the face of the record, so that the reliability of

the outcome of the case is in question. The cases dis-

cussed at p. 15-16, above, including Menna v. New York,

423 U.S. 61 (1975), Blackledge v. Perry, 417 U.S. 21 (1974),

Davis v. United States, 417 U.S. 333 (1974) are examples.

Procedural default is not at issue in cases of this type,

because the defect in the judgment is apparent from the

record. To go through the rubric of a procedural default-

cause for default-prejudice analysis under these circum-

stances would be a wasteful exaltation of form over sub-

stance, since cause and prejudice are necessarily shown

where the proceedings contain the evidence of their own

fundamental invalidity. See the discussion at p. 35-36,

below.

In determining if Bousley’s claim is appropriately

raised for the first time on a collateral attack, it is impor-

tant to distinguish this case from those brought under

§ 2254 to attack state court judgments. Petitioners attack-

ing state court judgments are presumed to have had

access to courts fully competent to adjudicate all of their

claims, including those grounded in federal constitutional

law. Sawyer v. Whitley, 505 U.S. 333 (1992); see also Schlup

v. Delo, 513 U.S. 298, 319-320 (1995). Most states have

extraordinary writ procedures similar to federal habeas

corpus that, to some degree at least, permit state court

defendants to raise issues that are not cognizable on

direct appeal, including claims based on the federal con-

stitution. State courts are entitled to an opportunity to

vindicate the rights of criminal defendants originally

charged in state court, and to apply their own state

procedural and substantive rules, so long as no federal

constitutional principles are offended. Moreover, princi-

ples of comity require that federal courts pay due defer-

ence to state court proceedings. See, e.g. Murray v. Carrier,

477 U.S. 478 (1986); McCleskey v. Zant, 499 U.S. 467, 491

(1991).

_ -----—_

These familiar principles i!lustrate why procedural

default is at issue in virtually all federal court proceed-

ings where a state court criminal judgment is under col-

lateral attack. See Sawyer, 505 U.S. at 338-39.

Different considerations apply when a defendant

seeks collateral review of federal trial court proceedings,

although the fundamental goals of judicial efficiency and

repose also obtain. Where the judgment under attack is a

federal one, the extraordinary writs, including habeas

corpus under § 2241 and § 2255, provide a defendant a

first, and often only, opportunity to litigate issues which

either could not be addressed on direct appeal, or are so

fundamental that they inherently affect the validity of the

prior judgment.

Here, Bousley’s first real opportunity to show the

invalidity of his guilty plea has come in these habeas

proceedings, both because he was not aware of the true

nature of the § 924(c) charges and because the courts to

which he would have turned earlier would have sum-

marily rejected his claims. Habeas corpus, which this

Court has recognized as essentially an equitable remedy,

Schlup v. Delo, 513 U.S. 298, 319 (1995) must not be

denied, because no other remedy is available.

C. THE INTERPRETATION OF § 924(c) ANNOUNCED

IN BAILEY SHOULD BE APPLIED TO ALL OF THE

ISSUES IN THIS CASE BECAUSE ANY OTHER

RESULT WOULD CONTRAVENE THE INTENT OF

CONGRESS

The government has suggested that retroactivity is

not at issue in this case, US Brief at 11 n. 6, and the circuit

court acknowledged Bailey's applicability, 97 F.3d at 287.

However, the court below i*aplicitly applied the pre-Bai-

ley interpretation of § 924(c) to all of the issues it faced.

As a result, it wrongly rejected Bousley’s claim that his

guilty plea was involuntary, and found “procedural

default” despite the clear violation of Bousley’s right to

be informed of the nature of the charges he faced. Peti-

tioner respectfully suggests there should be a forthright

holding reaffirming United States v. Johnson, 457 U.S. 537,

550 (1982) and stating that § 924(c) must be applied,

without reservation, in accordance with Bailey.

The court of appeals’ failure to apply Bailey is most

apparent in its response to Bousley’s assertion that his

guilty plea was involuntary and that he was factually

innocent. The circuit court stated:

[T]here is no indication that Bousley’s plea was

involuntary or uninformed. . . . Bousley’s coun-

sel did recommend that Bousley not pursue an

appeal of his section 924(c) conviction, but that

recommendation was not unreasonable given coun-

sel’s understanding of this court's interpretation of

section 924(c) before Bailey. 97 F.3d at 28, JA 162.

[emphasis added.]

While this analysis correctly does not fault Bousley’s

trial counsel for his advice, its conclusion cannot be

squared with Bailey's interpretation of § 924(c). In particu-

lar, Bousley’s plea cannot be viewed as “informed,” when

his attorney and the trial court inaccurately told him that

he could be convicted merely for possession of guns in

proximity to the drugs in which he trafficked. Ch. of Plea

Tr. 13, JA 25. To be sure, trial counsel’s actions were

reasonable, but that is not the sole, or even the primary

factor determining whether Bousley was correctly

informed about the nature of the § 924(c) charges.

Just as a prosecutor’s good faith cannot excuse the

failure to disclose material exculpatory evidence, Kyles v.

Whitley, 514 U.S. 419 (1995) (citing Brady v. Maryland, 373

U.S. 83 (1963)), the reasonableness of Bousley’s trial coun-

sel’s actions do not make Bousley’s confinement lawful.

Instead, the inquiry should be whether the information

given to Bousley about the charges accurately reflected

§ 924(c) after Bailey. Similarly, it does not matter that the

trial judge acted in good faith when she inaccurately told

Bousley he was charged with possession of guns. To find

that Bousley’s guilty plea was “informed” and “coun-

seled” is to take the insupportable view that Congress

intended § 924(c) to have an elastic meaning which

changed on December 6, 1995.

Indeed, the appeals court's failure to apply Bailey to

the voluntariness issue ignores this Court’s analysis of

legislative intent. Bailey teaches that Congress always

intended to continue the requirement of active employ-

ment of a firearm. 116 S. Ct. 507-509. Thus, Congress

must have intended this result from and after 1984, the

last time it amended § 924(c). Had Congress intended to

change § 924(c) for a while, or to give it a different

meaning beginning December 6, 1995, it surely would

have said so. To impose a rule that punishes possession of

a weapon without active employment until December, 6,

1995 and thereafter punishes only active employment

would be judicial legislating of a most invidious sort. See

Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994).

The circuit court cites no authority for its failure to

apply Bailey to these issues, and the government seem-

ingly concedes the error, US Brief at 9. There is no reason

to apply § 924(c) inconsistently, as the court of appeals

did, by acknowledging Bailey and then failing to apply it

to the issues in the case. Bailey holds that the Government

and lower courts were wrong when they secured guilty

pleas from defendants who thought they could be con-

victed under § 924(c) for the mere presence and availabil-

ity of guns. Consequently, the circuit court’s observation

that Bailey's retroactive effect is a “distinct issue from

whether a defendant has waived the right to collateral

review by failing to preserve an issue on appeal,” 97 F.3d

at 288, is simply beside the point.

All the circuit courts which have considered the

effect of the ruling in Bailey have concluded that it applies

retroactively to cases on direct review. See United States v.

Cruz-Rojas, 101 F.3d 283 (CA2 1996); United States v. Mit-

chell, 104 F.3d 649 (CA4 1997); United States v. Andrade, 83

F.2d 729 (CA5 1996); United States v. Damico, 99 F.3d 1431

(CA7 1996); United States v. Staples, 85 F.3d 461 (CA9

1996); United States v. Wacker, 72 F.3d 1453 (CA10 1995).

Similarly, many cases have also applied Bailey to

provide relief on collateral review. See United States v.

Barnhardt, 93 F.3d 706 (CA10 1996); United States v. Cota-

Loaiza, 936 F. Supp. 751, 753-54 (D. Colo. 1996) (collecting

cases holding that Bailey applies retroactively); see also

Triestman v. United States, 124 F.3d 361 (2d Cir. 1997);

Stanback v. United States, 113 F.3d 651, 654 n.2 (CA7 1997);

United States v. McPhail, 112 F.3d 197, 199 (CA5 1997); but

see Price v. United States, 959 F. Supp. 310, 315 (E.D. Va.

1997).

Most of these cases have relied on Davis v. United

States, 417 U.S. 333, 346 (1974), where this Court held that

a petitioner collaterally attacking his conviction should

be given the benefit of case law decided after his convic-

tion when the conviction was “for an act that the law

does not make criminal.” As the discussion at p. 15-16

explains, Davis requires the same result here.

When a similar situation arose in the wake of

McNally v. United States, 483 U.S. 350 (1987) (mail fraud

statute does not reach acts done with intent to deprive

citizens of “honest government”), numerous cases

applied its holding retrospectively. See, e.g., Lomelo v.

United States, 891 F.2d 1512, 1515 (CA11 1990); Borre v.

United States, 940 F.2d 215 (CA7 1991); Callanan v. United

States, 881 F.2d 229 (CA6 1989).

Our research has found no cases which refused to apply

McNally to judgments that were final before it was

announced, although there are several lines of reasoning

used to support these outcomes. Some cases have relied on

that portion of Teague v. Lane, 489 U.S. 288 (1989) which

requires retroactive application of decisions that place certain

kinds of private conduct “ ‘beyond the power of the criminal

law-making authority to proscribe.’” Id. at 307; see, e.g.,

Lomelo, 891 F.2d at 1515. It would seem unnecessary, how-

ever, to rely on the Teague rationale, both because Teague

expressly limits itself to changes in constitutional rules of

criminal procedure, 489 U.S. at 299, and because the more

direct approach of looking to the intent of Congress, as

explained above, should control.

While Teague’s analysis of retrospective application is

not directly applicable here, its holding and Justice Har-

lan’s discussion of habeas jurisprudence in United States

v. Mackey, 401 U.S. 667, 675 (1971) (opinion concurring

and dissenting in part) upon which it is based point to

the same result Petitioner seeks here. Justice Harlan

argued in Mackey that new constitutional rules should

always be applied retroactively to cases on direct review,

but generally not to criminal cases on collateral review.

But even Justice Harlan’s general rule of non-retroactivity

makes an exception where the new rule makes “certain

kinds of conduct beyond the power of criminal law-

making authority to proscribe.” Justice Harlan reasoned

that their rulings ought to be available to collaterally

attack judgments that had become final before these new

rules were adopted. Mackey, 401 U.S. 667, 693.

Bousley’s situation here is similar, in that he seeks

relief from conviction for acts that never were defined as

criminal by § 924(c). Thus, although the Teague rationale

does not directly apply here, the rule Bousley espouses is

consistent with the reasoning in that case.

BOUSLEY’S GUILTY PLEA COULD NOT WAIVE HIS

RIGHT TO BE INFORMED OF THE NATURE OF THE

CHARGES HE FACED OR CURE THE FUNDAMEN-

TAL DEFECTS IN THE PROCEEDINGS BY WHICH HE

WAS CONVICTED

A. A GUILTY PLEA DOES NOT “WAIVE” FUNDA-

MENTAL DEFECTS IN PROCEEDINGS WHICH

APPEAR ON THE FACE OF THE RECORD

Bousley shows in his Petition for Writ of Habeas

Corpus that he was deprived of his right to be informed

of the charges against him in the trial court, and that this

deprivation continued right through the appellate pro-

cess. Change of Plea Tr. 13, JA 25. He also showed that the

undisputed facts regarding his arrest tend to establish his

factual innocence. PSI, para 6-9, JA 34-35; Habeas Petition

Ex. D. The Plea Agreement and the transcript of the

change of plea hearing show that Bousley’s Sixth Amend-

ment right to be informed of the nature of the charges he

faced was violated, because he was told that possession

of guns made him guilty of violating § 924(c). JA 25. The

testimony at that hearing, JA 25-28, the testimony at the

September 26, 1990 hearing on drug quantity accoun-

tability, JA 51-76, the trial court’s Sentencing Memoran-

dum, JA 90-92, and the Presentence Investigation Report,

JA 34-49, all show that Bousley was, in fact, innocent of

the § 924(c) charges. He argued these facts and claims

before the circuit court. App. Brief at 7, App. Supp. Brief

at 1-2. The government admits these facts, concedes error,

and suggests the judgment below be vacated, US Brief

8-9, 12, although it does not go so far as to admit the

constitutional violation. It is Bousley’s view, however,

that both the court of appeals and the government misap-

prehend the nature of his claims, the “waiver” issue, the

“procedural default” issue, and the rights he seeks to

assert in these proceedings.

The circuit court concluded that Bousley had

“waived” these rights by pleading guilty, citing United

States v. Broce, 488 U.S. 563 (1989), 97 F.3d at 287, JA 161.

However, a guilty plea cannot “waive” either a defen-

dant’s right to an accurate explanation of the charges he

faces, or the right to challenge the government's author-

ity to hale him into court, for a guilty plea must be based

on an accurate explanation of the law in order to be valid.

488 U.S. at 574-75. Far from supporting the court below,

therefore, Broce supports Petitioner, for it doesnot hold

that a defendant “waives” all his constitutional rights by

pleading guilty. Id. at 574. Indeed, to hold that a guilty

plea could waive one’s Sixth Amendment right to be

informed of the nature and cause of the charges he faces,

where the violation is shown on the trial court record,

would eviscerate the right. As the discussion at p. 16

above shows, Broce recognizes this and reaffirms the

cases which permit collateral attack. Where, as here, the

constitutional violation is clearly shown on the trial court

record, the defendant should be entitled, at a minimum,

to have his guilty plea set aside. And where, as here, the

record also establishes his factual innocence, he should be

entitled to have the charge dismissed.

B. PETITIONER’S ATTACK ON HIS GUILTY PLEA

SHOULD NOT BE DEFAULTED, BECAUSE IT IS

BASED ON A FUNDAMENTAL DEFECT IN THE

PROCEEDINGS WHICH APPEARS ON THE FACE

OF THE RECORD, AND WHICH BOUSLEY HAS

NEVER HAD A CHANCE TO LITIGATE

The court of appeals found that Bousley’s claims had

been procedurally defaulted because he “waived the right

to collateral review by failing to preserve [the] issue on

appeal,” 97 F.3d 284, 287 n. 2. The government assumes,

without discussion, that this ruling was correct, US Brief

at 9-10. However, Bousley’s claims are not the kind which

are subject to procedural default, and imposing “default”

would encourage piecemeal litigation and needless

relitigation of well-settled precedent.

1. Procedural Default Has No Application To

Bousley’s Claims

Procedural default is an affirmative defense that

must be asserted and established by the government. It

can be waived if not timely asserted, see Gray v. Nether-

land, 116 S. Ct. 2074, 2082 (1996), and its applicability

should not be presumed. However, procedural default

cannot be established merely by showing that some or all

of the facts upon which a collateral attack is based can be

found in the trial record. Instead, it must be shown that a

defendant already had a full and fair opportunity to

litigate the claim to be defaulted, with due regard for the

underlying goals of judicial economy and repose. More-

over, some rights are so fundamental that they can

always be vindicated through collateral attack when their

violation is evident from the record. Here, the claim of

procedural default must fail, because Bousley never

before had an opportunity to litigate the Sixth Amend-

ment violations he asserts in these proceedings, and the

violation of his right not to be haled into court appears on

the face of the trial record.

Bousley asserts that his guilty plea is invalid because

he was not properly advised of the nature of the § 924(c)

charges he faced and that he is factually innocent of those

charges. The government and the circuit court below

have assumed, without explanation or analysis, that

Bousley could have, and should have, asserted his claims

in the appeal from his sentence on the underlying drug

charges. 97 F.3d at 287; US Brief 9-10. But this assumption

is faulty, as a closer look at the nature of the prior

proceedings and the rights at issue in them shows.

Bousley’s direct appeal provided him with an oppor-

tunity to point out erroneous rulings made by the trial

court, and to litigate other issues fairly raised by the trial

record. Because Bousley could have questioned the pro-

priety of the change of plea proceedings under Fed. R.

Crim. P. 11, the court of appeals implicitly assumes that

these proceedings subsume all the constitutional protec-

tions to which Bousley was entitled in connection with

his guilty plea. If this were so, then Bousley’s failure to

assert a Rule 11 violation on appeal wouid cause the

default of the constitutional claims he raises in these

proceedings.

Such is not the case, however, for Rule 11 cannot

amend the Constitution, and following its processes does

not necessarily mean that a defendant has been properly

advised of the nature and cause of the accusation against

him, any more than a violation of Rule 11 necessarily

establishes a violation of a defendant's constitutional

rights, United States v. Timmreck, 441 U.S. 780, 783-784

(1979). Instead, Rule 11 only describes a process which is

aimed at assuring that defendants understand what they

give up by pleading guilty. Id. at 781-82. Rule 11 also has

another job, that of helping to assure finality after valid

guilty pleas are entered. Id. However, nothing in Rule 11

or the cases that apply it suggest that it can be used to

finesse away the defendant's right to be informed of the

charges he faces before entering a guilty plea.

Here, the Rule 11 procedure had exactly that effect,

for the trial judge unequivocally told Bousley he was

charged with “possession” of a firearm. Ch. of Plea Tr.

13-15, JA 25-27. This inaccurate information about the

elements of the § 924(c) charge was reinforced by

Bousley’s attorney, and nothing happened before the

appeal was final to cure the constitutional harm thus

caused. Under these circumstances, expecting Bousley to

have raised his Sixth Amendment claim on direct appeal

is even more unfair than requiring a defendant victimized

by ineffective assistance of counsel at trial to discover

and assert the claim on a direct appeal that is being

handled by the same trial counsel.

It is true that an appeal lies if the defendant is

prejudiced by an inadequate or erroneous set of admoni-

tions at the Rule 11 hearing. McCarthy v. United States, 394

U.S. 459, 466, (1969). But Bousley’s right to appeal was

meaningless, because the taint that afflicted his trial court

proceedings had not been removed by the time his direct

appeal became final. Indeed, it was not until this Court

decided Bailey that the wherewithal to relieve Bousley

from his Sixth Amendment deprivation became available.

The rule of procedural default is intended to encour-

age defendants to present issues for review in a timely

and orderly fashion, to foreclose relitigation of issues

already decided, and to discourage piecemeal litigation.

United States v. Frady, 456 U.S. 152 (1982); Wainwright v.

Sykes, 433 U.S. 72 (1977). At the same time, the rights of

defendants to relief from fundamental constitutional

deprivations must be respected. Bousley can hardly be

faulted for failing to tell the sentencing court that the

court was depriving him of his constitutional right to

accurate information about the charges he faced, for he

had no way of knowing that the court was giving him

inaccurate information. And, despite the government's

bald assumption to the contrary, nothing occurred

between the proceedings in the sentencing court and the

direct appeal to cure the constitutional deprivation

Bousley suffered as a result of the sentencing court's

misinformation. In fact, quite the opposite is true: his

attorney continued to advise Bousley wrongly on the

elements of § 924(c). His attorney’s advice that it was

futile to appeal from the guilty plea was correct, because

Eighth Circuit case law was so well established. Nev-

ertheless, this advice and the continuing vitality of cases

such as United States v. Brett, 872 F.2d 1365 (CA8 1989)

blocked Bousley’s understanding of the charges he faced

and the possible issues he could raise on appeal.

In sum, the Government's assertion of procedural

default fails, because Bousley has never before been

afforded a full and fair opportunity to litigate his Fifth

and Sixth Amendment rights to be informed of the nature

of the charges he faces before entering a plea.

2. Imposing Procedural Default in this Case

Would Defeat the Goal of Judicial Economy and

Encourage Piecemeal Litigation of Issues

Procedural default has no application to this case,

because habeas corpus is the proper procedure, indeed

the only available procedure, for Bousley to litigate his

constitutional claims. Moreover, the principles that lead

claims to be defaulted would be violated if Bousley were

held to have defaulted the constitutional claims he asserts

in his habeas petition.

The rule implicit in the circuit court’s holding in this

case promotes piecemeal litigation, and creates a class of

prisoners who are denied relief from their § 924(c) convic-

tions solely because they happened to have appealed on

other grounds before Bailey was decided. Moreover, the

circuit court’s ruling does not promote finality or judicial

economy, because it encourages appellate counsel to

repeatedly ask circuit courts to revisit well-settled issues

of statutory construction.

Procedural default is not imposed on petitioners sim-

ply as a means of foreclosing collateral attack. Instead,

petitioners are defaulted as part of an overall plan to

require defendants to present their claims to the first

available forum where the claims can be fully and fairly

litigated. See Murray v. Carrier, 477 U.S. 478 (1986). Peti-

tioners and their counsel who are aware of the risk of

procedural default will raise and argue on direct appeal

all claims which could potentially be defaulted. Appellate

counsel who know that collateral attack is available for

those claims which cannot be fully developed through the

facts on the record, or which are so fundamental that

their denial would invariably undermine the judgment,

do not needlessly raise partial shadows of such claims on

direct appes!. Under the circuit court’s ruling, however,

appellate counsel mindful of their duties as explained in

Anders v. California, 386 U.S. 738 (1967) would have to add

another category of issues to consider and raise in every

case: claims which could conceivably come up for collat-

eral review sometime in the future because of a possible

change in settled precedent. This Court has recently

rejected a similar proposed rule in connection with the

plain error exception for issues raised for the first time on

appeal. Johnson v. United States, 117 S. Ct. 1544 (1997).

Due process of law must mean more than just the

opportunity to raise objections. Fundamental defects in

proceedings which are “inconsistent with the rudimen-

tary demands of fair procedure,” Hill v. United States, 368

U.S. 424, 428 (1962), do not disappear just because they

are not raised at trial or on appeal. It is the courts’

responsibility to assure that these basic rules are fol-

lowed. Otherwise, defense counsel would be obliged to

submit a laundry list of demands that all constitutional

guarantees be observed at all times, and appellate coun-

sel would have to seek review of every well-settled cir-

cuit rule to avoid “default.”

Ironically, if counsel were to follow the approach

contemplated by the court of appeals, piecemeal litigation

of claims would be assured. This result follows because

Bousley’s claim is based on Bailey, which could not have

been raised on the direct appeal. And, having established

his right to relief by pointing to the trial record and the

materially inaccurate information about the § 924(c)

charges found there, a litigant likely would need to sup-

ply additional facts to support his claim of remedy. Thus,

the circuit court’s proposed rule would not only require

appellate courts to reconsider well-settled rules, it would

assure that courts would have to visit the same issues

twice in those rare instances where well-settled rules turn

out to be wrong. It is far more efficient to permit peti-

tioners like Bousley to assert their claims once and for all,

in habeas corpus proceedings.

C. BOUSLEY IS ENTITLED TO RELIEF IN ANY

EVENT, BECAUSE HE HAS ESTABLISHED

“CAUSE,” “PREJUDICE,” AND A FUNDAMENTAL

MISCARRIAGE OF JUSTICE

Thus far, the discussion has focused on the inap-

plicability of procedural default to this case. However,

even if Bousley’s claims were subject to procedural

default, he has established cause and prejudice. More-

over, he has also established the right to show a funda-

mental miscarriage of justice, as the government

concedes. US Brief 7, 10-11.

This Court has recognized that a defendant who fails

to raise a claim in earlier proceedings establishes “cause”

when he shows that his counsel’s advice was constitu-

tionally inadequate, or shows “that the factual or legal

basis for a claim was not reasonably available to coun-

sel, .. . or that some interference by officials . . . made

compliance impracticable.” Murray v. Carrier, 477 U.S.

478, 488, 492 (1986).

Here, Bousley has shown both that the legal basis for

his claim was not reasonably available to counsel and that

interference by officials — viz, the circuit and trial courts -

made it impracticable for Bousley to assert his claim

earlier. It is evident that, before Bailey, any attempt to

attack Bousley’s guilty plea would have been futile. See

Reed v. Ross, 468 U.S. 1 (1984). The trial court had rein-

forced trial counsel’s advice by calling the charge against

Bousley “possession” of a gun. Change of Plea Tr. 12-15,

JA 24-27. His counsel relied on settled Eighth Circuit law

in refusing to appeal his § 924(c) conviction, leaving

Bousley without a forum to present his claim.

The prejudice Bousley has suffered is apparent, for

he is now serving time in prison for acts that do not

amount to a violation of § 924(c). Murray v. Carrier, 477

U.S. 478 (1986); Sawyer v. Whitley, 505 U.S. 333 (1992).

Finally, for the reasons stated by the government in

its Brief (at 9), Bousley has, at a minimum, established a

fundamental miscarriage of justice because he is factually

innocent. Even if cause and prejudice could not be

shown, Bousley would be entitled to a hearing on his

claim because he has established that he is factually inno-

cent of the § 924(c) charge. See Schlup v. Delo, 513 U.S. 298

(1995). Having shown that no one could be convicted for

the things he has done, Bousley’s situation is substan-

tially similar to the “prototypical example of ‘actual inno-

cence’; i.e., where the wrong person was convicted,” as

explained in Sawyer v. Whitley, 505 U.S. 333, 340 (1992).

CONCLUSION

For the reasons stated above, Petitioner respectfully

requests that the judgment of the Eighth Circuit Court of

Appeals be reversed, and that the case be remanded with

directions to reverse the judgment of the district court

dismissing Bousley’s Petition for Writ of Habeas Corpus,

and to order that the district court enter a new and

different order and judgment setting aside Bousley’s plea

of guilty on Count II of the indictment which charged

violation of § 924(c), and dismissing Count II with preju-

dice.

Respectfully submitted,

L. MARSHALL SmiTH

2473 West 7th Street, Suite 307

St. Paul, MN 55116

(612) 646-6635

Counsel for Petitioner

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